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| Author (last name) | Year | Title | Author(s) | Citation | Abstract |
|---|---|---|---|---|---|
| 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 (http://ssrn.com/abstract=952726) proposed a new explanation for these unexpectedly high levels of agreement. Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of those views, to which this Article replies. The reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment. |
| 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 (www.NeuLaw.org), which brings together a unique collaboration of neurobiologists, legal scholars, and policy makers, with the goal of building modern, evidence-based policy. |
| 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 Amazon.com's book section for the word neuroscience yields more than 13,000 entries. A similar search of NPR's Internet archives shows more than 3,300 stories on the workings of the brain. Every week, magazine covers from such prominent journals as The New York Times Book Review, The Economist, Science News, and Newsweek display elegant and colorful chromatographic pictures of human brains. The stories within offer neuroscientific explanations for everything from why your teenage son is so moody to why humans are predisposed to believe in a supreme being to why people feel pain in phantom limbs. Neuroscience has attracted fans from far outside the scientific community and from vastly divergent areas of life. David Brooks, the popular conservative columnist for The New York Times, has recently written The Social Animal, a book that details his belief that the study of the brain is the next significant frontier in intellectual and political development. The Dalai Lama has coauthored several works discussing his understanding of how meditative practice changes brain development and how tapping into the power of the brain holds the greatest promise to create lasting peace. Neuroscience has, it seems, attracted both the left and right. Neuroscience has become ubiquitous. But why now? |
| 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. Theres 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 limited to “those who suffer from a volitional impairment rendering them dangerous beyond their control.” 2 The *348 proposed statute seeks to do nothing more, but instead of relying upon expert testimony or actuarial assessments, it relies upon those aspects of neuroscience that can arguably predict whether a person is likely to engage in further violent acts. It is worth noting that, in both Professor Erickson's and Goldberg's outstanding articles, they spend the majority of their discussion criticizing neuroscience generally, without an accompanying analysis of the proposed statute, which is designed to address precisely the types of concerns that they raise. This response will address the arguments set forth by Professor Erickson, followed by those contained in Professor Goldberg's article. |
| Law | 2011 | Cherry-Picking Memories: Why Neuroimaging-Based Lie Detection Requires a New Framework for the Admissibility of Scientific Evidence Under FRE 702 and Daubert | J.R.H. Law | 14 Yale J. L. & Tech. 1 | Neuroimaging techniques have been in heavy rotation in the news lately. Increasingly, companies have used neuroimaging techniques--specifically, functional magnetic resonance imaging (fMRI)--in an attempt to determine whether an individual is telling a falsehood. More troublingly, these companies have proffered factual conclusions for use in jury trials. This Article discusses the capabilities and limitations of the technique. In doing so, the Article also discusses why the technology will require the federal judiciary to reevaluate its current interpretation of Federal Rule of Evidence 702 and the Daubert doctrine for admitting novel sources of scientific evidence. |
| Lerner | 2011 | Juvenile Criminal Responsibility: Can Malice Supply the Want of Years? | Craig S. Lerner | 86 Tul. L. Rev. 309 | Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. This Article argues that embedded in the Court's holding is a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides--both this assumption and this claim are demonstrably false in a nontrivial number of cases. This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that there are violent juvenile offenders--fortunately rare--who are at least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, in many instances, marked skepticism. The Supreme Court's general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court's central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one's own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions. |
| MacIver | 2011 | Suicide Causation Experts in Teen Wrongful Death Claims: Will They Assist The Trier of Fact? | Andrea MacIver | 45 J. Marshall L. Rev. 51 | . |
| Rosato | 2011 | What are the Implications of Roper's Dilemma for Adolescent Health Law? | Jennifer Rosato | 20 J.L. & Pol'y 167 | This Essay addresses how this literature should inform the law relating to health care decisions that need to be made by or for adolescents--from birth control to refusal of life-sustaining *170 treatment. [FN12] Recent cases integrating the neuroscience literature, primarily in the criminal law context, have embraced the view of 20 JLPOLY 167 Page 1 20 J.L. & Pol'y 167 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. adolescents as vulnerable, incapable of considering long-term consequences, and in need of protection. [FN13] This view creates a dilemma for those policymakers and advocates, like myself, who consider adolescents mature or “adult-like” outside of the context of these criminal law cases. This dilemma is not simply an abstract one. It may affect adolescents' ability to participate in decisions as important as whether they should be able to get the Human Papillomavirus (“HPV”) vaccine; [FN14] decline genetic testing for late-onset diseases; [FN15] obtain treatment for mental *171 health problems; [FN16] consent to participation in research trials; [FN17] or elect treatment to change gender identity. [FN18] This Essay grapples with this problem in the context of health care decision making by adolescents and concludes that core values underlying public policies, not science, ultimately will help resolve this dilemma. [FN19] First, the Essay summarizes the existing law related to health care decision making, which (with few exceptions) considers the adolescent as a child, incapable of making these decisions on his or her own. Second, the Essay discusses what effect the neuroscience literature should have on the development of this area of law. Third, the Essay advocates for the adoption of a “contextual capacity” determination, which would allow some mature minors to make health care decisions in areas justified by compelling public policies. These policies will allow a more principled and nuanced doctrine to develop that respects the capacity and dignity of these minors as science continues to “inform,” but not “dictate,” public policy in this area. [ |
| Kostiuk | 2012 | After GINA, NINA? Neuroscience-Based Discrimination in the Workplace | Stephanie A. Kostiuk | 65 Vand. L. Rev. 933 | The article discusses neuroscience-based discrimination in the U.S. workplace as of April 2012 in the aftermath of the Human Genome Project and U.S. President George W. Bush's signing of the Genetic Information Nondiscrimination Act (GINA) in May 2008. As the field of neuroscience continues to grow, a proposed legislative bill entitled the Neuro Information Nondiscrimination Act (NINA) is mentioned as a potential deterrent to employers who wish to obtain genetic information from employees. |
| Hamilton | 2012 | Democratic Inclusion, Cognitive Development, and the Age of Electoral Majority | Vivian Eulalia Hamilton | 77 Brook. L. Rev. 1447 | The age of electoral majority has declined over time and across the globe. At the beginning of the twentieth century, the average voting age worldwide was just under twenty-four; today, it is just over seventeen. More than a dozen nations have recently lowered local, state, or national voting ages to sixteen. Others, including Australia and the U.K., are seriously considering doing the same. Yet the United States, which holds itself out as a beacon of democratic participation, is not currently considering the electoral inclusion of some cohort of its younger citizens. For a number of compelling reasons, it should be. Classic democratic theory describes the decision making of the ideal citizen-voter as both well-informed and rational. The decision making of the actual citizen-voter, however, is often neither. For reasons detailed in this article, I argue for a conception of electoral competence (1) informed by behavioral decision theory and studies of voter decision making; and (2) characterized by the reliable attainment of the relevant cognitive processes (cognition/learning, information processing, and decision making) and maturity of judgment. Converging research from several disciplines within the developmental sciences has established a reliable connection between age range and the attainment of certain cognitive competencies. Research in developmental psychology and cognitive and social neuroscience explains that/why adolescents make notoriously bad decisions under certain conditions. It also explains that by mid-adolescence, when making unpressured, considered decisions — like those required to privately cast a ballot in an election that has unfolded over time — their cognitive competencies are mature. States can thus no longer justify the electoral exclusion of mid-adolescents by claiming that they lack the relevant competencies. Absent other legitimate bases for their exclusion, I argue that the democratic presumption of inclusion obliges the states to adjust downward the age of electoral majority. |
| Kmiec | 2012 | Engaging Human Nature in Support of Judicial Engagement | Douglas W. Kmiec | 19 Geo. Mason L. Rev. 989 | . |
| Denno | 2009 | Behavioral Genetics Evidence in Criminal Cases: 1994-2007 | Deborah W. Denno | The Impact of Behavioral Sciences on Criminal Law (Oxford University Press, Nita A. Farahany, ed., 2009). | In 1994, convicted murderer Stephen Mobley spurred an international debate on the political and scientific acceptance of behavioral genetics evidence in the criminal law when he fought to be tested for genetic deficiencies in an effort to appeal his death sentence. Such legal-scientific disputes are even more relevant today, given the relative upswing in the use of genetics evidence in criminal cases. This upswing also prompts a key question: How have courts and litigators treated behavioral genetics evidence in criminal cases since Mobley's 1994 appeal? Much of the controversy concerning Mobley was based on the presumption that behavioral genetics evidence would skyrocket in use and abuse. This chapter seeks to determine if such forecasts have been realized by analyzing forty eight criminal cases that relied on behavioral genetics evidence from 1994 to June 1, 2007. These cases share several important characteristics: they overwhelmingly constitute murder convictions in which defendants attempted to use genetics evidence as a mitigating factor in a death penalty case (as Mobley did), and the evidence is introduced mostly to verify a condition (such as a type of mental illness) that is commonly acceptable for mitigation. Indeed, the overview suggests that, contrary to some commentators' warnings, the post-Mobley years have not revealed a legally irresponsible application of behavioral genetics factors in criminal cases. Rather, most courts continue to regard behavioral genetics variables skeptically, and society still embraces the same political and moral concerns over the role of such information. At the same time, courts have failed to provide sound and conceptually consistent reasons either for denying defendants' offers of behavioral genetics evidence or for viewing such evidence in the worst light for defendants. For example, some courts have regarded a defendant's family history of behavioral disorder to be indicative of that defendant's potential for future dangerousness or misguided attempt to sidestep responsibility for violence. These kinds of judicial reactions suggest that at least some of the legal strategies using behavioral genetics evidence are without question a double-edged sword for defendants. Unwarranted constraints or stereotypical perspectives on the admissibility of behavioral genetics factors in death penalty cases can undercut some defendants' efforts to fight their executions through the use of traditional mitigating evidence. As a result, the criminal justice system may be undermining the very principles and progressive thinking the cap on behavioral genetics information was originally intended to achieve. |
| Denno | 2011 | Courts' Increasing Consideration of Behavioral Genetics Evidence in Criminal Cases: Results of a Longitudinal Study | Deborah W. Denno | Mich. St. L. Rev. 967 | This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. Results suggest that not only is much of the controversy surrounding behavioral genetics and crime unwarranted, the use of such evidence has been misunderstood. Within the last four years, for example, behavioral genetics evidence has appeared to have been applied almost exclusively as mitigating evidence in death penalty cases and primarily in two ways to support claims of ineffective assistance of counsel for neglecting such evidence or to provide proof and diagnosis of a defendant’s mitigating condition. Strikingly, this study found no case during 2007-2011 in which behavioral genetics factors were introduced by the State, much less used as aggravating evidence or as indications that a defendant would be a future danger to others. These findings debunk arguments that such evidence will be legally detrimental to a defendant. Indeed, in most cases, the evidence is so tightly intertwined with other factors in a defendant’s life that the particular impact of behavioral genetics can be difficult to isolate. This study’s results suggest that, at the very least, behavioral genetics evidence has no decipherable impact on a defendant’s case or, at most, it becomes an effective tool along with a range of other kinds of variables in rendering a defendant ineligible for the death penalty. Courts appear willing to accept behavioral genetics evidence as part of a defendant’s mitigation story, even if genetics renders that story a more troubling one in terms of the defendant’s purported propensities. The last four years also showed a number of break-a-way trends from earlier years. For example, there were substantially more cases that incorporated behavioral genetics evidence of any kind. In addition, there was a clear increase in the number of cases in which defendants submitted proof of a genetic propensity for alcoholism and/or substance abuse. Overall, this article’s research shows that courts accept behavioral genetics evidence in the majority of cases in which defense attorneys attempt to offer it. The coming years will reveal whether such trends will be affected by Cullen v. Pinholster, the Supreme Court’s recent decision restricting prisoners’ efforts to seek federal habeas relief under AEDPA. Regardless, behavioral genetics evidence seems, on the surface, to have reached a status commensurate with other kinds of evidence without the baggage of abuse with which it has typically been associated. |
| Farah | 2012 | Neuroethics: The Ethical, Legal, and Societal Impact of Neuroscience | Martha Farah | 63 Annu. Rev. Psychol. 571 | Advances in cognitive, affective, and social neuroscience raise a host of new questions concerning the ways in which neuroscience can and should be used. These advances also challenge our intuitions about the nature of humans as moral and spiritual beings. Neuroethics is the new field that grapples with these issues. The present article surveys a number of applications of neuroscience to such diverse arenas as marketing, criminal justice, the military, and worker productivity. The ethical, legal, and societal effects of these applications are discussed. Less practical, but perhaps ultimately more consequential, is the impact of neuroscience on our worldview and our understanding of the human person. |
| Stern | 2012 | The Heart of Mens Rea and the Insanity of Psychopaths | Craig A. Stern | Working Paper | Psychopaths are mentally ill — insane — but as a rule have no insanity defense against criminal liability. This article explains why. The explanation hinges upon the doctrine of mens rea, the criminal mind necessary for criminal liability. The insanity defense is an excuse, an affirmative defense for those with mens rea enough to be guilty. But the defense should take its essential purpose and shape from the doctrine of mens rea. This relation between mens rea and the excuse of insanity is why a defendant insane as a matter of mental health may not be insane as a matter of criminal law. Only an insanity that calls into question the usual workings of the doctrine of mens rea should excuse from criminal liability. If psychopathy is not such an insanity, it should not excuse. Similarly, though philosophers may argue that psychopathy supplies an excuse from moral fault, the criminal law may have no qualms about punishing psychopaths if the doctrine of mens rea controls the insanity defense. The doctrine of mens rea may well entail an insanity defense far narrower than that entailed by general philosophical notions of human responsibility. This article explores the relation between mens rea, the insanity defense, and psychopathy. Part I describes psychopathy. Part II examines the doctrine of mens rea. Part III shows how the doctrine of mens rea entails an insanity defense. Part IV explains why such an insanity defense leaves psychopaths unexcused. In Part V the article briefly concludes. |
| Nadel | 2012 | Memory and Law | Lynn Nadel & Walter Sinnott-Armstrong | Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds. | The legal system depends upon memory function in a number of critical ways, including the memories of victims, the memories of individuals who witness crimes or other critical events, the memories of investigators, lawyers, and judges engaged in the legal process, and the memories of jurors. How well memory works, how accurate it is, how it is affected by various aspects of the criminal justice system -- these are all important questions. But there are others as well: Can we tell when someone is reporting an accurate memory? Can we distinguish a true memory from a false one? Can memories be selectively enhanced, or erased? Are memories altered by emotion, by stress, by drugs? These questions and more are addressed by Memory and Law, which aims to present the current state of knowledge among cognitive and neural scientists about memory as applied to the law. |
| Morse | 2011 | The status of NeuroLaw: A plea for current modesty and future cautious optimism | Stephen J. Morse | Journal of Psychiatry & Law 39 | Legislators, jurists, and advocates often turn to science to solve complicated normative problems addressed by the law. This article addresses what motivates these parties, surveys the psychology of law and its concepts of the person and responsibility, and describes the general relation of neuroscience to law in terms of the issue of "translation." Numerous distractions have clouded our understanding of the relationship between scientific, causal accounts of behavior and responsibility. The notion of "NeuroLaw" is examined here in detail, with the conclusion that a cautious optimism regarding the contributions of neuroscience to the law is warranted. |
| Jones | 2012 | The End of (Discussing) Free Will | Owen D. Jones | The Chronicle of Higher Education, in "Is Free Will an Illusion?" | People are caused, their decisions are constrained, and will is not free. We need to accept this and adapt. How will insights from the brain sciences affect the ways we assess a person's responsibility for bad behavior? Answer: only somewhat, but sometimes significantly. |
| Yamada | 2012 | Neural circuits in the brain that are activated when mitigating criminal sentences | Makiko Yamada, Colin F. Camerer, Saori Fujie, Motoichiro Kato, Tetsuya Matsuda, Harumasa Takano, Hiroshi Ito, Tetsuya Suhara, and Hidehiko Takahashi | 3 Nat Commun. 759 | In sentencing guilty defendants, jurors and judges weigh 'mitigating circumstances', which create sympathy for a defendant. Here we use functional magnetic resonance imaging to measure neural activity in ordinary citizens who are potential jurors, as they decide on mitigation of punishment for murder. We found that sympathy activated regions associated with mentalising and moral conflict (dorsomedial prefrontal cortex, precuneus and temporo-parietal junction). Sentencing also activated precuneus and anterior cingulate cortex, suggesting that mitigation is based on negative affective responses to murder, sympathy for mitigating circumstances and cognitive control to choose numerical punishments. Individual differences on the inclination to mitigate, the sentence reduction per unit of judged sympathy, correlated with activity in the right middle insula, an area known to represent interoception of visceral states. These results could help the legal system understand how potential jurors actually decide, and contribute to growing knowledge about whether emotion and cognition are integrated sensibly in difficult judgments. |
| Pustilnik | 2013 | Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law | Amanda C. Pustilnik | The Constitution and the Future of the Criminal Law, John Parry & Song Richardson, eds. Cambridge University Press, 2013 Forthcoming | The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure under the Fourth Amendment of the United States Constitution. Law enforcement use of these technologies will not just require extending existing constitutional doctrine to cover new facts but will challenge these doctrines’ foundations. This short chapter discusses cognitive privacy and liberty under the Fourth and Fifth Amendments, showing how current jurisprudence under both amendments stumbles on limited and limiting distinctions between the body and the mind, the physical and the informational. Brain processes and emanations sit at the juncture of these categories. This chapter proposes a way to transcend these limitations while remaining faithful to precedent, extending these important constitutional protections into a new era of direct access to the brain/mind. |
| Mackintosh | 2011 | Brain Waves 4: Neuroscience and the Law | Nicholas Mackintosh, Alan Baddeley, Roger Brownsword, Lisa Claydon, John Harris, Geraint Rees, Nikolas Rose, Sir Michael Rutter, Wolf Singer | The Royal Society | Neuroscientists seek to determine how brain function affects behaviour, and the law is concerned with regulating behaviour. It is therefore likely that developments in neuroscience will increasingly be brought to bear on the law. This report sets out some of the areas where neuroscience might be of relevance, along with some of the limits to its application. Specific issues discussed include risk assessment in probation and parole decisions; detecting deception; assessing memory; understanding pain; and Non-Accidental Head Injury NAHI). |
| Tesler | 2011 | Neuro-Literacy for Collaborative (and Other) Lawyers | Pauline H. Tesler | 4 NYSBA New York Dispute Resolution Lawyer 3 | . |
| National Juvenile Justice Network | 2012 | Using Adolescent Brain Research to Inform Policy: A Guide for Juvenile Justice Advocates | National Juvenile Justice Network | National Juvenile Justice Network (last updated Sept. 27, 2012) | Research has revealed profound differences in the way that adolescents and adults use their brains. Much has been made of this research in policy arenas on behalf of youth in the justice system; however, its use raises questions about respect for our youth allies and implications for alternate policy agendas. This paper, recently updated, explores the key issues and makes recommendations. |
| Lamparello | 2011 | Neuroscience, Brain Damage, and the Criminal Defendant: Who Does It Help and Where in the Criminal Proceeding is It Most Relevant? | Adam Lamparello | 39 Rutgers L. Rec. 161 | Individuals with brain injuries such as frontal lobe disorder may be legally responsible, but they are less culpable and less blameworthy. For these individuals, a different type of sentence, namely, one that utilizes some retributive principles but also contains rehabilitative and utilitarian aspects, is appropriate. This approach is consistent with the goals of individualized sentencing and accurately reflects what neuroscience is telling us about the brain and human conduct. |
| Aspinwall | 2012 | The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges' Sentencing of Psychopaths? | Lisa G. Aspinwall, Teneille R. Brown, James Tabery | 337 Science 6096 | We tested whether expert testimony concerning a biomechanism of psychopathy increases or decreases punishment. In a nationwide experiment, U.S. state trial judges (N 181) read a hypothetical case (based on an actual case) where the convict was diagnosed with psychopathy. Evidence presented at sentencing in support of a biomechanical cause of the convict's psychopathy significantly reduced the extent to which psychopathy was rated as aggravating and significantly reduced sentencing (from 13.93 years to 12.83 years). Content analysis of judges' reasoning indicated that even though the majority of judges listed aggravating factors (86.7%), the biomechanical evidence increased the proportion of judges listing mitigating factors (from 29.7 to 47.8%). Our results contribute to the literature on how biological explanations of behavior figure into theories of culpability and punishment. |
| Sherwin | 2012 | Visual Jurisprudence | Richard K. Sherwin | 57 N.Y.L. Sch. L. Rev. 11 | Lawyers, judges, and jurors face a vast array of visual evidence and visual argument inside the contemporary courtroom. From videos documenting crimes and accidents to computer displays of their digital simulation, increasingly, the search for fact-based justice is becoming an offshoot of visual meaning making. But when law migrates to the screen it lives there as other images do, motivating belief and judgment on the basis of visual delight and unconscious fantasies and desires as well as actualities. Law as image also shares broader cultural anxieties concerning not only the truth of the image, but also the mimetic capacity itself, the human ability to represent reality. What is real, and what is simulation? This is the hallmark of the baroque, when dreams fold into dreams – or should we say the digital baroque, when images on the screen immerse us in a seemingly endless matrix of digital appearances. Under current cultural conditions, jurists need training in visual literacy. That is what the theory and practice of visual jurisprudence aim to provide. |
| Denno | 2003 | A Mind to Blame: New Views on Involuntary Acts | Deborah W. Denno | 21 Behavioral Sciences and the Law 601 | This article examines the legal implications linked to recent scientific research on human consciousness. The article contends that groundbreaking revelations about consciousness expose the frailties of the criminal law's traditional dual dichotomies of conscious versus unconscious thought processes and voluntary versus involuntary acts. These binary doctrines have no valid scientific foundation and clash with other key criminal law defenses, primarily insanity. As a result, courts may adjudicate like individuals very differently based upon their (often unclear) understanding of these doctrines and the science that underlies them. This article proposes a compromise approach by recommending that the criminal concept of voluntariness consist of three parts: (1) voluntary acts, (2) involuntary acts, and (3) semi-voluntary acts. The semi-voluntary acts category, which is new, incorporates modern ideas of consciousness and also advances the law. Using some actual criminal cases, this article applies this new three-part grouping and demonstrates how it enhances a more just outcome for defendants, victims, and society. |
| Hurd | 2012 | Reaching Past Fingertips with Forensic Neuroimaging—Non-"Testimonial" Evidence Exceeding the Fifth Amendment's Grasp | Aaron J. Hurd | 58 LOY. L. REV. 213 | . |
| Wood | 2012 | Cruel and Unusual Punishment: Confining Juveniles with Adults after Graham and Miller | Andrea Wood | 15 IUS Gentium 49 | Thousands of juveniles are currently confined with adults in detention and correctional facilities throughout the United States. Juveniles confined in adult facilities face grave dangers to their safety and well-being, including significantly higher rates of physical assault, sexual abuse, and suicide than their counterparts in juvenile facilities. These dangers and other conditions of juvenile confinement with adults give rise to concerns of constitutional dimension. In its Eighth Amendment jurisprudence, the United States Supreme Court has created categorical rules prohibiting the imposition of certain punishments on entire categories of offenders as cruel and unusual punishment. The Court’s 2010 decision in Graham v. Florida, in which it held that a sentence of life in prison without the possibility of parole violates the Eighth Amendment when applied to juveniles convicted of nonhomicide offenses, and its 2012 decision in Miller v. Alabama, in which it held that mandatory life-without-parole sentencing schemes violate the Eighth Amendment when applied to juveniles, open the door to challenge the constitutionality of the confinement of juveniles with adults. |
| Rushing | 2012 | PET and SPECT | Susan E. Rushing | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Positron emission tomography (PET) and single photon emission computed tomography (SPECT or SPET) are nuclear medicine techniques that use energy emitted during the radioactive decay of unstable isotopes to produce tomographic (i.e. three-dimensional) images. Imaging of the brain is the most common forensic application of PET and SPECT, though a forensic practitioner could encounter nuclear medicine evidence related to other anatomical areas. The blood flow and structural data provided by PET or SPECT partially overlaps other neuroimaging techniques, such as functional and structural magnetic resonance imaging (MRI) and computed tomography (CT). Other PET and SPECT data, such as regional glucose metabolism and receptor occupancy, are unique to nuclear medicine and complementary to the radiofrequency (fMRI) and X-ray based (CT) neuroimaging techniques. This chapter reviews the basic methodology of PET and SPECT in the context of forensic practice and research. |
| Bigler | 2012 | MRI and Functional MRI | Erin D. Bigler | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Neuroimaging provides objective information about brain structure and function. In neurological and neuropsychiatric disorders computed tomography (CT) and magnetic resonance imaging (MRI) are the standards. The basics of CT and MRI are reviewed, with an emphasis on MRI, including quantitative methods used to assess the integrity of brain structure. MRI methods to assess the brain's connectivity using diffusion tensor imaging (DTI) are covered along with functional neuroimaging methods, in particular functional MRI (fMRI). |
| Granacher | 2012 | Traumatic Brain Injury | Robert P. Granacher, Jr. | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | It is not possible to provide a comprehensive forensic neuropsychiatric or psychiatric assessment of a person following traumatic brain injury without also including within the examination, at a minimum, structural brain imaging. Functional brain imaging may be useful in special circumstances but it is never the modality of first choice following traumatic brain injury (TBI). TBI follows a classic neurochemical cascade, which often results in structural and anatomical changes to brain tissue. These changes can be detected with neuroimaging using computed tomography, magnetic resonance imaging, single photon emission computed tomography, positron emission tomography, and magnetic resonance spectroscopy. The use of neuroimaging in forensic psychiatric cases of traumatic brain injury requires knowledge of the medical-legal distinctions between their uses in the clinic versus introduction of neuroimaging to a judge or jury. The American College of Radiology guidelines for uses of neuroimaging in subacute and chronic traumatic brain injury assessments by a psychiatrist are emphasized. |
| Lamar | 2012 | Dementia | Melissa Lamar | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Dementia is a devastating condition with increasing prevalence. It has a dramatic impact on the family of the patient as well as on society as a whole. For example, in the United States, the direct and indirect healthcare costs for Alzheimer's disease, the most common type of dementia, are greater than the costs associated with stroke, heart disease and cancer combined. Impairments in cognition, judgment and impulse control due to dementia often lead to the need for forensic evaluation in civil or criminal proceedings, such as assessments of decision-making capacities, competence to stand trial, or criminal responsibility. As our understanding of the pathophysiology of the dementias increases, structural and functional neuroimaging modalities, including new techniques for mapping white matter pathways, will play an increasingly important role in the forensic evaluation of individuals with dementia. |
| Glenn | 2012 | Neuroimaging in Psychopathy and Antisocial Personality Disorder: Functional Significance and a Neurodevelopmental Hypothesis | Andrea L. Glenn | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | With the increase in brain imaging research over the past decade, evidence has accumulated supporting a plausible relationship between brain impairments and antisocial behavior and psychopathic traits. The neurophysiologic basis of antisocial behavior is complex – many structures have been implicated, each of which may be related to antisocial behavior and psychopathy in different ways. In this chapter we will review the neuroimaging evidence and describe how it may relate to key processes such as moral judgment that, when disrupted, may contribute to antisocial behavior. We will also review evidence that suggests that brain impairments in antisocial individuals are likely neurodevelopmental in nature. Finally, we will discuss some key methodological concerns, as well as the implications of neuroimaging findings and directions for future research. |
| Wiebking | 2012 | Pedophilia | Christine Wiebking | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Sexual abuse of children is an important societal problem: up to 20% of children have been approached by an adult in a sexual context or have been victims of sexual abuse. Approximately half of sex offenses against children are perpetrated by individuals with a diagnosis of pedophilia. The identification, management and treatment of sexual offenders with pedophilia are key tasks in forensic psychiatry. Pedophilia can be divided into several subtypes, based on factors such as the age of the preferred target. Recent research has begun to elucidate possible psychological and neurobiological mechanisms underlying pedophilia. Neuroimaging studies have identified abnormalities in the emotional processing of sexual stimuli in pedophilic offenders. In the future, findings such as these may assist forensic psychiatrists in classifying sexual offenders, and perhaps in developing therapeutic interventions and assessing treatment response. |
| Camchong | 2012 | Imaging Psychoses: Diagnosis and Prediction of Violence | Jasmin Camchong & Angus W. MacDonald III | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | The main purpose of this chapter is to address the issue of whether neuroimaging techniques can or should have a role in the diagnosis or classification of mental diseases such as schizophrenia for forensic purposes. We will first review the concept of schizophrenia by describing several aspects of the illness that are increasingly well established. We will then shift our focus to what has been discovered about schizophrenia using neuroimaging methodologies to examine patients' brain structure, the connectivity of their neurons, as well as functioning under a number of different circumstances. Because of its forensic relevance, we also address schizophrenia's comorbidity with violence and substance use. Lastly, we review the potential for using neuroimaging as a diagnostic tool to classify individuals both before and after illness onset. One key observation within this chapter is that classification algorithms may benefit further from several modes of brain imaging techniques (e.g. combinations of structural, functional and connectivity markers); these algorithms may be further aided by behavioral measures, such as those assessed by neuropsychological tasks. While there are still several pending issues that need to be addressed, findings reported in this chapter suggest that there is potential for neuroimaging to become a standard component of the approach to confirming a diagnosis of schizophrenia. Perhaps in time it will be useful for distinguishing schizophrenia patients from patients with related disorders, and/or guiding treatment recommendations. |
| Savitz | 2012 | Neuroimaging in Affective Disorders: Applications in Clinical Research and Forensic Psychiatry | Jonathan B. Savitz | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | The majority of mental health professionals believe that mood disorders have physiological causes and manifestations. Many people outside the field, however, still subscribe to the belief that depression is a purely “psychological” phenomenon. This view can be seen in, for example, disability insurance policies that limit or exclude coverage for “mental” illness. There is a growing body of neurobiological evidence for metabolic, structural, and neurochemical differences in mood disorders. However, using such biological markers to diagnose the individual patient remains problematic. The clinical and technological obstacles to applying neuroimaging to diagnosis are numerous, but recent findings suggest that using neuroimaging for diagnostic purposes and prediction of treatment response may be feasible in the near future. Neuroimaging studies of mood disorders have already been introduced in legal cases, with varying results. Attempts to use neuroimaging in civil and criminal litigation relating to depression and bipolar disorder are likely to increase in the future. |
| Kolla | 2012 | Application of Neuroimaging in Relationship to Competence to Stand Trial and Insanity | Nathan J. Kolla & Jonathan D. Brodie | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Two of the most common and important questions addressed by forensic psychiatrists working in the criminal court system are competence to stand trial (present mental capacity) and legal insanity (mental state at the time of the crime). Neuroimaging studies of criminal defendants have been used to assist in answering these questions with increasing frequency over the last two decades. It is critical for forensic practitioners to appreciate the numerous potential obstacles to the productive use of neuroimaging techniques with respect to questions of competency and sanity. Perhaps most problematic is the attempt to infer a capacity for moral deliberation – or lack thereof – from an imaging study performed months or years after a criminal offense. Despite such concerns, an increase in the use of neuroimaging at various stages of criminal proceedings can be anticipated in the future. |
| Edersheim | 2012 | Neuroimaging, Diminished Capacity and Mitigation | Judith G. Edersheim | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | A large and growing body of neuroscientific research links brain dysfunction, particularly in the prefrontal cortex, with impulsive aggression and violence. Evidence for impaired brain function can be used to challenge the mens rea (state of mind) element of a criminal offense, as well as to argue that the offender is less responsible for his or her actions due to diminished capacity to form a specific mental state. In capital crimes, a wide range of evidence can be introduced in mitigation, arguing for a sentence less than death. However, defense attorneys in capital cases must weigh their options carefully, as evidence of future dangerousness may be considered a factor in aggravation. As the scientific understanding of the neurobiology of brain maturation, impulse control and decision-making grows, neuroimaging evidence is being introduced with ever greater frequency in the most serious criminal cases in an effort to reduce culpability and the severity of punishment. |
| Witzel | 2012 | Implications of Neuroimaging for Dangerousness Assessment | Joachim Witzel | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Individuals found not criminally responsible due to a mental disorder are typically placed in forensic psychiatric hospitals. These institutions provide psychiatric treatment in the hope of eventually reintegrating their patients back into society. Critical to this effort are the development of effective therapeutic modalities, as well as reliable methods to estimate the potential risk a patient may pose if released from the secure hospital setting. Neuroimaging techniques show great promise to inform both of these endeavors. Because of the high rate of structural and functional abnormalities in forensic psychiatric patients and mentally ill prisoners, neuroimaging should become part of the routine assessment of mentally ill criminal defendants and patients remanded to forensic hospitals. |
| Granacher | 2012 | Potential Uses of Neuroimaging in Personal Injury Civil Cases | Robert P. Granacher, Jr. | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Forensic psychiatric neuroimaging has numerous potential applications to personal injury civil cases. Physical injuries to the brain, or brain-based diseases, that result in forensic examinations of civil claims include: (1) Workers' Compensation cases; (2) disability cases for Social Security Disability or commercial disability insurance; (3) fitness-for-duty or readiness-to-work examinations; (4) examinations for fitness-for-duty specific to police and firefighters; and (5) personal injury litigation cases such as medical negligence producing brain injury or brain injury from exposure to toxic substances. Magnetic resonance imaging, and to a lesser degree, computed tomography play substantial roles in the forensic psychiatric analysis of such cases. Functional neuroimaging plays a limited role in the forensic evaluation of personal injury civil cases. |
| Langleben | 2012 | Brain Imaging of Deception | Daniel D. Langleben | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Determining truth is an essential part of many human interactions and endeavors. Unfortunately, lying and deception are common in society, and generally difficult to identify. A scientific, objective means of distinguishing truth from lies would have profound implications for the legal system as well as for society as a whole. The traditional polygraph is fraught with problems, and is typically excluded from court proceedings. In the last decade, researchers have developed functional magnetic resonance imaging techniques that suggest the possibility of accurately identifying the neural activation patterns associated with lying. However, at present many questions about the feasibility of these techniques for real-world use remain, and it would be premature to allow their use in court. |
| van Hooff | 2012 | Identifying Memories and Their Use in Interrogations | Johanna C. van Hooff | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | This chapter evaluates the extent to which brain imaging techniques can be used to determine whether an individual remembers or recognizes specific information. Although linked with deception detection, the main focus is on memory detection with reference to interrogation cases and assessment of feigned amnesia. Existing studies are reviewed to show progress and status of laboratory research in this field. The emphasis is on event-related potential (ERP) research that has used the old/new effect and the P300 response to demonstrate concealed recognition of previously presented information. Practical problems and challenges are discussed next, referring in particular to (a) generalization of results, (b) optimizing retrieval and encoding conditions, and (c) individual assessment protocols. Suggestions for future research are given, as existing results are promising though not yet sufficient to warrant forensic or clinical application of a brain imaging-based memory assessment procedure. |
| Nugent | 2012 | Practical Legal Concerns | Kristen M. Nugent | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Forensic neuroimaging evidence is subject to various federal and state rules of evidence and procedure and precedential case law, which will affect the strategic approach of counsel in civil and criminal trials. This chapter addresses practical, legal, and evidentiary concerns associated with physical evidence and expert testimony, as related particularly to the admissibility of forensic neuroimaging examinations in American courts. These practical considerations include (1) demonstrating validity and reliability of scientific expert witness testimony under Federal Rule of Evidence 702 and the Daubert and Frye standards; (2) the Rule 403 balancing test between probative value and unfair prejudice that trial judges undertake to determine whether proffered forensic neuroimaging evidence is admissible; and (3) restrictions relating to character evidence, relevance, and expert opinion on ultimate issues of fact. The implications of neuroimaging-based lie detection technology on traditional eyewitness testimony, ineffective assistance of counsel claims, and the importance of thorough cross-examination also are discussed. |
| Nugent | 2012 | Neuroimaging and the Constitution | Kristen M. Nugent | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | This chapter examines how U.S. constitutional history and Supreme Court precedent influence the use of forensic neuroimaging techniques during criminal investigations, involuntary civil psychiatric commitment proceedings, and criminal trials. Defense counsel's right to proffer neuroimaging evidence is strongest when the defendant's fundamental rights are implicated: for example, in establishing competency to stand trial or to waive certain rights sufficient to comport with Due Process, or in capital sentencing determinations as a mitigating factor pursuant to the Eighth Amendment. In contrast, states are under no constitutional mandate to provide for an insanity defense or to allow neuroimaging evidence for the purpose of negating mens rea during the case-in-chief. The Fifth Amendment privilege against self-incrimination and the Fourth Amendment privilege against unreasonable searches may constrain government investigators and prosecutors from compelling unwilling suspects to submit to examinations as forensic neuroimaging technology further improves and becomes more widespread. |
| Reagu | 2012 | Practical Legal Concerns: The England and Wales Context | Shuja M. Reagu & Pamela J. Taylor | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Despite the lack of clinical applications of neuroimaging in psychiatry, attempts have been made to introduce neuroimaging data in court proceedings. In the United Kingdom, reform efforts are underway to more precisely define standards of admissibility for scientific evidence in general. The Daubert criteria used in many American jurisdictions have been proposed as a model for these standards. There is also a move towards training lawyers and judges specifically in matters of science and technology for the purpose of making sure that admitted scientific evidence is relevant, non-prejudicial and probative. Recent research suggests that neuroimaging may be of value in identifying abnormalities associated with violent behavior in psychotic disorders and antisocial personality disorder. However, it would be premature to allow such findings to be used in court. |
| Ford | 2012 | Neuroethics of Functional Neuroimaging in the Courtroom | Elizabeth Ford & Neil Aggarwal | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | This chapter reviews ethical debates regarding the use of neuroimaging in the courtroom. First, a definition of neuroethics and brief historical outline are offered for context. Next, neuroethical concerns around the quality of scientific standards in neuroimaging are explored in depth. Debates for and against the use of unproven technology are presented, especially concerning the application of functional imaging for lie detection. The uncertainty of expert witness qualifications and the social meanings of the images, with their potential to sway jurors, healthcare professionals, and insurance companies, also introduce new ethical dilemmas as mental disorders increasingly become physically characterized through evolving technologies. Privacy, informed consent, the prediction of future dangerousness, and prejudice on the basis of positive findings are some of the neuroethical issues confronting the scanned subject. The chapter offers recommendations before closing with a real case example that illustrates some of these principles at play. |
| Morse | 2012 | Neuroimaging Evidence in Law: A Plea for Modesty and Relevance | Stephen J. Morse | Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) | Introduction; The current use of neuroimaging data; Scientific limitations; Relevance: translating neuroimaging into legally relevant evidence; Illustrative cases; Conclusion; References |
| Moore | 2014 | The Neuroscience of Volitional Incapacity | Michael S. Moore | Law and Neuroscience (Oxford U. Press, Dennis Patterson, ed., 2014) | . |
| Moore | 2013 | The Can't/Won't Distinction: Making Sense of Volitional Excuse | Michael S. Moore | Crime, Punishment, and Responsibility: The Legal Philosophy of Antony Duff (Oxford U. Press, Rowan Cruft and Sandra Marshall, eds., 2013) | . |
| Hughes | 2011 | The Empathic Divide in Capital Trials: Possibilities for Social Neuroscientific Research | Emily Hughes | 2011 Mich. St. L. Rev. 541 | The article discusses empathic divide, a psychological barrier that hampers capital jurors in making genuine decision because of unawareness of the social history of the capital defendant. It discusses the relevance of mitigations investigation by defense attorneys in the case of capital punishment to an individual. It also discusses lawyers can better understand the empathic divide between capital jurors and capital defendants through social neuroscientific research. |
| Brown | 2011 | The Affective Blindness of Evidence Law | Teneille R. Brown | 89 Denv. U. L. Rev. 47 | Many evidentiary rules and practices reveal a folk psychological view of emotion, placing it at odds with reason. In order to make the point that this false dichotomy is simultaneously reflected in our evidence law and also empirically wrong, I will address how emotion is treated in (a) the use of limiting instructions, (b) the exclusion of prejudicial evidence, (c) credibility assessments, (d) sentencing and damages instructions, (e) instructions related to the “heat of passion” theory of voluntary manslaughter, and (f) the excited utterance hearsay exception. In each case I will demonstrate that while the text of the rules may be benign, the way they are interpreted reflects confusion over the role played by both subtle and intense emotion. |
| Pokempner | 2012 | The Legal Significance of Adolescent Development on the Right to Counsel: Establishing the Constitutional Right to Counsel for Teens in Child Welfare Matters and Assuring a Meaningful Right to Counsel in Delinquency Matters | Jennifer K. Pokempner, Riya Saha Shah, Mark F. Houldin, Michael J. Dale, Robert G. Schwartz | 47 Harv. C.R.-C.L. L. Rev. 529 | In this Article, we address how that developmental analysis should affect youths' rights to counsel. We argue that the Supreme Court's recent jurisprudence supports finding a constitutional right to counsel for teens in child welfare matters. We also argue that the same jurisprudence requires that the constitutional right to counsel already provided in juvenile delinquency matters under Gault include a prohibition of waiver of counsel by youth. Part I will describe the essential characteristics of adolescents as explained by developmental research and how science should inform the right to counsel in the child welfare and juvenile justice contexts. Furthermore, we address how this science has already influenced jurisprudence on youth issues. Part II argues for an adolescent's constitutional right to counsel in child welfare proceedings using jurisprudential and social science developments to revisit that traditional Mathews v. Eldridge procedural due process analysis. This constitutional right rests on theories of attachment and bonding, the unique aspects of youth, as well as the distinct characteristics of state action that removes youth from their homes and separates them from their parents to place them in substitute care. A youth's physical liberty interest, as well as her interest in family integrity and privacy, are at stake at every level of these proceedings. This Part argues that given the fundamental interests at stake in these proceedings, increasing the level of due process protections afforded to an adolescent by providing counsel is necessary to ensure more accurate fact-finding as well as full consideration of the voice of the youth. |
| Keller | 2012 | Constitutional Sentences for Juveniles Convicted of Felony Murder in the Wake of Roper, Graham & J.D.B. | Emily C. Keller | 11 Conn. Pub. Int. L.J. 297 | This Article analyzes the constitutionality of imposing life without parole, as well as and harsh mandatory sentences, on juveniles convicted of felony murder. This Article argues that juvenile life without parole sentences are unconstitutional for felony murder offenses in light of recent Supreme Court precedent. Additionally, this Article argues that any mandatory sentence for a juvenile convicted of felony murder is inconsistent with precedent. The Article briefly explains the history of the felony murder doctrine and its modern day rationales. The Article discusses the recent U.S. Supreme Court cases highlighting the differences between youth and adults. The Article analyzes the constitutionality of imposing juvenile life without parole sentences on juveniles convicted of felony murder, including an analysis of Supreme Court precedent, the rationales underlying felony murder as applied to juveniles, and the penological purposes of a life without parole sentence for a juvenile convicted of felony murder. Finally, the Article separately assesses the constitutionality of mandatory sentences—both life without parole sentences and mandatory term-of-years sentences—when imposed on juveniles convicted of felony murder. A Postscript addresses the impact of the Miller v. Alabama Supreme Court ruling on the arguments made in the Article. |
| Boundy | 2012 | The Government Can Read Your Mind: Can the Constitution Stop It? | Mara Boundy | 63 Hastings L.J. 1627 | Functional Magnetic Resonance Imaging (“fMRI”) technology produces a fourdimensional map of brain activity, such as perception, memory, emotion, and movement. fMRI scans track the flow of blood to the various regions of the brain in real time and reveal the subject’s response to particular stimulus. For example, an fMRI scan might reveal blood flow to a subject’s memory center in response to a picture of the house in which she was raised. On the one hand, this technology seems to produce a model of a physical attribute and offer insight into the workings of the human brain. On the other, fMRI scans seem to read our minds and disclose our thoughts. The full range of applications of fMRI technology is just emerging, but proponents have already sought its admission in court as a type of lie detector or credibility builder. If fMRI scans are incorporated into the government’s investigatory process, constitutional safeguards should be in place to protect the fundamental right of privacy and an individual’s freedom to decide whether to assist the state. This Note proposes that the results of fMRI scans are testimonial evidence: first, because the scans reveal the subject’s knowledge or beliefs, and second, because this classification ensures that fMRI scan results are afforded the protection of the Fifth Amendment. If fMRI scans are privileged under the Fifth Amendment, the government cannot compel an individual to submit to the scan and reveal the contents of her mind. |
| Weithorn | 2012 | Developmental Neuroscience, Children's Relationships With Primary Caregivers, and Child Protection Policy Reform | Lois A. Weithorn | 63 Hastings L.J. 1487 | Empirical research has confirmed that the harms of child maltreatment can affect almost every area of an individual’s functioning and can reverberate across relationships, generations, and communities. Most recently, investigators at the U.S. Centers for Disease Control have called for policymakers to prioritize prevention and amelioration of child maltreatment in a manner consistent with its approach to other major public health problems. This Article—an outgrowth of a panel on Relationships with Caregivers and Children’s Neurobiological Development, which took place at a recent symposium, Law and Policy of the Developing Brain, co-sponsored by the University of California’s Hastings College of the Law and Stanford Law School—addresses some of the potential policy applications of research on the neurobiology of attachment, maltreatment, and trauma, with particular attention to the government’s articulated mission of safeguarding children’s welfare. Part I of this Article address the state’s relationship with children and families, and the law’s recognition of the centrality of children’s primary caregivers—typically their parents—to children’s well-being. Part II critiques certain aspects of our legal system’s predominant response to child maltreatment. Part III reviews recent research on the effects of child maltreatment, with special attention to developmental neurobiological findings. Part IV addresses some implications of these findings for child protection policy and sets forth recommendations that are consistent with the empirical research and responsive to the critiques set forth in Part II. |
| Luna | 2012 | The Relevance of Immaturities in the Juvenile Brain to Culpability and Rehabilitation | Beatriz Luna | 63 Hastings L.J. 1469 | The overreaching aim of this Article is to describe how developmental cognitive neuroscience can inform juvenile law. Fundamental to culpability and responsibility is the ability to effectively execute voluntary executive behavior. Executive function, including cognitive control and working memory, has a protracted development with key aspects continuing to mature through adolescence. These limitations in executive control are due in great part to still maturing brain processes. Gray and white matter changes are still becoming established in adolescence, enhancing efficiency and the speed of brain processing supporting executive control. Dopamine, a neurotransmitter that underlies reward processing and learning, peaks in adolescence—supporting known increases in sensation seeking but also in adaptable learning. Functional Magnetic Resonance Imaging (“fMRI”) studies show that adolescent limitations in recruiting brain systems that support response planning, error processing, the ability to sustain an executive state, and top-down prefrontal executive control of behavior underlie limitations in executive control in adolescence. Moreover, adolescents show over-reactivity to reward incentives, thus engaging response systems that may contribute to impulsive responses in situations with high motivation. Neurobiological evidence indicating that adolescence is a transitional stage of limited executive control in the context of increased vulnerability to sensation seeking can inform culpability, long-term sentencing, and greater amenability for rehabilitation. Finally, it is important to note that executive control, while limited in its efficiency, is available in adolescence, and given time to deliberate with guidance from mature adults, adolescents can make responsible decisions. |
| Thompson | 2012 | Bridging Developmental Neuroscience and the Law: Child-Caregiver Relationships | Ross A. Thompson | 63 Hastings L.J. 1443 | Advances in neuroscience are changing understanding of the biological foundations of human development and have implications for legal analysis. As with any period of rapid scientific progress, however, new ideas are subject to misinterpretation and errors in application. This Article offers guidance on how to avoid such problems and consider carefully the applications of developmental neuroscience to legal policy and practice, with a particular emphasis on caregiver-child relationships. Three principles are discussed. First, the most confident applications of developmental neuroscience to legal policy occur when the conclusions of neuroscience are consistent with those of behavioral research. This is because their convergence across different levels of analysis strengthens confidence in their validity. Concerning caregiver-child relationships, studies of brain and behavior are consistent in emphasizing the importance of early experience, the significance of caregiving quality for buffering stress, and the enduring consequences of early adversity. Second, complex interactions between brain maturation and experience over time are likely to be typical, not exceptional, in the development of competencies relevant to legal policy and practice. The development of “responsibility” is, for example, a dynamic process involving maturation of multiple brain areas interacting with experiential history. Third, applications of developmental neuroscience to law and policy must take seriously the importance of brain plasticity and its implications for children’s behavioral adaptation to new opportunities. Neuroplasticity accounts for the efficacy of preventive and intervention efforts targeted to children in adversity, but it also underscores the biological and economic benefits of beginning early in life when brain plasticity is greatest. |
| Groshek | 2012 | The Wisdom of Juvenile Court: The Case for Treating Children Differently Than Adults | Christa Jacqueline Groshek | 2012 WL 3279185 | . |
| Rapp | 2012 | The Brain of the College Athlete | Geoffrey Christopher Rapp | 8 DePaul Journal of Sports Law & Contemporary Problems 151 | These remarks, presented at a 2012 DePaul symposium on college athletes, explore the link between rule infractions and the continuing development of students' brains. As the higher order mental functions -- including the ability to regulate emotions and respond to "hot" stimuli -- may not develop fully until the mid-20's, one explanation for why athletes violate NCAA rules for seemingly irrational reasons may have to with brain science. This could have implications for how universities counsel and communicate with student-athletes about compliance issues. |
| Reuveni | 2013 | Copyright, Neuroscience, and Creativity | Erez Reuveni | 64 Alabama Law Review 735 | It is said that copyright law’s primary purpose is to encourage creativity by providing economic incentives to create. Accepting this premise, the primary disagreement among copyright stakeholders today concerns to what extent strong copyrights in fact provide such incentives. This focus on economic incentives obscures what is perhaps copyright doctrines’ greatest weakness – although the primary purpose of copyright law is to encourage creativity, copyright doctrine lacks even a rudimentary understanding of how creativity functions on a neurobiological level. The absence of a cohesive understanding of the science of creativity means that much of copyright theory is premised on antiquated assumptions regarding the creative process that have no basis in cognitive neuroscience or psychology and therefore do not in fact encourage creativity effectively from a scientific perspective. This Article fills that void by developing a coherent narrative of how creativity functions on a neurobiological level and demonstrating how copyright law specifically and information policy generally play a largely unexplored role in determining how effectively the brain’s creative process – what I term the cognitive architecture of creativity – functions both internally and when interacting with the Internet and other informational environments. Relying on this narrative, the Article argues that creativity is not an isolated singular moment of genius as theorized by contemporary copyright doctrine, but rather the product of complex interactions between individuals within a larger cultural environment that, in turn, can trigger the brain’s creative process in the right circumstances. Copyright’s goal of encouraging creativity should therefore be understood as an environmental design question, with the brain’s creative process as that environment’s hub, and copyright law and information policy as design levers in engineering that environment. Relying on this framework, the Article concludes by suggesting modifications to copyright law and policy that complement how the brain’s cognitive architecture interfaces with the Internet, thereby better achieving copyright’s core goal of encouraging creativity. |
| Churchland | 2011 | Braintrust: What Neuroscience Tells Us about Morality | Patricia S. Churchland | Princeton University Press | What is morality? Where does it come from? And why do most of us heed its call most of the time? In Braintrust, neurophilosophy pioneer Patricia Churchland argues that morality originates in the biology of the brain. She describes the "neurobiological platform of bonding" that, modified by evolutionary pressures and cultural values, has led to human styles of moral behavior. The result is a provocative genealogy of morals that asks us to reevaluate the priority given to religion, absolute rules, and pure reason in accounting for the basis of morality. Moral values, Churchland argues, are rooted in a behavior common to all mammals--the caring for offspring. The evolved structure, processes, and chemistry of the brain incline humans to strive not only for self-preservation but for the well-being of allied selves--first offspring, then mates, kin, and so on, in wider and wider "caring" circles. Separation and exclusion cause pain, and the company of loved ones causes pleasure; responding to feelings of social pain and pleasure, brains adjust their circuitry to local customs. In this way, caring is apportioned, conscience molded, and moral intuitions instilled. A key part of the story is oxytocin, an ancient body-and-brain molecule that, by decreasing the stress response, allows humans to develop the trust in one another necessary for the development of close-knit ties, social institutions, and morality. A major new account of what really makes us moral, Braintrust challenges us to reconsider the origins of some of our most cherished values. |
| Heilbronner | 1993 | Factors Associated with the Post-Concussion Syndrome: Neurological, Psychological, or Legal? | Robert L. Heilbronner | 16 Trial Diplomacy 161 | . |
| Heilbronner | 1993 | Brain Dysfunction from Electrical Trauma | Robert L. Heilbronner & N.H. Pliskin | 3 The Neurolaw Letter 1 | . |
| Heilbronner | 1994 | Alternate Diagnoses to Consider in Mild Head Trauma Cases | Robert L. Heilbronner | 17 Trial Diplomacy Journal 99 | . |
| Heilbronner | 1995 | Mild Traumatic Brain Injury and the Postconcussion Syndrome: Comment on Some New Definitions | Robert L. Heilbronner | 5 The Neurolaw Letter 2 | . |
| Heilbronner | 1997 | Presenting Neuropsychological Evidence in Traumatic Brain Injury Litigation | Robert L. Heilbronner & T. Karavidas | 12 The Clinical Neuropsychologist 445 | The purpose of this paper is to educate the reader about some of the issues involved in presenting neuropsychological evidence in cases where a traumatic brain injury (TBI) is either obvious or suspected. Particular emphasis will be directed toward the admissibility of neuropsychological evidence and clarifying the roles of neuropsychologists as treaters and experts. Some strategies will also be presented to assist neuropsychologists in preparing to give opinion testimony. |
| Heilbronner | 2004 | A Status Report on the Practice of Forensic Neuropsychology | Robert L. Heilbronner | 18 The Clinical Neuropsychologist 312 | The practice of forensic neuropsychology has experienced tremendous growth over the past two decades, becoming perhaps the most rapidly expanding area of practice within the field of clinical neuropsychology. Indeed, there have been many important advancements in the field that have helped to position neuropsychologists as instrumental participants within the forensic arena. Yet, there is currently no consensus in our field regarding what constitutes competency in forensic neuropsychology and also no specific guidelines or standards of practice to inform neuropsychologists about how to operate in the forensic arena. There are even fewer safeguards to protect the public from questionable methods of practice. This article provides a status report on the practice of forensic neuropsychology. It employs a framework emphasized byOtto and Heilbrun(2002)in their assessment of the field of forensic psychology. Emphasis is directed toward identifying recent advances in the field and documenting some of the inherent flaws and weaknesses in forensic practice to help advance the practice of forensic neuropsychology toward a more established specialty area. |
| Heilbronner | 2003 | Neuropsychology and Forensic Psychology: Working Collaboratively in Criminal Cases | Robert L. Heilbronner & I.B. Frumkin | 3 Journal of Forensic Neuropsychology | Where do neuropsychologists draw the line between strictly clinical neuropsychological versus criminal forensic psychological issues? What are the legal questions that each of these disciplines are uniquely qualified to answer and which exceed their capacity to do so? The present article will focus on the role of the clinical neuropsychologist working collaboratively with a forensic psychologist in criminal cases. It is written from the perspective that the reader is primarily a clinical neuropsychologist with some experience in civil litigation (e.g., personal injury, medical malpractice), but limited experience in criminal matters. It offers two models for collaboration between these two disciplines, dictated largely by the needs of the attorney requesting services. This paper is written in the hope that those who practice our respective specialties can better interface, continue to identify important differences between our disciplines, and ultimately work together toward providing the best quality services to legal consumers. |
| Heilbronner | 2009 | American Academy of Clinical Neuropsychology Consensus Conference Statement on the Neuropsychological Assessment of Effort, Response Bias, and Malingering | Robert L. Heilbronner, Jerry J. Sweet, Joel E. Morgan, Glenn J. Larrabee, Scott R. Millis & Conference Participants | 23 The Clinical Neuropsychologist | During the past two decades clinical and research efforts have led to increasingly sophisticated and effective methods and instruments designed to detect exaggeration or fabrication of neuropsychological dysfunction, as well as somatic and psychological symptom complaints. A vast literature based on relevant research has emerged and substantial portions of professional meetings attended by clinical neuropsychologists have addressed topics related to malingering (Sweet, King, Malina, Bergman, & Simmons, 2002). Yet, despite these extensive activities, understanding the need for methods of detecting problematic effort and response bias and addressing the presence or absence of malingering has proven challenging for practitioners. A consensus conference, comprised of national and international experts in clinical neuropsychology, was held at the 2008 Annual Meeting of the American Academy of Clinical Neuropsychology (AACN) for the purposes of refinement of critical issues in this area. This consensus statement documents the current state of knowledge and recommendations of expert clinical neuropsychologists and is intended to assist clinicians and researchers with regard to the neuropsychological assessment of effort, response bias, and malingering. |
| Wygant | 2012 | Further validation of the MMPI-2 and MMPI-2-RF Response Bias Scale: Findings from civil and criminal forensic settings | D.B. Wygant, Gervais, R.O., Ben-Porath, Y.S., Sellbom, M., Stafford, K.P., Freeman, D.B., & Heilbronner, R.L. | 22 Psychological Assessment 745 | The present study extends the validation of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF) Response Bias Scale (RBS; R. O. Gervais, Y. S. Ben-Porath, D. B. Wygant, & P. Green, 2007) in separate forensic samples composed of disability claimants and criminal defendants. Using cognitive symptom validity tests as response bias indicators, the RBS exhibited large effect sizes (Cohen's ds = 1.24 and 1.48) in detecting cognitive response bias in the disability and criminal forensic samples, respectively. The scale also added incremental prediction to the traditional MMPI-2 and the MMPI-2-RF overreporting validity scales in the disability sample and exhibited excellent specificity with acceptable sensitivity at cutoffs ranging from 90T to 120T. The results of this study indicate that the RBS can add uniquely to the existing MMPI-2 and MMPI-2-RF validity scales in detecting symptom exaggeration associated with cognitive response bias. |
| Heilbronner | 2008 | Neuropsychological Consultation in the Sentencing Phase of Capital Cases | Robert L. Heilbronner | Criminal Forensic Neuropsychology (Guilford Press, R. Denney & J. Sullivan, eds., 2008) | . |
| Heilbronner | 2008 | Malingering, Mental Retardation, and the Death Penalty | Robert L. Heilbronner | Neuropsychology of Malingering Casebook (Psychology Press, J. Morgan & J.J. Sweet, eds., 2008) | . |
| Heilbronner | 2011 | Neuropsychological Assessment and Consultation in Forensic Practice | Robert L. Heilbronner & G.K. Henry | Neuropsychological Assessment of Work-related Injuries (Guilford Press, S. Bush & G. Iverson, eds., 2011) | . |
| Meixner | 2012 | A Mock Terrorism Application of the P300-Based Concealed Information Test | John B. Meixner & J. Peter Rosenfeld | Psychophysiology 1 | Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorismscenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives among 12 innocent subjects. Additionally, we were able to identify 10/12 subjects and among them 20/30 crime-related details with no false positives using restricted a priori knowledge of the crime details, suggesting that the protocol could potentially identify future terrorist activity. |
| Schwartz | 2012 | Age-Appropriate Charging and Sentencing | Robert G. Schwartz | 27-FALL Crim. Just. 49 | The article discusses the charging and sentencing of juvenile offenders in the U.S. The American Bar Association (ABA) has been calling for sentencing of youthful offenders which considers their age and maturity. ABA calls for less punitive sentences for youthful offenders. In the case Miller v. Alabama, the U.S. Supreme Court held that mandatory life sentences for juvenile offenders are unconstitutional. |
| Hanna | 2012 | Concussions May Prove To Be a Major Headache for the NFL | Joseph M. Hanna | 84-OCT N.Y. St. B.J. 10 | The recent deaths and suicides of several National Football League alumni — along with groundbreaking clinical studies and a giant class-action lawsuit that threatens the financial livelihood of the league itself — have brought the topic of sports-related head injuries to the forefront of national attention. The question is whether the NFL will face liability for its arguably deficient efforts to inform players of the risks associated with football-induced head trauma. This article provides a comprehensive examination of the NFL concussion controversy, including congressional and scientific investigations, remedial measures taken by the league, legal implications of the NFL Committee’s prior policies, and analysis of various tactics the league may employ in defending the lawsuit. |
| Murrow | 2012 | A Biosemiotic Body of Law: The Neurobiology of Justice | Gail Bruner Murrow and Richard Murrow | International Journal for the Semiotics of Law/Revue Internationale de Semiotique Juridique | We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory. |
| Roth | 2012 | The Emergence of Neuroscience Evidence in Louisiana | Sydney B. Roth | 87 Tul. L. Rev. 197 | Law and science intersect in many arenas. For instance, an Internet search containing the words “law” and “science” immediately produces countless results ranging from playful “Law School vs. Med School” blogs, to more substantive law and science pairings including interdisciplinary “Law and Neuroscience” research efforts and various “Law and Science” periodicals. Despite this apparent connection between the two fields of study, it has resulted in a great deal of debate, particularly when science enters the courtroom. Nevertheless, the use of neuroscience evidence is on the rise, as indicated by a doubling of cases in the United States involving neuroscience evidence from 2006 to 2009. Given the already-existing utilization of (and attempts to use) neuroscience evidence for various legal purposes in jurisdictions throughout the United States, one can expect Louisiana to encounter more lawyers offering such evidence shortly. Therefore, it is important for lawyers and judges in Louisiana to be familiar with the contexts in which this type of evidence is likely to arise and understand how courts have been and ought to be treating it. Accordingly, with a focus on Louisiana, this Comment explores the burgeoning discipline of law and neuroscience by analyzing the multifaceted difficulties of offering neuroscience evidence for purposes of supporting claims of mental incompetency to rescind a contract and claims of insanity to avoid criminal responsibility. This Comment argues that neuroscience evidence in its current stage of development has little utility with regard to proving contractual incapacity and criminal insanity. In addition to these specific claims, this Comment analyzes more general concerns relating to the use of functional neuroimaging in any legal context: the difficulty in assessing a legally defined mental state, the uncertainty involved in generalizing the results of neuroimaging tests to real-world behavior, and the potential prejudicial effects of neuroimaging evidence on a jury. |
| Lerner | 2012 | Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases | Craig S. Lerner | 20 Geo. Mason L. Rev. 25 | In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held unconstitutional roughly 2,000 life-without-parole (LWOP) sentences, which had been imposed on juveniles by twenty-eight states and the federal government. The Miller Court held that the Eighth Amendment permits the imposition of LWOP on juveniles, but only after what it airily calls an “individualized sentencing.” Justice Kagan, writing for the majority, presents the decision as a modest one, and as an exercise of the judicial craft she is successful in deflecting some of the criticisms of the dissenting Justices, and in portraying the majority opinion as following ineluctably from precedent, principally Graham v. Florida, 130 S. Ct. 2011 (2010). Yet Graham suffers from the faulty premises that juveniles who commit heinous crimes are typical juveniles, and that they are categorically less culpable than young adult offenders. The Miller Court adopts and then compounds these errors. The Essay questions whether LWOP, as opposed to other harsh sentences, and juveniles, as opposed to young adult offenders, are really so distinct as to merit special constitutional treatment. The Essay also draws attention to some of the potential areas of uncertainty after Miller: the ambiguity as to what qualifies as “individualized sentencing”; the possible expansion of Miller’s exemption from mandatory sentencing to offenders who are not juveniles; and unresolved questions about the constitutionality of long prison sentences that are the practical equivalent of LWOP. |
| Maroney | 2012 | Angry Judges | Terry A. Maroney | 65 Vand. L. Rev. 1207 | Judges get angry. Law, however, is of two minds as to whether they should; more importantly, it is of two minds as to whether judges’ anger should influence their behavior and decision making. On the one hand, anger is the quintessentially judicial emotion. It involves appraisal of wrongdoing, attribution of blame, and assignment of punishment — precisely what we ask of judges. On the other, anger is associated with aggression, impulsivity, and irrationality. Aristotle, through his concept of virtue, proposed reconciling this conflict by asking whether a person is angry at the right people, for the right reasons, and in the right way. Modern affective psychology, for its part, offers empirical tools with which to determine whether and when anger conforms to Aristotelian virtue. This Article weaves these strands together to propose a new model of judicial anger: that of the righteously angry judge. The righteously angry judge is angry for good reasons; experiences and expresses that anger in a well-regulated manner; and uses her anger to motivate and carry out the tasks within her delegated authority. Offering not only the first comprehensive descriptive account of judicial anger but also the first theoretical model for how such anger ought to be evaluated, the Article demonstrates how judicial behavior and decision making can benefit by harnessing anger — the most common and potent judicial emotion — in service of righteousness. |
| Safran | 2012 | Juvenile Justice Policy From the Perspective of International Human Rights | Brian J. Safran | 2012 Cardozo L. Rev. 304 | . |
| Hoffman | 2011 | Problem-Solving Courts and the Psycholegal Error | Morris B. Hoffman | 160 U. Pa. L. Rev. PENNumbra 129 | It has been more than a decade since I began railing against the therapeutic jurisprudence movement in general and drug courts in particular. Much has changed in the world of therapeutic courts in that decade. Every two-stoplight town now has a drug court, and every three-stoplight one, a veterans court. Every town big enough to claim to be a community must have a community court. And every court everywhere dealing with low-level crimes must be called a “problem-solving court.” I guess that makes my felony court a “problem-creating court.” |
| Luce | 2012 | Proving a "Mild" Traumatic Brain Injury: A Complex But No Longer Impossible Task | Robert Luce | 38 SPG Vt. B.J. 12 | Traumatic Brain Injury, especially brain injury categorized as “mild” (MTBI), has historically presented one of the biggest challenges for trial lawyers because there often are no visible markers or clear signs of brain injury. Three important areas of development — research on brain injuries and veterans conducted by the Department of Defense, research on brain injuries and athletes conducted by the Center for the Study of Traumatic Encephalopathy, and ongoing study conducted by the Centers for Disease Control and Prevention (CDC) — have provided critical advances in both understanding the signs and the long-term effects of brain injury and in increasing public awareness and acceptance that invisible injuries to the brain can have devastating consquences. While proving MTBI is still a highly sophisticated, complex area of law, the new research and the public attention it has brought, combined with advances in brain imaging technology, mean that it is no longer an impossible task. |
| Linton | 2012 | Scholastic Steroids: Is Generation Rx Cognitively Cheating? | Kelline R. Linton | 39 Pepp. L. Rev. 989 | . |
| Nadelhoffer | 2011 | Neuroscience, Free Will, Folk Intuitions, and the Criminal Law | Thomas Nadelhoffer | 36 T. Marshall L. Rev. 157 | . |
| Dungan | 2011 | Multiple Moralities: Tensions and Tradeoffs in Moral Psychology and the Law | James Dungan & Liane Young | 36 T. Marshall L. Rev. 177 | . |
| Pardo | 2011 | More on the Conceptual and the Empirical: Misunderstandings, Clarifications, and Replies | Michael S. Pardo, Dennis Patterson | 4 Neuroethics 215 | At the invitation of the Editors, we wrote an article (entitled, “Minds, Brains, and Norms”) detailing our views on a variety of claims by those arguing for the explanatory power of neuroscience in matters of law and ethics. The Editors invited comments on our article from four distinguished academics (Walter Glannon, Carl Craver, Sarah Robins, and Thomas Nadelhoffer) and invited our reply to their critique of our views. In this reply to our commentators, we correct some potential misunderstandings of our views and further clarify our positions with discussions of the conceptual-empirical distinction, rule-following, explanations at the personal and subpersonal levels, memory, and lie detection. Although we acknowledge many of the criticisms advanced by our distinguished colleagues, we conclude that, in several important respects, their criticisms confirm the points made in our original article. |
| Robins | 2011 | No Nonsense Neuro-law | Sarah K. Robins & Carl F. Craver | 4 Neuroethics 195 | In Minds, Brains, and Norms, Pardo and Patterson deny that the activities of persons (knowledge, rule-following, interpretation) can be understood exclusively in terms of the brain, and thus conclude that neuroscience is irrelevant to the law, and to the conceptual and philosophical questions that arise in legal contexts. On their view, such appeals to neuroscience are an exercise in nonsense. We agree that understanding persons requires more than understanding brains, but we deny their pessimistic conclusion. Whether neuroscience can be used to address legal issues is an empirical question. Recent work on locked-in syndrome, memory, and lying suggests that neuroscience has potential relevance to the law, and is far from nonsensical. Through discussion of neuroscientific methods and these recent results we show how an understanding of the subpersonal mechanisms that underlie person-level abilities could serve as a valuable and illuminating source of evidence in legal and social contexts. In so doing, we sketch the way forward for a no-nonsense approach to the intersection of law and neuroscience. |
| Vaughn | 2012 | Feeling at Home: Law, Cognitive Science, and Narrative | Lea B. Vaughn | 43 McGeorge L. Rev. 999 | What is the “how and why” of law’s affinity for narrative? In order to explain why the use of stories is such an effective teaching and presentation strategy in the law, this paper will consider theories and accounts from cognitive as well as evolutionary psychology, neuroscience, and, briefly, cultural anthropology. This account seeks to address “how” narrative helps us learn and use the law as well as “why” we are so compelled to use stories in teaching and in practice. Brain science, simplified here, suggests that the first task is to “grab” someone’s attention. Emotionally charged events are more likely to capture our attention and to be remembered. Because of their emotional content, stories and narrative (which will be used interchangeably here) seize the attention of listeners and readers, students and jurors. In turn, this emotional fixation focuses attention on context and meaning. Studies suggest that this context is the platform that allows later and successive integration of details. Thus, stories “work” because they focus attention and provide a context for learning the “details,” i.e., the law. Moreover, the same principles that apply to the success of using stories in the classroom also bear fruit in practice. Our culture, and perhaps our genetic make-up, compel us to use stories as a way to both comprehend and transmit the law. |
| Pustilnik | 2012 | Introduction: Adolescent Medical Decision Making and the Law of the Horse | Amanda C. Pustilnik & Leslie Meltzer Henry | 15 Journal of Health Care Law & Policy 1 | Legal and ethical regimes relating to adolescent medical decision making resemble what Judge Frank H. Easterbrook derisively called “the Law of the Horse”: Many laws deal with horses, he wrote, but there is no such field as “horse law.” Similarly, even though the United States has juvenile and family courts, as well as pediatric and adolescent medical departments, there is not a distinct field of “adolescent medical decision-making law” or ethics; there are just many disparate policies that implicate or impinge upon decisions made by adolescents. These include state laws ranging from those that permit minors to seek treatment for substance misuse or mental illness without parental consent to those that prohibit tattoo parlors from serving minors even with parental consent. They also include ethical norms that inform hospital and clinic policies about whether minors may refuse life-extending medical treatment over their parents’ objections or whether parents may compel their children to have cosmetic procedures without the child’s agreement. At first glance, this range of policies might seem less coherent and productive to mine as a unified body of legal and ethical norms than even “horse law.” But there is a deeper connection between adolescent decision-making law and ethics and “the Law of the Horse,” one that suggests that adolescent decision making may not be the disparate collection of regimes that it appears to be. The legal and ethical norms relating to adolescent decision making illuminate more general issues about how legal and ethical doctrines incorporate scientific information about human cognition and development. Since the existence of separate laws and ethical norms for adolescents and adults is premised on actual differences between them, some kind of consensus about the nature of those differences ought to unify the “law and ethics of adolescent medical decision making.” But it does not. By working through examples of how legal and ethical doctrines interact with issues of adolescent decision making, we can elucidate a set of general questions about doctrinal reliance, or lack thereof, on neuroscientific evidence about human development and behavior. This piece serves as the Introduction to a symposium issue of the Journal of Health Care Law & Policy, which presents a collection of essays that coalesce around the regulation of adolescent decision making in light of current research on brain development. |
| Lack | 2012 | The Neurophysiology of ADR and Process Design: A New Approach to Conflict Prevention and Resolution? | Jeremy Lack & François Bogacz | 14 Cardozo J. Conflict Resol. 33 | . |
| Parasidis | 2012 | Justice and Beneficence in Military Medicine and Research | Efthimios Parasidis | 73 Ohio St. L.J. 723 | This Article examines the extent to which U.S. law promotes justice and beneficence in military medicine and research. I begin by reviewing the historical development of experimental studies in the military and the egregious research methods employed by the U.S. government under the guise of national security. I then analyze socio-medical implications of contemporary military medicine by evaluating investigational use of medical products and biomedical enhancements. I conclude by proposing reforms that aim to harmonize national security interests with fundamental principles of patient autonomy and human dignity. The proposals include amendments to the legal and regulatory framework governing military medicine and research, enhanced medical monitoring and post-research care, and statutory limitations to sovereign immunity. |
| Pardo | 2013 | Law and Neuroscience | Michael Pardo & Dennis Patterson | Oxford University Press | |
| Vincent | 2013 | Neuroscience and Legal Responsibility | Nicole A. Vincent | Oxford University Press | How should neuroscience, psychology and behavioural genetics impact on legal responsibility practices? Recent findings from these fields are sometimes claimed to threaten the moral foundations of legal responsibility practices by revealing that determinism, or something like it, is true. On this account legal responsibility practices should be abolished because there is no room for such outmoded fictions as responsibility in an enlightened and scientifically-informed approach to the regulation of society. However, the chapters in this volume reject this claim and its related agenda of radical legal reform. Embracing instead a broadly compatibilist approach – one according to which responsibility hinges on psychological features of agents not on metaphysical features of the universe – this volume’s authors demonstrate that the behavioural and mind sciences may impact on legal responsibility practices in a range of different ways. For instance, by providing fresh insight into the nature of normal and pathological human agency, by offering updated medical and legal criteria for forensic practitioners as well as powerful new diagnostic and intervention tools and techniques with which to appraise and to alter minds, and by raising novel regulatory challenges. Science and law have been locked in a dialogue on the nature of human agency ever since the 13th century when a mental element was added to the criteria for legal responsibility. The rich story told by the authors in this volume testifies that far from ending this dialogue, neuroscience, psychology and behavioural genetics have the potential to further enrich and extend this dialogue. |
| Vincent | 2013 | Law and Neuroscience: Historical Context | Nicole A. Vincent | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | This volume investigates the question of whether, and if so how, advances in the mind sciences – chiefly in neuroscience, psychology and behavioural genetics – impact on the moral foundations of legal responsibility practices. This introductory chapter does three things. First, it sets aside the radical claim that findings from the mind sciences challenge responsibility by revealing that something like determinism is true. Second, motivated by historical reflection, it adopts a modest and broadly compatibilist stance, arguing that advances in the mind sciences may impact on legal responsibility practices by providing further insights into the nature of human agency, and by offering revamped diagnostic criteria and more powerful diagnostic and intervention tools with which to appraise and to alter minds. Third, it provides an overview of the other thirteen chapters which have been arranged under five headings: responsibility and mental capacity; reappraising agency; responsibility assessment; disease and disorder; and modification of minds. |
| Morse | 2013 | Responsibility and Mental Capacity | Stephen J. Morse | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | The thesis of this chapter is that criminal law is a thoroughly folk-psychological enterprise that is completely consistent with the truth of determinism or universal causation. It argues that if determinism or something quite like it is true, as I assume it is, then compatibilism, which is a defensible, plausible view in the metaphysical debate about determinism, free will and responsibility, provides the only secure basis for criminal responsibility. The chapter demonstrates that free will is neither a criminal law criterion nor foundational for responsibility because the distinctions the law draws are consistent with the truth of determinism and moral and political positions we have good reason to endorse. The chapter also addresses external challenges to responsibility and finds them wanting. It concludes that common law compatibilism is normatively desirable because it takes people seriously as moral agents worthy of respect. |
| Mackor | 2013 | What Can Neuroscience Say About Responsibility? Taking the Distinction Between Theoretical and Practical Reason Seriously | Anne Ruth Mackor | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | This chapter focuses on the question what neurosciences can say about responsibility. First I argue that the claim that neurosciences can show the practices of holding oneself and others responsible to be untenable or at least pointless is self-contradictory. Next I discuss the question whether neurosciences might change the conception of responsibility. I argue that although neurosciences do not have a ‘final say’ on this matter, they can offer viable arguments for and against changing the conception as well as for and against applying the conception to particular persons or categories of persons. Finally, I argue that neuroscientific findings do not necessarily result in a reduction of the category (and number) of people we can hold responsible. On the contrary, neuroscientific findings might just as well have the opposite result. Via a construction of culpa in causa, they might result in hyper-responsibility. |
| Craigie | 2013 | Irrationality, Mental Capacities, and Neuroscience | Jillian Craigie & Alicia Coram | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | The concept of mental capacity is of central importance in private law, where it is used to determine a person’s ability to consent to or refuse medical treatment. Questions about psychological capacities are also increasingly playing a role in the criminal law, where culpability is being understood in terms of the ability for rational action. In both contexts, progress in the neurosciences has raised questions about how it might inform these decisions. We investigate this question by examining the relationship between judgments about capacity, norms of rationality and underlying psychological and neural mechanisms. The role played by normative requirements in both kinds of determination, and differences in the norms that are relevant, are used to draw conclusions about what neuroscience can offer in these two legal contexts. We conclude that current debates in moral psychology call into question key assumptions that underlie optimism about the usefulness of neuroscience for assessing culpability. |
| Davies | 2013 | Skepticism Concerning Human Agency: Sciences of the Self Versus "Voluntariness" in the Law | Paul Sheldon Davies | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | On the conception of criminal responsibility in the Model Penal Code, the notion ‘voluntariness’ looms large. Application of the Code presupposes that most adults, including those likely to serve as jurors, know that we are agents who sometimes “determine” their actions and also know when our actions are the results of our “determinations”. If this crucial assumption is false, then the law cannot fulfil its function. The thesis of this chapter is that, in light of converging evidence from various sciences of the self, we are faced with a potent form of scepticism concerning our capacities as agents and, in consequence, the law is indeed defective. |
| Dahan-Katz | 2013 | The Implications of Heuristics and Biases Research on Moral and Legal Responsibility: A Case Against the Reasonable Person Standard | Leora Dahan-Katz | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | Research in the field of heuristics and biases has demonstrated that human reasoning processes are often non-normative. Specifically, such research demonstrates that human reasoning processes often rely upon heuristics and are subject to a wide variety of biases. These, in turn, can lead to errors in judgment which may impact human behavior. This chapter argues that this impact cannot be ignored when dealing with questions of moral and legal responsibility. It argues that when heuristic reasoning has an impact upon human judgment and decision-making, this fact can ultimately negate moral culpability. Furthermore, it argues that where legal responsibility is stipulated upon moral responsibility, the findings of Bias Research must also inform the imposition of legal responsibility. Specifically, it argues that in light of Bias Research, the current reasonable person standard employed in negligence offences is unjustifiable and must be replaced with a standard of responsibility that better reflects individual culpability. |
| Levy | 2013 | Moral Responsibility and Consciousness: Two Challenges, One Solution | Neil Levy | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | Until recently, most philosophers seem implicitly to have assumed that consciousness is necessary for moral responsibility; this is, moreover, an assumption that seems built into the law. Under the pressure of scientific evidence and independent philosophical argument, some philosophers now reject that assumption. Against these philosophers, I argue that we need to be conscious of the facts that make our actions morally significant in order to be morally responsible for them. I present two separate defences of this claim. First, I argue that actions caused by unconscious attitudes do not express good or ill will toward others. Second, I argue that such actions do not express our evaluative agency. Finally, I turn to some alleged empirical evidence against the claim that we can be conscious of our volitions, and show how the defence offered is immune to this challenge. |
| Sifferd | 2013 | Translating Scientific Evidence into the Language of the "Folk": Executive Function as Capacity-Responsibility | Katrina L. Sifferd | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | There are legitimate worries about gaps between scientific evidence of brain function and legal criteria for determining criminal culpability. Behavioral evidence (such as arranging a getaway car) appears easier for judges and juries to use for purposes of determining criminal liability because it triggers the application of commonsense psychological (CSP) concepts that guide responsibility assessments. In contrast, scientific evidence of neurological processes will not generally lead a judge or jury to make direct inferences regarding criminal culpability. In these cases, an expert witness will be required to indicate to the fact-finder what scientific evidence means with regard to mental capacity; and then another inference must be made from this possible lack of capacity to the legal criteria for guilt. In this chapter I argue that formulating the relevant mental capacities as executive functions within the brain can provide a reliable link between neuroscience and assessments of criminal culpability. |
| Gavaghan | 2013 | Neuroscience, Deviant Appetites, and the Criminal Law | Colin Gavaghan | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | Attempts to measure sexual appetites for legal purposes, while by no means novel, have been rendered particularly topical by some recent high profile controversies. At the same time, a number of papers have demonstrated the potential for fMRI technology to identify and measure sexual interest with potentially greater accuracy than existing technologies, and in a manner that may be seen as less invasive and degrading. In this chapter, I consider whether such technological advances could alleviate all concerns about such testing. While a safety-based case could certainly be made for seeking to identify potential sexual predators, there may remain legitimate causes for unease. Perhaps more importantly, the conflation of appetite with propensity to act threatens to compress the space in which authentically moral decisions are made, i.e. the space in which we opt not to act on our base appetites, but instead to be guided by our higher-order faculties. |
| Nadelhoffer | 2013 | Is Psychopathy a Mental Disease? | Thomas Nadelhoffer & Walter P. Sinnott-Armstrong | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | Whether psychopathy is a mental disease or illness can affect whether psychiatrists should treat it and whether it could serve as the basis for an insanity defense in criminal trials. Our understanding of psychopathy has been greatly improved in recent years by new research in psychology and neuroscience. This illuminating research enables us to argue that psychopathy counts as a mental disease on any plausible account of mental disease. In particular, Szasz's and Pickard's eliminativist views and Sedgwick's social constructivist account of mental illness that might exclude psychopathy are not plausible, and there is no reason to exclude psychopathy under Boorse's and Scadding's biomedical accounts, Wakefield's harmful dysfunction account, and the DSM-IV-TR objective harm account of mental disease. The basic reason is that psychopathy involve neural dysfunction that increases risk of serious harm and loss to people with psychopathy. |
| Kennett | 2013 | Addiction, Choice, and Disease: How Voluntary Is Voluntary Action in Addiction? | Jeanette Kennett | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | Are drug addicts helpless in the face of their addiction, compelled by cravings too strong to resist, as some recent work in the neuroscience of addiction has claimed to establish? Or is drug taking voluntary activity that can be ceased at will? In this chapter I examine Gene Heyman’s recent argument against the disease model and his analysis of addiction in terms of supposedly universal principles of motivation and choice. Despite the many virtues of Heyman’s account I suggest that it does not succeed in ruling out the disease model, even on the assumption that addictive choices are voluntary. I then question that assumption and the account of motivation on which it rests. I argue there are significant involuntary aspects to addiction which could mitigate the responsibility of addicts for their choices and that neuroscientific evidence may help to distinguish addicts whose choices are compelled from those who are capable of responding to ordinary incentives. |
| Hall | 2013 | How May Neuroscience Affect the Way that the Criminal Courts Deal with Addicted Offenders? | Wayne Hall & Adrian Carter | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | Two competing views of addiction often frame debates about the legal responsibility of addicted persons for their drug use and crimes committed in order to use drugs: 1) the “brain disease model”; and 2) the commonsense view. The brain disease model suggests that addicted offenders may not be legally responsible for criminal behavior engaged in to fund drug use. According to the moral model they should be held responsible. The legal practice in Australia (as in most developed countries) represents a defensible pragmatic compromise between these two positions. Courts typically do not accept addiction as a defense in criminal cases but often use coerced treatment for addiction as an alternative to imprisonment. We describe the different ways in which this practice has been implemented and summarize evidence on its effectiveness. We conclude by considering how research on addiction may be used to improve legal practice in dealing with addicted offenders. |
| Vincent | 2013 | Enhancing Responsibility | Nicole A. Vincent | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | We normally think that responsibility tracks mental capacity — i.e. that people’s responsibility diminishes when their mental capacities are compromised, and that it is restored as those capacities are regained. But how is responsibility affected when mental capacities are extended beyond their normal range? Would cognitively enhanced people become “hyper responsible”, and if so then in what sense? Might they acquire new responsibilities? Could they be blamed for failing to discharge those responsibilities? Would this make them more prone to being liable? Would they necessarily be less irresponsible than their non-enhanced counterparts? Relatedly, might we sometimes have a responsibility to cognitively enhance ourselves, and might we be negligent or maybe even reckless if we don’t do so? This chapter argues that cognitive enhancement affects our responsibility in a range of different ways, and it also suggests some ways in which cognitive enhancement is likely to impact on legal responsibility. |
| Bublitz | 2013 | Guilty Minds in Washed Brains? Manipulation Cases and the Limits of Neuroscientific Excuses in Liberal Legal Orders | Christoph Bublitz & Reinhard Merkel | Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) | Among the worrisome aspects of neuroscience is that the increasing knowledge about neuronal and mental processes as well as new tools to intervene into brains and minds in order to modify thoughts and behavior can be used for manipulative purposes. This chapter addresses the responsibility of persons for actions resulting from severe manipulations. In a rich philosophical debate it is widely held that manipulated agents are not responsible. By contrast, the law rarely excuses defendants even when their motives for action were severely influenced from outside. We compare these diverging lines of reasoning and argue against recognition of a “brainwashing defense”. The wide guarantee of personal freedom in liberal constitutional orders is viable and defensible only if persons can be expected to abide by the law. When persons disappoint normative expectations, a reactive response has to (counterfactually) reinforce the validity and stability of the norm. This is one of the rationales for the ascription of responsibility and punishment. A history-oriented approach of responsibility that would excuse persons because of manipulative influences, as favored by many philosophers and by unexamined moral intuitions, focuses too narrowly on purely subjective aspects such as authenticity, and therewith, just like many current discussions of responsibility and neuroscience, tends to lose sight of the functions of responsibility within the social and normative structures in which it is embedded. |
| Hollander-Blumoff | 2012 | Crime, Punishment, and the Psychology of Self-Control | Rebecca Hollander-Blumoff | 61 Emory L.J. 501 | Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment. Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided. |
| Davis | 2012 | Inconsistencies between Law and the Limits of Human Cognition: The Case of Eyewitness Identification | Deborah Davis & Elizabeth F. Loftus | Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) | This chapter considers the issue of whether the legal system assumes greater accuracy in the production and assessment of eyewitness identifications than the limits of cognition reasonably permit. It first reviews what is known about the limits of accuracy in eyewitness performance under optimal conditions, and the ease with which this maximum performance can be compromised by common real life witnessing conditions. Evidence is reviewed that, even under optimal conditions, witness accuracy does not reach standards of certainty beyond reasonable doubt. Discussion then turns to the problems faced by those who must judge witness accuracy, including: inadequacies in knowledge of determinants of face processing and memory accuracy; selective access to information relevant to factors known to affect witness accuracy; inadequacies of safeguards such as cross-examination of witnesses, and others. Implications for reforms in treatment of eyewitness evidence are discussed. |
| Chua | 2012 | Evaluating Confidence in Our Memories: Results and Implications for Neuroimaging and Eye Movement Monitoring Studies of Metamemory | Elizabeth Chua | Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) | Recognition confidence is a common metric used to assess the accuracy of eyewitness identifications. Consequently, it is critical that we understand what information individuals use to make confidence judgments about their memory. Drawing on research in the field of metamemory (i.e., knowledge of one’s own memory), this chapter examines findings from the behavioral, eye tracking, and neuroimaging literature to determine what factors influence subjective memory confidence, and their relationship to objective accuracy. Critically, confidence judgments may be based on factors other than direct retrieval of the original event, such as familiarity or fluency of the cue that serves to elicit the sought after memory. The chapter also evaluates the potential for techniques such as functional magnetic resonance imaging (fMRI) and eye tracking in distinguishing highly confident accurate and highly confident inaccurate memory. |
| Schacter | 2012 | Neuroimaging of True, False, and Imaginary Memories: Findings and Implications | Daniel L. Schacter, Jon Chamberlain, Brendan Gaesser, & Kathy D. Gerlach | Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) | Episodic memory is prone to errors and distortions that can have important consequences for the law. This chapter considers research that has used functional neuroimaging techniques in an attempt to elucidate the nature and basis of true, false, and imaginary memories. The first section of the chapter discusses evidence showing that functional neuroimaging techniques can distinguish between true and false memories under controlled laboratory conditions. The second section focuses on a related and recently emerging line of work that compares the neural underpinnings of actual episodic memories of past experiences with imagined experiences (episodic simulation) of events that might occur in the future. The third and concluding section of the chapter discusses issues that arise when attempting to generalize results from the laboratory to everyday contexts, along with the possible implications of neuroimaging research on true, false, and imaginary memories for the legal system. |
| Rosenfeld | 2012 | Detection of Concealed Stored Memories with Psychophysiological and Neuroimaging Methods | J. Peter Rosenfeld, Gershon Ben-Shakhar, & Giorgio Ganis | Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) | This chapter describes the use of three types of physiological measures used to detect concealed memories. These measures may be utilized by legal authorities to detect involvement in criminal and terror activities and malingered cognitive deficits. The first set of measures records activities of the autonomic nervous system such as heart rate, skin conductance, and blood pressure as indexes of autonomic arousal accompanying confrontation with crime-related items. The second and third sets of measures record brain activity associated with recognition of intentionally concealed information. The second utilizes the P300 event-related brain potential derived from EEG and the third utilizes functional magnetic resonance imaging responses accompanying the viewing (or hearing) of crime scene details. All these measures use the guilty knowledge test (also called the concealed information test) protocol to discover concealed memories. The research literature and current status of the guilty knowledge test with the various measures are reviewed. |
| Kolber | 2012 | Criminalizing Cognitive Enhancement at the Blackjack Table | Adam J. Kolber | Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) | Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits. When players use a “device” to help them count cards, however, they may be committing a serious crime. This chapter considers whether statutes prohibiting the use of devices at the blackjack table can be justified based either on concerns about cognitive enhancement or thought privacy. Both proposed justifications are deemed lacking. |
| Shen | 2012 | Monetizing Memory Science: Neuroscience and the Future of PTSD Litigation | Francis X. Shen | Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) | This chapter explores the possible effects of new neuroscientific evidence on civil recovery and damage awards for emotional injuries in the American tort system. The chapter presents new experimental evidence suggesting that neuroscientific evidence of PTSD, so long as it is contested in court, is not likely to lead to greater monetary awards from juries. But the experimental results also suggest that cognitive neuroscience may challenge existing legal distinctions between “bodily” and “mental” injury. How novel neuroscientific evidence is translated into statutory law and policy may thus have significant ramifications for civil recovery. Neuroscience research, if utilized by both sides, may have a net neutral effect on PTSD litigation. But if one side, or even one litigator, moves quickly and moves first, there may be significant gains to be realized from monetizing memory science. |
| Conway | 2012 | Ten Things the Law and Others Should Know about Human Memory | Martin A. Conway | Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) | This chapter describes my experiences a memory expert witness and how these led to a major report by the British Psychological Society on memory and the law. The aim of this report was to provide a set of guidelines about human memory that were agreed by a broad range of memory researchers and supported by scientific findings. The intention was to provide an authoritative source that could be used by non-experts and which would also stop the selective use of findings that so undermines expert testimony. |
| Bennett | 2012 | Neurolaw: Brain Waves in the Courtroom | Alison K. Bennett & Jason Bloom | 75 Tex. B.J. 280 | This article addresses the underlying neural signatures of bias and decision-making in terms of jury selection and implications for criminal and civil law. |
| Rushing | 2011 | Relative Function: Nuclear Brain Imaging in United States Courts | Susan E. Rushing & Daniel D. Langleben | 39 J. Psychiatry & L. 567 | Neuropsychological testing--medical imaging of the brain structure and function--allows the expert to inform the court on the brain structure and function of the forensic examinee. Supported by extensive clinical use, neuropsychological testing and structural imaging in the form of computerized tomography and structural magnetic resonance imaging have achieved general acceptance in court. However, functional imaging such as functional MRI and nuclear medicine techniques, such as positron emission tomography (PET), have faced more admissibility challenges. While functional imaging is becoming an increasingly important tool in assessing neuropsychiatric illness, we surmise that evidentiary challenges are largely related to the phase of trial in which the nuclear study is offered as evidence. This article will review the basic science of functional nuclear imaging including PET and single photon emission computed tomography. We will then review cases where admissibility of these techniques has been challenged and consider whether and how nuclear brain imaging can influence the outcome of the trial. |
| Weiss | 2011 | Head, Examined: Clarence Darrow's X-ray Vision of Criminal Responsibility | Kenneth J. Weiss | 39 J. Psychiatry & L. 627 | Shortly after Roentgen’s discovery of X-rays and their application to human imaging, the legal profession began to use the technology in litigation. Though the use of brain imaging did not find its way into formal arguments about criminal responsibility early in its evolution, such an analysis has been sought. Nineteenth century attempts to connect “pathological anatomy” to behavior were mostly disappointing. In 1924, the celebrated murder trial of Leopold and Loeb in Chicago became an early example of the use of scientific testimony that included radiographic exhibits. The penalty-phase decision to spare the defendants’ lives was not based on scientific arguments. Sixty years later, the trial of John Hinckley included admission of CT scans to aid psychiatric testimony. Using excerpts from the expert reports and testimony, this article examines the nature and purpose of scientific evidence pertaining to blameworthiness. The author concludes that improvements in neuroimaging will continue to force a dialog between science and the law. |
| Dattilio | 2011 | Toward a Good Fit between Forensic Psychiatrists and Psychologists | Frank M. Dattilio | 39 J. Psychiatry & L. 689 | The longstanding relationship between forensic psychiatrists and psychologists has been fraught with tension and controversy over the years, particularly pertaining to the issue of their overlapping roles and what some consider a competitiveness in the field. This article reviews some of that controversy and also addresses the issue of how psychiatrists and psychologists actually do different things and can work harmoniously in a collaborative fashion. The text also addresses how this collaborative relationship can be best promoted—not only through forensic training programs, but also in the eyes of attorneys and jurists. |
| Takahashi | 2013 | Molecular Neuroeconomics of Crime and Punishment: Implications for Neurolaw | Taiki Takahashi | NeuroEndocrinology Letters, Forthcoming | Criminal behaviors have been associated with risk, time and social preferences in economics (Becker, 1968; Davis, 1988), criminology (Chamlin and Cochran, 1997), and neurolaw (Goodenough and Tucker, 2010). This study proposes a molecular neuroeconomic framework for the investigation into crime and punishment. Neuroeconomic parameters (e.g., risk-attitude, probability weighting, time discounting in intertemporal choice, loss aversion, and social discounting) are predicted to be related to criminal behavior. Neurobiological and neuroendocrinological substrates such as serotonin, dopamine, norepinephrine, cortisol (a stress hormone), sex hormones (e.g., testosterone), and oxytocin in brain regions such as the orbitofrontal cortex, the amygdala, and the cingulate may be related to the neuroeconomic parameters governing criminal behaviors. The present framework may help us develop “neurolaw” based on molecular neuroeconomics of criminal and antisocial decision-making processes. |
| Roskies | 2013 | Neuroimages in Court: Less Biasing than Feared | Adina L. Roskies, N.J. Schweitzer, and Michael J. Saks | 17 Trends in Cognitive Sciences 99 | Neuroscience is increasingly poised to play a role in legal proceedings. One persistent concern, however, is the intuition that brain images may bias, mislead, or confuse jurors. Initially, empirical research seemed to support this intuition. New findings contradict those expectations, prompting a rethinking of the ‘threat’ of neuroscience in the courtroom. |
| Jones | 2012 | Questioning a Juvenile's Capacity for Criminal Liability in Street Gangs Post-J.D.B. v. North Carolina | Elizabeth N. Jones | 32 Children's Legal Rights Journal 1 | This article explores how the recent groundswell of acceptance of adolescent neuroscience has manifested in United States Supreme Court cases involving juveniles, and the resultant implications for children accused of gang-related crimes and enhancements. Juvenile gang convictions proliferate, but the foundation of such prosecutions is precariously – and improperly – based. Though varied in title, predicate offenses, and penalties, most state gang legislation contains language requiring offenders to have at least a tacit understanding, or knowledge, that the group’s common purpose is to commit crimes to benefit the gang. However, this mens rea required for anti-gang statutes, combined with the inability to know, without closer analysis, whether juveniles in fact possess such mens rea, creates a conundrum: children make up a significant proportion of gang membership, but yet lack the capacity to be prosecuted under current anti-gang legislation, especially given the new parameters set forth by the United States Supreme Court. |
| Opderbeck | 2014 | The Problem with Neurolaw | David W. Opderbeck | 58 St. Louis U. L.J. 497 | This article describes and critiques the increasingly popular program of reductive neuroLaw. Law has irrevocably entered the age of neuroscience. Various institutes and conferences are devoted to questions about the relation between neuroscience and legal procedures and doctrines. Most of the new “neuroLaw” scholarship focuses on evidentiary and related issues, and is important and beneficial. But some versions of reductive NeuroLaw are, to put it bluntly, redolent of fascism. Although they claim to liberate us from false conceptions of ourselves and to open new spaces for more scientific applications of the law, they end up stripping away all notions of “selves” and of “law.” This article argues that a revitalized sense of transcendent causation is required to avoid the violent metaphysics of reductive neuroLaw and to maintain the integrity of both “law” and “science.” |
| Faulkes | 2011 | Can Brain Imaging Replace Interrogation and Torture? | Zen Faulkes | 6 Global Virtue Ethics Review 55 | Many techniques have been used to extract reliable information from individuals who are unwilling to divulge it, including interrogation, torture, and “lie detectors,” all of which have shortcomings in their ability to get and / or evaluate information. Brain imaging technologies present the possibilities of determining if an individual is lying, concealing information, or has predispositions to particular behaviors. Functional magnetic resonance imaging (fMRI) is the best known brain imaging technique, and can already be used to determine hidden conscious states of an individual, and to determine true and false statements with accuracy greater than chance. Thus, the main empirical question is no longer if brain imaging can be used productively in security situations, but rather how practical it might be and how confident users may be in the information obtained. Ethical questions about appropriate uses of brain imaging technology in security situations are immediate and urgent, but ethical concerns about privacy and similar issues raised by brain imaging appear minor compared to the ethical issues raised by torture. Brain imaging may be able to render some arguments about the use of torture moot by providing a more reliable method of getting and evaluating information from individuals. |
| Mosteller | 2006 | Evidence History, the New Trace Evidence, and Rumblings in the Future of Proof | Robert P. Mosteller | 3 Ohio St. J. Crim. L. 523 | This paper is in two parts. The first part is about developments in the rules of evidence and particularly about developments in the federal rules of evidence, which has had a major impact on evidence rules in many states. This part turns out to be largely about the past because my sense is that the impact of changes in the formal rules of evidence, which were substantial, are largely historic. To be sure future changes in the formal rules, particularly those that may be made as a result of the Supreme Court's decision in Crawford v. Washington (2004) that dramatically changed confrontation and may unleash hearsay reformulation, may be significant. The second part deals with my sense that technological and scientific advances may make have a dramatic impact in altering the way cases, particularly criminal cases, are proved and evaluated in the future. For example, the development and proliferation of a new type of "trace evidence" - electronic "trace evidence" - is providing dispositive proof of a larger and larger group of cases. As jurors come to understand such dispositive proof exists in many cases, they are suggestions they may come to expect it in all, potentially changing how proof in criminal cases is evaluated. Of course, this speculation - these rumblings in the future of proof - is just speculation. However, there are reasons to suspect at least that as a result of the accumulation of events brought on by scientific and technological change, something significant is beginning to occur. |
| Cassin | 2013 | Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge Longstanding Treatment of Tort Injuries? | Shaun Cassin | 50 Hous. L. Rev. 929 | Tort law has traditionally taken vastly different approaches to various types of injuries. It consistently favors physical injuries more than it does emotional injuries and invisible injuries—which this Comment defines as a hybrid of physical and emotional injuries. The reasons for this disparate treatment are valid ones. Emotional and invisible injuries are particularly difficult to prove. Moreover, because litigants have incentives to get higher damage awards, they can, and do, lie about their injuries and fake their pain. However, the mere fact that a person fails to provide physical evidence of pain does not mean that his pain is nonexistent. What if there was a technology that could objectively measure a person’s pain levels? Advancements in neuroscience are moving closer to that possibility. Neuroscience is gaining huge traction in the law. Soon enough, courts will be faced with tort litigants seeking to introduce neuroimaging evidence as objective proof of pain that has traditionally been unverifiable. Focusing on emotional and invisible injuries, this Comment discusses whether neuroscience will undermine the current approach of distinguishing these injuries from physical ones. |
| Keller | 2012 | Rainmaking Psychology | David King Keller | 31(2) Legal Mgmt. 44 | . |
| Weil | 2012 | Neuromarketing for Lawyers | Randi W. Singer Weil | 1083 PLI/Pat 771 | . |
| Link | 2012 | Assessing Voting Competence and Political Knowledge: Comparing Individuals with Traumatic Brain Injuries and “Average” College Students | Jessica N. Link, Martha Kropf, Mark Alexander Hirsch, Flora M. Hammond, Jason Karlawish, Lisa Schur, Douglas Kruse, Christine S. Davis | 11 Election L.J. 52 | The majority of U.S. states have constitutional language, statutes, or court decisions that if applied as worded, could bar individuals with traumatic brain injury (TBI) from voting. Here, we investigate the difference between the voting competence and political knowledge of individuals with TBI and that of “average” college students using measures of voting capacity and election-specific political knowledge. We recruited 14 individuals with TBI who are participating in a larger study on the relationship between disability and political participation at Carolinas Medical Center. We compared their responses to healthy controls (HC) (students at a large public university in North Carolina; n=22) on voting competency and political knowledge using the Competency Assessment Tool for Voting (designed by Appelbaum, Bonnie, and Karlawish), as well as measures of 2008 election information and questions drawn from the United States Citizen and Immigration Services citizenship exam. To the best of our knowledge, this is the first study to compare election-specific knowledge of persons with TBI and HCs. We find that those with TBI scored similarly to the healthy controls on competence to vote and election-specific knowledge. We conclude suffrage laws should not be based on overly broad, general assumptions regarding the cognitive capacity of citizens, but on whether or not they express a desire to vote. |
| Bandes | 2011 | Moral Imagination in Judging | Susan A. Bandes | 51 Washburn L.J. 1 | The debate over the role of empathy in judging has revealed a tenaciously hardy folk conception of judicial deliberation and the judicial role. This concept is most crudely captured in Chief Justice Roberts’ well-known “umpire” metaphor, in which judges leave all their preconceptions and values behind and simply discover and apply the law “as written.” This conception is the legal variant of the hardy philosophical notion that moral reasoning is the process of discovering and applying a system of universal moral laws, and that these laws exist in a realm that transcends individual subjectivity. If laws are universal, timeless and discoverable, then a decision-maker’s attributes, beliefs and values; his or her situatedness in a tradition, a culture, a historical time and place, can only be impediments to rational decision-making. This notion of rationality has long been a subject of criticism, but few of its critics have had kind words for the role of empathy or moral imagination in the judicial process. Yet empathy and moral imagination implicate questions that go to the heart of longstanding jurisprudential debates. What role should a judge’s prior assumptions and values play in decision-making? What factors are relevant to principled adjudication? How do judges give meaning to spacious, indeterminate terms like due process and equal protection of law? What institutional reforms might serve to improve the quality of the deliberative process? I will argue that the denial of indeterminacy and the myth of the omniscient judge pose significant barriers to the rule of law. The widespread reaction against the role of empathy is based on unrealistic and largely undefended notions of the judicial role and the process of judicial deliberation. More broadly, it reflects assumptions about deliberation that are increasingly out of synch with developing understandings of moral cognition. Empathy and moral imagination, properly understood, are part of the solution to the problem of unaccountable judges interpreting indeterminate law, rather than part of the problem. |
| Fox | 2013 | Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing? | Adam R. Fox, Trevor H. Kvaran, Reid Griffith Fontaine | 38 Law & Soc. Inquiry 1 | Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative that even if psychopaths were to be fully non-responsible, it would still be warranted to impose some form of civil commitment. |
| Brooks | 2013 | Scanning the Horizon: The Past, Present, and Future of Neuroimaging for Lie Detection in Court | Spencer J. Brooks | 51 U. Louisville L. Rev. 353 | The article focuses on the dangers and benefits of accurate lie detection and the constitutional and moral difficulties posed by lie detection technology. It explores the use of scientific methods and instruments for lie detection, particularly the active brain scan technology such as functional magnetic resonance imaging (fMRI). It also analyzes the admissibility of information derived from the said technology. |
| Elbert | 2012 | A Mindful Military: Linking Brain and Behavior through Neuroscience at Court-Martial | Major Jason M. Elbert | 2012-SEP Army Law. 4 | The article discusses neuroscience, court-martials, and the link between a human's brain and his or her behavior as of September 2012, focusing on the psychological aspects of U.S. military personnel and their decisionmaking processes. The combat experiences of U.S. Army Sergeant Andrew Jones in Iraq and Afghanistan are examined, along with post-traumatic stress disorder and traumatic brain injury. Cognitive brain functions and their influence on criminal behavior are mentioned. |
| Whitaker | 2012 | Clarence Darrow, Neuroscientist: What Trial Lawyers Can Learn from Decision Science | Sara Whitaker, Steven Lubet | 36 Am. J. Trial Advoc. 61 | This Article examines the role of neuroscience in the context of cross-examination. Through a survey of foundational teachings about cross-examination and decision science principles, the authors offer key considerations for conducting a successful cross-examination. Most of the long-standing tenets of cross-examination turn out to be validated, but several of the basic “rules” appear actually to be either unhelpful or counter-productive. |
| Huntington | 2012 | Neuroscience and the Child Welfare System | Clare Huntington | 21 J.L. & Pol’y 37 | A growing body of research by neuroscientists demonstrates that a child’s early life experiences and environment literally shape the child’s brain architecture, with lifelong consequences that are very difficult to reverse. Children’s relationships with their primary caregivers are at the core of this brain development, but when this relationship is severely deficient, the developing child’s brain is deeply affected. This research has not gained sufficient recognition in policy debates about the child welfare system because much of the work is complex and hard for non-neuroscientists to decipher with nuance. This essay brings a family law scholar’s perspective to understanding the possibilities and limitations of drawing on this still-emerging science in the development of child welfare policy. |
| Rosen | 2007 | The Brain on the Stand | Jeffrey Rosen | The New York Times (March 11, 2007) | . |
| Arnaudo | 2012 | La ragione sociale. Saggio di economia e diritto cognitivi [On Social Reason. An essay in cognitive economics and law] | Luca Arnaudo | Luiss University Press | The book reconstructs the path followed by the economic thought for switching from a rigid axiomatic approach to an experimental-cognitive approach with a distinctive evolutionary flavor and based upon neuroscience knowledge, pursuing a distinctive history of ideas. The book proposes then a similar path to be followed also by the legal thought, in view of reaching a unifying decision theory to be adopted by law and economics for a better understanding and management of human behaviors. |
| Bertolino | 2008 | Il "Breve" Cammino del Vizio di Mente. Un Ritorno al Paradigma Organicistico [The Short Path of Mind’s Fault. A Comeback to the Organicist Paradigm] | Marta Bertolino | 3 Criminalia. Annuario di scienze penalistiche 325 | Lo scritto riproduce l'intervento al Convegno "Le neuroscienze e il diritto", tenuto a Milano il dicembre 2008. Premesse alcune considerazioni sul tema dell'imputabilità penale, la cui definizione in termini di capacità di intendere e di volere è rinvenibile nell'art. 85 c.p., l'Autore si sofferma sull'attuazione dei presupposti sostanziali della responsabilità penale nell'ambito del processo, sotto il profilo dell'accertamento dei coefficienti psichici di attribuibilità del fatto all'autore. Ad arricchire la funzione cognitiva di tale accertamento contribuiscono di recente senza dubbio le neuroscienze, le cui conquiste scientifiche si sono rapidamente imposte all'attenzione degli studiosi. Le neuroscienze applicate al diritto, soprattutto ai fini dell'accertamento dell'infermità mentale, sembrano addirittura superare le aspettative iniziali: le neuroimmagini del cervello e la rilevazione dei danni ai lobi prefrontali sembrano offrire una piattaforma descrittiva idonea a fare piena luce sulle correlazioni tra funzioni cerebrali e comportamento umano. L'Autore avverte, tuttavia, che, poiché sono in discussione la responsabilità penale e la conseguente limitazione della libertà individuale dell'imputato, sarebbe opportuno accedere ad una prospettiva metodologica del tutto peculiare, ispirata dallo scopo di combinare le evidenze scientifiche con la loro valutazione giudiziale: accanto ad un primo livello di indagine, al quale rimettere la valutazione dell'affidabilità scientifica della prova tecnica, dovrebbe essere sviluppato un secondo livello di indagine, nell'ambito del quale riservare al giudice l'espressione di un giudizio circa l'affidabilità delle risultanze scientifiche ed il grado di rilevanza alle stesse attribuibile a fini probatori nell’ambito del processo. |
| Bianchi | 2007 | La complessità del danno psichico [The complexity of psychic damage] | Angelo Bianchi | 9 Responsabilità civile e previdenza 1990 | . |
| Bianchi | 2010 | Neuroscienze cognitive e diritto: spiegare di più per comprendere meglio [Cognitive neuroscience and the law: the need to explain more for understanding better] | Angelo Bianchi | 2 Sistemi intelligenti 295 | . |
| Bianchi | 2009 | Manuale di Neuroscienze Forensi [Forensic Cognitive Neuroscience Handbook]Giuffrè, Milano, 2009. | Angelo Bianchi, Guglielmo Gulotta, Giuseppe Sartori | Giuffrè, Milano (Angelo Bianchi, Guglielmo Gulotta, Giuseppe Sartori, eds.) | . |
| Bottalico | 2011 | Neuroscience and Law in a Nutshell | Barbara Bottalico | Diritti Comparati | The term neuroscience is currently used to refer to a bundle of disciplines which study the relationships between human brain, mental activity, and behavior. Promising to explain operations of the mind in terms of the physical operations of the brain, neuroscience has received great attention by the scientific, legal and philosophical communities. |
| Capraro | 2012 | Primi casi "clinici" in tema di prova neuroscientifica [Cognitive neuroscience and criminal proceedings: the first caselaw] | Laura Capraro | 3 Processo penale e Giustizia 9 | . |
| Binford | 2012 | Criminal Capacity and the Teenage Brain: Insights from Neurological Research | Warren Binford | 14(3) The Dynamics of Youth Justice & the Convention on the Rights of the Child in South Africa 1 | Recent advances have been made in magnetic resonance imaging (‘MRI’) that allow researchers to create and study three dimensional images of the brain without using radiation. This technological development allows scientists to safely monitor children’s neurological development over the years. The information culled from this groundbreaking research tells not just how, but why, adolescents act the way they do from the perspective of neuroscience. Does a neuroscience perspective matter more than civilization’s collective wisdom in persuading jurists to treat adolescents differently than adults in criminal matters? Apparently, it does, at least in the United States Supreme Court, which recently struck down a series of controversial sentencing practices involving children, including the death penalty and mandatory life imprisonment without the possibility of parole. In issuing these decisions, the U.S. Supreme Court expressly cited the recent findings of neuroscientists as a reason for their decisions. This article summarizes recent neurological research on teen brain development and briefly highlights recent U.S. Supreme Court decisions that appear to have been influenced by the latest neuroscientific research. |
| Shniderman | 2013 | The Devil's Advocate: Using Neuroscientific Evidence in International Criminal Trials? | Adam B. Shniderman | 38 Brook. J. Int'l L. 655 | This Article presents an analysis of the potential implications of neuroscientific evidence being incorporated into proceedings at the International Criminal Court. Recent advances in neuroscience have garnered significant attention from the academic legal community, particularly with respect to scientific insight into an individual’s culpability. As the evidence has begun to trickle into the courtroom playing a role in several significant Supreme Court decisions regarding juveniles, scholars have considered the implications for incorporating this growing body of science into the legal system. However, the emerging body of scholarship has focused almost exclusively on the American legal system. Academics have remained largely silent regarding the implications of science altering notions of culpability for international criminal trials, where courts are confronted with particularly heinous crimes. This paper considers the implications for international criminal trials of having to address a neuroscience-based understanding of culpability. The paper discusses the implications for the due process rights of the accused, the rights and needs of the victims, the didactic value of trials, and the viability of the trial model in light of evolving issues at the intersection of law, politics, and neuroscience. This paper concludes that whether the international criminal legal regime accepts or rejects this science, the legitimacy and justness in a traditional trial model is zero-sum. That is, the rights of either the accused or victim will be undermined; we must decide whose. Yet, this realization does not prove fatal for trials before the International Criminal Court. Suggestions for future research are made. |
| Capraro | 2011 | Neurodiritto. Un'introduzione | L. Capraro, V. Cuzzocrea, E. Picozza, D. Terracina | Torino | . |
| Caretti | 2010 | La personalità psicopatica [On psychopatic personality] | Vincenzo Caretti & Giuseppe Craparo | 2 Sistemi intelligenti 229 | . |
| Caruana | 2010 | Due problemi sull'utilizzo delle neuroscienze in giurisprudenza [Two problems related to the use of neuroscience in the caselaw] | Fausto Caruana | 2 Sistemi intelligenti 337 | . |
| Casasole | 2012 | Neuroscienze, genetica comportamentale e processo penale [On neuroscience, behavioral genetics and criminal proceedings] | Frederica Casasole | 1 Diritto penale e processo 110 | . |
| Casonato | 2009 | Introduzione al biodiritto[An introduction to biolaw] | Franco Casonato | Turin, Giappichelli | . |
| Castellani | 2010 | Fatti e controfatti nel ragionamento giudiziario [Facts and counterfactuals within judiciary reasoning] | Patrizia Castellani | 2 Sistemi intelligenti 209 | . |
| Caterina | 2008 | I fondamenti cognitivi del diritto[Cognitive foundations of the law] | Raffaele Caterina | Milan, Bruno Mondadori | . |
| Caterina | 2010 | Psicologia della decisione e tutela del consumatore: il problema delle "pratiche ingannevoli" [Decision Psychology and consumer’s protection: the issue of misleading practices] | Raffaele Caterina | 2 Sistemi intelligenti 221 | . |
| Codognotto | 2010 | Neuroscienze in tribunale: la sentenza di Trieste [Neuroscience goes to tribunal: the Trieste case] | Sara Codognotto & Giuseppe Sartori | 2 Sistemi intelligenti 269 | . |
| Colorio | 2011 | Esplorazioni neurogiuridiche tra antichità e modernità [Neurolegal explorations through ancient and modern times] | Andrea Colorio | 8(11,B) Atti della Accademia Roveretana degli Agiati 43 | . |
| Conti | 2011 | Neuroscienze e neuroetica: riflessioni scientifiche e correlati bioetici [Neuroscience and neuroethics: scientific and bioethical considerations] | Adelaide Conti & Massimo Gandolfini | 2 Medicina e morale 263 | . |
| De Caro | 2010 | Siamo davvero liberi? Le neuroscienze e il mistero del libero arbitrio [Are we really free? Neuroscience and the mystery of free will] | Mario De Caro, Andrea Lavazza, & Guiseppe Sartori | Turin, Codice | . |
| De Caro | 2010 | Libertà, responsabilità e retributivismo [Freedom, responsibility, and retributivism] | Mario De Caro & Massimo Marraffa | 2 Sistemi intelligenti 357 | . |
| De Cataldo Neuburger | 2010 | Aspetti psicologici nella formazione della prova: dall'ordalia alle neuroscienze [Psychological issues of probation: from God’s judgement to neuroscience] | Luisella De Cataldo Neuburger | 5 Diritto penale e processo 604 | . |
| De Cataldo Neuburger | 2010 | Scienza e processo penale. Linee guida per l’acquisizione della prova scientifica [Science and criminal procedings. Guidelines for the collection of scientific evidence] | Luisella De Cataldo Neuburger | Padova, Cedam | . |
| Di Francesco | 2009 | Il soggetto. Scienze della mente e natura dell’io [The subject. The sciences of the mind and the nature of the self] | Michele Di Francesco & Massimo Marraffa | Milan, Bruno Mondadori | . |
| Di Giovine | 2011 | Chi ha paura delle neuroscienze? [Who’s afraid of neuroscience?] | Ombretta Di Giovine | 3 Archivio penale 837 | . |
| Farisco | 2009 | Neuro-bio-diritto: tra imputabilità e negazione di responsabilità. Verso un nichilismo giuridico? [Neuro-bio-law: between chargeability and responsibility’s denial. Towards a lagal nihilism?] | Michele Farisco | 3 Archivio giuridico "Filippo Serafini" 317 | . |
| Forza | 2010 | Le neuroscienze entrano nel processo penale [Neuroscience enters the criminal trial] | Antonio Forza | 1 Rivista penale 75 | . |
| Forza | 2012 | La sfida delle neuroscienze: verso un cambiamento di paradigma? [The challenge of neuroscience. Towards a paradigm’s shift?] | Antonio Forza | 11 Diritto Penale e Processo 1376 | . |
| Forza | 2009 | Neuroscienze e diritto [Neuroscience and the law] | Antonio Forza | 3 Rivista penale 247 | . |
| Forza | 2012 | Razionalità ed emozioni nel giudicante [Rationality and emotion in the Judges] | Antonio Forza | 1 Criminalia. Annuario di scienze penalistiche 353 | . |
| Gazzaniga | 2008 | La mente etica | Michael Gazzaniga | Codice Edizioni | . |
| Intrieri | 2010 | Neuroscienze e diritto: una nuova teoria giuridica sulla mente [Neuroscience and the law: a new legal theory of the mind] | Cataldo Intrieri | 2 Sistemi intelligenti 255 | . |
| Lanza | 2010 | Diritto, Processo e Neuroscienze [The Law, the trial and neuroscience] | Luigi Lanza, Luca Sammicheli, & Giuseppe Sartori | 3 Giustizia insieme 39 | . |
| Lavazza | 2008 | Neuroscienze e persona. Nuova prospettiva o minaccia? [Neuroscience and the subject. A new perspective or a threat?] | Andrea Lavazza | 3 Medicina e morale 569 | . |
| Lavazza | 2012 | Il delitto nel cervello. La scienza tra mente e diritto [The brain's crime] | Andrea Lavazza & Luca Sammicheli | Codice Edizioni | . |
| Lavazza | 2010 | Il nuovo rapporto tra diritto e neuroscienze: il caso dello psicopatico [The new relationships between law and neuroscience: the psychopatic issue] | Andrea Lavazza & Luca Sammicheli | 2 Sistemi intelligenti 241 | . |
| Lavazza | 2011 | Neuroetica [Neuroethics] | Andrea Lavazza & Giuseppe Sartori | Bologna, Il Mulino | . |
| Lettieri | 2010 | Fuori da uno splendido isolamento. Le scienze cognitive negli orizzonti della scienza giuridica [Breaking a splendid isolation: cognitive science in the horizon of legal science] | Nicola Lettieri | 2 Sistemi intelligenti 323 | . |
| Loftus | 2010 | Processi cognitivi, testimonianza dell'esperto e teorie su eventi di pertinenza legale [Cognitive processes, expert’s testimony and theories on legally relevant events] | Geoffrey Loftus | 2 Sistemi intelligenti 193 | . |
| Macioce | 2012 | Le neuroscienze. Vecchie domande e nuove sfide per il diritto [Neuroscience: old questions and new endeavors for the law] | Fabio Macioce | 1 Archivio giuridico "Filippo Serafini" 25 | . |
| Mazzoni | 2010 | Scienza cognitiva, memoria e psicologia della testimonianza: il loro contributo per la scienza e la prassi forense [Cognitive science, memory and psychology of the witness: their contribution to the science and the trial] | Giuliana Mazzoni | 2 Sistemi intelligenti 181 | . |
| Merzagora Betsos | 2012 | Colpevoli si nasce? Criminologia, determinismo, neuroscienze | Isabella Merzagora Betsos | Raffaello Cortina Editore | . |
| Merzagora Betsos | 2011 | De servo arbitrio ovvero: le neuroscienze ci liberano dal pesante fardello della libertà? [De servo arbitrio: is neuroscience freeing ourself from the heavy burden of freedom?] | Isabella Merzagora Betsos | 1 Rassegna italiana di criminologia 7 | . |
| Merzagora Betsos | 2011 | Il colpevole è il cervello. Imputabilità, neuroscienze, libero arbitrio: dalla teorizzazione alla realtà [Guilty is the brain. Responsibility, neuroscience, free will: from theory to practice] | Isabella Merzagora Betsos | 1 Rivista italiana di medicina legale 175 | . |
| Messina | 2012 | I nuovi orizzonti della prova (neuro)scientifica nel giudizio sull'imputabilità [On the new horizons of the neuroscientific probation in the assessment of personal chargeability] | Giulia Messina | 1 Rivista italiana di medicina legale 251 | . |
| Messina | 2012 | Il contributo delle neuroscienze nel giudizio sull'imputabilità [Neuroscience’s contribution to the assessment of chargeability]` | Giulia Messina | 1 Il Corriere del Merito 70 | . |
| Nisco | 2012 | Il confronto tra neuroscienze e diritto penale sulla libertà di volere [The struggle between neuroscience and criminal law on free will] | Attilio Nisco | 4 Diritto penale e processo 499 | . |
| Paglieri | 2010 | La struttura temporale dell'azione intenzionale: illusione della volontà o illusione delle neuroscienze? [The temporal structure of intentional action: free will’s illusion od neuroscience’s illusion?] | Fabio Paglieri | 2 Sistemi intelligenti 347 | . |
| Pellegrini | 2010 | Siamo davvero liberi? Il comportamento tra geni e cervello [Are we really free? Human behavior between genes and brain] | Silvia Pellegrini & Pietro Pietrini | 2 Sistemi intelligenti 281 | . |
| Picozza | 2012 | Cosa è il Neurodiritto [What is neurolaw] | Eugenio Picozza | Il Diritto Amministrativo nella prospettiva di un ripensamento epistemologico dei saperi giuridici | A paper presented to the meeting Il Diritto Amministrativo nella prospettiva di un ripensamento epistemologico dei saperi giuridici, held at Lucera, October 19-20, 2012. |
| Picozza | 2011 | Neurodiritto. Una introduzione [Neurolaw. An introduction] | Eugenio Picozza, Laura Capraro, Vera Cuzzocrea & David Terracina | Turin, Giappichelli | . |
| Pietrini | 2008 | La macchina della verità alla luce delle recenti acquisizioni delle neuroscienze [Lie-detection and new neuroscience’s knowledge] | Pietro Pietrini | 1 Cassazione penale 407 | The ability to recognize truthful from false statements has always attracted human interest since the early days. For the law as well, this is certainly a topic of the utmost relevance. Several strategies have been proposed time by time in an attempt to obtain an objective validation for the validity of a statement. Measures of physiological parameters by the means of polygraphic techniques - best known as lie detector - have proven themselves not to be reliable, mostly because of their low specificity and sensitivity. The modern methodologies for the functional exploration of the brain, commonly known as neuroimaging, have reinvigorated this field of research, in in an attempt to become able to read the lying mind. In this paper, I will provide a critical examination of the potential contribution of the most recent acquisitions from neuroscience in relation to the development of reliable systems for the measurement of objective indices of truth and lie. |
| Pizzetti | 2012 | Neuroscienze forensi e diritti fondamentali: spunti costituzionali [Forensic neuroscience and fundamental rights: a constitutional overview] | Federico Gustavo Pizzetti | Torino, Giappichelli | The book analyzes the use of forensic neuroscience in criminal trials for the insanity defence, deception detection and memory detection under the point of view of the respect of constitutional rights. In particular, the book argued that the admissibility of neuroscientific evidence shall be considered a mean to increase the protection of the right of self-defence. However, the respect of the due process of law and the guarantee of the rights of “habeas corpus”, health, bodily integrity and freedom of thought operate as a limitation to an uncontrolled use of this new and highly specialized mean of proof. In order to try to find a balancing between all the above mentioned different rights, the book puts under light the role played by the paramount principle of respect for human dignity. In particular, it is underlined that the constitutional protection of human dignity does forbid the “reduction” of man: to a unqualified “instrument” for the pursuing of public interests, event the one of justice; to a mere “object” in the hands of the State that can be, therefore, put under an unsafe neuroscientific experiment; to one of its characters, even the genetic or neuroscientific one. Therefore, the book lastly underline that a judicial sentence, that it is based only on the neuroscientific evidence, without any evaluation of the facts, ascertained in the trial, and without any autonomous appreciation, by the court, of the results provided by the same neuroscientific expert shall be considered constitutionally unfair. |
| Pizzetti | 2011 | In Quest of Constitutional Principles of Neurolaw | Federico Gustavo Pizzetti | 23(3) Medicina nei secoli 963 | The growing use of brain imaging technology and the developing of cognitive neuroscience place enormous challenges to legal systems. Until now, while the fields of Law much affected are civil and criminal law and procedure, the constitutional significance of “neurolaw” cannot be easily underestimated. As the capacity to study brain mechanisms and functional neural activity increases, it becomes critical the identification and analysis of the unalienable rights and fundamental values that must be guaranteed and safeguarded at “the constitutional level” of norms. Among these the essay identifies (and explains) human dignity, personal identity, authenticity and the pursuit of personal “happiness”. At the same as for the law regulating research and experimentation on the human genome adopted in the past years, it may also be argued if the above mentioned fundamental principles of “neurolaw” must be fixed and disciplined not only at National level (constitutional and statutory) of laws, but also at International level (treaties and declaration of rights). |
| Pizzetti | 2011 | Libertà di autodeterminazione e protezione del malato nel “Brain-Computer interfacing”: un nuovo ruolo per l’amministratore di sostegno? [Liberty of Self-determination and protection of patient in the “Brain-Computer interfacing”: a new role of the guardian under guardianship laws?] | Federico Gustavo Pizzetti | 29(1) Rivista critica del diritto privato 31 | New experiments and devices that use FMRI or EEG in order to ascertain the self-modulation of brain activity in answering a question and to translate it into a signal that can be processed pose unknown problems to guardianship laws. On one side, indeed, this new technology seems to increase the exercise of personal rights by impaired people, who can express their will, by using the new communicative device, without any substitution by the guardian. On the other side, because of the peculiar intrusion of the communicative machinery in the brain circuits of a handicapped person, that may be in a condition not to control or disconnect him/herself from the interface, the compelling state interest of protection of the same weak people must be kept into account. Under this point of view, the article argued that a new role may be opened for a guardian. The guardian does not have to exercise the rights of the impaired person in a substituted judgement, but has to supervise, in the name of the ward and his/her interests, that the communicative brain-computer interface is working properly; that it is correctly used by the beneficiary; and that the signals carried are properly interpreted, especially when the same patient asks for an “opt-out” from the device. |
| Rangone | 2012 | Il contributo delle scienze cognitive alla qualità delleregole [The contribution of cognitive science to the quality of the administrative rules] | Nicoletta Rangone | 14 Mercato concorrenza regole 151 | . |
| Ronco | 2011 | Sulla "prova" neuroscientifica [On neuroscientific proof] | Mauro Ronco | 3 Archivio penale 855 | . |
| Russo | 2011 | Diritto penale e neuroscienze: una panoramica oltreoceano [Criminal law and neuroscience: an overseas perspective] | Roberta Russo | 4 Rivista italiana di diritto e procedura penale 1762 | . |
| Sammicheli | 2010 | Neuroscienze e processo penale [Neuroscience and criminal proceedings] | Luca Sammicheli & Giuseppe Sartori | 9 Cassazione penale 3305 | . |
| Santosuosso | 2012 | Neuroscienze e diritto: un quadro delle opportunità [Neuroscience and law: a picture of opportunities] | Amedeo Santosuosso | 1 Rivista italiana di medicina legale 83 | . |
| Santosuosso | 2009 | Le Neuroscienze e il Diritto [Neuroscience and the law] | Amedeo Santosuosso | Pavia, Collegio Ghislieri-IBIS | . |
| Santosuosso | 2010 | Neuroscienze, connessioni e confini dell'individuo [Neuroscience, links and boundaries of the self] | Amedeo Santosuosso & Barbara Bottalico | 2 Sistemi intelligenti 313 | . |
| Santosuosso | 2010 | Le scienze biomediche e il diritto [Biomedical science and the law] | Amedeo Santosuosso, Silvia Garagna, Barbara Bottalico, & Alberto Redi Carlo | Pavia, Collegio Ghislieri-IBIS | . |
| Stracciari | 2010 | Neuropsicologia Forense [Forensic Neuropsychology] | Andrea Stracciari, Angelo Bianchi, & Guiseppe Sartori | Il Mulino, Bologna | . |
| Terracina | 2012 | Neuroscienze: lo studio della morfologia del cervello determinante nello stabilire il vizio parziale di mente. Problemi nati dal difficile rapporto tra giustizia penale e psichiatria [Neuroscience: the research on brain’s morphology is pivotal in the assessment of partial mind’s fault. Some problems born from the difficult relationships between criminal justice and psychiatry] | David Terracina | 5 Guida al Diritto 63 | . |
| Viola | 2012 | Neuroscienze e diritto naturale [Neuroscience and natural law] | Francesco Viola | Neuroscienze e Diritto | A paper presented to the meeting Neuroscienze e Diritto held at Bologna, March 9, 2012. |
| Gkotsi | 2013 | Assessing the impact of the neuroscientific revolution on ethics and law | Georgia-Martha Gkotsi, Laura Cabrera, & Roberto Andorno | 1 Bioethica Forum 33 | . |
| Cabrera | 2013 | The emotional impact of ‘study drugs’: unsurprising and unconvincing | Laura Cabrera & Peter Reiner | 4 AJOB Neuroscience 1 | Vrecko’s highlights the significance of emotions in university student’s experiences with ‘study drugs’, pointing out that cognitive enhancement might be less cognitive than we think. However his account of the emotional impact smart drugs have is at once completely unsurprising as well as unconvincing. Any experience, particularly one that alters the functioning of one’s brain, will have an experiential dimension, and the narratives that Vrecko presents merely reinforce that observation. The data that are presented do not provide these readers with compelling evidence that “alterations of emotions” are an “important dimension of the drug effects.” Thus, while we concur with Vrecko’s in that more empirical neuroethics is needed, we think that ensuring quality, rigor, and robustness of empirical results is fundamental. |
| Andorno | 2012 | Do Our Moral Judgements Need To Be Guided By Principles? | Roberto Andorno | 21(4) Cambridge Quarterly of Healthcare 457 | This paper argues that, although principles play a key role in our moral judgments, these latter cannot be reduced to the result of purely deductive reasoning, since they previously require another kind of rationality: instead of being purely deductive, our moral decisions appear to be the result of a combined inductive-deductive process. This claim is developed in two parts. The first part briefly presents some of the criticisms levelled in recent decades against purely deductive moral theories. The second part argues, appealing to Aristotle’s account of the knowledge’s process, that an inductive-deductive model provides a more realistic account of how sound moral judgments are actually made. |
| Cabrera | 2011 | Memory enhancement: The issues we should not forget about | Laura Cabrera | 22 Journal Of Evolution and Technology 1 | The human brain is in great part what it is because of the functional and structural properties of the 100 billion interconnected neurons that form it. These make it the body’s most complex organ, and the one we most associate with concepts of selfhood and identity. The assumption held by many supporters of human enhancement, transhumanism, and technological posthumanity seems to be that the human brain can be continuously improved, as if it were another one of our machines. In this paper, I focus on some of the ethical issues that we should keep in mind when thinking about memory enhancement interventions. I start with an overview of one of the most precious capacities of the brain, namely memory. Then I analyze the different kinds of memory interventions that exist or are under research. Finally, I point out the issues that we should not forget when we consider enhancing our memories. In this regard, my argument is not against memory enhancement interventions; rather, it concentrates on the need to “keep in mind” what kind of enhancements we want. We should consider whether we want the kind of “enhancements” that will end up making us lose synapse connections, or the kind that promote more use of them. |
| Cabrera | 2011 | Neuroethics: a new way to do ethics or a new understanding of ethics? | Laura Cabrera | 2(2) AJOB Neuroscience 25 | Levy’s (2011) article makes some interesting and provocative points about neuroethics. He argues that neuroethics offers us the opportunity to dramatically alter, the tools we use as applied ethicists. He describes two sets of evidence that he thinks are relevant to assessing the reliability of our intuitions, based on neuroimaging and psychological evidence respectively. While I fully agree with the author that neuroscience can give us new tools to assess moral judgements, I am skeptical about his idea that it will instantiate a different, more reliable, or even better way to do ethics. In this regard, the main contribution of neuroethics, as the neuroscience of ethics, is not necessarily that it will help us do ethics in a different way, but rather that it gives us different understandings of ethics, such as the neural mechanisms behind moral judgments. |
| Cabrera | 2011 | They Might Retain Capacities to Consent But Do They Even Care? | Laura Cabrera | 2(1) AJOB Neuroscience 41 | Dunn and colleagues (2011) claim that the belief that depressed patients have diminished decision-making capacity due to having a mental illness is not well founded. While Dunn and colleagues might be correct in arguing that the worry associated with informed consent, in the case of treatment resistant major depression (TRD) patients to be treated with Deep Brain stimulation (DBS), is not so much that their intellectual capacities and abilities to reason are impaired, as often depression leaves those intact, I argue that it is the emotional states characteristic of their condition what we should be considering. TRD patients may not have the appropriate minimal degree of concern for their own well-being even though they might understand and be able to evaluate all the risks and implications involved with DBS. However, I fully agree with Dunn and colleagues that more research is needed to have a better grasp of the ethical issues involved around consent issues in DBS for TRD. |
| Andorno | 2011 | What is the Role of 'Human Nature' and 'Human Dignity' in Our Biotechnological Age? | Roberto Andorno | 3(1) Amsterdam Law Forum 53 | Rapid developments in genetics and reproductive technologies, including the prospect of human genetic engineering, cloning and various forms of enhancing human capacities, oblige us to face very old questions that have been largely abandoned in modern philosophy. What does it mean to be human? What constitutes a meaningful life? Do human beings have intrinsic worthiness? What values should guide society in making its choices? In this paper, I first argue that these fundamental questions are today more valid than ever, and that they need to be specifically addressed in the context of human biotechnological interventions and not lumped together with other technological developments. Second, I briefly explore the question of whether the notions of human nature and human dignity can contribute to the efforts that are aimed at responding to the new dilemmas posed by technological interventions on ourselves and on our descendants. |
| Cabrera | 2010 | Neurotechnology: the need for neuroethicists | Laura Cabrera | 11 Australian Journal of Professional and Applied Ethics (AJPAE) 1 | Selected papers from the 2009 Conference of the Australian Association for Professional and Applied Ethics. |
| Andorno | 2004 | The Precautionary Principle: A New Legal Standard for a Technological Age | Roberto Andorno | 1 J. Int'l Biotechnology Law 11 | The precautionary principle is basically an appeal to caution addressed to policy makers who must take decisions about products or activities that could be seriously harmful to public health or the environment. For that reason, this emerging principle of international law does not offer a predetermined solution to every new problem raised by scientific uncertainty. On the contrary, it is just a guiding principle that provides helpful criteria for determining the most reasonable course of action in confronting situations of potential risk. Far from being antithetical to science or to technological innovation, the precautionary principle aims at promoting alternative modes of development “safer and cleaner technologies“ in order to ensure a good quality of life for present and future generations. |
| Baertschi | 2009 | La neuroéthique : Ce que les neurosciences font à nos conceptions morales | Bernard Baertschi | Paris, Editions La Découverte | Depuis quelques décennies, les progrès de l'imagerie cérébrale (scanners et résonance magnétique) ont permis un développement sans précédent de notre connaissance du cerveau. Comme souvent, les avancées scientifiques et les applications qu'elles rendent possibles soulèvent des questions éthiques fondamentales. Leur enjeu apparaît ici d'autant plus décisif qu'elles concernent un organe qui symbolise pour beaucoup la personne elle-même : mieux connaître le cerveau, c'est mieux nous connaître : et agir sur lui, c'est agir sur notre identité. Jusqu'où pouvons-nous et devons-nous aller ? Au-delà des problématiques proprement éthiques, le domaine de la neuroéthique s'étend à des questions philosophiques fondatrices, que les neurosciences renouvellent en profondeur : la nature de l'être humain, les rapports de l'âme et du corps, le libre arbitre ou l'identité personnelle. Cet ouvrage est principalement consacré à quatre de ces questions : le rôle. classiquement dévalorisé par les philosophes, des émotions dans nos décisions morales : la place de la responsabilité et de la liberté individuelles à l'épreuve du déterminisme cérébral : l'observation des états mentaux à travers la neuro-imagerie qui réactive un vieux rêve, lire dans l'esprit : et enfin l'amélioration des capacités humaines que promettent les médicaments du cerveau. En soumettant les neurosciences à l'examen philosophique et, réciproquement, en étudiant en quoi leurs avancées nous obligent à repenser nos conceptions morales, cette réflexion solidement argumentée évite à la fois un refus de principe et un enthousiasme naïf. |
| Clausen | 2008 | Die “Natur des Menschen” in Neurowissenschaft und Neuroethik | Jens Clausen | Würzburg, Königshausen & Neumann | . |
| Fangerau | 2011 | Implanted Minds : the neuroethics of intracerebral stem cell transplantation and deep brain stimulation | Heiner Fangerau, Jörg M. Fegert & Thorsten Trapp | Bielefeld, Transcript | Intracerebral interventions raise particular ethical issues. For instance, attempts at replacing lost or altered brain cells with the help of stem cells or the therapeutic application of Deep Brain Stimulation would have morally relevant implications. Many medically relevant questions and ethical concerns need to be clarified before these intracerebral interventions can become routine procedure: If the brain is conceived as the carrier of an individual's personality or of the self then operations on the brain can be seen as intrusions upon one's personality. The book addresses historical, philosophical, social and legal implications of these new developments in the neurosciences and aims at resolving some of the dilemmas that go hand in hand with "implanted minds." |
| Fink | 2010 | Künstliche Sinne, gedoptes Gehirn. Neurotechnik und Neuroethik | Helmut Fink & Rainer Rosenzweig | Paderborn, Mentis | Dieses Buch handelt von der wachsenden technologischen Verfügbarkeit des Gehirns und dem dringenden Bedarf an ethischer Verständigung, der daraus resultiert. Neue Entwicklungen an der Schnittstelle von Neurowissenschaft, Medizin und philosophischer Ethik wirken hinein in den Alltag, in Politik und Gesellschaft. Je besser die physiologischen Grundlagen und funktionalen Prinzipien des Gehirns erforscht werden, desto weiter reichen die Möglichkeiten zum technischen Eingriff. Cochlea-Implantate für Hörgeschädigte und Psychopharmaka für Depressive sind erst der Anfang. Neuroprothesen und Neuropharmaka gelten als zukunftsträchtige Anwendungen der Hirnforschung. Doch was therapeutischen Zwecken dient, kann auch zur Leistungs- und Luststeigerung Gesunder eingesetzt werden. Das kommende »Neuro-Enhancement« zwingt dazu, ethische Fragen neu zu stellen: Wie sind die Wirkungen und Nebenwirkungen für Individuum und Gesellschaft zu bewerten? Welche Anwendungen sind möglich, erlaubt, wünschenswert oder gar geboten? Welche Zugangsmöglichkeiten sind gerecht? Die Antworten sind mit dem Menschenbild rückgekoppelt. Mit Beiträgen von Andreas Büchner, Peter Fromherz, Bernward Gesang, Thomas Kammer, Thomas Metzinger, Gert Pfurtscheller, Klaus Peter Rippe, Stephan Schleim, Cornelius Schwarz, Rüdiger Vaas, Henrik Walter. |
| Glassen | 2008 | Das Gehirn | Hans Günter Glassen | Darmstadt, Wissenschaftliche Buchgesellschaft | . |
| Kraut | 2008 | Die Hirnforschung und der gefährliche Mensch: Über die Gefahren einer Neuauflage der biologischen Kriminologie | Stefan Kraut | Münster, Westfälisches Dampfboot | Die Interventionen der Hirnforschung richten sich nicht nur gegen die Annahme des freien Willens, sondern fordern einen neuen Umgang mit dem so genannten "gefährlichen Menschen". Im Raum steht die neurobiologische Identifizierung derer, die vom traditionellen Strafrecht nicht zu erfassen seien. Mit dem Topos der "Verteidigung der Gesellschaft" stößt die Hirnforschung an die Grenzen des Schuldstrafrechts. Entsprechend überschneiden sich die kriminalpolitischen Forderungen der Hirnforschung mit dem Ruf nach der Ausweitung schuldunabhängiger Sicherungsmaßnahmen. Der Autor zeigt, wie das neurobiologische Wissen um die "Nichtregierbaren" und "Unfreien" dabei aus den Anforderungen der bürgerlichen Gesellschaft an die Selbstorganisation ihrer Mitglieder erwächst: Der Zwang, einen freien Willen haben zu müssen, erst eröffnet die Möglichkeit der neurobiologischen Bewältigung abweichenden Verhaltens. Die Optimierung der körperlichen Grundlage sozialer Kontrolle entsteht folgerichtig als bio-politische Forderung. |
| Hardegger | 2009 | Willenssache. Die Infragestellung der Willensfreiheit durch moderne Hirnforschung als Herausforderung für Theologie und Ethik | Judith Hardegger | Münster, LIT | Hat der Mensch einen freien Willen oder hat er keinen? Diese uralte Menschheitsfrage wird in jüngster Zeit durch die Neurowissenschaften neu gestellt - und von einigen Vertretern verneint. Da enschliches Denken, Entscheiden und Handeln auf Gehirnprozessen beruhe, die nach deterministischen Gesetzen ablaufen, könne von Freiheit keine Rede sein. Mit dieser Behauptung steht für die Theologie viel, ja alles auf dem Spiel: Zentrale christliche Begriffe und Vorstellungen wie Glauben, Sünde, Sühne, Letztes Gericht oder Erlösung werden obsolet. Wie überzeugend sind diese Argumente und wie reagiert die Theologie darauf? Judith Hardegger bietet einen Überblick über den Stand der Freiheitsdiskussion in den Neurowissenschaften und in der Theologie, wobei auch Aspekte der aktuellen philosophischen und juristischen Diskussion miteinbezogen werden. |
| Schleim | 2009 | Von der Neuroethik zum Neurorecht? | Stephan Schleim, Tade M. Spranger, Henrik Walter | Göttingen, Vandenhoeck & Ruprecht | . |
| Schmitz-Luhn | 2012 | Law and ethics of deep brain stimulation | Björn Schmitz-Luhn, Christian Katzenmeier, & Christiane Woopen | International Journal of Law and Psychiatry | Deep brain stimulation (DBS) is a non-destructive, adjustable, and mainly reversible method of continuously giving electrical impulses into a small area of the brain via implanted electrodes. It has been established as a standard form of treatment for specific cases of Parkinson's disease, essential tremor and dystonia. It is currently being evaluated for several mental disorders, dementia and even alcoholism. In spite of its growing practical importance, the legal issues have so far undergone almost no analysis. The article outlines both the essential legal questions of DBS from the perspective of German Law as well as major issues of the current ethical debate, and the correlation of both fields. |
| Vogelsang | 2008 | Ohne Hirn ist alles nichts. Impulse für eine Neuroethik | Frank Vogelsang & Christian Hoppe | Neukirchen-Vluyn, Neukirchener Verlag | Die Neurowissenschaften dringen mit ihren Erkenntnissen in einen Bereich vor, der bislang Philosophie und Theologie vorbehalten war: Hat der Mensch einen freien Willen? Kann man seine geheimsten Gedanken lesen? Fragen, die ethische Probleme aufwerfen und nach Antworten verlangen. |
| Wolpe | 2008 | Neuroethics | Paul Root Wolpe | Aldershort, Ashgate | . |
| Bonnie | 2013 | The Teenage Brain: Adolescent Brain Research and the Law | Richard J. Bonnie & Elizabeth S. Scott | 22 Current Directions in Psychological Science 158 | In this article, we explore the emerging and potential influence of adolescent brain science on law and public policy. The primary importance of this research is in policy domains that implicate adolescent risk taking; these include drug and alcohol use, driver licensing, and criminal justice. We describe the emerging importance of brain science in the Supreme Court and other policy arenas. Finally, we argue that current research cannot contribute usefully to legal decisions about individual adolescents and should not be used in criminal trials at the present time, except to provide general developmental information. |
| Morse | 2013 | A Primer on Criminal Law and Neuroscience | Stephen J. Morse & Adina L. Roskies | Oxford University Press, Stephen J. Morse & Adina L. Roskies, Eds. | . |
| Shen | 2013 | Neuroscience, Mental Privacy, and the Law | Francis X. Shen | 36 Harv. J.L. & Pub. Pol'y 653 | Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching. Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But only to a point. In this Article, I reconsider these concerns about the use of brain science to infer mental functioning. The primary message of this Article is straightforward: “Don’t panic!” Current constitutional protections are sufficiently nimble to allow for protection against involuntary government machine-aided neuroimaging mind reading. The chief challenge emerging from advances in brain science is not the insidious collection of brain data, but how brain data is (mis)used and (mis)interpreted in legal and policy settings by the government and private actors alike. The Article proceeds in five parts. Part I reviews the use of neuroscientific information in legal settings generally, discussing both the recent rise of neurolaw as well as an often overlooked history of brain science and law that stretches back decades. Part II evaluates concerns about mental privacy and argues for distinguishing between the inferences to be drawn from the data and the methods by which the data is collected. Part III assesses current neuroscience techniques for lie detection and mind reading. Part IV then evaluates the relevant legal protections available in the criminal justice system. I argue that the weight of scholarly opinion is correct: The Fourth Amendment and Fifth Amendment likely both provide protections against involuntary use of machine-aided neuroimaging mind reading evidence. Part V explores other possible machine-aided neuroimaging mind reading contexts where these protections might not apply in the same way. The Article then briefly concludes. |
| Steele, Aharoni, Munro, Calhoun, Nyalakanti, Stevens, Pearlson, Kiehl | A large scale (n=102) functional neuroimaging study of response inhibition in a Go/NoGo Task | Steele, V. R., Aharoni, E., Munro, G. E., Calhoun, V. D., Nyalakanti, P., Stevens, M. C., Pearlson, G. D., & Kiehl, K. A. | We report a functional magnetic resonance imaging (fMRI) study of healthy adult participants who completed a demanding Go/NoGo task. The primary purpose of this study was to delineate the neural systems underlying successful and unsuccessful response inhibition using a large sample (N=102). We identified a number of regions uniquely engaged during successful response inhibition, including a fronto-parietal network involving the anterior cingulate, supplementary motor areas, lateral and inferior prefrontal regions, and the inferior parietal lobule. Unique hemodynamic activity was also noted in the amygdala and in frontostriatal regions including the inferior frontal gyrus and portions of the basal ganglia. Also, contrasts were defined to explore three variants of hemodynamic response allowing for more specificity in identifying the underlying cognitive mechanisms of response inhibition. Addressing issues raised by prior small sample studies, we identified a stable set of regions involved in successful response inhibition. The present results help to incrementally refine the specificity of the neural correlates of response inhibition. | ||
| Graf | 2013 | Pediatric Neuroenhancement: Ethical, Legal, Social, and Neurodevelopmental Implications | William D. Graf, Saskia K. Nagel, Leon G. Epstein, Geoffrey Miller, Ruth Nass, Dan Larriviere | 80(13) Neurology 1251 | The use of prescription medication to augment cognitive or affective function in healthy persons—or neuroenhancement—is increasing in adult and pediatric populations. In children and adolescents, neuroenhancement appears to be increasing in parallel to the rising rates of attention-deficit disorder diagnoses and stimulant medication prescriptions, and the opportunities for medication diversion. Pediatric neuroenhancement remains a particularly unsettled and value-laden practice, often without appropriate goals or justification. Pediatric neuroenhancement presents its own ethical, social, legal, and developmental issues, including the fiduciary responsibility of physicians caring for children, the special integrity of the doctor–child–parent relationship, the vulnerability of children to various forms of coercion, distributive justice in school settings, and the moral obligation of physicians to prevent misuse of medication. Neurodevelopmental issues include the importance of evolving personal authenticity during childhood and adolescence, the emergence of individual decision-making capacities, and the process of developing autonomy. This Ethics, Law, and Humanities Committee position paper, endorsed by the American Academy of Neurology, Child Neurology Society, and American Neurological Association, focuses on various implications of pediatric neuroenhancement and outlines discussion points in responding to neuroenhancement requests from parents or adolescents. Based on currently available data and the balance of ethics issues reviewed in this position paper, neuroenhancement in legally and developmentally nonautonomous children and adolescents without a diagnosis of a neurologic disorder is not justifiable. In nearly autonomous adolescents, the fiduciary obligation of the physician may be weaker, but the prescription of neuroenhancements is inadvisable because of numerous social, developmental, and professional integrity issues. |
| Kiehl | 2013 | Handbook on Psychopathy and Law | Kent A. Kiehl & Walter P. Sinnott-Armstrong | Oxford 2013 | Psychopaths constitute less than 1% of the general population but over 20% of prison populations. They commit a disproportionate amount of crime and violence in society. Given that the economic burden of crime in the United States is estimated to be over $2.3 trillion per year, psychopaths likely constitute one of the most expensive mental health conditions known today. This volume chronicles the latest science of psychopathy and the various ways the condition intersects with the criminal justice system. From the modern techniques to assess the symptoms, to its utility in predicting violent recidivism, to the latest neuroscience youth and adults, and the most promising avenues for treatment, this volume captures the modern science of the condition and discusses ethical and legal issues surrounding psychopaths. |
| Steinberg | 2003 | Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty | Laurence Steinberg & Elizabeth Scott | 58 American Psychologist 1009 | The authors use a developmental perspective to examine questions about the criminal culpability of juveniles and the juvenile death penalty. Under principles of criminal law, culpability is mitigated when the actor’s decisionmaking capacity is diminished, when the criminal act was coerced, or when the act was out of character. The authors argue that juveniles should not be held to the same standards of criminal responsibility as adults, because adolescents’ decision-making capacity is diminished, they are less able to resist coercive influence, and their character is still undergoing change. The uniqueness of immaturity as a mitigating condition argues for a commitment to a legal environment under which most youths are dealt with in a separate justice system and none are eligible for capital punishment. |
| Yaffe | 2013 | Neurological Disorder and Criminal Responsibility | Gideon Yaffe | in The Handbook of Clinical Neurology: Ethical and Legal Issues in Neurology, James Bernat and Richard Beresford, eds. Elsevier Press | Sufferers from neurologic and psychiatric disorders are not uncommonly defendants in criminal trials. This chapter surveys a variety of different ways in which neurologic disorder bears on criminal responsibility. It discusses the way in which a neurologic disorder might bear on the questions of whether or not the defendant acted voluntarily; whether or not he or she was in the mental state that is required for guilt for the crime; and whether or not he or she is deserving of an insanity defense. The discussion demonstrates that a just determination of whether a sufferer from a neurologic disorder is diminished in his or her criminal responsibility for harmful conduct requires equal appreciation of the nature of the relevant disorder and its impact on behavior, on the one hand, and of the legal import of facts about the psychologic mechanisms through which behavior is generated, on the other. |
| Maoz | 2014 | Criminal Responsibility and Cognitive Neuroscience | Uri Maoz & Gideon Yaffe | in Cognitive Neuroscience, 4th ed, Michael Gazzaniga, ed. Norton Publishing | |
| Yaffe | Reading Criminal Minds | Gideon Yaffe | Dennis Patterson, ed. | ||
| Nadelhoffer | 2011 | Neural Lie Detection, Criterial Change, and Ordinary Language | Thomas Nadelhoffer | 4 Neuroethics 205 | Michael Pardo and Dennis Patterson have recently put forward several provocative and stimulating criticisms that strike at the heart of much work that has been done at the crossroads of neuroscience and the law. My goal in this essay is to argue that their criticisms of the nascent but growing field of neurolaw are ultimately based on questionable assumptions concerning the nature of the ever evolving relationship between scientific discovery and ordinary language. For while the marriage between ordinary language and scientific discovery is admittedly not always a happy one, it is an awkward union that nevertheless seems to work itself out with the passage of time. In the following pages, I will try to show that Pardo and Patterson’s primary argumentative strategy ultimately depends on basic assumptions concerning the fixity of language that we should reject. |
| Lindenberg | 2013 | Cognition and Governance: Why Incentives Have to Take the Back Seat | Siegwart M. Lindenberg | in Handbook of Economic Organization: Integrating Economic and Organization Theory, A. Grandori, ed., Edward Elgar | Can we get by with “thin” notions of cognition and motivation as microfoundations for a theory of governance inside firms? This question is considered crucial for the development of the field and the answer given in this chapter is: no, we can not. The paper takes Williamson’s elaboration of an interest alignment approach with private orderings as one of the two prototypes of organizational governance. The underlying notions of cognition (as information impactedness) and motivation (as guile) are shown to be too thin to deal with the problems that arise in the kind of governance that gives pride of place to interest alignment, let alone to come up with solutions for alternative forms of governance. The paper presents microfoundations that are much thicker with regard to cognitions and motivation by focusing on overarching goals and by being informed by the state of the art in cognitive (social) psychology and sociology, neuroscience and evolutionary theory. It is shown that on the basis of such microfoundations, it is possible to pinpoint the shortcomings of the interest alignment approach (cum private orderings) and to formulate an alternative prototype of governance structures that is based on goal integration rather than interest alignment. A central feature deriving from the microfoundations that helped construct this prototype is that it is essential to base governance on the collaborative nature of organizations and on the precariousness of the collective orientation of their members. |
| Tetlock | 2013 | Detecting and Punishing Unconscious Bias | Philip E. Tetlock, Gregory Mitchell, & L. Jason Anastasopoulos | 42 J. Legal Stud. 83 | We present experimental results demonstrating how ideology shapes evaluations of technology aimed at detecting unconscious biases: (1) liberals supported use of the technology to detect unconscious racism but not unconscious anti-Americanism, whereas conservatives showed the reverse pattern, (2) liberals and conservatives opposed punishing individuals for unconscious bias but supported punishing organizations failing to use the technology to root out, respectively, racism or anti-Americanism, (3) concerns about researcher bias and false accusations mediated the effects of ideology on support for the technology, and (4) participants taking strong initial stands were likelier than moderates to reconsider their positions. Our findings demonstrate that there is substantial concern about penalizing unconscious bias at the individual level and that it will be difficult to generate broad support for regulation of unconscious bias at even the organizational level unless the technology is a reliable detector of unconscious biases that lead to frequent or serious antisocial behaviors. |
| Shen | 2013 | Mind, Body, and the Criminal Law | Francis X. Shen | 97 Minnesota Law Rev 2036 | Because we hold individuals criminally liable for infliction of “bodily” injury, but impose no criminal sanctions for infliction of purely “mental” injury, the criminal law rests in large part on a distinction between mind and body. Yet the criminal law is virtually silent on what, exactly, constitutes “bodily injury.” This Article explores the content of the bodily injury construct through the lens of cognitive neuroscience, which poses new challenges to traditional mind-body distinctions. Combining a review of bodily injury definitions in criminal assault statutes and a series of empirical analyses, the analysis finds that: (1) jury-eligible lay people exhibit much confusion and disagreement about what constitutes a “bodily” injury; (2) jury instructions, with different definitions of the term, significantly affect how lay people determine bodily injury; and (3) neuroscientific evidence, if unchecked by a limiting jury instruction, will likely expand the bodily injury concept to include injuries that have traditionally been seen as non-physical. Taken together, the findings in this Article suggest that — if the criminal law were to recognize the biological and thus physical basis for mental injury — the limits of criminal liability for harms against the person might be increasingly contested as the distinctions between mind and body for purposes of criminal liability shift. To avoid this confusion, and the potential injustices that might emerge, the Article argues that legislatures should carefully revisit bodily injury definitions. The Article provides a series of options that legislatures can employ. |
| Green | 2012 | Rehabilitating Lawyers: Perceptions of Deviance and Its Cures in the Lawyer Reinstatement Process | Bruce Green & Jane Campbell Moriarty | 40 Fordham Urban Law Journal 139 | State courts’ approach to lawyer admissions and discipline has not changed fundamentally in the past century. Courts still place faith in the idea that “moral character” is a stable trait that reliably predicts whether an individual will be honest in any given situation. Although research in neuroscience, cognitive science, psychiatry, research psychology, and behavioral economics (collectively “cognitive and social science”) has influenced prevailing concepts of personality and trustworthiness, courts to date have not considered whether they might change or refine their approach to “moral character” in light of scientific insights. This Article examines whether courts should reevaluate how they decide whether to allow lawyers to return to law practice after suspension or disbarment for impermissibly deceptive conduct. The Article describes courts’ traditional approach, discusses some of the relevant scientific literature, and suggests some possible reasons why courts appear not to have considered such scientific insights. The Article concludes with some thoughts about the utility of the role of scientific research in the disciplinary process. |
| Simons | 2008 | Self-Defense: Reasonable Beliefs or Reasonable Self-Control? | Kenneth W. Simons | 11(1) New Criminal Law Review 51 | The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? But it is sometimes applied more directly to conduct: Did the defendant depart sufficiently from a standard of reasonable care, e.g., in operating a motor vehicle, that he deserves punishment? A third version of the reasonable person criterion, which has received much less attention, asks what degree of control a reasonable person would have exercised. Many criminal acts occur in highly emotional, stressful, or emergency situations, situations in which it is often both unrealistic and unfair to expect the actor to formulate beliefs about all of the facts relevant to the legality or justifiability of his conduct. A “reasonable degree of self-control” criterion is sometimes the best criterion for embracing these contextual factors. In self-defense, for example, it is conventional to ask whether the actor believes, and whether a reasonable person would believe, each of the following facts: (a) an aggressor was threatening him with harm, (b) that harm would be of a particular level of gravity, (c) his use of force in response would prevent that harm, (d) the level of responsive force he expects to employ would be of a similar level of gravity, (e) if the force was not used, the threatened harm would occur immediately, and (f ) no nonviolent or less forceful alternatives were available whereby the threat could be avoided. United States law typically requires an affirmative answer to each of these questions. Yet in many cases, an actor threatened with harm will actually have no beliefs at all about most of these matters. It would be unfair to deny a full defense to all such actors. At the same time, we should still hold such an actor to a normative standard of justifiable behavior. Specifically, this essay suggests that we reformulate the reasonableness criterion and require this type of actor to exercise a reasonable degree of selfcontrol in response to a threat of force. |
| Creo | 2013 | Memory is Not a Video Recording | Robert A. Creo | 31 Alternatives to High Cost Litig. 51 | . |
| Eismann-Harpen | 2013 | Kentucky Should Mandate Attorney Consultation Before Juveniles Can Effectively Waive Their Miranda Rights | Sandra Eismann-Harpen | 40 N. Ky. L. Rev. 201 | The article discusses Kentucky law reforms for protecting juveniles' constitutional rights by incorporating a rule which mandates attorney consultation before juveniles claim Miranda rights. It presents information that a court requires Miranda warnings to ensure that suspects are cognizant of their civil rights and the repercussions they might face from its waiver. It informs that Kentucky's insufficient protection of juveniles' Miranda rights generate a loophole in its juvenile legal system. |
| Deitch | 2012 | Seventeen, Going on Eighteen: An Operational and Fiscal Analysis of a Proposal to Raise the Age of Juvenile Jurisdiction in Texas | Michele Deitch, Rebecca Breeden, Ross Weingarten | 40 Am. J. Crim. L. 1 | The age of juvenile jurisdiction in Texas, unlike the majority of states, is seventeen, meaning that any seventeen-year-old arrested is treated as an adult, regardless of the severity of the crime. Recent research shows that young people face physical and psychological risks when placed in adult prisons, and that a young person adjudicated in the juvenile justice system experiences far better outcomes. Additionally, developments in neuroscience confirm the original rationale for separate justice systems for juveniles: the human brain is still developing into a person’s mid-twenties, and as a result adolescent offenders are more malleable, and less culpable, than their adult counterparts. In response to these findings, four states have raised their relevant age of juvenile jurisdiction in the past five years, with four more states currently discussing such a change. This Article examines what the operational and fiscal impact on Texas would be if the age of juvenile jurisdiction were to be raised from seventeen to eighteen years old. The authors interviewed stakeholders and conducted an extensive cost–benefit analysis. We found most stakeholders supported the concept of raising the age of juvenile jurisdiction, while noting that there could be some significant operational challenges to be addressed. Our cost–benefit analysis found that raising the age of juvenile jurisdiction would have a net benefit of $88.9 million for every cohort of seventeen-year-olds moved into the juvenile system in Texas. This policy change would require an investment of $50.9 million per cohort, but would result in $139.9 million in benefits to taxpayers, victims, and youth. Our research indicates that not only would raising the age of juvenile jurisdiction be beneficial to our state’s youthful offenders with no detrimental effect on public safety, but it would be beneficial for Texas, its counties, taxpayers, and potential victims in the long run. |
| Coon | 2013 | Drawing the Line at Atkins and Roper: The Case against Additional Categorical Exemptions from Capital Punishment for Offenders with Conditions Affecting Brain Function | Mark E. Coon | 115 W. Va. L. Rev. 1221 | . |
| Shniderman | 2013 | Towards Justice: Neuroscience and Affirmative Defenses at the ICC | Adam B. Shniderman & Charles Anthony Smith | Studies in Law, Politics, and Society | The International Criminal Court has institutionalized the concept of individual responsibility for human rights violations. The jurisprudence of international criminal law has developed along with the institution. Affirmative defenses in the mitigation of punishment or avoidance of responsibility are becoming increasingly important in international criminal procedure. We contend that diminished culpability based on advances in neuroscience provides the most challenging set of choices for the international legal community. Of the variety of affirmative defenses, emerging neuroscience-based defense provides the most challenging set of choices for the international legal community. The Esad Landzo case at the ICTY brings these challenges into focus. We discuss the difficult choices the ICC will have to make to balance the rights and needs of the victims, and the due process rights of the accused. |
| Redish | 2013 | The Dangers of Dualism: Implications of the Multiple Decision-Making System Theory for Free Will and Responsibility | A. David Redish | 7 Cognitive Critique 1 | Recent work on decision-making suggests that we are a conglomeration of multiple decision-making information-processing systems. In this paper, I address consequences of this work on decision-making processes for three philosophical conceptualizations that can be categorized as forms of dualism. 1. A rejection of Cartesian dualism. Although most scientists reject the existence of a separate non-physical being, the importance of this still has not been fully appreciated in many other fields, such as legal or philosophical scholarship. 2. A rejection of the software analogy. Many researchers still argue that we are software running on neural hardware. I will argue that this is a modern form of dualism and that this hypothesis is not compatible with the data. 3.A rejection of Augustinian dualism. Many researchers identify human cognition with only one of the multiple decision-making systems, which leads to concepts such as emotion made me do it. I will argue that this is a poor description of the human individual. All three of these errors are still used in making decisions in current law and legal scholarship. As scientific results begin to undercut these dualist interpretations, it becomes dangerously easy to reject intention, free will, and responsibility. I argue that taking a more realistic perspective on human decision-making will provide a more reasonable basis for legal decisions. |
| Hoffman | 2014 | The Punisher’s Brain: An Evolutionary History of Judge and Jury | Morris B. Hoffman | Cambridge University Press | Why do we punish, and why do we forgive? Are these learned behaviors, or is there something deeper going on? This book argues that there is indeed something deeper going on, and that our essential response to the killers, rapists, and other wrongdoers among us has been programmed into our brains by evolution. Using evidence and arguments from neuroscience and evolutionary psychology, Morris B. Hoffman traces the development of our innate drives to punish – and to forgive – throughout human history. He describes how, over time, these innate drives became codified into our present legal systems and how the responsibility and authority to punish and forgive was delegated to one person – the judge – or a subset of the group – the jury. Hoffman shows how these urges inform our most deeply held legal principles and how they might animate some legal reforms. |
| Nadelhoffer | 2013 | The Future of Punishment | Thomas A. Nadelhoffer | Oxford University Press | The goal of the present volume is to provide philosophers, neuroscientists, psychologists, and legal theorists with an opportunity to examine the cluster of related issues that will need to be addressed as we struggle to come to grips with the picture of human agency that is being pieced together by researchers in the biosciences. Each contributor was asked to shed light on the important issues he or she takes to be essential when it comes to the future of punishment and retribution. Given the complexity and breadth of both the empirical and conceptual issues that arise in this context, contributors understandably cover a lot of ground. In addition to exploring the sorts of issues that have traditionally been discussed when it comes to free will and punishment, this volume also contains several exciting new articles on the relevance (or lack thereof) of advances in the biosciences to our conceptions of agency and responsibility. Although some contributors defend the philosophical status quo, others advocate no less than a total revaluation of our fundamental beliefs about moral and legal responsibility. |
| Murphy | 2013 | Cognitive Neuroscience, Moral Responsibility, and Punishment | Nancey Murphy | in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. | This chapter addresses the worry that contemporary findings in the cognitive neurosciences call moral and legal responsibility into question. I first focus on the question of whether and how science helps explain, and thereby justify, belief in responsibility, using Alasdair MacIntyre's account of morally responsible action. It may be expressed as follows: one is capable of moral responsibility if one has the capacity to evaluate that which moves one to act in light of some concept of the good. The central focus of the chapter, then, is a cognitive-science analysis of the intellectual and affective capacities that enable morally responsible action, with brief mention of neural systems and structures that are taken to subserve these capacities. On the basis of this analysis, I address briefly some of the arguments from neuroscience (by Benjamin Libet and John-Dylan Haynes) that are taken to call free will into question. Finally, I consider the implications of the chapter for the role of punishment, arguing that a restorative rather than retributive justice system has great potential for enhancing moral (and therefore legal) responsibility. |
| Nadelhoffer | 2013 | The Mind, the Brain, and the Law: A Philosophical and Psychological Investigation | Thomas A. Nadelhoffer, Dena Gromet, Geoffrey Goodwin, Edward Nahmias, Chandra Sripada, Walter Sinnott-Armstrong | in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. | In this chapter, we explore the potential influence that advances in neuroscience may have on legal decision makers and present the findings from some recent studies that probe folk intuitions concerning the relationships among neuroscience, agency, responsibility, and mental illness. We first familiarize the reader with some of the early research in experimental philosophy on people's intuitions about agency and responsibility. Then, we focus on a more specific issue—namely, whether people respond to explanations of human behavior framed in neuroscientific terms differently than they respond to explanations framed in more traditional folk psychological terms. Next, we discuss some new findings which suggest that explanations of criminal behavior that are couched in neural terms appear to make people less punitive than explanations couched in mental terms, especially in the context of mental illness. Finally, we offer what we take to be the best explanation of these differences in people's intuitions—namely, when people are presented with neural explanations of human behavior, they tend to think that the agent's “deep self” (the values and beliefs the agent identifies with) is somehow left out of the causal loop or bypassed, which in turn mitigates the agent's responsibility. |
| Levy | 2013 | Punishing the Addict: Reflections on Gene Heyman | Neil Levy | in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. | Gene Heyman has recently and influentially argued that addiction is a disorder of choice. He amasses a great deal of evidence that addicts respond to incentives to use drugs, in the same way as nonaddicts. This claim generates a puzzle: why are addicts often unresponsive to costs—legal penalties, impairment of relationships, loss of job or health, and so on—which seem sufficient motivation to abstain? I argue that although addicts are responsive to incentives, this responsiveness is patchy. Addicts are relatively insensitive to delayed and uncertain punishments. They are more responsive to rewards than punishments. Addicts can be motivated to change their behavior by incentives, positive and negative. I suggest that the most effective response to addiction may involve the imposition of swift and certain, but relatively light, penalties, coupled with rewards for abstention. The claims put forward here also have a philosophical upshot: they indicate that the common philosophical view that capacities are perfectly general-purpose must be rethought. Negative and positive rewards are not treated alike by the brain, and they are differentially motivating for the addict. |
| Focquaert | 2013 | Free Will, Responsibility, and the Punishment of Criminals | Farah Focquaert, Andrea L. Glenn, Adrine Raine | in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. | In the past decades, the neurosciences have begun to challenge our common notions of free will and moral responsibility. The idea that individuals, whether criminals or law-abiding citizens, have little to no control over the many factors that shape their intentional mental states and behavior raises many questions for the criminal justice system. Does this mean that we should change the way the justice system works and prisons are run today? In this chapter, we provide a detailed overview of the recent neurobiological findings on psychopathy and discuss how these might bear on moral responsibility. For example, psychopaths may suffer from brain impairments in regions that underlie emotional processing—regions that are necessary for moral development in normal individuals. Next, we argue that a similar neurobiological approach might apply to other cases, such as individuals with antisocial personality disorder and those with substance abuse. Even if one is not willing to give up on the notion of truly voluntary behavior, and we might have every reason not to do so, there remains a wealth of scientific data that urges us to reconsider our current approach to crime and punishment. In the last section of this chapter, we argue for a different approach involving (a) the abandonment of massive incarceration as a solution to crime; (b) the guaranteed personal, physical, and mental well-being of incarcerated individuals; and (c) the integration of choice in terms of an offender's punishment and rehabilitation trajectory. Such changes reflect a more long-term approach to criminal behavior and recidivism and have the potential to change our society and the safety of all its members for the better. |
| Steinberg | 2013 | The Influence of Neuroscience on US Supreme Court Decisions About Adolescents' Criminal Culpability | Laurence Steinberg | 14 Nature Reviews Neuroscience 513 | In the past 8 years, the US Supreme Court has issued landmark opinions in three cases that involved the criminal culpability of juveniles. In the most recent case, in 2012, a ruling prohibited states from mandating life without parole for crimes committed by minors. In these cases, the Court drew on scientific studies of the adolescent brain in concluding that adolescents, by virtue of their inherent psychological and neurobiological immaturity, are not as responsible for their behaviour as adults. This article discusses the Court's rationale in these cases and the role of scientific evidence about adolescent brain development in its decisions. I conclude that the neuroscientific evidence was probably persuasive to the Court not because it revealed something new about the nature of adolescence but precisely because it aligned with common sense and behavioural science. |
| Farisco | 2014 | On the Stand. Another Episode of Neuroscience and Law Discussion From Italy | Michele Farisco & Carlo Petrini | 7(2) Neuroethics 243 | After three proceedings in which neuroscience was a relevant factor for the final verdict in Italian courts, for the first time a recent case puts in question the legal relevance of neuroscientific evidence. This decision deserves international attention in its underlining that the uncertainty still affecting neuroscientific knowledge can have a significant impact on the law. It urges the consideration of such uncertainty and the development of a shared management of it. |
| Saks | 2014 | The Impact of Neuroimages in the Sentencing Phase of Capital Trials | Michael J. Saks, N. J. Schweitzer, Eyal Aharoni, & Kent Kiehl | 11(1) Journal of Empirical Legal Studies 105 | Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials. Two mock jury experiments (n=825 and n=882) were conducted online using nationally representative samples of persons who were jury-eligible and death-qualified. Participants were randomly assigned to experimental conditions varying the defendant’s diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation). For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death. For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; non-image neurological evidence decreased death sentences and judgments of responsibility and dangerousness. All else equal, psychopaths were more likely to be sentenced to death than schizophrenics. When experts opined that defendant was dangerous, sentences of death increased. A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or non-image neurological. But when the expert evidence included neuroimages, jurors moved in the direction argued by counsel. |
| Bumann | 2010 | The Future of Neuroimaging in Witness Testimony | Benjamin Bumann | 12(11) Virtual Mentor 873 | . |
| Valančienė | 2013 | Neurolaw: Is the Dialogue Between Neuroscience and Law Inevitable? | Dovilė Valančienė | 2(89) Education. Physical Training. Sport. 73 | Research background and hypothesis. Today, more and more discussions arise about the effect of a new science – postmodern, of complex dynamic systems – on the science of law. The law science is encouraged to be open both internally and externally with other sciences. The new science encourages other sciences to seek for dialogue, connection and integration; one example of this is neurolaw. Neurolaw is an association of neuroscience and law science aiming at a clearer understanding and coming closer to the truth than it was before, using the achievements of neuroscience. This is a new association which causes much debate. How can it help the law? Is this just a temporary fashion? These are topical issues for the law science to move towards perfection, and for the neuroscience to be adaptable and very important to other sciences. Research aim. A conceptual overview of the essence of neuroscience and neurolaw, answering the question about how neuroscience can help the law, and if the dialogue between them is inevitable or just a temporary fashion. Research methods. Systematic and logical analysis of the relationship between neuroscience and law. Discussion and conclusions. Neurolaw is an inevitable dialogue between law and neuroscience. This is the integration of the two sciences in order to get a clearer understanding of complex legal issues when we deal with people’s destinies, and most important, to answer what is true in a particular case. We cannot say that this is just a temporary fashion, more scientific research is carried out and with the help of this dialogue more cases can achieve the equitable solution. On the other hand, various studies related to the judicial decision-making are important to neurolaw, as they look into how decisions are made, what influences them, etc. Conceptualizing this integration as well as the importance and the scope of the dialogue between these sciences, we can say that law science will inevitably face major changes in this area. The future of this inevitable integration depends on how scientists will be able to communicate and achieve the fairest goals for us. |
| Creo | 2013 | It's Not a Video Recording, Part II: Mediation and Memory | Robert A. Creo | 31 Alternatives to High Cost Litig. 69 | . |
| Hoffman | 2013 | The Psychology of Mediation | David A. Hoffman & Richard N. Wolman | 14 Cardozo J. Conflict Resol. 759 | . |
| Keren | 2013 | Consenting Under Stress | Hila Keren | 64 Hastings L.J. 679 | This article highlights a disturbing gap between what is currently known about stress across a range of disciplines and the way stress is treated at law. It does so by focusing on parties who seek relief from harmful contracts, on the grounds that they consented under stress. The article first exposes the leading legal view that stress is merely a subjective feeling and therefore merits no legal recognition. It then provides a pragmatic synthesis of the rich study of stress, in order to counter that misguided legal presumption and to offer a better understanding of the physical, social and psychological dimensions of stress. Exploring both scientifically accepted causes of stress (stressors) and its known outcomes, the article offers a new framing of stress and a set of analytic tools that allow better legal access to the problem. It argues that legal actors can and should use the non-legal scientific understanding of stress to evaluate the arguments of those who claim to have consented to an unwanted contract while under stress. The article concludes that informed evaluation of stress arguments is not only pragmatically necessary, but also conceptually required for any legal system that, like contract law, relies on the power of choice and consent. |
| McNeal | 2013 | Slow Lawyering: Representing Seniors in Light of Cognitive Changes Accompanying Aging | Mary Helen McNeal | 117 Penn St. L. Rev. 1081 | As an increasing number of lawyers represent clients who are elderly, it is imperative that lawyers become more knowledgeable about the aging process and how it impacts our clients. Although it is difficult to generalize, many seniors experience numerous and diverse cognitive changes that accompany the aging process. Existing literature offers various frameworks for addressing capacity issues and techniques for assessing diminished capacity. However, current legal scholarship provides little guidance for lawyers on how to accommodate these changes when they do not rise to the level of diminished capacity or dementia, and when the changes may, in fact, result in increased wisdom and “developmental intelligence.” This article seeks to fill that void. It summarizes selected cognitive developments that impact memory, outlining various types of memory and how they evolve during the aging process. This article also discusses current literature on decision-making capacity and different decision-making models and strategies that seniors may rely upon. The article concludes with recommendations on methods for enhancing communications with aging clients, while simultaneously acknowledging and accommodating cognitive changes and enabling seniors to play a prominent role in the representational process. |
| Murray | 2013 | In Need of a Fix: Reforming Criminal Law in Light of a Contemporary Understanding of Drug Addiction | Patrick Eoghan Murray | 60 UCLA L. Rev. 1006 | This Comment challenges the assumption that actions associated with drug addiction can be easily classified as either voluntary or involuntary. As an alternative to this black-and-white distinction, this Comment advances the concept of a semi-voluntary act category to describe more accurately a drug addict’s choice to use drugs. When limited appropriately to drug addicts rather than all drug users, this category provides an avenue for a partial affirmative defense that would result in a verdict of not guilty but responsible. This verdict would more fairly treat drug addicts who commit crimes while intoxicated by reducing the stigma of a finding of guilt and by demanding that the defendant take responsibility for their drug addiction and seek effective treatment. |
| Bennion | 2013 | A Right to Remain Psychotic? A New Standard for Involuntary Treatment in Light of Current Science | Elizabeth Bennion | Loyola of Los Angeles Law Review | Mass shootings, such as the killing of school children and staff in Newtown, Connecticut, have provided brutal reminders of inadequacies in our nation’s mental health system. In the wake of these shootings, President Obama asserted that “[w]e are going to need to work on making access to mental health care as easy as access to a gun.” But what should society do when the person needing mental health treatment refuses care — when the problem is not rooted in access but in free will? When is involuntary treatment justified? In deciding whether to forcibly medicate, multiple interests come into play, including patient autonomy, public safety, and the patient’s medical welfare. As a society, we have overemphasized patient autonomy and underemphasized patient welfare to the detriment not only of the patient’s well being but also of public safety — and even to the detriment of patient autonomy itself. This Article briefly examines the history of the involuntary treatment debate and how society arrived at the present imbalance. It then considers the implications of current scientific research on the brain and the nature of severe mental illness, using schizophrenia as an illustrative example. The Article explains how current involuntary treatment standards could be revised to reflect this scientific understanding and continue protecting a patient’s civil rights without making undue sacrifices of the patient’s long-term health and well-being. It also defends the proposed new standard against potential constitutional challenges. The new standard would allow involuntary treatment for a limited number of years after onset of severe psychotic symptoms under specified conditions. It would also provide for more access to medical information by patients’ immediate family members and primary caretakers. The standard reflects (1) research showing the vital importance of early treatment for long-term prognosis and prevention of irreversible injury to the brain; (2) statistics suggesting the particular vulnerability of a maturing brain; (3) a respect for autonomy and the patient’s ultimate agency to reject treatment if no satisfactory treatment option can be found; (4) consideration of factors that uniquely affect autonomy concerns when patients are severely psychotic; and (5) research demonstrating that family involvement can greatly benefit treatment outcomes. Because brain science is currently an area of explosive growth and discovery, this Article recognizes that any involuntary treatment standard will need to be continually re-examined and revised in light of scientific progress. |
| Atiq | 2013 | How Folk Beliefs about Free Will Influence Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law | Emad H. Atiq | 16(3) New Criminal Law Review 449 | Do recent results in neuroscience and psychology that portray our choices as predetermined threaten to undermine the assumptions about “free will” that drive criminal law? This article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely held folk beliefs about free will—beliefs that the evidence suggests are both scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation—a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context. |
| Casartelli | 2013 | Which Future for Neuroscience in Forensic Psychiatry: Theoretical Hurdles and Empirical Chances | L. Casartelli & C. Chiamulera | 4 Front Psychiatry 74 | In this work we have assumed that neuroscience data cannot be profitably endorsed in a dualistic perspective; we have tried to show that the most of Western Penal Codes are shaped on a dualistic model, consequently we have claimed that there are compelling reasons to encourage a new perspective also in the forensic field. If neuroscience data may be useful – in specific and limited circumstances – to give aid to traditional forensic assessment for mental capabilities, at the same time not all neuroscience data may assume the same explanatory value; in other words, not all data may be useful in forensic psychiatry evaluation (FPE). We have suggested that the preliminary condition to introduce neuroscience data in FPE is the assumption of a new perspective overcoming classical dualist models. Such new perspective permits to rule out misleading assumptions (i.e., the deterministic link between “mental defect” and specific behavior). Noteworthy, it is a necessary but not sufficient condition to introduce neuroscience data in FPE, given that such data has to be evaluated case by case. |
| Casartelli | 2013 | Opportunities, Threats and Limitations of Neuroscience Data in Forensic Psychiatric Evaluation | L. Casartelli & C. Chiamulera | 26(5) Curr Opin Psychiatry 468 | PURPOSE OF REVIEW: In the last decade, a number of studies have been published to shed light on the interaction between neuroscience and the law, notably on the introduction of neuroscience data in forensic psychiatric evaluation (FPE). Even if there is a growing consensus on the relevance of neuroscience in clinical practice, the role of neuroscience in FPE is still controversial. RECENT FINDINGS: The use of neuroscience data in FPE can support the detection of psychopathological disabilities (e.g. deficit of self-control, aggressiveness) that may be involved in criminal action. Traumatic brain injury-related clinical disorders that may lead to misconduct have a relevant role in the debate. Traditionally, literature refers also to rare and weird cases in which brain tumours, infections and morphological abnormalities were supposed to be significantly associated with disorders leading to criminal action. SUMMARY: After reviewing recent literature from both legal and neuroscientific perspectives, we consider a broader range of clinical conditions (e.g. disorders of consciousness in sleepwalking, dopamine replacement therapy in Parkinson's disease, misattributions of self in delusional experience) that may have implications in legal settings. Obviously, it would be possible to consider also different clinical conditions. We conclude by suggesting further experimental and theoretical analysis. |
| de Kogel | 2013 | Civil Law and Neuroscience | C. H. de Kogel, W. M. Schrama, & M. Smit | Journal of the Australian and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) | The relationship between the brain and human behaviour is receiving increasing attention in legal practice. Much has already been published about the role of neuroscience in criminal law, but surprisingly little is known about its role in civil law. In this contribution, the relevance of neuroscientific insights within the civil law context will be demonstrated on the basis of examples in international publications from both continental and Anglo-American jurisdictions. Furthermore, a number of cases will be presented that demonstrate that neuroscientific information is already appearing in Dutch courtrooms in a broad array of civil law areas. These include liability law, health law, family law and contract law. The use of neuroscientific knowledge in civil law cases raises a number of general questions, regardless the jurisdiction, which will be identified on the basis of the literature and case law. |
| Sunstein | 2013 | Is Deontology a Heuristic? On Psychology, Neuroscience, Ethics, and Law | Cass R. Sunstein | Working Paper | A growing body of psychological and neuroscientific research links dual-process theories of cognition with moral reasoning (and implicitly to legal reasoning as well). The relevant research appears to show that at least some deontological judgments are connected with rapid, automatic, emotional processing, and that consequentialist judgments (including utilitarianism) are connected with slower, more deliberative thinking. These findings are consistent with the claim that deontological thinking is best understood as a moral heuristic – one that generally works well, but that also misfires. If this claim is right, it may have large implications for many debates in politics, morality, and law, including those involving the role of retribution, the free speech principle, religious liberty, the idea of fairness, and the legitimacy of cost-benefit analysis. Nonetheless, psychological and neuroscientific research cannot rule out the possibility that consequentialism is wrong and that deontology is right. It tells us about the psychology of moral and legal judgment, but it does no more. On the largest questions, it leaves moral and legal debates essentially as they were before. |
| Casey | 2013 | The Teenage Brain: Self Control | B. J. Casey & Kristina Caudle | 22 Current Directions in Psychological Science 82 | Adolescence refers to the transition from childhood to adulthood that begins with the onset of puberty and ends with successful independence from the parent. A paradox for human adolescence is why, during a time when the individual is probably faster, stronger, of higher reasoning capacity, and more resistant to disease, there is such an increase in mortality relative to childhood. This is due not to disease but, rather, to preventable forms of death (accidental fatalities, suicide, and homicide) associated with adolescents putting themselves in harm’s way, in part because of diminished self-control—the ability to suppress inappropriate emotions, desires, and actions. This article highlights how self-control varies as a function of age, context, and the individual and delineates its neurobiological basis. |
| Vincent | 2013 | A Compatibilist Theory of Legal Responsibility | Nicole A. Vincent | Crim Law and Philos | Philosophical compatibilism reconciles moral responsibility with determinism, and some neurolaw scholars think that it can also reconcile legal views about responsibility with scientific findings about the neurophysiological basis of human action. Although I too am a compatibilist, this paper argues that philosophical compatibilism cannot be transplanted “as-is” from philosophy into law. Rather, before compatibilism can be re-deployed, it must first be modified to take account of differences between legal and moral responsibility, and between a scientific and a deterministic world view, and to address a range of conceptual, normative, empirical and doctrinal problems that orbit its capacitarian core. |
| Belcher | 2013 | Neuroscience Basics | Annabelle M. Belcher & Adina L. Roskies | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Roskies | 2013 | Brain Imaging Techniques | Adina L. Roskies | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Roskies | 2013 | Other Neuroscientific Techniques | Adina L. Roskies | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Faigman | 2013 | Admissibility of Neuroscientific Expert Testimony | David L. Faigman | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Greely | 2013 | Neuroscience, Mind-Reading and the Law | Henry T. Greely | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Morse | 2013 | Criminal Responsibility, Criminal Competence and Criminal Law Prediction | Stephen J. Morse & William T. Newsome | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Feld | 2013 | Adolescent Culpability and Competence: Implications of Neuroscience for Criminal Justice Adjudication | Barry C. Feld, B.J. Casey & Yasmin L. Hurd | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Husak | 2013 | The Relevance of the Neuroscience of Addiction to the Criminal Law | Douglas Husak & Emily Murphy | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Morse | 2013 | The Future of Law and Neuroscience | Stephen J. Morse & Adina L. Roskies | in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds. | . |
| Morse | 2013 | Brain Overclaim Redux | Stephen J. Morse | 31 Law & Ineq. 509 | . |
| Goldberg | 2013 | Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis | Daniel S. Goldberg | 34 J. Legal Med. 157 | This paper integrates legal, historical, and ethical approaches in analyzing the National Football League’s conduct regarding the risks its players face of experiencing concussions and the long-term neurodegenerative pathologies to which such injury is linked. Given that millions of children and adolescents play American football, and that the NFL concedes its behavior is a strong determinant of football culture, concussion issues are crucial matters of population health. Examining over 500 pages of testimony generated during Congressional hearings in 2009 and 2010, the paper links claims issued by leading NFL representatives to past efforts by industrial actors to manufacture doubt. The paper therefore argues that the history of public health is crucial to framing just public health policy in the present. The paper applies two frameworks drawn from public health ethics to argue first that a robust process of public reason is stymied by the NFL’s insistence on privately holding information relevant to its attitudes, practices and beliefs regarding concussions, and second, that the unequal distribution of "football prevalence" exposes already disadvantaged groups such as African-Americans to higher risks of concussions and neurological disease. The paper concludes that this latter possibility may contravene mandates of social justice, and, if so, would be ethically suboptimal. |
| Creo | 2013 | It's Not a Video Recording, Part III: Sharing and Vindicating Mediation Memories | Robert A. Creo | 31 Alternatives to High Cost Litig. 89 | . |
| Tunnard | 2013 | Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences under Career Offender Guidelines | Andrew Tunnard | 66 Vand. L. Rev. 1309 | . |
| Brocas | 2013 | The Neurobiology of Opinions: Can Judges and Juries Be Impartial? | Isabelle Brocas & Juan D. Carrillo | 86 S. Cal. L. Rev. 421 | In this article we build on neuroscience evidence to model belief formation and study decision-making by judges and juries. We show that physiological constraints generate posterior beliefs with properties that are qualitatively different from traditional Bayesian theory. In particular, a decision-maker will tend to reinforce his prior beliefs and to hold posteriors influenced by his preferences. We study the implications of the theory for decisions rendered by judges and juries. We show that early cases in a judge's career may affect his decisions later on, and that early evidence produced in a trial may matter more than late evidence. In the case of juries, we show that the well-known polarization effect is a direct consequences of physiological constraints. It is more likely to be observed when information is mixed, as behavioral evidence suggests, and when prior beliefs and preferences are initially more divergent across jurors. |
| Phillips | 2013 | Empathy for Psychopaths: Using fMRI Brain Scans to Plea for Leniency in Death Penalty Cases | Kimberly D. Phillips | 37 Law & Psychol. Rev. 1 | Most of the public agrees that society is safer without psychopaths. However, a new sentencing strategy for psychopaths facing the death penalty has erupted from both mental health researchers and defense lawyers--imploring juries to view a defendant's psychopathy as a consideration of sentencing mitigation, and, consequently, urging juries to impose life imprisonment instead of the death penalty. This article explains the frightening nature of psychopaths, how neuroscience and neuroimaging intersects with the study of psychopathy, and, specifically, whether an fMRI brain scan is appropriate mitigating evidence in death penalty sentencing hearings when the convicted defendant is a diagnosed psychopath. |
| Raine | 2013 | The Anatomy of Violence: The Biological Roots of Crime | Adrian Raine | Random House | Why do some innocent kids grow up to become cold-blooded serial killers? Is bad biology partly to blame? For more than three decades Adrian Raine has been researching the biological roots of violence and establishing neurocriminology, a new field that applies neuroscience techniques to investigate the causes and cures of crime. In The Anatomy of Violence, Raine dissects the criminal mind with a fascinating, readable, and far-reaching scientific journey into the body of evidence that reveals the brain to be a key culprit in crime causation. Raine documents from genetic research that the seeds of sin are sown early in life, giving rise to abnormal physiological functioning that cultivates crime. Drawing on classical case studies of well-known killers in history—including Richard Speck, Ted Kaczynski, and Henry Lee Lucas—Raine illustrates how impairments to brain areas controlling our ability to experience fear, make good decisions, and feel guilt predispose us to violence. He contends that killers can actually be coldhearted: something as simple as a low resting heart rate can give rise to violence. But arguing that biology is not destiny, he also sketches out provocative new biosocial treatment approaches that can change the brain and prevent violence. Finally, Raine tackles the thorny legal and ethical dilemmas posed by his research, visualizing a futuristic brave new world where our increasing ability to identify violent offenders early in life might shape crime-prevention policies, for good and bad. Will we sacrifice our notions of privacy and civil rights to identify children as potential killers in the hopes of helping both offenders and victims? How should we punish individuals with little to no control over their violent behavior? And should parenting require a license? The Anatomy of Violence offers a revolutionary appraisal of our understanding of criminal offending, while also raising provocative questions that challenge our core human values of free will, responsibility, and punishment. |
| Eagleman | 2012 | Defining A Neurocompatibility Index for Criminal Justice Systems: A Framework to Align Social Policy with Modern Brain Science | David M. Eagleman & Sarah Isgur Flores | 1 Law of the Future Series 161 | Criminal jurisprudence is often driven more by intuition and political needs than by evidence-based science. As a result, criminal laws frequently prove sub-optimal and inefficacious. As a guideline for improvement, we here define a neurocompatibility index: seven criteria to measure the degree to which a system of criminal justice is compatible with the lessons of modern science. These include: (1) understanding of mental illness, (2) methods of rehabilitation, (3) individualised sentencing based on risk assessment, (4) eyewitness identification standards, (5) specialised court systems, (6) incentive structuring based on psychology, and (7) a minimum standard of science education for policy-makers. As demonstrated in the ideas outlined here, a brain-compatible system prizes fairness and longterm crime prevention over harsh yet inconsequential punishment. |
| Vincent | 2014 | Neurolaw and Direct Brain Interventions | Nicole A. Vincent | 8(1) Crim Law and Philos 43 | This issue of Criminal Law and Philosophy contains three papers on a topic of increasing importance within the field of ‘‘neurolaw’’—namely, the implications for criminal law of direct brain intervention based mind altering techniques (DBI’s). To locate these papers’ topic within a broader context, I begin with an overview of some prominent topics in the field of neurolaw, where possible providing some references to relevant literature. The specific questions asked by the three authors, as well as their answers and central claims, are then sketched out, and I end with a brief comment to explain why this particular topic can be expected to gain more prominence in coming years. |
| Schleim | 2007 | Gedankenlesen mit dem Hirnscanner? | Stephan Schleim & Henrik Walter | Neuroethik & Neurophilosophie | Eine der fundamentalen Annahmen der Hirnforschung ist, dass geistige Prozesse im Gehirn realisiert sind. Die bildgebenden Verfahren, allen voran die funktionelle Magnetresonanztomographie (fMRT) seit den 1990er Jahren, haben es ermöglicht, diese Denkprozesse genauer zu erforschen als mit vorherigen Methoden, etwa elektrophysiologischen Ableitungen oder Elektroenzephalogrammen. So kommt es, dass man inzwischen schon von der kognitiven Neurowissenschaft als eigener Disziplin spricht, die es sich zum Ziel gesetzt hat, die neuronalen Grundlagen des Denkens zu enthüllen. Mit Gedankenlesen hat das zunächst noch nichts zu tun, doch stellt sich die Frage, wann die Methoden weit genug fortgeschritten sein werden, um beispielsweise einen bestimmten Denkprozess im Gehirn sichtbar zu machen oder gar zu entschlüsseln. |
| Wagner | 2012 | Neuroscientific Approaches to ‘Mens Rea’ Assessment | Ullrich Wagner & Henrik Walter | in Human Beliefs. Contemporary Approaches to Cognitive Neuroscience Series, Krueger F, Grafman J (eds.), Psychology Press 137 | In criminal law of modern Western countries, ‘mens rea’ (‘guilty mind’) is a necessary element of a crime. Thus, legal blame for a criminal act (“actus reus”) is not possible if it was not committed deliberately. A critical aspect of criminal proceedings is therefore the correct evaluation of the beliefs and intentions of the defendant, in order to specify whether his or her mind was “guilty”. The present chapter examines what neuroscience can contribute to this legal process of ‘mens rea’ assessment, based on the current relevant empirical findings from social cognitive neuroscience studies, mostly performed with functional magnetic resonance imaging (fMRI). Two aspects are considered: first, how neuroscientific tools can be used to directly find indicators of “mens rea” - or its absence - in the brain of a culprit (including neuro-diagnostic tools to reveal brain abnormalities as evidence in “insanity defences” and the use of fMRI for lie detection); and second, how functional imaging is used to reveal the neural underpinnings of cognitive processes that are critical when judges or jurors assess ‘mens rea’ in a culprit (including belief attribution in moral judgments and assignment of punishment). This research, belonging to the new research field of “neurolaw”, is still in its infancy, but courts are now beginning to take neuroscientific evidence into account in their decisions. A definition of standards of how such evidence can and should be used in criminal cases is therefore required, and both neuroscientists and legal experts should be open to an interdisciplinary discussion for this purpose. The ultimate criterion should be whether the legal task of ‘mens rea’ assessment can be improved by the use of neuroscientific evidence in comparison to traditional procedures. We think that the answer is certainly “yes” under some conditions, but these conditions still have to be specified. |
| Walter | 2004 | Neurophilosophy of Moral Responsibility: The Case for Revisionist Compatibilism | Henrik Walter | 32(1/2) Philosophical Topics 477 | Since the publication of the two milestones of Neurophilosophy, the dualistic treatise The Self and Its Brain by Sir Karl Raimund Popper and Sir Joh Eccles (1977) and th eliminativist manifest Neurophilosophy by Patricial Churchland (1984), the brain sciences have progressed rapidly. In the philosophy of consciousness, for example, neuroscience has bolstered philosophical discussion and indeed has become an integral part of the philsopphy of consciousness itself. in recent years neuroscientists have entered into the discussion on free will, although not yet at the same level of sophistication as in the philosophy of neuroscience. In this paper, I will discuss the role of neuroscience for the concept of moral responsibility. I will defence the thesis that neurosience is important in formulating an empirically sound version of compatibilist free will. Furthermore, I will argue for revisionist compatibilism, a position that claims that not only the traditional concept of free will but also the traditional concept of moral responsibility has to be revised in some crucial respects, away from the libertarian intuition of ultimate responsibility to a concept that more closely resembles the concepts advocated by hard determinism. In this revision, cognitive neuroscience also plays a crucial role. |
| Müller | 2011 | Machen die Neurowissenschaften einen Paradigmenwechsel im Strafrecht erforderlich? | Sabine Müller & Henrik Walter | in Brauchen wir eine neue Moral? Herausforderungen der Ethik durch die Neurowissenschaft (Taschenbuch) | . |
| Walter | 2008 | Sind wir alle vermindert schuldfähig? Zur Neurophilosophie der Willensfreiheit | Henrik Walter | in Neuroenhancement. Ethik vor neuen Herausforderungen, B. Schöne-Seiffert, D. Talbot, U. Opolka, J.S. Ach, Mentis, Paderborn | . |
| Santosuosso | 2009 | Il dilemma del diritto di fronte alle neuroscienze | Amedeo Santosuosso | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 11 | . |
| Santosuosso | 2009 | Neuroscienze e diritto: una prima mappa | Amedeo Santosuosso & Barbara Bottalico | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 25 | . |
| Goodenough | 2009 | Neuroscientific Developments as a Legal Challenge | Oliver Goodenough | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 43 | . |
| Corbellini | 2009 | Quale neurofilosofia per la neuroetica? | Gilberto Corbellini | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 63 | . |
| Spranger | 2009 | A German Perspective on Legal Issues Arising From Neuroscientific Research and Application | Tade Spranger | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 83 | . |
| Morse | 2009 | The Neuroscientific Challenges to Criminal Responsibility | Stephen J. Morse | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 93 | . |
| De Cataldo Neuburger | 2009 | Neuroscienze e diritto penale. La scienza come, quando e perché | Luisella de Cataldo Neuburger | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 141 | . |
| Ferrarella | 2009 | Neuroscienze e media | Luigi Ferrarella | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 157 | . |
| Milano | 2009 | Tecniche di visualizzazione del cervello e identità: evidenze scientifiche e quesiti etici | Gianna Milano | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 163 | . |
| Azzini | 2009 | Come lavorare su casi e materiali nel campo delle scienze e del diritto: l’Archivio IBLARC | Sara Azzini & Amedeo Santosuosso | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 171 | . |
| Bottalico | 2009 | Casi e materiali su neuroscienze e diritto | Barbara Bottalico & Amedeo Santosuosso | Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 177 | . |
| Spranger | 2007 | Neurowissenschaften und Recht [Neurosciences and the law] | Tade Spranger | Jahrbuch für Wissenschaft und Ethik 161 | . |
| Spranger | 2007 | Der freie Wille von Menschen mit Behinderung: Neue Perspektiven durch die Neurowissenschaften ? [Free will of disabled persons: new perspectives through neurosciences?] | Tade Spranger | Sozialrecht und Praxis 547 | . |
| Schleim | 2007 | Zufallsfunde in der bildgebenden Hirnforschung. Empirische, rechtliche und ethische Aspekte. [Incidental findings and brain imaging. Empirical, legal and ethical aspects] | S. Schleim, T.M. Spranger, H. Urbach, H. Walter | Nervenheilkunde 1041 | . |
| Spranger | 2009 | Zur Relevanz des BEOS-Tests in der Neurorechtsdebatte. [The relevance of the Indian BEOS test in the neurolaw debate] | Tade Spranger | Nervenheilkunde 150 | . |
| Spranger | 2009 | Der Einsatz neurowissenschaftlicher Instrumente im Lichte der Grundrechtsordnung. [The use of neuroscientific instruments in the light of Germany´s constitutional order] | Tade Spranger | Juristenzeitung 1033 | . |
| Spranger | 2009 | Neuroprothetik und bildgebende Hirnforschung: Neue Impulse für die Praxis des Betreuungsrechts. [Neuroprothetics and imaging techniques: new impacts for legal custodians] | Tade Spranger | Betreuungsmanagement 206 | . |
| Spranger | 2009 | Das gläserne Gehirn? Rechtliche Probleme bildgebender Verfahren. [Brain of glass? Legal problems arising from imaging techniques] | Tade Spranger | Tagungsdokumentation Deutscher Ethikrat‚ Der steuerbare Mensch? Über Einblicke und Eingriffe in unser Gehirn, Berlin 35 | . |
| Spranger | 2010 | Rechtliche Aspekte rechtzeitig in den Blick nehmen. [Legal facets of neurosciences and bionics] | Tade Spranger | Sozialrecht und Praxis 424 | . |
| Spranger | 2011 | Neuroenhancement in der Rechtsordnung. [Legal implications of neuroenhancement] | Tade Spranger | Suchttherapie 164 | . |
| Spranger | 2012 | Bilder des Geistes – Was zeigen Gehirnbilder wirklich? [Images of the Mind – what brain pictures really show] | Tade Spranger | Fortschritte der Neurologie – Psychiatrie 650 | . |
| Austin | 2013 | Killing Them Softly: Neuroscience Reveals How Brain Cells Die from Law School Stress and How Neural Self-Hacking Can Optimize Cognitive Performance | Debra S. Austin | U Denver Legal Studies Research Paper | Law is a cognitive profession and the legendary stressors in legal education and the practice of law can take a tremendous toll on cognitive capacity. Lawyers suffer from depression at triple the rate of non-lawyers. This article provides a groundbreaking synthesis on the neuroscience of achieving optimal cognitive fitness for all law students, law professors, and lawyers. A number of innovative companies have instituted programs designed to enhance the bottom line. Research shows that perks such as onsite gyms, stress management classes, and mindfulness training produce vibrant workplaces and thriving employees. Forward-looking law schools have created wellness programs designed to relieve law student stress and improve well-being. This article explains the neurobiological reasons these programs enhance employee performance and improve student achievement. Law school admissions are down, students are questioning the value of legal education, and the Carnegie Report is pressuring law schools to make legal education more practical. Learning about the neuroscience of cognitive wellness is critical to protecting brain function and enhancing cognitive performance. Legal educators have the power to bring this information to the attention of their law students, and to create a neuroscience-powered achievement culture in law schools. Law students need not wait for lethargic faculty deliberation of the impact a stressful law school learning environment has on their learning. Their professional identity, along with their capacity to build practice skills and a legal knowledge base, are at risk. Law students, law faculty, and lawyers should be educated about mitigating stress-related damage to the hippocampus, the role of sleep in memory formation, and enhancing cognitive function with exercise and contemplative practices. Neural self-hacking is likely to be the newest fitness movement. Law schools and law firms that want to support robust cognitive performance for their constituents will follow Google’s lead and create achievement cultures designed to optimize cognitive wellness and limit sources of stress. With fresh insights into the complex world of brain function, this article explains brain structure; describes the parts of the brain used in cognition; and details how stress damages and kills brain cells. Neuroscience-based recommendations uncover the power of self-directed neuroplasticity in every law student, law professor, and lawyer to optimize cognition. |
| Schleim | 2012 | Brains in context in the neurolaw debate: The examples of free will and “dangerous” brains | Stephan Schleim | 35 International Journal of Law and Psychiatry 104 | Will neuroscience revolutionize forensic practice and our legal institutions? In the debate about the legal implications of brain research, free will and the neural bases of antisocial or criminal behavior are of central importance. By analyzing frequently quoted examples for the unconscious determinants of behavior and antisocial personality changes caused by brain lesions in a wider psychological and social context, the paper argues for a cautious middle position: Evidence for an impending normative “neuro-revolution” is scarce and neuroscience may instead gradually improve legal practice in the long run, particularly where normative questions directly pertain to brain-related questions. In the conclusion the paper raises concerns that applying neuroscience methods about an individual's responsibility or dangerousness is premature at the present time and carries serious individual and societal risks. Putting findings from brain research in wider contexts renders them empirically investigable in a way that does not neglect psychological and social aspects of human mind and behavior. |
| Da Rocha | 2013 | Toward a Better Understanding of the Relationship Between Neurosciences and Law | Armando Freitas Da Rocha | Research on Artificial and Natural Intelligence | Neurosciences and Law as an interdisciplinary field of science, has recently attracted attention of many scholars by distinct motives. Hopes that brain mapping could be of help for court decisions at one side, are contrasted with ethical concerns about using neurosciences tests for evaluating liability at the other side. Despite its impressive development in the last half century, Neurosciences lacks well supported and formalized theories to guide experimental studies about complex cognitive tasks. This limits the impact any contribution of this new interdisciplinary area may have in the present and near future. Therefore, it is necessary to start to build a solid formal knowledge that will correctly guide future work in this new and very important area of research. The purpose of the present paper is to contribute to the development of this formal knowledge, by discussing how knowledge provided by neurosciences may contribute to the understanding of some concepts such as action adequacy and fairness; altruism and selfishness, personal and social conflict, etc. that are at the core of any law system. In addition, the study of brain activity associated with vote decision in Brazilian Firearm Commerce Prohibition carried out by Rocha et. al. (2010) is discussed to illustrate the present proposal. |
| Jones | 2013 | Neuroscientists in Court | Owen D. Jones, Anthony D. Wagner, David L. Faigman & Marcus E. Raichle | 14 Nature Reviews Neuroscience 730 | Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists, including judges and jurors. |
| Faigman | 2014 | Group to Individual (G2i) Inference in Scientific Expert Testimony | David L. Faigman, John Monahan & Christopher Slobogin | 81 U. Chi. L. Rev. 417 | A fundamental divide exists between what scientists do as scientists and what courts often ask them to do as expert witnesses. Whereas scientists almost invariably measure phenomena at the group level, trial courts typically need to resolve cases at the individual level. A basic challenge for trial courts that rely on scientific experts, therefore, concerns translating scientific knowledge derived from studying groups into information that can be helpful in the individual cases before them (what this article refers to as “G2i”). To aid in dealing with this challenge, this article proposes a distinction between two types of expert evidence: framework evidence that describes general scientific propositions and diagnostic evidence that applies the general propositions to individual cases. It then examines the evidentiary implications of that distinction. Most importantly, admissibility standards for expert testimony should differ depending on whether experts are proffering framework or diagnostic evidence. Judicial analysis of “fit,” expert qualifications, testability, error rates, peer review, general acceptance, helpfulness and other traditional admissibility criteria for expert evidence will often vary, sometimes significantly, based on this distinction. The article provides general guidelines about the best practices judges should follow in sorting through these considerations. These guidelines will permit courts to manage G2i inferences in a more informed and coherent way than they do currently. |
| Penney | 2013 | Irresistible Impulse and the Mental Disorder Defence: The Criminal Code, the Charter, and the Neuroscience of Control | Steven Penney | 30(2) Criminal Law Quarterly ___ | As in many other jurisdictions, Canada’s "mental disorder" defense rests on the uncontroversial premise that people incapable of choosing whether to do wrong do not deserve punishment. Most defendants benefiting from this defense suffered from delusions that prevented them from understanding either the physical consequences or moral wrongfulness of their actions. There is little debate that these people should be found "not criminally responsible" (NCR). What is less clear (and what has long divided commentators, courts, and legislators) is whether the defense can excuse defendants who had a general ability to understand consequences and wrongfulness, but suffered from a mental disorder that rendered them incapable of resisting an impulse to commit the offense. To answer this question, I first review the jurisprudence on impulse control, noting that the cases allow more room for irresistible impulse than is commonly understood. Second, I argue that by deeming the concepts of "voluntariness" and "moral voluntariness" to be principles of fundamental justice under section 7 of the Charter, the Supreme Court of Canada has opened up even more space for the defense. Third, I examine what science and law teach us about the existence and diagnosibility of irresistible impulses, concluding that the phenomenon is very likely real and that recognizing the defense is likely to generate few undeserved NCR dispositions. Lastly, I explore how the defense should be defined and limited, arguing that it should succeed only when it is proved that the accused experienced a total incapacity to control conduct in the circumstances. |
| Da Rocha | 2013 | Free Will from the Neuroscience Point of View | Armando Freitas Da Rocha & Fábio T. Rocha | Research on Artificial and Natural Intelligence | There is still a controversy if human volitions and actions are governed by causal laws or obeys free will. Neurosciences start to study the neural correlates of free will by investigating how brains make decisions. Here, some of questions about free will are discussed from the neurosciences point of view taking into consideration a neuroeconomic model of decision making. This model is used here with the purpose of providing very formal definitions of key concepts raised in any free will discussion such as goals, necessity, motivation, etc., and to provide a formal background for discussing decision making. One of the conclusions of this discussion is that free will is computable but unpredictable, therefore not submitted to causal laws. In addition, the electroencephalogram was recorded in an experiment about choice selection of alternative actions and it presented here as an example of how neurosciences may study the neural correlates of free will. |
| Jones | 2013 | Law and Neuroscience | Owen D. Jones, René Marois, Martha J. Farah, Henry T. Greely | 33(45) Journal of Neuroscience 17624 | . |
| Lacy | 2013 | The Neuroscience of Memory: Implications for the Courtroom | Joyce W. Lacy & Craig E. L. Stark | 14 Nature Reviews Neuroscience 649 | Although memory can be hazy at times, it is often assumed that memories of violent or otherwise stressful events are so well encoded that they are effectively indelible and that confidently retrieved memories are almost certainly accurate. However, findings from basic psychological research and neuroscience studies indicate that memory is a reconstructive process that is susceptible to distortion. In the courtroom, even minor memory distortions can have severe consequences that are partly driven by common misunderstandings about memory — for example, that memory is more veridical than it may actually be. |
| Nutt | 2013 | Effects of Schedule I Drug Laws on Neuroscience Research and Treatment Innovation | David J. Nutt, Leslie A. King, & David E. Nichols | 14 Nature Reviews Neuroscience 577 | Many psychoactive drugs are used recreationally, particularly by young people. This use and its perceived dangers have led to many different classes of drugs being banned under national laws and international conventions. Indeed, the possession of cannabis, 3,4-methylenedioxy-N-methylamphetamine (MDMA; also known as ecstasy) and psychedelics is stringently regulated. An important and unfortunate outcome of the controls placed on these and other psychoactive drugs is that they make research into their mechanisms of action and potential therapeutic uses — for example, in depression and post-traumatic stress disorder — difficult and in many cases almost impossible. |
| Tobeña | 2013 | The Wicked in Court: A Neuroscientific Primer | Adolf Tobeña | 1299 Ann. N.Y. Acad. Sci. 1 | The criminal cases of Anders Breivik, the Norwegian shooter, and Bernard Madoff, the fraudulent American financier, are used as prominent examples of the complexity that courts have to explore when judging the severity and responsibility of felonies performed by different types of psychopaths. I outline the brain circuits subserving morally charged decisions in ordinary citizens and in patients with gross lesions in the same areas, along with singularities in these brain systems that have been detected in psychopaths. These neural signatures, combined with thorough neuropsychological examination, will hopefully improve the diagnoses and prognoses of criminals with dangerous psychopathic traits. In this respect, the profiles of incarcerated members of gangs are used to exemplify and distinguish among typical niches and varieties of psychopathy within criminal organizations. A discussion follows, presenting the complexities of novel research that is increasing the sophistication of these challenging but key intersections between neuroscience and law. |
| Ruff | 2013 | Changing Social Norm Compliance With Noninvasive Brain Stimulation | Christian C. Ruff, Giuseppe Ugazio, & Ernst Fehr | Science | All known human societies have maintained social order by enforcing compliance with social norms. The biological mechanisms underlying norm compliance are, however, hardly understood. We show that the right lateral prefrontal cortex (rLPFC) is involved in both voluntary and sanction-induced norm compliance. Both types of compliance could be changed by varying neural excitability of this brain region with transcranial direct current stimulation, but they were affected in opposite ways, suggesting that the stimulated region plays a fundamentally different role in voluntary and sanction-based compliance. Brain stimulation had a particularly strong effect for compliance based on socially constituted sanctions, while it left beliefs about what the norm prescribes and about subjectively expected sanctions unaffected. Our findings suggest that rLPFC activity is a key biological prerequisite for an evolutionarily and socially important aspect of human behavior. |
| Pardo | 2013 | Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience | Michael S. Pardo & Dennis Patterson | Oxford University Press | Cognitive neuroscientists have deepened our understanding of the complex relationship between mind and brain and complicated the relationship between mental attributes and law. New arguments and conclusions, based on functional magnetic resonance imaging (fMRI), electroencephalography (EEG), and other increasingly sophisticated technologies, are being applied to debates and processes in the legal field, from lie detection to legal doctrine surrounding criminal law, including the insanity defense, to legal theory. In Minds, Brains, and Law, Michael S. Pardo and Dennis Patterson analyze questions that lie at the core of implementing neuroscientific research and technology within the legal system. They examine the arguments favoring increased use of neuroscience in law, the scientific evidence available for the reliability of neuroscientific evidence in legal proceedings, and the integration of neuroscientific research into substantive legal doctrines. The authors also explore the basic philosophical questions that lie at the intersection of law, mind, and neuroscience. In doing so, they argue that mistaken inferences and conceptual errors arise from mismatched concepts, such as the disconnect between lying and what constitutes "lying" in many neuroscientific studies. The empirical, practical, ethical, and conceptual issues that Pardo and Patterson seek to redress will deeply influence how we negotiate and implement the fruits of neuroscience in law and policy in the future. |
| Blumoff | 2013 | When Nature and Nurture Collide: Early Childhood Trauma, Adult Crime, and the Limits of Criminal Law | Theodore Y. Blumoff | Carolina Academic Press | Professor Blumoff, who is trained in psychology and law, has spent the last decade trying to bring population-wide observations from the brain sciences to the jurisprudence of criminal law, thus producing a better model of human behavior for understanding criminal misconduct. This work examines the neuropsychological injuries suffered by seriously abused and neglected children, towards an explanation for why those children produce children who tend to abuse and neglect their own children and sometimes others. This is just a brute social fact. The book is structured in three parts, Part I engages the science of child development. Part II addresses the jurisprudence of substantive criminal law, which is still mired in the dualism and formalism of a much earlier era that largely neglects the actor’s biography. Part III speaks to anticipated objections and proposals for change. The work ends by drawing on the work of the philosopher John Rawls’s well known “Original Position,” a thought experiment on the treatment of damaged children. This book should be of interest to anyone who teaches criminal law and procedure or is involved in the administration of criminal justice, including those individuals who provide social services to the incarcerated. It could be an assigned text in a law and psychiatry course or a criminal law or jurisprudence seminar. This book is also useful for students and teachers in specialized post-graduate criminology programs, federal and state law enforcement agencies that profile offenders, specialists in the jurisprudence of punishment, and some upper-division courses in criminal justice. |
| Denno | 2013 | What Real-World Criminal Cases Tell Us About Genetics Evidence | Deborah W. Denno | 64 Hastings L.J. 1591 | This Article, which is part of a symposium on “Law and Ethics at the Frontier of Genetic Technology,” examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from serious omissions that affect the validity and reliability of its results. It is important to call attention to these problems given that the study’s widely-publicized findings are likely to bolster inaccurate perceptions regarding the dangers of allowing behavioral genetics evidence in criminal cases. This Article concludes with a detailed discussion of a number of recent criminal cases involving behavioral genetics evidence. Familiarity with such cases may improve the real-world applicability of future experimental studies exploring the influence of genetics evidence on criminal cases. |
| Jensen | 2013 | When are Damages Tax Free?: The Elusive Meaning of "Physical Injury" | Ronald H. Jensen | 10 Pitt. Tax Rev. 87 | Part I of this article traces the evolution in the tax treatment of litigation damages from 1918 through the enactment of the 1996 Amendments and reviews the various rationales that have been offered for such treatment. In Part II, I set forth a number of hypothetical cases illustrating some of the issues created by the 1996 Amendments. In Parts III through Part VI, I set forth my analyses of these issues. Finally, In Part VII, I critique the 1996 Amendments and make a proposal that would eliminate much of the uncertainty and inequity that the 1996 Amendments created while satisfying an apparent concern that led to their enactment. |
| Larson | 2013 | Miller v. Alabama: Implications for Forensic Mental Health Assessment at the Intersection of Social Science and the Law | Kimberly Larson, Frank DiCataldo, & Robert Kinscherff | 39 New Eng. J. on Crim. & Civ. Confinement 319 | . |
| Piquero | 2013 | Youth Matters: The Meaning of Miller for Theory, Research, and Policy Regarding Developmental/Life-Course Criminology | Alex R. Piquero | 39 New Eng. J. on Crim. & Civ. Confinement 347 | . |
| Walker | 2013 | When the Facts and the Law are Against You, Argue the Genes?: A Pragmatic Analysis of Genotyping Mitigation Defenses for Psychopathic Defendants in Death Penalty | Brett Walker | 90 Wash. U. L. Rev. 1779 | The article discusses the option of psychopathic defendants who potentially face the death penalty to plead mitigation due to the genetic factors that caused their mental illness. Topics mentioned include a clinical description of psychopathy, the Hare Psychopathy Checklist used to diagnose patients, and an overview of how juries have received genotyping evidence in previous cases. |
| Yokoyama | 2013 | Mathematical Neurolaw of Crime and Punishment: The q-Exponential Punishment Function | Taku Yokoyama & Taiki Takahashi | 4 Applied Mathematics 1371 | Whether people tend to punish criminals in a socially-optimal manner (i.e., hyperbolic punishment) or not is unknown. By adopting mathematical models of probabilistic punishment behavior (i.e., exponential, hyperbolic, and q-exponential probability discounting model based on Tsallis thermodynamics and neuroeconomics, Takahashi, 2007, Physica A; Takahashi et al., 2012, Applied Mathematics), we examined 1) fitness of the models to behavioral data of uncertain punishment, and 2) deviation from the socially optimal hyperbolic punishment function. Our results demonstrated that, the q-exponential punishment function best fits the behavioral data, and people overweigh the severity of punishment at small punishing probabilities and underweigh the severity of punishment at large punishing probabilities. In other words, people tend to punish crimes too severely and mildly with high and low arrest rate (e.g., homicide vs. excess of speed limit), respectively. Implications for neuroeconomics and neurolaw of crime and punishment (Takahashi, 2012, NeuroEndocrinology Letters) are discussed. |
| Da Rocha | 2013 | Gun Control: What Goes on in Your Brain | Armando Freitas da Rocha, Fábio T. Rocha, & Eduardo Massad | Research on Artificial and Natural Intelligence | Arguments for and against gun control are polarized at two opposite ends of a broad spectrum: personal liberties and social benefits. Brazil has introduced a referendum regarding the prohibition of firearm commerce and propaganda arguments, similar to the present ongoing discussion in the U.S. It has invoked socially and personally driven issues in the promotion of voting in favor of and against firearm control, respectively. Here, we used electroencephalography (EEG) technology to study the brain activity associated with a voter’s perception one week prior to Election Day, of the truthfulness of these arguments and their influence on voting decisions. The present results clearly showed that this decision was not influenced by arguments that were introduced by propaganda, which were typically driven by specific social and self-interest motives. In addition, different neural circuits were identified in the analysis of arguments for and against gun control. |
| Haupt | 2014 | Active Symbols | Claudia E. Haupt | 55 Boston College Law Review | Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive.” This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form. Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement — the dominant competing approaches to symbolic messages in Establishment Clause theory — as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns. |
| Klaming | 2013 | Did My Brain Implant Make Me Do It? Questions Raised by DBS Regarding Psychological Continuity, Responsibility for Action and Mental Competence | Laura Klaming & Pim Haselager | 6(3) Neuroethics 527 | Deep brain stimulation (DBS) is a well-accepted treatment for movement disorders and is currently explored as a treatment option for various neurological and psychiatric disorders. Several case studies suggest that DBS may, in some patients, influence mental states critical to personality to such an extent that it affects an individual’s personal identity, i.e. the experience of psychological continuity, of persisting through time as the same person. Without questioning the usefulness of DBS as a treatment option for various serious and treatment refractory conditions, the potential of disruptions of psychological continuity raises a number of ethical and legal questions. An important question is that of legal responsibility if DBS induced changes in a patient’s personality result in damage caused by undesirable or even deviant behavior. Disruptions in psychological continuity can in some cases also have an effect on an individual’s mental competence. This capacity is necessary in order to obtain informed consent to start, continue or stop treatment, and it is therefore not only important from an ethical point of view but also has legal consequences. Taking the existing literature and the Dutch legal system as a starting point, the present paper discusses the implications of DBS induced disruptions in psychological continuity for a patient’s responsibility for action and competence of decision and raises a number of questions that need further research. |
| Haselager | 2013 | Did I Do That? Brain–Computer Interfacing and the Sense of Agency | Pim Haselager | 23 Minds & Machines 405 | Brain–computer interfacing (BCI) aims at directly capturing brain activity in order to enable a user to drive an application such as a wheelchair without using peripheral neural or motor systems. Low signal to noise ratio’s, low processing speed, and huge intra- and inter-subject variability currently call for the addition of intelligence to the applications, in order to compensate for errors in the production and/or the decoding of brain signals. However, the combination of minds and machines through BCI’s and intelligent devices (IDs) can affect a user’s sense of agency. Particularly confusing cases can arise when the behavioral control switches implicitly from user to ID. I will suggest that in such situations users may be insecure about the extent to which the resulting behavior, whether successful or unsuccessful, is genuinely their own. Hence, while performing an action, a user of a BCI–ID may be uncertain about being the agent of the act. Several cases will be examined and some implications for (legal) responsibility (e.g. establishing the presence of a ‘guilty mind’) are discussed. |
| Leentjens | 2004 | Manipuleerbare wilsbekwaamheid: een ethisch probleem bij elektrostimulatie van de nucleus subthalamicus voor ernstige ziekte van Parkinson [Manipulable capacity to make up one's mind An ethical problem of electrostimulation of the nucleus subthalamicus for the serious illness of Parkinson] | A.F.G. Leentjens, V. Visser-Vandewalle, Y. Temel, & F.R. J. Verhey | 148(28) Ned Tijdschr Geneeskd 1394 | . |
| Kvaale | 2013 | The ‘Side Effects’ of Medicalization: A Meta-Analytic Review of How Biogenetic Explanations Affect Stigma | Erlend P. Kvaale, Nick Haslam, & William H. Gottdiener | 33 Clinical Psychology Review 782 | Reducing stigma is crucial for facilitating recovery from psychological problems. Viewing these problems biomedically may reduce the tendency to blame affected persons, but critics have cautioned that it could also increase other facets of stigma. We report on the first meta-analytic review of the effects of biogenetic explanations on stigma. A comprehensive search yielded 28 eligible experimental studies. Four separate meta-analyses (Ns = 1207–3469) assessed the effects of biogenetic explanations on blame, perceived dangerousness, social distance, and prognostic pessimism. We found that biogenetic explanations reduce blame (Hedges g = −0.324) but induce pessimism (Hedges g = 0.263). We also found that biogenetic explanations increase endorsement of the stereotype that people with psychological problems are dangerous (Hedges g = 0.198), although this result could reflect publication bias. Finally, we found that biogenetic explanations do not typically affect social distance. Promoting biogenetic explanations to alleviate blame may induce pessimism and set the stage for self-fulfilling prophecies that could hamper recovery from psychological problems. |
| Rumbold | 2013 | Neurolaw and the Future | John Rumbold | 5.2 Kaleidoscope 146 | . |
| Mahlmann | 2011 | Neuroscience and the Law: Concerns, Questions and Promises | Matthias Mahlmann | Bulletin Vereinigung der Schweizerischen Hochschuldozierenden 44 | In recent years there has been increasing interest in the relation of neuroscience and the law. Far reaching questions are asked about the forensic use of neuroscientific insights. Fundamental conceptions of the law have been questioned as well in the light of what appears to be known in cognitive science. Debates have focused on freedom and responsibility but are in no way limited to these issues. The article explores what appear to be central topics in this field. |
| Becker | 2013 | A Glimpse into the Future? The Current, Potential, and Appropriate Role of Functional Magnetic Resonance Imaging (fMRI) Evidence as a Predictor of Dangerousness in the American Criminal Sentencing Context | Sarah Becker | University of Toronto Faculty of Law, Master of Laws Thesis | Research suggests there are neurological predictors of violence, such as brain function abnormalities most frequently displayed by violent offenders who may suffer from a psychological phenomenon termed “psychopathy.” Functional magnetic resonance imaging (fMRI) can detect signs of some of these brain abnormalities. Neurological markers of violence, evident in a convicted individual’s fMRI results, could speak to that offender’s tendency to act violently in the future. Can fMRI play a meaningful role in estimating recidivism rates and in sentencing? Even if fMRI evidence meets legal thresholds for use in sentencing, should it be employed in light of many concerns, such as reliability, as the implications of predicting an individual’s dangerousness based on fMRI evidence are substantial, especially in the context of defendant rights. Moreover, neurological indicators of violence may undermine a holistic approach to sentencing that considers the convicted individual’s particular story. |
| Wagner | 2011 | Guilt-Specific Processing in the Prefrontal Cortex | Ullrich Wagner, Karim N’Diaye, Thomas Ethofer, Patrik Vuilleumier | 21 Cerebral Cortex 2461 | Guilt is a central moral emotion due to its inherent link to norm violations, thereby affecting both individuals and society. Furthermore, the nature and specificity of guilt is still debated in psychology and philosophy, particularly with regard to the differential involvement of self-referential representations in guilt relative to shame. Here, using functional magnetic resonance imaging (fMRI) in healthy volunteers, we identified specific brain regions associated with guilt by comparison with the 2 most closely related emotions, shame and sadness. To induce high emotional intensity, we used an autobiographical memory paradigm where participants relived during fMRI scanning situations from their own past that were associated with strong feelings of guilt, shame, or sadness. Compared with the control emotions, guilt episodes specifically recruited a region of right orbitofrontal cortex, which was also highly correlated with individual propensity to experience guilt (Trait Guilt). Guilt-specific activity was also observed in the paracingulate dorsomedial prefrontal cortex, a critical ‘‘Theory of Mind’’ region, which overlapped with brain areas of self-referential processing identified in an independent task. These results provide new insights on the unique nature of guilt as a ‘‘self-conscious’’ moral emotion and the neural bases of antisocial disorders characterized by impaired guilt processing. |
| Singh | 2013 | Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal, and Ethical Challenges | Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu | Oxford University Press | Many decisions in the legal system and elsewhere depend on predictions of bad behaviors, including crimes and mental illnesses. Some scientists have suggested recently that these predictions can become more accurate and useful if they are based in part on biological information, such as brain structure and function, genes, and hormones. The prospect of such bioprediction, however, raises serious concerns about errors and injustice. Can biological information significantly increase the accuracy of predictions of bad behavior? Will innocent or harmless people be mistakenly treated as if they were guilty or dangerous? Is it fair to keep people in prisons or mental institutions longer because of their biology? Will these new instruments of bioprediction be abused in practice within current institutions? Is bioprediction worth the cost? Do we want our government to use biology in this way? All of these scientific, legal, and ethical questions are discussed in this volume. The contributors are prominent neuroscientists, psychologists, sociologists, philosophers, ethicists, and legal scholars. This volume will interest everyone with hopes that bioprediction will solve problems or fears that bioprediction will be applied unjustly. |
| Ryan | 2013 | Poverty as Disability and the Future of Special Education Law | James E. Ryan | 101 Geo. L.J. 1455 | This Article’s broader contention is that advances in neuroscience research will eventually end special education as we know it. In short, neuroscience research is challenging a number of important assumptions that undergird special education law, including, for example, the assumption that there is a real difference between students with a specific learning disability, who are covered by the law, and those who are simply “slow,” who are not covered. As central assumptions about cognitive functioning become less and less tenable, the current structure of special education will necessarily become more vulnerable. This broader contention might seem overly speculative, perhaps even alarmist. Interestingly enough, however, special education law and policy are already changing in a way that could accommodate the advances in neuroscience predicted here. Amendments to IDEA in 1997 and 2004 have introduced what could be called an “expand-to-reduce” approach, under which some additional services are initially offered to all struggling students, in the hope that the number of students ultimately deemed eligible for “special” education will be reduced. Although the steps so far have been tentative and limited, and more changes would have to be made, a plausible path forward has already been marked. This Article suggests that these still-nascent policy changes will likely grow over time and eventually transform special education, at least for the large number of students with learning disabilities. In arguing that federal special education law will have to change, this Article joins a growing chorus in favor of reforming special education. Yet most critiques of special education operate on the premise that too many without “real” disabilities are enrolled. This Article takes a very different view and contends that the problem may be the opposite: there are too many students not in special education who do, in fact, have real disabilities. But special education, and the education system as a whole, cannot afford to enroll all of them, which means that special education will have to change. |
| Müller | 2013 | When Benefitting a Patient Increases the Risk for Harm for Third Persons - The Case of Treating Pedophilic Parkinsonian Patients with Deep Brain Stimulation | Sabine Müller, Henrik Walter, & Markus Christen | Int J Law Psychiatry | This paper investigates the question whether it is ethically justified to treat Parkinsonian patients with known or suspected pedophilia with deep brain stimulation - given increasing evidence that this treatment might cause impulse control disorders, disinhibition, and hypersexuality. This specific question is not as exotic as it looks at a first glance. First, the same issue is raised for all other types of sexual orientation or behavior which imply a high risk for harming other persons, e.g. sexual sadism. Second, there are also several (psychotropic) drugs as well as legal and illegal leisure drugs which bear severe risks for other persons. We show that Beauchamp and Childress' biomedical ethics fails to derive a veto against medical interventions which produce risks for third persons by making the patients dangerous to others. Therefore, our case discussion reveals a blind spot of the ethics of principles. Although the first intuition might be to forbid the application of deep brain stimulation to pedophilic patients, we argue against such a simple way out, since in some patients the reduction of dopaminergic drugs allowed by deep brain stimulation of the nucleus subthalamicus improves impulsive control disorders, including hypersexuality. Therefore, we propose a strategy consisting of three steps: (1) risk assessment, (2) shared decision-making, and (3) risk management and safeguards. |
| Neurolaw in Nederland | 2013 | Neurolaw in Nederland [Neurolaw in the Netherlands] | . | 88 Nederlands Juristenblad 3126 | . |
| Dawid | Authors’ Response to Comments on Fitting Science Into Legal Contexts: Assessing Effects of Causes or Causes of Effects? | A. Philip Dawid, David L. Faigman, & Stephen E. Fienberg | __ Sociological Methods & Research __ | ||
| Muramatsu | 2013 | Neuropsychological Testing in Medicolegal Cases | T. Muramatsu | 115(10) Seishin Shinkeigaku Zasshi 1051 | Because the assessment of cognitive function is among the most important diagnostic evaluations in medicolegal cases, neuropsychological testing, the optimal scientific method available to determine the manifestation of brain dysfunction, is a potentially very strong tool in those cases. However, the use of neuropsychological testing in a medicolegal setting should be done with caution. Firstly, the nature of any neuropsychological testing is complex, and cannot be simplified as "Test A measures Function A' ". Oversimplified explanation of a test is misleading, resulting in serious misjudgment in the legal procedure. Secondly, the result of the test shows someone's cognitive function at the time of the test, not the time of the act in question (i. e., a crime). Finally and most importantly, the cognitive function measured by neuropsychological testing does not directly correspond to the legal questions being asked, even when the terms used in the fields of law and neuroscience are similar. In determining whether an individual meets a specified legal standard (e. g., criminal responsibility), the results of neuropsychological testing are far from sufficient and substantial additional information is required. With these caveats in mind, an expert witness should carefully choose the neuropsychological testing battery in each case, which may greatly help to understand the individual's mental state at the time of the act in question. |
| Schacter | 2013 | Memory and Law: What Can Cognitive Neuroscience Contribute? | Daniel L. Schacter & Elizabeth F. Loftus | 16(2) Nature Neuroscience 119 | A recent decision in the United States by the New Jersey Supreme Court has led to improved jury instructions that incorporate psychological research showing that memory does not operate like a video recording. Here we consider how cognitive neuroscience could contribute to addressing memory in the courtroom. We discuss conditions in which neuroimaging can distinguish true and false memories in the laboratory and note reasons to be skeptical about its use in courtroom cases. We also discuss neuroscience research concerning false and imagined memories, misinformation effects and reconsolidation phenomena that may enhance understanding of why memory does not operate like a video recording. |
| Alces | 2013 | Naturalistic Contract | Peter A. Alces | in Commercial Contract Law: Transatlantic Perspectives (Cambridge University Press, Larry A. DiMatteo, Qi Zhou, Severine Saintier, Keith Rowley eds., 2013) | The theoretical bases of contract generally are dependent on either deontological or consequentialist normative commitments, or some combination of the two. Contract doctrine should instantiate (or at least not frustrate) the operation of the normative calculus. The chapter assesses whether contract doctrine is deficient in forwarding such normative commitments. At the least, the normative inquiry is opaque as it relates to contract doctrine. The chapter describes the normative impotence of contract by focusing on the two foundations of consensual liability: allocation of risk and formation of agreement. The material on mistake, impracticability, and the modification of contract doctrine depicts how risks are allocated. The chapter draws from the most recent United States Supreme Court arbitration decisions to illustrate the failure of the agreement principle. The chapter suggests that contract law doctrine can only make sense if we take account of the fundamental bases of the normative considerations we actually bring to the resolution of a contract controversy. Those bases are best revealed in recent neuroethical and evolutionary inquiries into the constitution of the human agent’s normative commitments. Finally, the chapter describes the apposite contract doctrine and surveys, summarily, the commentary that reveals the normative quandaries. It engages primarily apposite consequentialist theory but also suggests the limits of a deontological perspective that is subject to the same deficiencies as utilitarian analyses. From those premises apposite neuroscience findings are considered to see what, if anything, a more sophisticated sense of human agency can do to refine either the formation or application of doctrine. Ultimately, the chapter concludes that contract doctrine fails, at least in crucial ways and at crucial junctures, in relation to the preceding normative commitments. |
| Smith | 2013 | Solving the Concussion Problem and Saving Professional Football | Rodney K. Smith | 35(2) Thomas Jefferson L. Rev. 127 | The recognition of serious head injuries in football is not new. Paul Barrett recently noted that "[i]n 1903, before the NFL existed, the New York Times compared college football, then the top of the line, to 'mayhem and homicide.'" In 1905, responding to the tragic deaths of eighteen college football players, President Theodore Roosevelt intervened and asked college leaders to attend a White House Conference to curb the violence by promulgating safety rules. New safety rules were adopted, and those initial reform efforts "led to the formation of a Rules Committee and the formation of the Intercollegiate Athletic Association, which in 1910 was renamed the National Collegiate Athletic Association [NCAA]." With these rule changes and the formation of the NCAA, a major crisis that threatened the very existence of football was averted. In the second decade of the 21st century, we face a new crisis fueled by litigation and sobering scientific revelations regarding the devastating potential impact of head injuries in football at all levels. Unless handled well, this crisis will again threaten the existence — or at a minimum, the prominence — of professional football as we know it. In 2012, concerns and calls for further research gained a new and well known face when Junior Seau committed suicide. Seau was an All Pro football player who played for the San Diego Chargers for most of his career. His family responded by requesting that his brain be donated to the National Institute of Neurological Disorders and Stroke (NINDS) of the NIH to be studied and assessed as to whether Seau had suffered major brain trauma. NINDS asked a number of nationally recognized neuropathologists to analyze Seau's brain tissue. The consultants were unanimous, as reported by the NIH, in concluding that "on initial examination the brain looked normal, but under the microscope, with the use of special staining techniques, abnormalities were found that are consistent with a form of chronic traumatic encephalopathy." The NIH findings regarding Mr. Seau's brain have also been found in autopsies of other deceased athletes who played contact sports involving repeated trauma to the head. It is widely conceded that the problem of head injuries experienced by present and former players in the NFL is quite serious. The economic costs of dealing with those issues will be high but are secondary to the emotional and physical costs to the players themselves — costs that must be meaningfully and promptly addressed. This article addresses what can be done, in a legal and policy sense, to deal with the serious problem of brain injuries suffered in professional football. Dealing with these issues from legal and policy perspectives — not merely a medical perspective — this article examines the role of (1) litigation, (2) administrative and legislative action, and (3) associational action by the NFL and the NFLPA in dealing with these issues. Each possible means of addressing this problem will be examined in terms of its strengths (benefits) and weaknesses (costs). |
| Glenn | 2014 | Neurocriminology: Implications for the Punishment, Prediction and Prevention of Criminal Behaviour | Andrea L. Glenn & Adrian Raine | 15 Nature Reviews Neuroscience 54 | Criminal behaviour and violence are increasingly viewed as worldwide public health problems. A growing body of knowledge shows that criminal behaviour has a neurobiological basis, and this has intensified judicial interest in the potential application of neuroscience to criminal law. It also gives rise to important questions. What are the implications of such application for predicting future criminal behaviour and protecting society? Can it be used to prevent violence? And what are the implications for the way offenders are punished? |
| Farah | 2014 | Functional MRI-based Lie Detection: Scientific and Societal Challenges | Martha J. Farah, J. Benjamin Hutchinson, Elizabeth A. Phelps & Anthony D. Wagner | 15(2) Nature Reviews Neuroscience 123 | Functional MRI (fMRI)-based lie detection has been marketed as a tool for enhancing personnel selection, strengthening national security and protecting personal reputations, and at least three US courts have been asked to admit the results of lie detection scans as evidence during trials. How well does fMRI-based lie detection perform, and how should the courts, and society more generally, respond? Here, we address various questions — some of which are based on a meta-analysis of published studies — concerning the scientific state of the art in fMRI-based lie detection and its legal status, and discuss broader ethical and societal implications. We close with three general policy recommendations. |
| Cohen | 2014 | Rewiring Juvenile Justice: The Intersection of Developmental Neuroscience and Legal Policy | Alexandra O. Cohen & B.J. Casey | 18(2) Trends in Cognitive Sciences 63 | The past decade has been marked by historic opinions regarding the culpability of juveniles by the US Supreme Court. In 2005, the death penalty was abolished, 5 years later, life without parole for crimes, other than homicide, was banned, and then just last year, mandatory life sentences for any crime was abolished. The court referenced developmental science in all these cases. In this article, we highlight new scientific findings and their relevance to law and policy. |
| Dreyfuss | 2014 | Teens Impulsively React rather than Retreat from Threat | Michael Dreyfuss, Kristina Caudle, Andrew T. Drysdale, Natalie E. Johnston, Alexandra O. Cohen, Leah H. Somerville, Adriana Galván, Nim Tottenham, Todd A. Hare, & BJ Casey | Dev. Neurosci. | There is a significant inflection in risk taking and criminal behavior during adolescence, but the basis for this increase remains largely unknown. An increased sensitivity to rewards has been suggested to explain these behaviors, yet juvenile offences often occur in emotionally charged situations of negative valence. How behavior is altered by changes in negative emotional processes during adolescence has received less attention than changes in positive emotional processes. The current study uses a measure of impulsivity in combination with cues that signal threat or safety to assess developmental changes in emotional responses to threat cues. We show that adolescents, especially males, impulsively react to threat cues relative to neutral ones more than adults or children, even when instructed not to respond. This adolescent-specific behavioral pattern is paralleled by enhanced activity in limbic cortical regions implicated in the detection and assignment of emotional value to inputs and in the subsequent regulation of responses to them when successfully suppressing impulsive responses to threat cues. In contrast, prefrontal control regions implicated in detecting and resolving competing responses show an adolescent-emergent pattern (i.e. greater activity in adolescents and adults relative to children) during successful suppression of a response regardless of emotion. Our findings suggest that adolescence is a period of heightened sensitivity to social and emotional cues that results in diminished regulation of behavior in their presence. |
| Chandler | 2013 | Another Look at the Legal and Ethical Consequences of Pharmacological Memory Dampening: The Case of Sexual Assault | Jennifer A. Chandler, A. Mogyoros, T. Martin Rubio, & Eric Racine | 41(4) Journal of Law, Medicine and Ethics 859 | Research on the use of propranolol as a pharmacological memory dampening treatment for post-traumatic stress disorder is continuing and justifies another look at the legal and ethical issues raised in the past. We summarize the general ethical and legal issues raised in the literature so far, and we select two for in-depth reconsideration. We address the concern that a traumatized witness may be less effective in a prosecution emerging from the traumatic event after memory dampening treatment. We analyze this issue in relation to sexual assault, where the suggestion that corroborating evidence may remedy any memory defects is less likely to be helpful. We also consider the clinical ethical question about a physician’s obligation to discuss potential legal consequences of memory dampening treatment. We conclude that that this latter question reflects a general problem related to novel medical treatments where the broader socio-legal consequences may be poorly understood, and suggest that issues of this sort could usefully be addressed through the promulgation of practice guidelines. |
| Corda | 2013 | Neurociencias y derecho penal desde el prisma de la dimensión procesal | Alessandro Corda | Neurociencia y proceso judicial 109 (Madrid: Marcial Pons, Michele Taruffo & Jordi Nieva Fenoll, eds., 2013) | La neurociencia parece estar delimitando de forma -quizás- inevitable las fronteras del conocimiento humano de la realidad, constatación que está influyendo ya decisivamente en el estudio del proceso judicial. Actualmente es obligado saber qué es la fMRI, o resonancia magnética funcional por imágenes, para conocer los últimos avances prácticos -es difícil decir teóricos- tanto en materia probatoria como en la elaboración del juicio jurisdiccional. Hoy en día podemos averiguar aspectos relevantes para el juicio que hasta ayer mismo eran ciencia ficción. Está comenzando a determinarse, por ejemplo, si la configuración orgánica cerebral de una persona le ha llevado, no ya a cometer un delito, sino a actuar de una determinada manera, lo que encierra ventajas enormes, pero también riesgos igual de relevantes. También empieza a ser posible averiguar el grado de sufrimiento anímico de una víctima, lo que resulta esencial en el cálculo de los daños morales. Asimismo hay quien investiga, con esta técnica, en el campo de la detección de mentiras. Aunque esto último todavía está lejos de ser una realidad científica, se vislumbra que existe, al menos, cierto camino por recorrer. El presente libro aborda todas esas cuestiones, junto a las no menos importantes en torno al estudio de la voluntad humana, determinante para la propia existencia del Derecho, así como a la puesta en cuestión de las nociones habituales de imparcialidad o valoración de la prueba, entre otras. En definitiva, se abre una nueva fase en el estudio del enjuiciamiento con la que todos los juristas, inevitablemente, nos tendremos que enfrentar. De hecho, como seres humanos, ya nos enfrentamos con la misma, aunque sin ser conscientes de ello. |
| Corda | 2012 | Riflessioni sul rapporto tra neuroscienze e imputabilità nel prisma della dimensione processuale | Alessandro Corda | 7 Criminalia. Annuario di Scienze penalistiche 497 | . |
| Taylor | 2013 | Criminal Minds: The Influence of the Monoamine Oxidase A Genotype and Environmental Stressors on Aggressive Behaviour | Sophie Taylor | 11 Burgmann Journal 71 | The notion that genes play an important role in many diseases has been widely accepted, but many people find it difficult to acknowledge a similar link between genetics and a predisposition to specific behaviours, in particular aggressive criminal behaviour. Despite this scepticism, recent gene-environment interaction studies have found a significant correlation between a deficiency in the monoamine oxidase A (MAOA) gene and an increased risk of aggressive behaviour, when exposed to adverse childhood maltreatment. However, many studies found that not all subjects with MAOA deficiency who were subjected to childhood maltreatment developed aggressive behavioural problems. This paper reviews studies that investigate whether, at sensitive stages during development, changes in MAOA balance triggered by severe environmental factors could disrupt monoamine-mediated brain development leading towards the expression of an aggressive phenotype. |
| Drysdale | 2013 | Helmet-to-Helmet Contact: Avoiding a Lifetime Penalty by Creating a Duty to Scan Active NFL Players for Chronic Traumatic Encephalopathy | Thomas A. Drysdale | 34(4) Journal of Legal Medicine 425 | . |
| Claypoole | 2013 | Regulating the Brainspray Revolution | Theodore F. Claypoole | Nov 2013 Business Law Today | . |
| Schauer | 2014 | Is Expert Evidence Really Different? | Frederick Schauer & Barbara A. Spellman | 89 Notre Dame L. Rev. 1 | The problem with expert evidence is not the inappropriateness of the Daubert approach. The narrow focus on Daubert is misplaced. The real problem is with the more deeply entrenched view that expert evidence should be excluded under circumstances in which analogous non-expert evidence would be admitted. Daubert embodies the distinction between expert and non-expert evidence, but it is that very distinction, and not just Daubert, that is the problem. Daubert has indeed transformed modern evidence law, but perhaps it has awakened us to the need for a more profound transformation, one in which the very foundations of treating expert testimony differently are undercut. This is a larger claim than that Daubert itself is a problem, and it is this larger claim we seek to advance here. |
| Scott | 2013 | “Children are Different”: Constitutional Values and Justice Policy | Elizabeth S. Scott | 11(1) Ohio State Journal of Criminal Law 71 | This essay explores the importance of Miller and two earlier Supreme Court opinions rejecting harsh sentences for juveniles for Eighth Amendment jurisprudence and for juvenile crime regulation. It argues that the Court has broken new ground with these opinions in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles’ non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing that the Court has embraced a developmental model of youth crime regulation and elevated this approach to one that is grounded in constitutional values and principles. This approach represents a forceful repudiation of the punitive law reforms of the late 20th century, when the relevance of adolescents’ developmental immaturity to justice policy was either ignored or rejected. The opinions offer four key lessons for lawmakers. The first is that juvenile offenders are different from and less culpable than adults and should usually be subject to more lenient criminal sanctions. The second lesson is that decisions to subject juveniles to adult prosecution and punishment should be “unusual” and individualized — made by a judge in a transfer hearing and not by categorical legislative waiver. The third lesson is that sanctions should focus on maximizing young offenders’ potential for reform and the fourth is that developmental science can guide and inform juvenile crime regulation in useful ways. These four lessons, formulated by our preeminent legal institution and embodying constitutional values, are likely to have a profound influence on the future direction of youth crime regulation. |
| Feld | 2013 | The Youth Discount: Old Enough To Do The Crime, Too Young To Do The Time | Barry C. Feld | 11(1) Ohio State Journal of Criminal Law 107 | An essay is presented on the rigorous proportionality of the juvenile crime policy implementation by the U.S. Supreme Courts in applying harsh mandatory capital life sentences to juvenile offenders. It highlights the constitutionality of the Eight Amendment protections and jurisprudence for crimes committed by juvenile delinquents under 18 years old. The author believes that youthfulness must be considered by judges as a mitigating factor when making individualized sentencing decisions. |
| Andrews | 2014 | Avoiding the Technical Knockout: Tackling the Inadequacies of Youth Concussion Legislation | Erin P. Andrews | 58 N.Y.L. Sch. L. Rev. 417 | . |
| Dalton | 2013 | Their Brains on Google: How Digital Technologies Are Altering the Millennial Generation's Brain and Impacting Legal Education | Kari Mercer Dalton | 16 SMU Sci. & Tech. L. Rev. 409 | . |
| George | 2013 | Teaching the Smartphone Generation: How Cognitive Science Can Improve Learning in Law School | Shailini Jandial George | 66 Me. L. Rev. 163 | Today’s law student enters law school as a digital native, constantly “plugged in” and accessing information at a moment’s notice, often during class time itself. Yet scholars agree that these students are entering law school with weaker reading and reasoning skills than prior generations, due in large part to the way students multitask through life. This article aims to address the problems caused by the intersection of these two issues by applying cognitive learning theory to the law school environment. Part One examines the characteristics of our current students by describing their skills and learning styles upon arriving at law school. Part Two examines cognitive learning theory insofar as it can inform our teaching andragogy: specifically, how do today’s students learn, how can we help our students learn better, and what effect does their multitasking have on learning? The final section suggests ways for students and educators to better translate the information offered in class into knowledge. Ultimately, this article suggests teaching students about metacognition and effective study techniques while also encouraging professors to design and plan their courses by adopting cognitive learning theories and using more visual aids, visual exercises, and assessments to help students better learn the material. |
| Kolber | 2014 | Will There Be a Neurolaw Revolution? | Adam J. Kolber | 89 Ind. L.J. 807 | The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility. There will, however, be a neurolaw revolution of a different sort. It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways, three of which I describe here: First, as new methods of brain imaging improve our ability to measure distress, the law will ease limitations on recoveries for emotional injuries. Second, as neuroimaging gives us better methods of inferring people’s thoughts, we will have more laws to protect thought privacy but less actual thought privacy. Finally, improvements in artificial intelligence will systematically change how law is written and interpreted. |
| Shniderman | 2014 | No Such Thing as a Sure Thing: Neuroscience, The Insanity Defense & Sentencing Mitigation | Adam B. Shniderman | 26(1) The Jury Expert 11 | Neuroscience is often hailed as the silver bullet that will radically change the way the courts and individuals perceive criminal culpability. While this has come true to an extent with several Supreme Court decisions regulating juvenile punishment, evidence is less clear with respect to adults. A growing number of empirical studies are being conducted to assess how neuroscientific evidence impacts jury decision making. This article provides insight and guidance for trial lawyers by highlighting the relevant legal, the mixed findings of these published mock jury studies, and that there is no such thing as a sure thing when it comes to offering evidence of neurological dysfunction or impairment. |
| Moore | 2014 | Stephen Morse on the Fundamental Psycho-Legal Error | Michael S. Moore | Crim Law and Philos | Stephen Morse has long proclaimed there to be a “fundamental psycho-legal error” (FPLE) that is regularly made by legal and social/psychological/medical science academics alike. This is the error of thinking that causation of human choice by factors themselves outside the chooser’s control excuses that chooser from moral responsibility. In this paper, I examine Morse’s self-labelled “internalist” defense of his thesis that this is indeed an error, and finds such internalist defense incomplete; needed is the kind of externalist defense of Morse’s thesis that can only be provided by a worked-out compatibilist moral philosophy. The body of the paper outlines the kinds of compatibilisms that are plausible, contrasting them with two less plausible attempts to salvage responsibility in the face of an advancing neuroscientific determinism. These two less plausible rescue attempts, libertarianism and fictionalism, each seek to salvage responsibility even while not disavowing the FPLE. |
| Church | 2014 | Imaging’s Insights Into Human Violence | Elizabeth J. Church | 85(4) Radiologic Technology 417 | Following every well-publicized act of incomprehensible violence, the news media rush to interview neighbors, family members, and experts in an attempt to discover what could have led an individual to commit such a barbarous act. Certain stock answers are reiterated: video games, bullying, violent films, mental illness, the availability of guns, and a society that is increasingly both anonymous and callous. Might imaging be one of the more valuable keys to unlocking the mysteries of violent, aggressive people? This article explores these questions and their complex answers in the context of violent individuals. |
| Fost | 2013 | Remaking Responsibility: Complexity and Scattered Causes in Human Agency | Joshua Fost & Angela Coventry | 1 Global Science and Technology Forum 91 | Contrary to intuitions that human beings are free to think and act with “buck-stopping” freedom, philosophers since Holbach and Hume have argued that universal causation makes free will nonsensical. Contemporary neuroscience has strengthened their case and begun to reveal subtle and counterintuitive mechanisms in the processes of conscious agency. Although some fear that determinism undermines moral responsibility, the opposite is true: free will, if it existed, would undermine coherent systems of justice. Moreover, deterministic views of human choice clarify the conditions in which we ought to protect people from themselves, for example when they cannot give informed consent to medical procedures. Some of the most unresolved questions in this domain are just now emerging; they include robot ethics and the responsibilities of groups. We propose a philosophical and scientific research program to apply complex systems science to these problems. |
| Wasserman | 2014 | Seeing Responsibility: Can Neuroimaging Teach Us Anything about Moral and Legal Responsibility? | David Wasserman & Josephine Johnston | 44(s2) Hastings Center Report S37 | As imaging technologies help us understand the structure and function of the brain, providing insight into human capabilities as basic as vision and as complex as memory, and human conditions as impairing as depression and as fraught as psychopathy, some have asked whether they can also help us understand human agency. Specifically, could neuroimaging lead us to reassess the socially significant practice of assigning and taking responsibility? While responsibility itself is not a psychological process open to investigation through neuroimaging, decision-making is. Over the past decade, different researchers and scholars have sought to use neuroimaging (or the results of neuroimaging studies) to investigate what is going on in the brain when we make decisions. The results of this research raise the question whether neuroscience—especially now that it includes neuroimaging—can and should alter our understandings of responsibility and our related practice of holding people responsible. It is this question that we investigate here. |
| Sahito | 2013 | Interrogational Neuroimaging: The Missing Element in Counter-Terrorism | Farhan Hyder Sahito | 3(3) International Journal of Innovation and Applied Studies 592 | Following the September 2001 terrorist attacks in New York, governments have waged a global campaign against terrorists groups in order to ensure national security. A crucial part of this campaign has been intelligence gathering with different methods of interrogation in order to extract allegedly necessary information from suspected terrorists. Similarly, it is not surprising that intelligence personnel have started recognizing that neuroimaging technologies — in particular, functional Magnetic Resonance Imaging (fMRI) addresses this fundamental lack within the realm of scientific scrutiny. The current research introduces a first step towards developing a novel experimental interrogation paradigm that aims to apply a number of reliable and practical applications of fMRI within a rule of law and human rights framework. This prototype is applied in such a way that implications of interrogative methodologies will become a reality for mining of knowledge from potential suspects. The ultimate goal of our innovative methodology is the implementation of fMRI in real life situations that may serve the cause of human rights by providing an innocent person the means to scientifically prove his/her innocence. This truth verification tool has potential to replace torture and aggressive existing interrogation strategies. However, we discuss that there are still human rights and privacy concerns that must be addressed prior to moving this technology to real‐world application. Similarly, this paper will recommend best practices and guidelines to address scientific, social, ethical, privacy and general public concerns. The future of law enforcement agencies may very well be under construction with this new line of attack that could revolutionize police work and likely to provide significant benefits to society. |
| Amirian | 2013 | Weighing the Admissibility of fMRI Technology under FRE 403: For the Law, fMRI Changes Everything -- and Nothing | Justin Amirian | 41 Fordham Urb. L.J. 715 | This Note purports to definitively answer the question whether lie detection, if it becomes sufficiently reliable under legal standards, will be admissible in court, as well as the credibility of the fMRI detection results. |
| Meynen | 2013 | A Neurolaw Perspective on Psychiatric Assessments of Criminal Responsibility: Decision-Making, Mental Disorder, and the Brain | Gerben Meynen | 36(2) International Journal of Law and Psychiatry 93 | In some criminal law cases, the defendant is assessed by a forensic psychiatrist or psychologist within the context of an insanity defense. In this article I argue that specific neuroscientific research can be helpful in improving the quality of such a forensic psychiatric evaluation. This will be clarified in two ways. Firstly, we shall adopt the approach of understanding these forensic assessments as evaluations of the influence of a mental disorder on a defendant's decision-making process. Secondly, I shall point to the fact that researchers in neuroscience have performed various studies over recent years on the influence of specific mental disorders on a patient's decision-making. I argue that such research, especially if modified to decision-making in criminal scenarios, could be very helpful to forensic psychiatric assessments. This kind of research aims to provide insights not merely into the presence of a mental disorder, but also into the actual impact of mental disorders on the decisions defendants have made in regard to their actions. |
| Grafton | 2007 | Brain Scans Go Legal | Scott T. Grafton, Walter P. Sinnott-Armstrong, Suzanne I. Gazzaniga and Michael S. Gazzaniga | 17 Scientific American Mind 30 | Courts are beginning to allow brain images as evidence, but current technology is nowhere near trustworthy enough to determine or absolve guilt. |
| West | 2014 | The Effect of Electrophysiological Neuroscientific Deception Detection Evidence on Juror Judgments in a Criminal Trial | Michelle L. West, Victoria Z. Lawson, & Jillian Grose-Fifer | 36(2) Basic and Applied Social Psychology 133 | There are concerns that if neuroscientific deception detection evidence becomes admissible in court, jurors may weigh it inappropriately. We investigated whether mock jurors were influenced more by electrophysiological than behavioral evidence that a defendant in a criminal trial was lying. Participants’ perceptions of evidence quality predicted verdict choice, and quality ratings were higher for neuroscientific than for behavioral evidence. However, both types of evidence increased guilty verdicts similarly, and the inclusion of neuroimages had no additional impact. These findings suggest that neuroscientific evidence may be processed differently than other types of deception evidence, but it is not necessarily more persuasive. |
| Cohen | 2014 | Freedom's Road: Youth, Parole, and the Promise of Miller v. Alabama and Graham v. Florida | Laura Cohen | 35 Cardozo L. Rev. 1031 | “Eric is free!” On the day before Thanksgiving 2007, jubilant messages bounced across cyberspace as my students in the Rutgers Urban Legal Clinic (ULC) learned that their client had walked out the front door of the Queensboro, New York Correctional Facility and into the waiting arms of his family and friends. With those few steps, he left behind the vast wasteland that was nearly two decades behind bars and, for the first time, faced the future as an independent adult. Convicted of felony murder at the age of fifteen, sentenced to a term of seven years to life in prison, and released on parole at thirty, Eric2 understood that true freedom was not yet, and perhaps never would be, his. Still, the moment was sweet. It also was the culmination of five years of advocacy before an intransigent Parole Board and unsympathetic courts. We litigated the case vociferously. Students submitted letters of support, job offers, psychological risk assessments, and documentation of Eric's rehabilitation and parole readiness to the Board; prepared Eric for his *1033 parole hearings; and filed numerous administrative and judicial appeals. In the face of overwhelming evidence demonstrating Eric's readiness for release, the Board based its repeated denials on two factors: the seriousness of his offense, and the perceived inadequacies of his statements of remorse for his crime. Our efforts to compel Board members to consider these factors within the context of Eric's developmental immaturity at the time he committed the offense, and the relevance of his youthfulness to any assessment of his recidivism risk, were futile. It was not until Eric's fourth parole hearing, after he had served more than double his minimum sentence, that he finally was released. This Article posits that, in light of Miller v. Alabama3 and Graham v. Florida,4 the manner in which parole boards evaluate inmates who, like Eric, were convicted of serious offenses while still adolescents has gained new significance. In these cases, decided two years apart, the United States Supreme Court held that mandatory life without parole (LWOP) sentences for youth who are under the age of eighteen at the time of offense commission (Miller), and LWOP sentences for youth convicted of non-homicides (Graham), violate the Eighth Amendment's ban on cruel and unusual punishment. While the Miller Court left open the door to a LWOP sentence in homicide cases, it stressed that imposition of “this harshest possible penalty will be uncommon.”5 Thus, in addition to the thousands of inmates convicted as teenagers who already come before parole boards each year, a substantial number of the 2600 people currently serving juvenile LWOP sentences now will be eligible for parole review.6 Both Graham and Miller spring from an extraordinary epoch in American juvenile justice, in which the question of juvenile culpability has taken statutory and case law developments in opposite directions. Since the mid-1990s, nearly every state legislature has enacted punitive juvenile crime measures, leading more youth to be tried and incarcerated in the adult system than ever before. Paradoxically, however, in the seven years since Roper v. Simmons outlawed the juvenile death penalty, the United States Supreme Court has forged a new, more humane jurisprudence of youth.7 Erected on a solid foundation of neuroscience and developmental psychology, this still-emergent doctrine makes clear that “youth matters,”8 that *1034 developmental immaturity is a core consideration in determining the constitutionality of certain police9 and sentencing procedures.10 Miller and Graham are the latest bricks in the wall. Miller and Graham are remarkable for a number of reasons. They engage in proportionality review in a non-capital context and, for the first time, categorically strike down sentencing practices other than the death penalty for an entire class of offenders; as Justice Kagan noted for the Miller majority, if “‘death is different,’ children are different too.”11 They embrace and reinforce Roper's central determination that, because the “salient characteristics” of adolescence mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption,” even those youth convicted of the most serious offenses are less culpable, and more capable of change, than adults.12 And Miller, also for the first time, overtly applies the imperative of individualized consideration to a non-capital mandatory sentencing scheme and finds it wanting.13 The entwining of Graham's insistence that incarcerated youth not “die in prison without any meaningful opportunity to obtain release”14 and the Miller mandate of individualized consideration weaves a new thread into the cloth of Eighth Amendment jurisprudence. In doing so, the cases raise significant questions about post-conviction processes as they apply to young offenders.15 *1035 My focus is on the somewhat narrow universe of discretionary parole hearings, which remain the only avenue to eventual or early release for a substantial percentage of incarcerated youth. I am concerned not only with those young people who, prior to Miller and Graham, were or would have been sentenced to LWOP, but also with the many others who, like Eric, already are serving long terms with the possibility of discretionary release. Part I delves more deeply into Eric's story, as it is in many ways typical of the experience of young offenders and illustrative of the overwhelming challenges they face in obtaining parole. Part II summarizes briefly the rich body of social science and neuroscience upon which the Supreme Court relied in these cases and in Roper. Part III offers a reading of Graham and Miller, with a particular focus on the Court's evolving jurisprudence of “individualized consideration” in criminal matters involving youth and the constitutional import of the possibility of parole. Part IV considers the constitutional significance of the possibility of parole. Part V outlines the parole process and reviews the rather sparse literature on parole decision-making, with an emphasis on whether, and how, parole boards consider age and developmental immaturity. Part VI considers several issues with which parole boards often grapple and the unique challenges these pose to inmates convicted as youth, including institutional behavior, offense severity (and its dyadic relationship with developmental immaturity), and acceptance of responsibility and remorse. Finally, Part VII argues that Graham and Miller compel a more nuanced parole decisional process focused on other, forward-looking factors and offers recommendations for policy and practice reform. |
| Koenig | 2014 | A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains | Ellen Koenig | 41 Fordham Urb. L.J. 177 | The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in Strickland v. Washington, the Court adopted a two-prong ″reasonableness″ test, which, according to Justice O’Conner, may result in court decisions that fail to properly protect a criminal defendant’s rights. Recently, courts have adopted a second approach based on guidelines promulgated by the American Bar Association. This Note aims to answer this question. It first provides a background on the right to effective assistance of counsel and briefly describes neuroscience evidence, oppositions to and limitations on in its use, and its admissibility in court. Second, this Note attempts to give some guidance to attorneys by exploring the American Bar Association and U.S. Supreme Court standards. Third, it summarizes the results of a statistical analysis conducted by the author, which helps further define when courts require attorneys to develop neuroscience evidence. It concludes by arguing that attorneys need guidance to ensure they are not violating the Sixth Amendment. This Note expands on the American Bar Association’s standard and suggests a framework attorneys may use to determine whether they should develop neuroscience evidence to ensure that their client has a fair trial. |
| Saunders | 2014 | The Role of Science in the Supreme Court's Limitations of Juvenile Punishment | Kevin W. Saunders | 46 Tx. Tech. L. Rev. 339 | Since 1988, the United States Supreme Court has considered the propriety of imposing very harsh sentences, death or life without the possibility of parole, for offenses minors committed. In a pair of cases in 1988 and 1989, the Court threw out a death sentence for a person who had committed murder as a fifteen-year-old, but later refused to find the imposition of the death penalty on a person who committed murder as a seventeen-year-old unconstitutional. In a later series of cases, the Court reversed course and held unconstitutional the imposition of the death penalty or of life without the possibility of parole, at least as a mandatory sentence, when the crime had been committed before the defendant turned eighteen. There were advances in the scientific understanding of the nature of juveniles that might serve to explain the Court's change in position. Indeed, this new scientific knowledge was presented to the Court in briefs by amici in recent cases. This Article will examine the role that the scientific developments may or may not have played in the Court's change in position. *340 First, the state of science leading into the 1988 and 1989 cases will be presented. Second, the Court's decisions in those cases will be examined. Next, developments in science between the two groups of cases will be discussed. That will be followed by a discussion of the treatment of the science in the opinions by the members of the Court in the later series of cases. Lastly, conclusions regarding the role of science will be offered. |
| Donahue | 2014 | Functional Magnetic Resonance Imaging and the Law Today: The Brain is Reliable as a Mitgating Factor, but Unreliable as an Aggravating Factor or as a Method of Lie Detection. | Kristina E. Donahue | 42 U. Balt. L. Rev. 857 | Charles Whitman was an exemplary individual; he was a husband and a son, an Eagle Scout, a scholarship student at the University of Texas, and he had just joined the United States Marine Corps. Yet, on August 1, 1966, he brutally stabbed and murdered his wife and mother. Later that day, he ascended the University of Texas Tower and gunned down forty-five people, committing what was then the largest simultaneous mass murder in American history. In order to end the shooting spree, Austin police were forced to shoot and kill Whitman. In total, Charles Whitman savagely killed sixteen people and wounded thirty-one others. After this horrific event, investigators discovered a note written by Whitman in which he expressed confusion as to why he felt compelled to commit the murders and detailed the severe headaches and disturbing thoughts he had recently developed. An autopsy revealed a brain tumor in the hypothalamus region of Whitman's brain, which was compressing and over-stimulating the amygdala. Functional magnetic resonance imaging (fMRI) has since revealed that over-stimulation of the amygdala results in uncontrollable violent behavior and the inability of an individual to understand and appreciate criminal behavior. FMRI technology can help shed light on why individuals like Charles Whitman do what they do, and this raises the question of what role such evidence should play in the judicial system. FMRI is a scientific technique used to image the brain's activity while an individual is engaging in a specific task or sensory process. FMRI technology allows researchers to monitor the functioning of the brain by comparing the brain's consumption of oxygen in specific areas during movement, thought, sensation, and emotion. Scientific research thus far has used fMRI for two main purposes: lie detection and the identification of functional or structural impairments within the brain. These scientific advances have raised many questions about the potential role of fMRI evidence in the legal system. This comment will argue that fMRI as a method of distinguishing truth from falsehood is not yet reliable enough for use as substantive evidence in court, as the results are not consistent due to the variability and complexities in the brain patterns associated with different forms of lying. However, fMRI evidence of increased violent and aggressive impulses, which result from impairment of the amygdala and prefrontal cortex regions of the brain, meets the “preponderance of the evidence” standard required for the admissibility of mitigation evidence during both federal and Maryland state sentencing proceedings, and, therefore, fMRI evidence should be considered by the court and the jury as a mitigating factor during sentencing. But fMRI evidence does not meet the “beyond a reasonable doubt” standard that is required for admission as an aggravating factor at this time. More importantly, this technology raises the larger concern as to what role fMRI should play in the law in the future when the technology evolves to the point where fMRI evidence can meet the beyond a reasonable doubt standard required for admission as an aggravating factor and, perhaps even more troubling, to the point where such fMRI evidence is reliable enough to meet the Daubert and Frye-Reed tests for admissibility as substantive evidence for the determination of guilt. |
| Morse | 2014 | Brain Imaging in the Courtroom: The Quest for Legal Relevance | Stephen J. Morse | 5(2) AJOB Neuroscience 24 | This article addresses the question of the relevance of brain imaging to legal criteria that are behavioral, that is, that require evaluation of a defendant's actions or mental states. It begins with the legal standard for the admissibility of scientific and technical evidence. Then it considers the relevance of imaging to behavioral legal criteria. The problem is translating mechanistic neuroscience data into the law's folk psychological standards. It uses examples from the criminal law, but the analysis generalizes to behavioral criteria in the civil law. The central question is, “How, precisely, does the proffered scan or data based on scanning answer the specific legal question it supposedly helps answer?” I conclude that, at present, brain imaging has little relevance to behavioral legal criteria. The final section takes note of a rampant disorder, brain overclaim syndrome, and offers a remedy, cognitive jurotherapy. |
| Brindley | 2014 | Neuroimaging: Correlating, Validity, Value, and Admissibility: Daubert--and Reliability--Revisited | Timothy Brindley, James Giordano | 5(2) AJOB Neuroscience 48 | As well described by Leonard Berlin (2014), ongoing debate about the integrity of neuroimaging techniques reveals stances that span from the wholly supportive, through apologist, to debunking. However, renewed dedication to fortifying neuroscience and neurotechnology (e.g., the newly announced Brain Research through Advancing Innnovatie Neurotechnologies [BRAIN] Initiative in the United States) may yield developments that are aimed at compensating extant limitations in neuroimaging capability and interpretation, which might thereby affect legal consideration. Given trends toward increasing use of neuroscientific techniques and technologies to depict cognitive, emotional, and behavioral dispositions and expressions, we believe that the corpus and gravitas of research strengthening the viability of neurotechnologically derived assessments will foster even wider acceptance. In light of this, we query the role and influence of neurotechnologically derived information in legal contexts, as based upon a fundamental understanding of neuroscience, and pose whether the prism of the Daubert standard--at times and in some courts considered a high threshold for admissibility--should be refocused, or whether the standards of neuroscientific protocols should be fortified so as to better define the "reliability" for information, technology, and expertise. |
| Monahan | 2013 | The Inclusion of Biological Risk Factors in Violence Risk Assessments | John Monahan | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Slobogin | 2013 | Bioprediction in Criminal Cases | Christopher Slobogin | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Campbell | 2013 | The Limits of Legal Use of Neuroscience | Colin Campbell and Nigel Eastman | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Root Wolpe | 2013 | Rethinking the Implications of Discovering Biomarkers for Biologically-Based Criminality | Paul Root Wolpe | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Buckholtz | 2013 | MAOA and the Bioprediction of Antisocial Behavior: Science Fact and Science Fiction | Joshua W. Buckholtz and Andreas Meyer-Lindenberg | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Viding | 2013 | Genetic biomarker research of callous-unemotional traits in children: Implications for the law and policy making | Essi Viding and Ewan McCrory | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Dylan-Haynes | 2013 | The neural code for intentions in the human brain | John Dylan-Haynes | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Rutter | 2013 | Biomarkers: Potential and challenges | Michael Rutter | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Calhoun | 2013 | Neuroimaging-based Automatic Classification of Schizophrenia | Vince D. Calhoun and Mohammad R. Arbabshirani | in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges (Oxford University Press, Ilina Singh, Walter P. Sinnott-Armstrong, and Julian Savulescu, eds., 2013) | . |
| Sheley | 2014 | Rethinking Injury: The Case of Informed Consent | Erin L. Sheley | BYU L. Rev., Forthcoming | . |
| Pustilnik | 2014 | Painful Disparities, Painful Realities: How Chronic Pain Neuroimaging Should Change the Law | Amanda C. Pustilnik | U of Maryland Legal Studies Research Paper No. 2014-18 | |
| Fox | 2014 | Neuro-Voir Dire and the Architecture of Bias | Dov Fox | 65 Hastings L.J., 101 | Courts and commentators routinely assume that “bias” on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and perspectives that enrich it. This Article uses a thought experiment informed by the neuroscience of bias to illuminate the complexity of juror influences that go by the name of bias. I distinguish four distinct categories of juror influence: personal interests, community interests, case-specific beliefs, and case-general beliefs. I apply this spectrum of juror bias to provide a sounder way to think about what kind of juries we want. I argue that trial courts should limit the interrogation and disqualification of prospective jurors to personal interests in the case — whether social or financial — and to case-specific beliefs arising from pretrial facts or rumors about the parties or events. By contrast, I would permit no such wholesale exclusion, either for community interests, which range from principles of justice to desires for vengeance, or for case-general beliefs about social causes or groups, which span scruples to dogmatism, and empathy to bigotry. My proposal to abolish challenges for these latter categories of outside influence raises the serious concern that accommodating their presence on the jury risks facilitating unjust outcomes, jury nullification, and hung juries. Trial courts should mitigate these risks by adopting two bias-tempering measures. First, jury pools should be diversified in ways that social cognition research suggests would attenuate the influence of unreflective or objectionable attitudes. Second, judges should instruct deliberating jurors to express, along with their own position, the strongest counterarguments to it, so as to disrupt exaggerated assumptions of division and facilitate openness to persuasion. |
| Aharoni | 2014 | Predictive accuracy in the neuroprediction of rearrest | Aharoni, E., Mallett, J., Vincent, G. M., Harenski, C. L., Calhoun, V. D., Sinnott-Armstrong, W., Michael S. Gazzaniga, & Kiehl, K. A. | Social neuroscience 1 | . |
| Parens | 2014 | Neuroimaging: Beginning to Appreciate Its Complexities | Erik Parens & Josephine Johnston | 44(s2) Hastings Center Report S2 | For over a century, scientists have sought to see through the protective shield of the human skull and into the living brain. Today, an array of technologies allows researchers and clinicians to create astonishingly detailed images of our brain's structure as well as colorful depictions of the electrical and physiological changes that occur within it when we see, hear, think and feel. These technologies—and the images they generate—are an increasingly important tool in medicine and science. Given the role that neuroimaging technologies now play in biomedical research, both neuroscientists and nonexperts should aim to be as clear as possible about how neuroimages are made and what they can—and cannot—tell us. Add to this that neuroimages have begun to be used in courtrooms at both the determination of guilt and sentencing stages, that they are being employed by marketers to refine advertisements and develop new products, that they are being sold to consumers for the diagnosis of mental disorders and for the detection of lies, and that they are being employed in arguments about the nature (or absence) of powerful concepts like free will and personhood, and the need for citizens to have a basic understanding of how this technology works and what it can and cannot tell us becomes even more pressing. |
| Aguirre | 2014 | Functional Neuroimaging: Technical, Logical, and Social Perspectives | Geoffrey K. Aguirre | 44(s2) Hastings Center Report S8 | Neuroscientists have long sought to study the dynamic activity of the human brain—what's happening in the brain, that is, while people are thinking, feeling, and acting. Ideally, an inside look at brain function would simultaneously and continuously measure the biochemical state of every cell in the central nervous system. While such a miraculous method is science fiction, a century of progress in neuroimaging technologies has made such simultaneous and continuous measurement a plausible fiction. Despite this progress, practitioners of modern neuroimaging struggle with two kinds of limitations: those that attend the particular neuroimaging methods we have today and those that would limit any method of imaging neural activity, no matter how powerful. In this essay, I consider the liabilities and potential of techniques that measure human brain activity. I am concerned here only with methods that measure relevant physiologic states of the central nervous system and relate those measures to particular mental states. I will consider in particular the preeminent method of functional neuroimaging: BOLD fMRI. While there are several practical limits on the biological information that current technologies can measure, these limits—as important as they are—are minor in comparison to the fundamental logical restraints on the conclusions that can be drawn from brain imaging studies. |
| Farah | 2014 | Brain Images, Babies, and Bathwater: Critiquing Critiques of Functional Neuroimaging | Martha J. Farah | 44(s2) Hastings Center Report S19 | Since the mid-1980s, psychologists and neuroscientists have used brain imaging to test hypotheses about human thought processes and their neural instantiation. In just three decades, functional neuroimaging has been transformed from a crude clinical tool to a widely used research method for understanding the human brain and mind. Such rapidly achieved success is bound to evoke skepticism. A degree of skepticism toward new methods and ideas is both inevitable and useful in any field. It is especially valuable in a science as young as cognitive neuroscience and its even younger siblings, social and affective neuroscience. Healthy skepticism encourages us to check our assumptions, recognize the limitations of our methods, and proceed thoughtfully. Skepticism itself, however, also must be examined. In this article, I review the most commonly voiced criticisms of functional neuroimaging. In the spirit of healthy skepticism, I will critically examine these criticisms themselves. Each contains at least a kernel of truth, although I will argue that in some cases the kernel has been overextended in ways that are inaccurate or misleading. |
| Mayberg | 2014 | Neuroimaging and Psychiatry: The Long Road from Bench to Bedside | Helen S. Mayberg | 44(s2) Hastings Center Report S31 | Advances in neuroscience have revolutionized our understanding of the central nervous system. Neuroimaging technologies, in particular, have begun to reveal the complex anatomical, physiological, biochemical, genetic, and molecular organizational structure of the organ at the center of that system: the human brain. More recently, neuroimaging technologies have enabled the investigation of normal brain function and are being used to gain important new insights into the mechanisms behind many neuropsychiatric disorders. This research has implications for psychiatric diagnosis, treatment, and risk assessment. However, with some exceptions, neuroimaging is still a research tool—not ready for use in clinical psychiatry. |
| Parens | 2014 | Living with the Ancient Puzzle | Erik Parens | 44(s2) Hastings Center Report S50 | We began this special report by suggesting that neuroimaging technologies are tools that can, when used carefully and in conjunction with the other tools of neuroscience and psychology, help illuminate the capacities and behaviors that constitute our minds. In the course of this special report we have called attention to some basic points that are worth remembering as we encounter more and more claims about human psychology that are based on evidence from imaging technologies like fMRI. |
| Ginther | 2014 | The Language of Mens Rea | Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, René Marois, Kenneth W. Simons | 67(5) Vanderbilt Law Review 3 | This article answers two key questions. First: Do jurors understand and apply the criminal mental state categories the way that the widely influential Model Penal Code (MPC) assumes? Second: If not, what can be done about it? In prior work we challenged numerous assumptions underlying the use of the MPC mental state architecture, which divides guilty minds into four kinds: purposeful, knowing, reckless, and negligent. Our experiments showed that subjects had profound difficulty categorizing some of the mental states, particularly recklessness. And, when asked to punish, subjects punished knowing crimes and reckless crimes indistinguishably. (“Sorting Guilty Minds,” 86 NYU Law Review 1306 (2011) at http://ssrn.com/abstract=1746107 The new experiments we describe here extend those prior findings in important ways. For example, we reveal the degree to which a person’s ability to grasp and apply the MPC mental states is susceptible to variations in the language used to define and communicate them. Specifically, our results demonstrate that exactly how the legal system communicates the mens rea criteria is surprisingly crucial. The extreme sensitivity of subjects to the language of mens rea may have troubling implications for past defendants, as well as for future ones. Because even small changes in phrasing can produce significant differences in juror evaluation of criminal cases, substantial miscarriages of justice may ensue. Our results consequently suggest the need for a critical reexamination of the substantial divide between the expectations and assumptions of the MPC, on one hand, and empirical reality, on the other. This divide is especially meaningful and worrisome given the unparalleled influence of the MPC in our state and federal criminal codes. |
| Levy | 2014 | Is Neurolaw Conceptually Confused? | Neil Levy | 18(2) J. Ethics | In Minds, Brains, and Law, Michael Pardo and Dennis Patterson argue that current attempts to use neuroscience to inform the theory and practice of law founder because they are built on confused conceptual foundations. Proponents of neurolaw attribute to the brain or to its parts psychological properties that belong only to people; this mistake vitiates many of the claims they make. Once Neurolaw is placed on a sounder conceptual footing, Pardo and Patterson claim, we will see that its more dramatic claims are false or meaningless, though it might be able to provide inductive evidence for particular less dramatic claims (that a defendant may be lying, or lacks control over their behavior, for instance). In response, I argue that the central conceptual confusions identified by Pardo and Patterson are not confusions at all. Though some of the claims made by its proponents are hasty and sometimes they are confused, there are no conceptual barriers to attributing psychological properties to brain states. Neuroscience can play a role in producing evidence that is more reliable than subjective report or behavior; it therefore holds out the possibility of dramatically altering our self-conception as agents and thereby the law. |
| Ryberg | 2014 | When Should Neuroimaging Be Applied in the Criminal Court? On Ideal Comparison and the Shortcomings of Retributivism | Jesper Ryberg | 18(2) J. Ethics | When does neuroimaging constitute a sufficiently developed technology to be put into use in the work of determining whether or not a defendant is guilty of crime? This question constitutes the starting point of the present paper. First, it is suggested that an overall answer is provided by what is referred to as the “ideal comparative view.” Secondly, it is—on the ground of this view—argued that the answer as to whether neuroimaging technology should be applied presupposes penal theoretical considerations. Thirdly, it is argued that the retributivist theory of punishment is not well-suited for delivering the sort of theoretical guidance that is required for assessing the desirability of using neuroimaging in the work of the criminal court. |
| Fox | 2015 | Dualism and Doctrine | Dov Fox & Alex Stein | 90 Indiana Law Journal | What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are "mental" or "physical." The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law. A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action. This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system. |
| Litton | 2014 | Is Psychological Research on Self-Control Relevant to Criminal Law? | Paul Litton | Law & Neuroscience eJournal; Ohio St. J. Crim. L., Forthcoming | In recent years scholars have asked whether scientific discoveries - specifically in neuroscience and genetics - should have normative implications for criminal law doctrine and theory, especially with regard to free will and responsibility. This focus on novel and merely potential scientific findings makes Rebecca Hollander-Blumoff’s arguments all the more fascinating: she argues that criminal law scholars have neglected to mine a rich body of social psychological research on the mechanisms of self-control which has developed over the past two decades. She, herself, finds that the psychological research suggests that current criminal law inaccurately circumscribes the scope of situations in which an individual lacked the ability to control her actions. Moreover, she argues that the research permits us to separate issues of self-control from philosophical questions about the existence of free will. This article accepts Hollander-Blumoff’s invitation to mine the self-control research for normatively-relevant insight. It finds, however, that the research has surprisingly little to offer. It does not show that criminal law doctrine excuses too few, and it does not help us draw lines between the responsible and non-responsible independent of broader debates about free will. The article identifies different conceptions of control at work in criminal law doctrine to show the limited scope of law that is relevant to the conception of self-control under psychological study. It further explains why the research’s findings about the “capacity for self-control” are not helpful to discerning whether an individual had the capacity to control his conduct in the sense required for responsibility and blame. Finally, the article counters Hollander-Blumoff’s claim that the research supports the law’s alleged neutrality regarding free will debates. Specifically, the commentary defends Stephen Morse’s view that the law is not philosophically neutral but compatibilist, and in doing so, it responds to recent arguments by Adam Kolber against the compatibilist interpretation of criminal law. |
| Ryberg | 2014 | Neuroscience and Criminal Justice: Introduction | Jesper Ryberg | 18(2) J. Ethics | This special issue of The Journal of Ethics is devoted to ethical considerations of the use of neuroscience in the criminal justice system. In this introduction, an overview is provided of the different topics dealt with in the volume. |
| Douglas | 2014 | Criminal Rehabilitation: Through Medical Intervention Moral Liability and the Right to Bodily Integrity | Thomas Douglas | 18(2) J. Ethics | Criminal offenders are sometimes required, by the institutions of criminal justice, to undergo medical interventions intended to promote rehabilitation. Ethical debate regarding this practice has largely proceeded on the assumption that medical interventions may only permissibly be administered to criminal offenders with their consent. In this article I challenge this assumption by suggesting that committing a crime might render one morally liable to certain forms of medical intervention. I then consider whether it is possible to respond persuasively to this challenge by invoking the right to bodily integrity. I argue that it is not. |
| Lippert-Rasmussen | 2014 | Neuroprediction, Truth-Sensitivity, and the Law | Kasper Lippert-Rasmussen | 18(2) J. Ethics | A recent argument by Nadelhoffer et al. defends a cautious optimism regarding the use of neuroprediction in relation to sentencing based, in part, on an assessment of the offender’s dangerousness. While this optimism may be warranted, Nadelhoffer et al.’s argument fails to justify it. Although neuropredictions provide individualized, non-statistical evidence they will often be problematic for the same reason that basing sentencing on statistical evidence is, to wit, that such predictions are insensitive to the offender’s dangerousness in relevant counterfactual situations and, accordingly, fail to provide the court with knowledge of the offender’s dangerousness. Admittedly, it could be replied that standard clinical assessments of dangerousness possess the same objectionable feature, but doing so undermines a different part of Nadelhoffer et al.’s argument. Finally, I criticize an incentives-based rationale for sentencing informed by neuropredictions of dangerousness. |
| Søbirk Petersen | 2014 | (Neuro)prediction, Dangerousness, and Retributivism | Thomas Søbirk Petersen | 18(2) J. Ethics | Through the criminal justice system so-called dangerous offenders are, besides the offence that they are being convicted of and sentenced to, also punished for acts that they have not done but that they are believe to be likely to commit in the future. The aim of this paper is to critically discuss whether some adherents of retributivism give a plausible rationale for punishing offenders more harshly if they, all else being equal, by means of predictions are believed to be more dangerous than other offenders. While consequentialism has no problem, at least in principle, with this use of predictions most retributivists have been opponents of punishing offenders on the basis of predictions. How can an offender deserve to be punished for something that he has not done? But some retributivists like Anthony Duff and Stephen Morse have argued in favor of punishing offenders who are considered to be dangerous in the future more harshly than non-dangerous offenders. After having reconstructed their arguments in detail, it will be argued that both Duff’s and Morse’s attempts to give a retributivistic justification have several shortcomings. |
| Glannon | 2014 | The Limitations and Potential of Neuroimaging in the Criminal Law | Walter Glannon | 18(2) J. Ethics | Neuroimaging showing brain abnormalities is increasingly being introduced in criminal court proceedings to argue that a defendant could not control his behavior and should not be held responsible for it. But imaging has questionable probative value because it does not directly capture brain function or a defendant’s mental states at the time of a criminal act. Advanced techniques could transform imaging from a coarse-grained measure of correlations between brain states and behavior to a fine-grained measure of causal connections between them. Even if this occurs, bias and other attitudes may unduly influence jurors’ interpretation of the data. Moreover, judges’ decisions about whether neuroimaging data is legally relevant and admissible are normative decisions based on more than empirical evidence. Advanced neuroimaging will better inform assessments of criminal responsibility but will not supplant or explain away the psychological and normative foundation of the criminal law. |
| Ryberg | 2014 | Punishing Adolescents – On Immaturity and Diminished Responsibility | Jesper Ryberg | Neuroethics | Should an adolescent offender be punished more leniently than an adult offender? Many theorists believe the answer to be in the affirmative. According to the diminished culpability model, adolescents are less mature than adults and, therefore, less responsible for their wrongdoings and should consequently be punished less harshly. This article concerns the first part of the model: the relation between immaturity and diminished responsibility. It is argued that this relation faces three normative challenges which do not allow for easy answers and which are still widely ignored in the comprehensive discussion of the diminished culpability model. |
| Cohen | 2014 | What (If Anything) Is Wrong with Human Enhancement? What (If Anything) Is Right with It? | I. Glenn Cohen | 49 Tulsa L.R. 645 | Should human enhancement be prohibited? Subsidized? Mandated? Taxed? This article is part of a symposium honoring one of my wonderful mentors: Einer Elhauge. It focuses on human enhancement. With advances in reproductive technologies, genetic screening, and concomitant calls for regulation of these things in America the time for discussing these issues has never been better. Part I offers a reconstructive taxonomy as to different kinds of enhancements, including incorporating one distinction (as to absolute and positional goods and positive and negative externalities) that has been the focus of Elhauge’s own thinking. That said, one leitmotif of this Part is that “enhancement” as a category may not be particularly useful, especially if we accept there are not morally relevant differences in the biological vs. non-biological and treatment vs. enhancement distinctions, such that something like tutoring falls into the category of “enhancement.” Part II offers a taxonomy of legal/regulatory interventions. Part III attempts to sketch and interrogate the major arguments offered against human enhancement, including by mapping these arguments onto the taxonomies developed in Parts I and II and showing to which kinds of enhancements they apply and what kinds of legal/regulatory interventions can accommodate some of the concerns they raise. Finally, Part IV focuses on a question that has received surprisingly scant attention: why enhancement is sought. I will argue that one key reason offered for enhancement, to improve the life of the enhanced in the case of enhancement through reproduction, cannot be sustained for reasons that mirror points I have made elsewhere on the opposite issue, the justification for preventing parents from reproducing in ways that “harm” their offspring. |
| Collins | 2004 | Onset and Desistance in Criminal Careers: Neurobiology and the Age-Crime Relationshi | Raymond E. Collins | 39 J. Offender Rehabilitation 1, 1-8 | Recent research has concerned itself with the potential consequences of the effects of neurobiological influences on brain behavior and therefore, human behavior. The human neurobiological system consists of the brain and the spinal cord. The brain contains about 100 billion neurons. The regulated transmission of chemical and electrical signals through circuits formed by chains of neurons is the basis of all behavior. In this article, specific areas of current neural research are discussed, as well as the potential consequences for behavior as it correlates with the age-crime curve, specifically the desistance seen from criminal offending during the transition period from adolescence into young adulthood. In addressing current research, the article discusses various chemicals and their interactions that induce aggressive behavior, such as serotonin, dopamine, norepinephrine (NE), acetylcholine, testosterone, and y-aminobutyric acid (GABA). Other neural research discussed include: (1) the genome analysis of brain genetics; (2) social control theory and developmental criminology; (3) other biobehavioral issues; and (4) neurobiology and risk-taking, sensation-seeking, and aggressive behavior. |
| Appelbaum | 2014 | Impact of Behavioral Genetic Evidence on the Adjudication of Criminal Behavior | Paul S. Appelbaum & Nicholas Scurich | 42(1) J. Am. Acad. Psychiatry Law 91 | Recent advances in behavioral genetics suggest a modest relationship among certain gene variants, early childhood experiences, and criminal behavior. Although scientific research examining this link is still at an early stage, genetic data are already being introduced in criminal trials. However, the extent to which such evidence is likely to affect jurors’ decisions has not been explored. In the present study, a representative sample of the U.S. population (n 250) received a vignette describing an apparently impulsive homicide, accompanied by one of four explanations of the defendant’s impulsivity: childhood abuse, genetic predisposition, childhood abuse and genetic predisposition, or simple impulsive behavior. The participants were asked to identify the crime that the defendant had committed and to select an appropriate sentence range. Evidence of genetic predisposition did not affect the crime of which the defendant was convicted or the sentence. However, participants who received the abuse or genetic abuse explanation imposed longer prison sentences. Paradoxically, the genetic and genetic abuse conditions engendered the greatest fear of the defendant. These findings should allay concerns that genetic evidence in criminal adjudications will be overly persuasive to jurors, but should raise questions about the impact of genetic attributions on perceptions of dangerousness. |
| Greene | 2012 | Effects of Neuroimaging Evidence on Mock Juror Decision Making | Edith Greene, PhD, and Brian S. Cahill | 30(3) Behav Sci Law 280 | During the penalty phase of capital trials, defendants may introduce mitigating evidence that argues for a punishment "less than death." In the past few years, a novel form of mitigating evidence-brain scans made possible by technological advances in neuroscience-has been proffered by defendants to support claims that brain abnormalities reduce their culpability. This exploratory study assessed the impact of neuroscience evidence on mock jurors' sentencing recommendations and impressions of a capital defendant. Using actual case facts, we manipulated diagnostic evidence presented by the defense (psychosis diagnosis; diagnosis and neuropsychological test results; or diagnosis, test results, and neuroimages) and future dangerousness evidence presented by the prosecution (low or high risk). Recommendations for death sentences were affected by the neuropsychological and neuroimaging evidence: defendants deemed at high risk for future dangerousness were less likely to be sentenced to death when jurors had this evidence than when they did not. Neuropsychological and neuroimaging evidence also had mitigating effects on impressions of the defendant. We describe study limitations and pose questions for further research. |
| Farah | 2013 | The Seductive Allure of “Seductive Allure” | Martha J. Farah and Cayce J. Hook | 8(1) Perspectives on Psych. Sci. | The idea of fMRI’s “seductive allure” is supported by two widely cited studies. Upon closer analysis of these studies, and in light of more recent research, we find little empirical support for the claim that brain images are inordinately influential. |
| Smith | 2014 | Head Injuries, Student Welfare, and Saving College Football: A Game Plan for the NCAA | Rodney K. Smith | 41(2) Pepperdine Law Review 267 | As understanding regarding the severity of head injuries and concussions in football increased dramatically, President Obama entered the fray in 2013 when he called on the National Collegiate Athletic Association (NCAA) to “think about” concussions and injuries in college football. President Obama’s involvement is not the first instance of a president calling for reform in college football due to severe injuries. At the turn of the 20th century, President Theodore Roosevelt responded to the tragic deaths of eighteen college football players in 1904. President Roosevelt called on university leaders to participate in a White House Conference that was called to deal with the problem of injuries and deaths in college football through the development of safety rules. Roosevelt, no doubt, was also responding to concerns raised in the press, including a 1903 article in the New York Times referring to college football as “mayhem and homicide.” College leaders heeded President Roosevelt’s call by gathering and eventually adopting new safety rules, although it took over a decade for the new football rules to be put in place. This article sets forth a challenging but viable game plan for protecting the health and well-being of intercollegiate football players. Acting proactively will help revitalize the NCAA’s brand of competitive, student-centered athletics. This article consists of three parts: The Problem of Head Injuries in College Football; Solving the Problem of Head Injuries in College Football; and Conclusion. |
| Choe | 2014 | Misdiagnosing the Impact of Neuroimages in the Courtroom | So Yeon Choe | 61 UCLA L. Rev. 1502 | Neuroimages and, more generally, neuroscience evidence are increasingly used in the courtroom in hope of mitigating punishment in criminal cases. Many legal commentators express concern because they fear that the prejudicial effect of such evidence significantly outweighs its probative value. In light of earlier empirical studies, this concern is predominantly directed toward the visual impact of neuroimages. Thus, the conventional wisdom in the legal literature is that the visual impact of neuroimages drives the overpersuasiveness of neuroscience evidence. However, recent empirical studies draw into question the conventional wisdom because they show that neuroimages themselves are not overly persuasive. Thus, this Comment proposes a new theory—the structure/function paradigm—as a competing theory to the conventional wisdom. This paradigm posits that the type of brain abnormality drives the prejudicial nature of neuroscience evidence, not the visual impact of neuroimages. That is, laypeople perceive structural and functional brain abnormalities differently and view structural abnormalities as more causally potent than functional abnormalities. This Comment seeks to show that the structure/function paradigm provides a more consistent and compelling story than the conventional wisdom by resolving contradictions in the empirical studies and applying the paradigm to actual cases. |
| Jones | 2014 | Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission | Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, and Gideon Yaffe | 1(2) J Law Biosci 224 | President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations. The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent can the capacity of neurotechnologies to aid in the administration of criminal justice be enhanced through research?; and 3) in what additional ways might important ethical issues at the intersection of neuroscience and criminal justice be addressed? |
| Treadway | 2014 | Corticolimbic Gating of Emotion-Driven Punishment | Michael T. Treadway, Joshua W. Buckholtz, Justin W. Martin, Katharine Jan, Christopher L. Asplund, Matthew R. Ginther, Owen D. Jones & René Marois | 17 Nature Neuroscience 1270 | Determining the appropriate punishment for a norm violation requires consideration of both the perpetrator's state of mind (for example, purposeful or blameless) and the strong emotions elicited by the harm caused by their actions. It has been hypothesized that such affective responses serve as a heuristic that determines appropriate punishment. However, an actor's mental state often trumps the effect of emotions, as unintended harms may go unpunished, regardless of their magnitude. Using fMRI, we found that emotionally graphic descriptions of harmful acts amplify punishment severity, boost amygdala activity and strengthen amygdala connectivity with lateral prefrontal regions involved in punishment decision-making. However, this was only observed when the actor's harm was intentional; when harm was unintended, a temporoparietal-medial-prefrontal circuit suppressed amygdala activity and the effect of graphic descriptions on punishment was abolished. These results reveal the brain mechanisms by which evaluation of a transgressor's mental state gates our emotional urges to punish. |
| Walsh | 2012 | The Neurobiology of Criminal Behavior: Gene-Brain-Culture Interaction | Anthony Walsh & Jonathan D. Bolen | Ashgate | The main feature of this work is that it explores criminal behavior from all aspects of Tinbergen's Four Questions. Rather than focusing on a single theoretical point of view, this book examines the neurobiology of crime from a biosocial perspective. It suggests that it is necessary to understand some genetics and neuroscience in order to appreciate and apply relevant concepts to criminological issues. Presenting up-to-date information on the circuitry of the brain, the authors explore and examine a variety of characteristics, traits and behavioral syndromes related to criminal behavior such as ADHD, intelligence, gender, the age-crime curve, schizophrenia, psychopathy, violence and substance abuse. This book brings together the sociological tradition with the latest knowledge the neurosciences have to offer and conveys biological information in an accessible and understanding way. It will be of interest to scholars in the field and to professional criminologists. |
| Pardo | 2014 | Morse, Mind, and Mental Causation | Michael Pardo & Dennis Patterson | ___ Crim Law and Philos ___ | Stephen Morse's illuminating scholarship on law and neuroscience relies on a "folk psychological" account of human behavior in order to defend the law's foundations for ascribing legal responsibility. The heart of Morse's account is the notion of "mental state causation," in which mental states (e.g., beliefs, desires, and intentions) cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse appears to rely. Second, we present an alternative account to explain the link between mental states, reasons, and actions (the "rational-teleological" account). We argue that the alternative account avoids the conceptual problems that arise for Morse's conception of mental causation and that it also undergirds ascriptions of legal responsibility. If the alternative succeeds, then Morse's conception of "mental state causation" is not necessary to support legal responsibility. |
| Bandes | 2015 | Emotion, Proof and Prejudice: The Cognitive Science of Gruesome Photos and Victim Impact Statements | Susan A. Bandes & Jessica M. Salerno | 46 Arizona State Law Journal ___ | The current framework for sorting the probative from the prejudicial considers “emotion” to be the hallmark of unfair prejudice. Emotions elicited by evidence are thought to “inflame” the jury and “cause them to abandon their mental processes.” This inaccurate view of emotion as the enemy of rationality is problematic for evidence law. We argue for a more sophisticated and nuanced view of emotion’s role in evaluating proof and prejudice. We use two types of evidence to illustrate our argument: gruesome photos and victim impact statements. As some scholars have noted, emotional responses to evidence are not necessarily prejudicial responses. But this observation captures only a small part of the problem with the current evidentiary framework. Emotions do not always lead to prejudice, but they can lead to prejudice in more complex and subtle ways than previously recognized. The emotions elicited by evidence affect not only the decision maker’s appraisal of the evidence, but also the process of deliberation. For example, anger toward the defendant elicited by victim impact statements may result in an inability to remain open to evidence favoring the defense, to greater certainty about the verdict, and to a desire to punish. Other emotions, such as sadness or sympathy, have other effects on the deliberative process. Conversely, emotional responses to evidence play a role in assessing probative value, and this function of emotion receives little or no recognition in evidentiary discourse. For example, to determine whether a gruesome photo is unduly prejudicial, it is also necessary to consider whether the photo contributes any additional value to the deliberative process beyond the medical examiner’s testimony. Without accounting for the role of emotion in the reasoning process, it is difficult to examine how the medium affects the message. The value added lies in the photo’s additional persuasive power, which is closely tied to its emotional impact. Whether the emotions evoked by evidence interfere with deliberation depends on what emotions the evidence evokes, how they affect the deliberative process, and what the deliberative process is meant to accomplish. We argue that the cognitive sciences, including psychology and neuroscience, can shed substantial light on the first and second of these questions. The third is a legal question, but one that should be informed by a more informed and realistic understanding of decisional dynamics. |
| Koivula | 2014 | Neurolaw | Nina Koivula, Nina Ferreira, Petar Lozev, Franziska Böhlke, Birgit Thun, Janika Bockmeyer, & Jan Smits | MaRBLe Research Papers, Volume V | . |
| Galván | 2014 | Insights about Adolescent Behavior, Plasticity, and Policy from Neuroscience Research | Adriana Galván | 83(2) Neuron 262 | Adolescent brain research has offered an explanation of adolescent behavior relevant for parents, society, and policymakers. As the science continues to evolve, it will advance understanding of adolescent potential and individual variation to further generate developmentally appropriate expectations, policies, and sanctions. |
| Morse | 2014 | Criminal Law and Neuroscience: Present and Future | Stephen J. Morse | 65(2) NILQ 243 | . |
| Patterson | 2014 | Legal Dimensions of Neural Antecedents to Voluntary Action | Dennis Patterson | Cognitive Neuroscience | This article considers the arguments of Nachev and Hacker in the context of claims that Libet’s experiments regarding the readiness potential pose challenges for the criminal law, specifically for the distinction between voluntary and involuntary acts. |
| Bublitz | 2013 | My Mind is Mine!? Cognitive Liberty as a Legal Concept | Jan-Christoph Bublitz | in Cognitive Enhancement (Springer, Elisabeth Hildt & Andreas Francke, eds.) | This chapter explores some of the legal issues raised by mind-interventions outside of therapeutic contexts. It is argued that the law will have to recognize a basic human right: cognitive liberty or mental self-determination which guarantees an individual’s sovereignty over her mind and entails the permission to both use and refuse neuroenhancements. Not only proponents but also critics of enhancements should embrace this right as they often ground their cases against enhancement on precisely the interests it protects, even though critics do not always seem to be aware of this. The contours and limits of cognitive liberty are sketched, indicating which reasons are good (or bad) grounds for political regulations of neurotechnologies. |
| Shaw | 2013 | Cognitive Enhancement and Criminal Behavior | Elizabeth Shaw | in Cognitive Enhancement (Springer, Elisabeth Hildt & Andreas Francke, eds.) | . |
| Danaher | 2013 | Enhanced Control and Criminal Responsibility | John Danaher | in Cognitive Enhancement (Springer, Elisabeth Hildt & Andreas Francke, eds.) | . |
| Herald | 2014 | Your Brain and Law School: A Context and Practice Book | Marybeth Herald | Carolina Academic Press | Based on the latest research, this entertaining, practical guide offers law students a formula for success in school, on the bar exam, and as a practicing attorney. Mastering the law, either as a law student or in practice, becomes much easier if one has a working knowledge of the brain’s basic habits. Before you can learn to think like a lawyer, you have to have some idea about how the brain thinks. The first part of this book translates the technical research, explaining learning strategies that work for the brain in law school specifically, and calling out other tactics that are useless (though often popular lures for the misinformed). This book is unique in explaining the science behind the advice and will save you from pursuing tempting shortcuts that will take you in the wrong direction. The second part explores the brain’s decision-making processes and cognitive biases. These biases affect the ability to persuade, a necessary skill of the successful lawyer. The book talks about the art and science of framing, the seductive lure of the confirmation and egocentric biases, and the egocentricity of the availability bias. This book uses easily recognizable examples from both law and life to illustrate the potential of these biases to draw humans to mistaken judgments. Understanding these biases is critical to becoming a successful attorney and gaining proficiency in fashioning arguments that appeal to the sometimes quirky processing of the human brain. |
| Noll | 2014 | Weaponising Neuroscience: International Humanitarian Law and the Loss of Language | Gregor Noll | 2(2) London Review of International Law 201 | In recent years, research on military applications of neuroscience has grown in sophistication, raising the question as to whether states using weapon systems that draw on neuroscience are capable of applying international humanitarian law (IHL) to that use. I argue that neuroweapons largely eliminate the role of language in targeting, render unstable the distinction between superior and subordinate, and ultimately disrupt the premise of responsibility under IHL. I conclude that it is impossible to assess whether future uses of these weapons will be lawful under IHL. |
| Ware | 2014 | Neuroimagery and the Jury | Jillian M Ware, Jessica L Jones, N. J. Schweitzer | 26 The Jury Expert 1 | Technological advances in the field of neuroscience have raised concerns in both the academic and legal communities pertaining to how people evaluate this type of evidence. Neuroimages, such as those produced by MRI and fMRI scanners, provide sophisticated, tangible representations of otherwise complex and abstract physiological processes; as such, inexpert viewers may find this type of visual aid particularly alluring when offered as support for a particular scientific claim. It was thus feared that the public, including jurors, may find neuroimages to be particularly persuasive forms of evidence, thereby impeding their ability to make unbiased decisions. |
| Sevilla | Pain-O-Meters and Objective Pain Measurement: A Philosophical, Doctrinal, and Daubert-Centric Defense | J. P. Sevilla | Pain is a fundamental category of harm. Yet the law’s traditional view is that pain is subjective rather than objective, and therefore cannot be measured directly. This view is facing pressure from the appearance of pain-o-meters -- brain scans purporting to directly measure pain -- on courtroom thresholds. Neurolaw optimists like Kolber have discussed the significant consequences pain-o-meters can have for the law but glossed over their philosophical, conceptual, and doctrinal foundations. In contrast, neurolaw pessimists like Morse, Pardo, and Patterson have raised foundational questions about the neurolaw program such as whether it commits the law to various fallacies like the reductionist identification of mind and brain, mereological fallacies, non-dispositionalism about mental states, the conflation of necessary and sufficient conditions, and neglect of complex inter- and intra-personal variations in response to pain stimuli. The growing prospect of Daubert inquiries into pain-o-meters makes it of practical and not just academic importance to address such questions. I defend the philosophical, conceptual and doctrinal foundations of the view that pain is objective and ratio-scale measurable (so one can be in 20% more pain than another). I show that these foundations survive neuropessimist scrutiny, commit none of these fallacies, and are intimately related to the law’s bounded interest in pain. The law is only concerned with pain to the extent it is tethered to physical causal mechanisms. For it is only to this extent that (i) pain can be caused by the acts and omissions of others, (ii) the law can provide a remedy, and (iii) evidence can be presented to an impartial factfinder. Given this premise, the law need only accept one other premise that is already a central premise of science: that there is in principle a brain state that cannot be experimentally distinguished from pain states. There is every good empirical reason to accept this, and no pragmatic dividends to the law from rejecting it. These premises ground the conclusion that inter- and intra-personal comparisons of neural activity are materially equivalent to comparisons of pain intensity. I show how these foundations illuminate the Daubert inquiry. I argue that (i) the premise that brain states can realize the causal role of pain states is wholly empirically testable, (ii) the claim that pain-o-meters are in principle impossible is wholly empirically untestable, and (iii) pain-o-meters invert the typical picture of what error rate measurement consists of, but nevertheless provide a functionalist basis for them. | ||
| Gasson | 2013 | Attacking Human Implants: A New Generation of Cybercrime | Mark N. Gasson & Bert-Jaap Koops | 5(2) Law, Innovation and Technology 248 | Human ICT implants, such as RFID implants, cochlear implants, cardiac pacemakers, Deep Brain Stimulation, bionic limbs connected to the nervous system, and networked cognitive prostheses, are becoming increasingly complex. With ever-growing data processing functionalities in these implants, privacy and security become vital concerns. Electronic attacks on human ICT implants can cause significant harm, both to implant subjects and to their environment. This paper explores the vulnerabilities that human implants pose to crime victimisation in light of recent technological developments, and analyses how the law can deal with emerging challenges of what may well become the next generation of cybercrime: attacks targeted at technology implanted in the human body. After a state-of-the-art description of relevant types of human implants and a discussion how these implants challenge existing perceptions of the human body, we describe how various modes of attacks, such as sniffing, hacking, data interference, and denial of service, can be committed against implants. Subsequently, we analyse how these attacks can be assessed under current substantive and procedural criminal law, drawing on examples from UK and Dutch law. The possibilities and limitations of cybercrime provisions (e.g., unlawful access, system interference) and bodily integrity provisions (e.g., battery, assault, causing bodily harm) to deal with human-implant attacks are analysed. Based on this assessment, the paper concludes that attacks on human implants are not only a new generation in the evolution of cybercrime, but also raise fundamental questions on how criminal law conceives of attacks. Traditional distinctions between physical and non-physical modes of attack, between human bodies and things, and between exterior and interior of the body need to be re-interpreted in light of developments in human implants. As the human body and technology increasingly merge, cybercrime legislation and body-integrity crime legislation will become intertwined, posing a new puzzle that legislators and practitioners will sooner or later have to solve. |
| Scarciglia | 2014 | Dynamic Reflections on Constitutional Justice | Roberto Scarciglia | 5 Beijing Law Review 130 | This article attempts to propose critical reflections on "historical" models of Constitutional Review. The gradual depletion of the simplified classification system of constitutional review has been identified, by some scholars, as a failure of the bipolar American-European model. This means that it is necessary to rethink the approach to analysing constitutional review, in light of legal traditions, positive law within legal systems, and comparative methodologies. Consequently, judicial review could be studied according to the internal perspectives of the Supreme and Constitutional Courts’ decision-making processes, rather than externally observable legal characteristics. As of recently, legal studies have been converging with other sciences, such as cognitive science. They have been considering the relationship between consciousness and comparison, and even the field of cognitive errors in judgment, and the development of decisions taken by Courts. |
| Scurich | 2014 | The Selective Allure of Neuroscientific Explanations | Nicholas Scurich & Adam Shniderman | 9(9) PLoS ONE 1 | Some claim that recent advances in neuroscience will revolutionize the way we think about human nature and legal culpability. Empirical support for this proposition is mixed. Two highly-cited empirical studies found that irrelevant neuroscientific explanations and neuroimages were highly persuasive to laypersons. However, attempts to replicate these effects have largely been unsuccessful. Two separate experiments tested the hypothesis that neuroscience is susceptible to motivated reasoning, which refers to the tendency to selectively credit or discredit information in a manner that reinforces preexisting beliefs. Participants read a newspaper article about a cutting-edge neuroscience study. Consistent with the hypothesis, participants deemed the hypothetical study sound and the neuroscience persuasive when the outcome of the study was congruent with their prior beliefs, but gave the identical study and neuroscience negative evaluations when it frustrated their beliefs. Neuroscience, it appears, is subject to the same sort of cognitive dynamics as other types of scientific evidence. These findings qualify claims that neuroscience will play a qualitatively different role in the way in which it shapes people’s beliefs and informs issues of social policy. |
| Shust | 2014 | Extending Sentencing Mitigation for Deserving Young Adults | Kelsey B. Shust | 104(3) Journal of Criminal Law & Criminology 667 | The article discusses the proposed extension of sentencing mitigation for certain young adults in America who are deemed to be deserving, focusing on the impact of youthfulness on culpability, criminal punishment in America, and several legal cases such as Roper v. Simmons, Graham v. Florida, and Miller v. Alabama which deal with the Eighth Amendment to the U.S. Constitution. Other criminal law topics are examined including retribution, deterrence, and rehabilitation in the U.S. Mandatory life without parole sentences and capital punishment for defendants under the age of 18 are examined. |
| Buckholtz | 2014 | Promises, Promises for Neuroscience and Law | Joshua W. Buckholtz & David L. Faigman | 24(18) Current Biology R861 | Stunning technical advances in the ability to image the human brain have provoked excited speculation about the application of neuroscience to other fields. The ‘promise’ of neuroscience for law has been touted with particular enthusiasm. Here, we contend that this promise elides fundamental conceptual issues that limit the usefulness of neuroscience for law. Recommendations for overcoming these challenges are offered. |
| Bonnie | 2013 | Reforming Juvenile Justice: A Developmental Approach | Richard J. Bonnie, Robert L. Johnson, Betty M. Chemers, and Julie Schuck, Editors; Committee on Assessing Juvenile Justice Reform; Committee on Law and Justice; Division of Behavioral and Social Sciences and Education; National Research Council | The National Academies Press | Adolescence is a distinct, yet transient, period of development between childhood and adulthood characterized by increased experimentation and risk-taking, a tendency to discount long-term consequences, and heightened sensitivity to peers and other social influences. A key function of adolescence is developing an integrated sense of self, including individualization, separation from parents, and personal identity. Experimentation and novelty-seeking behavior, such as alcohol and drug use, unsafe sex, and reckless driving, are thought to serve a number of adaptive functions despite their risks. |
| Steinberg | 2014 | Age of Opportunity: Lessons from the New Science of Adolescence | Laurence Steinberg | Eamon Dolan/Houghton Mifflin Harcourt | A leading authority draws on new research to explain why the adolescent years are so developmentally crucial, and what we must do to raise happier, more successful kids. Adolescence now lasts longer than ever before. And as world-renowned expert on adolescent psychology Dr. Laurence Steinberg argues, this makes these years the key period in determining individuals’ life outcomes, demanding that we change the way we parent, educate, and understand young people. In Age of Opportunity, Steinberg leads readers through a host of new findings — including groundbreaking original research — that reveal what the new timetable of adolescence means for parenting 13-year-olds (who may look more mature than they really are) versus 20-somethings (who may not be floundering even when it looks like they are). He also explains how the plasticity of the adolescent brain, rivaling that of years 0 through 3, suggests new strategies for instilling self-control during the teenage years. Packed with useful knowledge, Age of Opportunity is a sweeping book in the tradition of Reviving Ophelia, and an essential guide for parents and educators of teenagers. |
| Taylor-Thompson | 2014 | Minority Rule: Redefining the Age of Criminality | Kim Taylor-Thompson | 38 N.Y.U. Rev. Law & Social Change 143 | The article discusses three shifts in U.S. judicial system's approach to make a difference in judicial treatment between the youthful offender and her adult counterpart by defining age of criminality. Topics discussed include racial disparities in child and adult prosecution, rationales behind political policies towards juvenile offenders, and a minority ruling called bright line mandate issued by state legislatures to prevent adult system prosecution of child under 17 years of age. |
| Shaw | 2014 | Direct Brain Interventions and Responsibility Enhancement | Elizabeth Shaw | 8(1) Crim Law and Philos 1 | Advances in neuroscience might make it possible to develop techniques for directly altering offenders’ brains, in order to make offenders more responsible and law-abiding. The idea of using such techniques within the criminal justice system can seem intuitively troubling, even if they were more effective in preventing crime than traditional methods of rehabilitation. One standard argument against this use of brain interventions is that it would undermine the individual’s free will. This paper maintains that ‘free will’ (at least, as that notion is understood by those who adopt the influential compatibilist approach) is an inadequate basis for explaining what is problematic about some direct brain interventions. This paper then defends an alternative way of objecting to certain kinds of direct brain interventions, focusing on the relationship between the offender and the state rather than the notion of free will. It opposes the use of interventions which aim to enhance ‘virtue responsibility’ (by instilling particular values about what is right and wrong), arguing that this would objectify offenders. In contrast, it argues that it may be acceptable to use direct brain interventions to enhance ‘capacity responsibility’ (i.e. to strengthen the abilities necessary for the exercise of responsible agency, such as self-control). Finally it considers how to distinguish these different kinds of responsibility enhancement. |
| Vincent | 2014 | Restoring Responsibility: Promoting Justice, Therapy and Reform Through Direct Brain Interventions | Nicole A. Vincent | 8(1) Crim Law and Philos 21 | Direct brain intervention based mental capacity restoration techniques—for instance, psycho-active drugs—are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person’s competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in criminal legal contexts—i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has—in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership—and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities. |
| Bublitz | 2014 | Crimes Against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination | Jan Christoph Bublitz & Reinhard Merkel | 8(1) Crim Law and Philos 51 | The neurosciences not only challenge assumptions about the mind’s place in the natural world but also urge us to reconsider its role in the normative world. Based on mind-brain dualism, the law affords only one-sided protection: it systematically protects bodies and brains, but only fragmentarily minds and mental states. The fundamental question, in what ways people may legitimately change mental states of others, is largely unexplored in legal thinking. With novel technologies to both intervene into minds and detect mental activity, the law should, we suggest, introduce stand alone protection for the inner sphere of persons. We shall address some metaphysical questions concerning physical and mental harm and demonstrate gaps in current doctrines, especially in regard to manipulative interferences with decision-making processes. We then outline some reasons for the law to recognize a human right to mental liberty and propose elements of a novel criminal offence proscribing severe interventions into other minds. |
| Woodruff | 2014 | Evidence of Lies and Rules of Evidence: The Admissibility of fMRI-Based Expert Opinion of Witness Truthfulness | William A. Woodruff | 16 N.C.J.L. & Tech. 105 | Neuroscientists are exploring intriguing technology that some claim will revolutionize the jury’s search for truth in American courtrooms. Functional Magnetic Resonance Imaging (fMRI) seeks to correlate brain activity with cognitive function. Current research with regard to lie detection indicates that in laboratory studies neuroscientists have achieved accuracy rates in excess of 90% in identifying deception and verifying truth in study participants. But will it work in the real world forensic setting? How does this new technology fit within the context of the rules governing the impeachment and rehabilitation of witnesses? Does the new technology meet the reliability standards demanded of expert scientific opinion? Will professional opinions on witness truthfulness help the jury in its fact-finding role? Or, will this new technology confuse and confound the jury in its essential task of reaching a verdict? These are but a few of the issues surrounding this emerging and exciting technology. The legal literature to date has primarily focused upon whether the technology can satisfy the Daubert factors when offered to verify truth and to detect deception or whether it should be admitted even if it fails to meet the exacting standards of FRE 702. Some commentators argue that fMRI-based expert opinion testimony on witness truthfulness should be admitted because the laboratory results are more accurate than a lay juror’s ability to detect lies unaided by technology. fMRI lie detection may not be totally reliable, the argument goes, but since it is better than what twelve people with a driver’s license can do, it should be admitted. What the literature has not done, however, is analyze fMRI-based expert opinion testimony on witness truthfulness in the context of all the rules that regulate impeachment and rehabilitation of witnesses, as well as the rules governing the reliability of scientific expert testimony. This paper is an attempt to fill that gap and provide a comprehensive analysis of the admissibility of this new technology for lie detection or truth verification. While the fMRI study might detect “lies” in the lab, the rules of evidence as applied in US courts consider the citizens of the community selected to sit on the jury the “lie detector” in the courtroom. Three recent decisions, one in a Federal court applying the Federal Daubert standard, one in a New York state court civil case, and another in a Maryland state criminal proceeding applying the Frye general acceptance test, rejected expert testimony based on the results of fMRI scanning. Using these three cases as the backdrop for analysis, I identify thirteen major problems that impose significant obstacles to the admission of this sort of testimony. I present this baker’s dozen of issues under four major categories: (1) the regulation of impeachment and rehabilitation of witnesses, (2) the requirement that expert testimony help the jury to understand the evidence or decide a fact in issue; (3) the rule requiring expert testimony to be based upon reliable principles and methods; and (4) the balancing of unfair prejudice and probative value of the opinion testimony. All four of these categories impose serious obstacles to the admission of fMRI-based expert opinion testimony of witness truthfulness. |
| Meynen | 2014 | Neurolaw: Neuroscience, Ethics, and Law. Review Essay. | Gerben Meynen | 17(4) Ethical Theory Moral Prac 819 | Neurolaw is a new, rapidly developing area of interdisciplinary research on the meaning and implications of neuroscience for the law and legal practices. In this article three recently published volumes in this field will be reviewed. |
| Lilienfeld | 2013 | Your Brain on Trial | Scott O. Lilienfeld & Robert Byron | Scientific American Mind (Jan/Feb) | Lessons from psychology could greatly improve courtroom decision-making, reducing racial bias, eyewitness errors and false confessions. |
| Minott | 2014 | Born This Way: How Neuroimaging Will Impact Jury Deliberations | Tanneika Minott | 12 Duke L. & Tech. Rev. 219 | Advancements in technology have now made it possible for scientists to provide assessments of an individual’s mental state. Through neuroimaging, scientists can create visual images of the brain that depict whether an individual has a mental disorder or other brain defect. The importance of these advancements is particularly evident in the context of criminal law, where defendants are able to dispute their culpability for crimes committed where they lack the capacity to form criminal intent. Thus, in theory, a neuroimage depicting defective brain functioning could demonstrate a defendant’s inability to form the requisite criminal intent. Due to early successes in high-profile cases where advanced neuroimaging was used in this way, many researchers believe that the use of neuroimages to substantiate claims of diminished capacity and insanity is a viable option for criminal defendants. This Issue Brief argues, however, that though the use of neuroimages may have a positive effect on outcomes in theory, in actuality, the use of neuroimages will only have a negligible impact on sentencing outcomes. |
| Meixner | 2014 | Applications of Neuroscience in Criminal Law: Legal and Methodological Issues | John B. Meixner | 15 Current Neurology and Neuroscience Reports 513 | The use of neuroscience in criminal law applications is an increasingly discussed topic among legal and psychological scholars. Over the past 5 years, several prominent federal criminal cases have referenced neuroscience studies and made admissibility determinations regarding neuroscience evidence. Despite this growth, the field is exceptionally young, and no one knows for sure how significant of a contribution neuroscience will make to criminal law. This article focuses on three major subfields: (1) neuroscience-based credibility assessment, which seeks to detect lies or knowledge associated with a crime; (2) application of neuroscience to aid in assessments of brain capacity for culpability, especially among adolescents; and (3) neuroscience-based prediction of future recidivism. The article briefly reviews these fields as applied to criminal law and makes recommendations for future research, calling for the increased use of individual-level data and increased realism in laboratory studies. |
| Frischmann | 2014 | Human-Focused Turing Tests: A Framework for Judging Nudging and Techno-Social Engineering of Human Beings | Brett M. Frischmann | Cardozo Legal Studies Research Paper | This article makes two major contributions. First, it develops a methodology to investigate techno-social engineering of human beings. Many claim that technology dehumanizes, but this article is the first to develop a systematic approach to identifying when technologies dehumanize. The methodology depends on a fundamental and radical repurposing of the Turing test. The article develops an initial series of human-focused tests to examine different aspects of intelligence and distinguish humans from machines: (a) mathematical computation, (b) random number generation, (c) common sense, and (d) rationality. All four are plausible reverse Turing tests that generally could be used to distinguish humans and machines. Yet the first two do not implicate fundamental notions of what it means to be a human; the third and fourth do. When these latter two tests are passed, we have good reason to question and evaluate the humans and the techno-social environment within which they are situated. Second, this article applies insights from the common sense and rationality tests to evaluate the ongoing behavioral law and economics project of nudging us to become rational humans. Based on decades of findings from cognitive psychologists and behavioral economists, this project has influenced academics across many disciplines and public policies around the world. There are a variety of institutional means for implementing "nudges" to improve human decision making in contexts where humans tend to act irrationally or contrary to their own welfare. Cass Sunstein defines nudges more narrowly and carefully as "low-cost, choice-preserving, behaviorally informed approaches to regulatory problems, including disclosure requirements, default rules, and simplification." These approaches tend to be transparent and more palatable. But there are other approaches, such as covert nudges like subliminal advertising. The underlying logic of nudging is to construct or modify the "choice architecture" or the environment within which humans make decisions. Yet as Lawrence Lessig made clear long ago, architecture regulates powerfully but subtly, and it can easily run roughshod over values that don’t matter to the architects. Techno-social engineering through (choice) architecture is rampant and will grow in scale and scope in the near future, and it demands close attention because of its subtle influence on both what people do and what people believe to be possible. Accordingly, this article evaluates nudging as a systematic agenda where institutional decisions about particular nudges aggregate and set a path that entails techno-social engineering of humans and society. The article concludes with two true stories that bring these two contributions together. Neither is quite a story of dehumanization where humans become indistinguishable from machines. Rather, each is an example of an incremental step in that direction. The first concerns techno-social engineering of children’s preferences. It is the story of a simple nudge, implemented through the use of a wearable technology distributed in an elementary school for the purpose of encouraging fitness. The second concerns techno-social engineering of human emotions — the Facebook Emotional Contagion Experiment. It is not (yet) a conventional nudge, but it relies on the underlying logic of nudging. Both can be seen as steps along the same path. |
| Hui | 2014 | The Ethics of Molecular Memory Modification | Katrina Hui & Carl E. Fisher | J Med Ethics | Novel molecular interventions have recently shown the potential to erase, enhance and alter specific long-term memories. Unique features of this form of memory modification call for a close examination of its possible applications. While there have been discussions of the ethics of memory modification in the literature, molecular memory modification (MMM) can provide special insights. Previously raised ethical concerns regarding memory enhancement, such as safety issues, the ‘duty to remember’, selfhood and personal identity, require re-evaluation in light of MMM. As a technology that exploits the brain's updating processes, MMM helps correct the common misconception that memory is a static entity by demonstrating how memory is plastic and subject to revision even in the absence of external manipulation. Furthermore, while putatively safer than other speculative technologies because of its high specificity, MMM raises notable safety issues, including potential insidious effects on the agent's emotions and personal identity. Nonetheless, MMM possesses characteristics of a more permissible form of modification, not only because it is theoretically safer, but because its unique mechanism of action requires a heightened level of cooperation from the agent. Discussions of memory modification must consider the specific mechanisms of action, which can alter the weight and relevance of various ethical concerns. MMM also highlights the need for conceptual accuracy regarding the term ‘enhancement’; this umbrella term will have to be differentiated as new technologies are applied to a widening array of purposes. |
| Meixner | 2014 | Detecting Knowledge of Incidentally Acquired, Real-World Memories Using a P300-Based Concealed-Information Test | John B. Meixner & J. Peter Rosenfeld | 25(11) Psychological Science 1994 | Autobiographical memory for events experienced during normal daily life has been studied at the group level, but no studies have yet examined the ability to detect recognition of incidentally acquired memories among individual subjects. We present the first such study here, which employed a concealed-information test in which subjects were shown words associated with activities they had experienced the previous day. Subjects wore a video-recording device for 4 hr on Day 1 and then returned to the laboratory on Day 2, where they were shown words relating to events recorded with the camera (probe items) and words of the same category but not relating to the subject’s activities (irrelevant items). Electroencephalograms were recorded, and presentation of probe items was associated with a large peak in the amplitude of the P300 component. We were able to discriminate perfectly between 12 knowledgeable subjects who viewed stimuli related to their activities and 12 nonknowledgeable subjects who viewed only irrelevant items. These results have strong implications for the use of memory-detection paradigms in criminal contexts. |
| Shen | 2014 | Sentencing Enhancement and the Crime Victim's Brain | Francis X. Shen | 46 Loy. U. Chi. L.J. 405 | Criminal offenders who inflict serious bodily injury to another in the course of criminal conduct are typically sentenced more harshly than those who do not cause such injuries. But what if the harm caused is “mental” or “psychological” and not “physical”? Should the sentencing enhancement still apply? Federal and state courts are already wrestling with this issue, and modern neuroscience offers new challenges to courts' analyses. This Article thus tackles the question: In light of current neuroscientific knowledge, when and how should sentencing enhancements for bodily injury include mental injuries? The Article argues that classification of “mental” as wholly distinct from “physical” is problematic in light of modern neuroscientific understanding of the relationship between mind and brain. There is no successful justification for treating mental injuries as categorically distinct from other physical injuries. There is, however, good reason for law to treat mental injuries as a unique type of physical injury. Enhancement of criminal penalties for mental injuries must pay special care to the causal connection between the offender's act and the victim's injury. Moreover, it is law, not science, that must be the ultimate arbiter of what constitutes a sufficiently bad mental harm to justify a harsher criminal sentence, and of what evidence is sufficient to prove the mental injury. |
| Meixner | 2015 | The Hidden Daubert Factor: How Judges Use Error Rates in Assessing Scientific Evidence | John B. Meixner & Shari Seidman Diamond | __ Wisc. L.R. __ | |
| Pardo | 2014 | The Gathering of and Use of Neuroscientific Evidence in Criminal Trials in the United States. Compatibility with the 4th and 5th Amendments and with Due Process | Michael Pardo, Dennis Patterson, & Sofia Moratti | Rivista di filosofia del diritto (Articolo Speciale/December) 41 | This essay discusses the compelled production and use of neuroscientific evidence against criminal suspects or defendants and the constitutional provisions that protect suspects and defendants and limit government evidence gathering in the American legal system: the Fourth Amendment, the Fifth Amendment privilege against self-incrimination, and Due Process. We shall argue that, under current constitutional doctrine, a neuroscientific test could in principle be compelled, either through a threat of contempt or through physical force, under the following conditions: 1) the government has probable cause and a warrant, or a recognized exception to these requirements obtains, and 2) the government conduct is not so outrageous that it "shocks the conscience": for example, the test should not jeopardize the health of the person who undergoes it. However, criminal defendants may invoke the privilege against selfincrimination to prevent the use of neuroscientific evidence when the evidence is "testimonial" in nature, compelled, and incriminating. We also suggest developing specific statutory limitations and guidelines to regulate the gathering and use of neuroscientific evidence in criminal proceedings, as it may be preferable to reliance on a patchwork of constitutional doctrine. |
| Santosuosso | 2014 | Cognitive Neuroscience, Intelligent Robots and the Interplay Humans-Machines | Amedeo Santosuosso | Rivista di filosofia del diritto (Articolo Speciale/December) 91 | The paper starts from the historical remark that after 2002 the debate on the interaction between neuroscience and the law was dominated by the idea that a fuller understanding of the neural mechanism for voluntary decision-making might undermine traditional ideas on free will and the legal notion of accountability. In 2013 the Human Brain Project (HBP), in the EU, and the BRAIN Initiative, in the USA, changed the whole scenario of neuroscience. The paper draws on the possibility to pinpoint a new field for exploring issues related to the legal and constitutional status of new entities. Section 2 outlines the double trend preceding the launch of the Human Brain Project and BRAIN initiative in neuroscience and "neurolaw." Section 3 focuses on the main features of the BRAIN Initiative and the Human Brain Project, and Section 4 presents the case of intelligent machines as an example of the implications in the law field of the HBP approach. Section 5 discusses the role of law and ethics in the environment of HBP. |
| Umiltà | 2014 | Limits of Cognitive Neuroscience (Why It Would Take a Much More Advanced Cognitive Neuroscience in order to Have a Sensible Neuro-law) | Carlo Umiltà | Rivista di filosofia del diritto (Articolo Speciale/December) 7 | Recently, a number of disciplines have emerged, which are all characterized by the prefix "neuro+" added to the name of a traditional discipline from the fields of social sciences or humanities. One of these disciplines is "neuro-law". There are several reasons for being skeptical about these supposedly new disciplines. In this paper, four of these reasons are treated in detail, leading to the conclusion that, even assuming that mental functions can be localized with precision in the brain, this does not mean that they can be explained. |
| Reese | 2014 | Brain Gain: Connective or Intraneuronal Neural Implants Developments and Applications for Fixing and Enhancing Brain Function | Blake Reese | Neural implants are devices that are installed in the brain to repair or augment its functions by decoding and processing signals from neurons. One type of emerging neural implant technology, referred to as "connective or intraneuronal" neural implants, involves using a form of prosthetic to facilitate the data transfer between cortical brain regions or within a single cortical brain region. This technology has potential applications that range from curing disorders associated with neuronal damage, such as memory loss or Parkinson's, to augmenting the capabilities of the human brain to process data more efficiently, including even the ability to sense environmental conditions previously alien to humanity's senses or network with other connected brains. While technical challenges exist in the areas of neural mapping, long-term effectiveness of the devices and potential harm caused by the invasiveness of surgery and where the devices reside, reasonable solutions to each problem exist and better solutions are on the horizon. Furthermore, product development teams may overcome the regulatory challenges with bringing this kind of medical device to market by implementing a robust compliance program to abide by applicable laws and regulatory processes. Finally, the ethical, social and political issues that this kind of advanced and sensitive technology can present may be resolved by proactive, sensible behavior that focuses on treating suffering patients, rather than building a new species of super-humans. | |
| Shen | 2014 | Keeping Up with Neurolaw: What to Know and Where to Look | Francis X. Shen | 50 Court Rev. 104 | It is hard to know exactly what the future holds for law and neuroscience. But it is a fair bet that the future will look different, perhaps markedly so, than the neurolaw of today. How can one keep up with this change? In this brief essay, I provide a series of resources for those interested in expanding their knowledge of fundamental law and neuroscience issues, as well as keeping up to date on cutting-edge innovations. The short piece includes relevant links and resources, suitable for lawyers, judges, scientists and anyone who wants to keep up with the growing field of law and neuroscience. |
| Morris | 2014 | The Neuroscientific Case Against Retributive Justice | Stephen Morris & Robert C. Robinson | Retributive Justice is the theory of justice according to which individuals are either rewarded or punished as payback for the moral rights/wrongs they have committed. Consequentialist considerations such as deterrence and prevention do not figure into justifications for treatment from this perspective. This theory also holds that the severity of the punishment ought to be in proportion to the severity of the crime. The central tenant of the retributive model of justice -- namely, that reward/punishment gives people what they deserve -- relies crucially upon the intuition that people are sometimes accountable for their actions in some strong metaphysical sense. In particular, we may intuitively feel justified in holding someone morally responsible if her actions were intentional, rather than accidental or coerced. This common view is captured by what we call the "Principle of Retribution": i.e., the view that it is fair to hold an agent morally responsible, and therefore punish her for her crimes, only if her actions were freely willed, intentional, and uncoerced. It follows from this that unless free will exists for human beings, retributivist justice (at least insofar as human beings are concerned) cannot be justified. We begin by looking back at how theories of retributive justice grew up alongside theories of distributive justice and we describe how those theories have subsequently grown apart. From there we argue that current empirical research in the field of neuroscience casts doubt on the legitimacy of the retributive model of justice insofar as it undermines a particular understanding of free will that appears necessary for its own justification. Much of the recent work on neuroscience's impact on the subject of free will has centered on the work of Benjamin Libet, whose experiments provided evidence that people's actions were initiated by unconscious brain processes that occurred prior to any conscious awareness of decision making on the part of the actor. We argue that the strongest case that neuroscience makes against the type of free will at issue comes not from Libet's work, but rather from more recent studies indicating that human behavior can be predicted with a high degree of accuracy based on unconscious neural processes. Furthermore, the case against the relevant sort of free will is bolstered by extensive research suggesting that much, if not all, of the explanations for human behavior involving conscious causes are no more than confabulations that attempt to put a conscious narrative upon actions that have strictly unconscious origins. Finally, we provide empirical evidence that determinism is -- for all intents and purposes -- the correct position with regard to human cognition, decision making, and choice. We then argue that insofar as retributive justice seems to require that some actions depend on actions that are non-determined, neuroscience suggests that retributive justice is unjustifiable. We conclude by providing insight for revising our thinking about criminal justice and what we owe to those who commit crimes. In particular, we discuss how the common theory of distributive justice -- which remains intact and includes principles guaranteeing individual liberty and equality of opportunity -- gives advice on how we have failed people antecedent to their crimes, and how a person is best dealt with after her crime has been committed. | |
| Grechenig | 2014 | Towards a European Jurisdiction Based on Brain Computer Interfaces | Martin Glettler Thomas Grechenig | ACEC 127 | As demonstrated in our recent work “Improving the accuracy in person lineups and identification via braincomputer interfaces“ we used brain computer interface technology to distinguish between known and unknown persons faces when presented to a witness as a set of stimuli. The classifiers are built using the BCI2000 framework, a multipurpose research software. In this paper we will extend this approach and explore the potential of our “BCI based analytic proof” in detail at the example of Austria, a jurisdiction in the European Union. |
| Patterson | 2015 | Philosophy, Neuroscience and Law: The Conceptual and Empirical, Rule-Following, Interpretation and Knowledge | Dennis Patterson & Michael S. Pardo | in Problems of Normativity, Rules and Rule-Following (Michał Araszkiewicz, et al., eds., 111 Springer 177, 2014) | The intersection between law and neuroscience is one of the most-discussed subfields in legal scholarship. In this article, we consider fundamental issues in the field. These include: the distinction between the conceptual and the empirical, rule-following, and the nature of knowledge. We maintain that the conceptual issues are fundamental to all aspects of this enterprise. |
| Salmanowitz | 2015 | The Case for Pain Neuroimaging in the Courtroom: Lessons from Deception Detection | Natalie Salmanowitz | 2 J Law Biosci 139 | From an observer's perspective, pain is a fairly nebulous concept—it is not externally visible, its cause is not obvious, and perceptions of its intensity are mainly subjective. If difficulties in understanding the source and degree of pain are troublesome in contexts requiring social empathy, they are especially problematic in the legal setting. Tort law applies to both acute and chronic pain cases, but the lack of objective measures demands high thresholds of proof. However, recent developments in pain neuroimaging may clarify some of these inherent uncertainties, as studies purport detection of pain on an individual level. In analyzing the scientific and legal barriers of utilizing pain neuroimaging in court, it is prudent to discuss neuroimaging for deception, a topic that has garnered significant controversy due to premature attempts at introduction in the courtroom. Through comparing and contrasting the two applications of neuroimaging to the legal setting, this paper argues that the nature of tort law, the distinct features of pain, and the reduced vulnerability to countermeasures distinguish pain neuroimaging in a promising way. This paper further contends that the mistakes and lessons involving deception detection are essential to consider for pain neuroimaging to have a meaningful future in court. |
| López | 2015 | Neurociencia y detección de la verdad y del engaño en el proceso penal: El uso del escáner cerebral (fMRI) y del brainfingerprinting (P300) | María Luisa Villamarín López | Marcial Pons | La detección del engaño con cierta fiabilidad es históricamente uno de los retos más importantes del proceso penal en su tarea de búsqueda de la verdad. Desde antiguo se han empleado métodos pseudocientíficos o científicos, generalmente con poco éxito y con escasísima fiabilidad. En los últimos años los avances realizados en los estudios sobre el funcionamiento del cerebro, sobre todo gracias al empleo del electroencefalograma y del escáner cerebral, se intentan aplicar a la tarea de detectar la mentira (fMRI) o de buscar en el cerebro la presencia de informaciones relevantes para la causa criminal (P300). Y, de hecho, pese a que en España no han sido hasta ahora objeto de estudio -aunque sí se han autorizado en el último año de forma aislada en dos causas judiciales-, en muchos países existe un serio debate abierto, tanto en el campo académico como forense, sobre la oportunidad de emplear estas herramientas en el proceso penal y, de hecho, ya se han usado en ocasiones en la práctica judicial. Esta obra pretende ilustrar sobre el funcionamiento y el estado de desarrollo científico de estas técnicas, para poder evaluar si cumplen las exigencias necesarias, desde el punto de vista científico y jurídico, como para poder incorporarlas al proceso penal y, en particular, al ordenamiento jurídico español. |
| Salvato | 2014 | Culture, Neuroscience, and Law | Gerardo Salvato, Roy Dings, & Lucia Reuter | 5 Front. Psychol. 1196 | . |
| Molenberghs | 2014 | The Influence of Group Membership and Individual Differences in Psychopathy and Perspective Taking on Neural Responses When Punishing and Rewarding Others | Pascal Molenberghs, Rebecca Bosworth, Zoie Nott, Winnifred R. Louis, Joanne R. Smith, Catherine E. Amiot, Kathleen D. Vohs, & Jean Decety | 35(10) Human Brain Mapping 4989 | Understanding how neural processes involved in punishing and rewarding others are altered by group membership and personality traits is critical in order to gain a better understanding of how socially important phenomena such as racial and group biases develop. Participants in an fMRI study (n = 48) gave rewards (money) or punishments (electroshocks) to in-group or out-group members. The results show that when participants rewarded others, greater activation was found in regions typically associated with receiving rewards such as the striatum and medial orbitofrontal cortex, bilaterally. Activation in those regions increased when participants rewarded in-group compared to out-group members. Punishment led to increased activation in regions typically associated with Theory of Mind including the medial prefrontal cortex and posterior superior temporal sulcus, as well as regions typically associated with perceiving others in pain such as the dorsal anterior cingulate cortex, anterior insula and lateral orbitofrontal cortex. Interestingly, in contrast to the findings regarding reward, activity in these regions was not moderated by whether the target of the punishment was an in- or out-group member. Additional regression analysis revealed that participants who have low perspective taking skills and higher levels of psychopathy showed less activation in the brain regions identified when punishing others, especially when they were out-group members. In sum, when an individual is personally responsible for delivering rewards and punishments to others, in-group bias is stronger for reward allocation than punishments, marking the first neuroscientific evidence of this dissociation. |
| Olatunji | 2014 | Delineating the Influence of Emotion and Reason on Morality and Punishment | Bunmi O. Olatunji & Bieke David Puncochar | 18(3) Review of General Psychology 186 | The present article examines the available literature on the association between emotion, conscious reasoning, morality, and punishment. Although conscious reasoning has traditionally been implicated in moral judgment, contemporary research suggests that emotions play a primary role in moral judgment. This article reviews the different lines of evidence supporting the role of emotion in moral decision-making. Disgust seems to be unique from other emotions in its ability to influence moral judgment. Immorality often elicits disgust, individuals sensitive to experiencing disgust tend to make more severe moral judgments, and experimental disgust inductions can influence judgments about moral violations. However, the extent to which the emotion-moral judgment association extends to decisions about punishment remains unclear. This review considers various concepts, including moral outrage, responsibility, and blameworthiness that may influence the extent to which emotion informs punishment decisions. The implications of these findings for current thinking on morality and punishment, and future directions for research are discussed. |
| Capestany | 2014 | Disgust and Biological Descriptions Bias Logical Reasoning during Legal Decision-Making | Beatrice H. Capestany & Lasana T. Harris | 9(3) Social Neuroscience 265 | Legal decisions often require logical reasoning about the mental states of people who perform gruesome behaviors. We use functional magnetic resonance imaging (fMRI) to examine how brain regions implicated in logical reasoning are modulated by emotion and social cognition during legal decision-making. Participants read vignettes describing crimes that elicit strong or weak disgust matched on punishment severity using the US Federal Sentencing Guidelines. An extraneous sentence at the end of each vignette described the perpetrator’s personality using traits or biological language, mimicking the increased use of scientific evidence presented in courts. Behavioral results indicate that crimes weak in disgust receive significantly less punishment than the guidelines recommend. Neuroimaging results indicate that brain regions active during logical reasoning respond less to crimes weak in disgust and biological descriptions of personality, demonstrating the impact of emotion and social cognition on logical reasoning mechanisms necessary for legal decision-making. |
| Yoder | 2014 | The Good, the Bad, and the Just: Justice Sensitivity Predicts Neural Response during Moral Evaluation of Actions Performed by Others | Keith J. Yoder & Jean Decety | 34(12) Journal of Neuroscience 4161 | Morality is a fundamental component of human cultures and has been defined as prescriptive norms regarding how people should treat one another, including concepts such as justice, fairness, and rights. Using fMRI, the current study examined the extent to which dispositions in justice sensitivity (i.e., how individuals react to experiences of injustice and unfairness) predict behavioral ratings of praise and blame and how they modulate the online neural response and functional connectivity when participants evaluate morally laden (good and bad) everyday actions. Justice sensitivity did not impact the neuro-hemodynamic response in the action-observation network but instead influenced higher-order computational nodes in the right temporoparietal junction (rTPJ), right dorsolateral and dorsomedial prefrontal cortex (rdlPFC, dmPFC) that process mental states understanding and maintain goal representations. Activity in these regions predicted praise and blame ratings. Further, the hemodynamic response in rTPJ showed a differentiation between good and bad actions 2 s before the response in rdlPFC. Evaluation of good actions was specifically associated with enhanced activity in dorsal striatum and increased the functional coupling between the rTPJ and the anterior cingulate cortex. Together, this study provides important knowledge in how individual differences in justice sensitivity impact neural computations that support psychological processes involved in moral judgment and mental-state reasoning. |
| Smits | 2015 | Does the Law of Delict Have a Future? On Neuroscience and Liability | Jan M. Smits | ‘Neurolaw’ is rapidly becoming one of the most fascinating fields at the intersection of law and science. The insights that neuroscientists provide us with on the functioning of the human brain are increasingly important to the law. The main reason for this is that the law is full of presumptions about how and why people act. These presumptions are increasingly questioned by neuroscientists, giving rise to what some have termed a ‘neuro-revolution’ in our thinking about the law. However, it is far from clear what the exact impact of neuro-scientific insights has to be. This contribution considers what the consequences may be for the law of delict. It is argued that neurolaw will not fundamentally change tort law because of the intrinsically normative approach of the law. However, this does not mean that neuro-scientific findings cannot be relevant in dealing with some specific questions in the law of delict. These questions are discussed. | |
| Keren | 2015 | Guilt-Free Markets? Unconscionability, Conscience, and Emotions | Hila Keren | Despite record-level economic inequalities and a vast growth in market exploitation, courts remain surprisingly reluctant to exercise their power to in-validate the resulting predatory contracts. There is no doubt that courts are authorized to invalidate predatory contracts based on their unconscionability. There is, however, an ongoing debate regarding the desirability of utilizing this judicial power in a capitalist society. This Article enters the discussion from a unique angle: it focuses less on the bottom line of jurisprudence and more on the law’s expressive power — the fact that the law’s impact extends beyond its ability to sanction or reward behaviors. Specifically, the Article argues that the way in which courts frame and discuss both market misbehaviors and the harms they cause may have an immense impact on other peoples’ behaviors, a potential that is currently unrecognized. Judicial reviews that reach the public domain have the power to encourage or discourage future wrongful behaviors and, more broadly, to influence the social and ethical norms governing the market. This Article begins with a fundamental premise that receives far too little consideration in traditional, economic, and even behavioral legal analyses: that emotions play a leading role in shaping moral judgments and altering actions. Considering the impact of law in the domain of the emotions is a key to understanding how unconscionability-based messages may curb exploitative behavior by fostering self-restraint. Drawing on studies in psychology and the neurosciences, the Article first explains how the operation of human con-science depends on two emotions — guilt and empathy. Next, it juxtaposes the discourse of two recent cases, both involving wrongful market behaviors, to demonstrate courts’ ability to either evoke or suppress these emotions. Generalizing those examples, the Article then proposes three viable strategies that courts can use to enhance the operation of the emotions most necessary for self-restraint: a framing that welcomes, rather than ostracizes, the moral emotions; a rhetoric that clarifies the pertinent social norms; and a content that thoughtfully portrays the harm caused to the exploited party. Notably, the Article’s conclusion is different from existing approaches to unconscionability. Instead of joining those who recommend more or less use of the unconscionability principle by the judiciary, the Article emphasizes the content of judicial decisions. With an understanding of the emotions that shape human behavior, courts can better direct their expressive powers. They can successfully evoke the emotions that facilitate conscience-based self-restraint of market actors. In this way the legal system can help people internalize a norm against market exploitation, thereby fostering a more ethical market environment. Importantly, using the law to support individuals’ conscience may eventually decrease the need for future interventions in the market’s operation. | |
| Shen | 2015 | Red States, Blue States, and Brain States: Issue Framing, Partisanship, and the Future of Neurolaw in the United States | Francis X. Shen & Dena M. Gromet | 658 The ANNALS of the American Academy of Political and Social Science 86 | Advances in neuroscience are beginning to shape law and public policy, giving rise to the field of “neurolaw.” The impact of neuroscientific evidence on how laws are written and interpreted in practice will depend in part on how neurolaw is understood by the public. Drawing on a nationally representative telephone survey experiment, this article presents the first evidence on public approval of neurolaw. We find that the public is generally neutral in its support for neuroscience-based legal reforms. However, how neurolaw is framed affects support based on partisanship: Republicans’ approval of neurolaw decreases when neuroscience is seen as primarily serving to reduce offender culpability, whereas Democrats’ approval is unaffected by how neurolaw is framed. These results suggest that both framing and partisanship may shape the future of neuroscience-based reforms in law and policy. |
| Chandler | 2014 | Mind, Brain, and Law: Issues at the Intersection of Neuroscience, Personal Identity, and the Legal System | Jennifer Chandler | Handbook of Neuroethics 441 | The objective of this chapter is to consider how emerging neuroscience might affect the way that the concept of personal identity is understood and used in the law. This topic is explored using two well-established theoretical approaches to the concept of personal identity. One approach considers the physical and/or psychological criteria for establishing the boundaries of one single personal identity at a given time (synchronic numerical personal identity) or the continuity of one personal identity over time (diachronic numerical personal identity). Another approach conceives of personal identity as “narrative identity” or the self-conception that a person creates from the sum of their experiences, values, and psychological attributes. A concern with what makes two apparent beings the same person at one point in time (synchronic identity) brings into focus questions about how the law should respond to cases of accused persons with dissociative identity disorder. Neuroimaging and psychological research into dissociative identity disorder may one day alter the conceptualization of this disorder in ways that may affect the legal response to determining criminal responsibility in such cases. Meanwhile, a concern with changes in the “self” brings into focus a range of legal issues posed by emerging neurological interventions. The chapter offers three illustrative examples drawn from criminal and civil law: (1) What are the limits on legally coerced consent to “self”-changing rehabilitative brain interventions in the criminal context? (2) Should there be an expanded risk disclosure discussion during the informed consent process for medical treatment that may alter the “self”? (3) Who might be legally responsible for illegal behavior committed following “self”-changing brain interventions? |
| Pivovarova | 2014 | A Polygraph Primer: What Litigators Need to Know | Ekaterina Pivovarova, Judith G. Edersheim, Justin Baker, & Bruce H. Price | 26(2) The Jury Expert 1 | . |
| Gertner | 2015 | Book Review: Law and Neuroscience | Nancy Gertner | Journal of Law and the Biosciences | . |
| Presidential Commission for the Study of Bioethical Issues | 2015 | Gray Matters: Topics at the Intersection of Neuroscience, Ethics, and Society | . | Presidential Commission for the Study of Bioethical Issues | . |
| Furman | 2014 | I Know What You’re Thinking: Brain Imaging and Mental Privacy | Jenna Furman | 30 Syracuse J. SCI. & TECH. L. REP. 160 | . |
| Muhs | 2014 | Fighting the Unfair Fight: Post-Traumatic Stress Disorder and the Need for Neuroimaging in Rape Trials | Bradley A. Muhs | 35 WOMEN’S RTS. L. REP. 215 | . |
| Friedman | 2013 | Pedophilia: Laws Fighting Nature Instead of Coping With It | Andrea Friedman | 43 SW. L. REV. 253 | . |
| Brooks | 2014 | “What Any Parent Knows” But the Supreme Court Misunderstands: Reassessing Neuroscience’s Role in Diminished Capacity Jurisprudence | Jamie D. Brooks | 17 NEW CRIM. L. REV. 442 | In Miller v. Alabama, the Supreme Court appealed to neuroscience studies concerning the diminished capacities of adolescents to justify leniency in the sentencing of juvenile offenders. Reflecting on the recent proliferation of juvenile proportionality cases, the Court noted “[o]ur decisions rested not only on common sense--on what ‘any parent knows'--but on science and social science as well.” This Article casts a skeptical eye on the legal import of these scientific insights into the adolescent brain for normative evaluations of criminal culpability. Although the studies cited offer little probative value beyond the common sense wisdom about children that “any parent knows,” the Court's efforts to employ psychiatric data to objectify mitigating criteria have distracted the Justices from analyzing the precise legal relationship between diminished capacity and diminished culpability, while intractably confusing the Eighth Amendment doctrine of proportionality. After analyzing the history of both proportionality review and the diminished capacity defense, this Article cautions that judges should not automatically equate factual findings of neurobiological abnormalities--that merely evidence diminished capacity--with a moral-legal conclusion of lessened culpability. Given the wide applicability of this defense, such reductionist interpretations contravene the principles of moral responsibility, which seek to differentiate culpability among individual offenders. As an alternative means of reconciling the burgeoning role of neuroscience with the established tenets of the criminal doctrine, this Article proposes a novel framework for assessing the mitigating effect of brain science that judges could equally apply to all classes of offenders, including juveniles. |
| Drobac | 2014 | The Neurobiology of Decision Making in High-Risk Youth and the Law of Consent to Sex | Jennifer Ann Drobac & Leslie A. Hulvershorn | 17 NEW CRIM L. REV. 502 | Under certain circumstances, the law treats juvenile consent the same as it treats adult decisions, even though a growing body of scientific research demonstrates that children make decisions using less developed cognitive processes. This Article highlights the gaps and deficiencies of legal treatment of juvenile decisions in the context of sex with an adult, as well as integrates new scientific information regarding the decision making of minors in risky situations. Part I examines recent pediatric brain imaging findings during a risky decision-making task. Specifically, a new study demonstrates that brain scan results differed between juveniles at high risk for potentially harmful or criminal conduct and healthy children. These differences within juvenile populations support the notion that particular biological and environmental traits in children may further distinguish juvenile decision making from adult decision making. Part II explores the potential impact of these novel neurobiological findings on the legal treatment of juvenile ““consent” to sexual activity. A discussion and summary of the juvenile sex crime statutes of all fifty states demonstrates how the law attributes legal capacity and ability to make legally binding decisions to even very young teenagers. Part II also highlights where state civil and criminal law treat juvenile “consent” inconsistently. Criminal and civil laws' treatment of juvenile capacity, in the context of sexual activity with an adult, is not congruent with recent neurobiological discoveries regarding juvenile risk taking and decision making. Therefore, society should reconsider designations regarding legal capacity in light of novel neurobiological findings regarding decision making in juveniles. |
| Taylor | 2014 | Communicating with Vegetative State Patients: The Role of Neuroimaging in American Disability Law | Dalia B. Taylor | 66 STAN. L. REV. 1451 | Patients in vegetative states appear to be awake but unconscious. If they have been in a vegetative state for more than one year, they have little chance of ever recovering. Additionally, no one can communicate with them, including physicians, loved ones, and families. However, new scientific evidence has challenged our understanding of this bleak reality. In particular, recent neuroscience research has shown that a substantial number of patients in vegetative states may actually be conscious and able to communicate through the use of brain-scanning technology. This exciting development poses many difficult questions, including the one analyzed here: now that we know neuroimaging may be the only way to communicate with these patients, will health care facilities be required to provide brain-scanning equipment under American disability law? This Note argues that lawsuits seeking neuroimaging technology from hospitals have a significant chance of success. The main challenge for plaintiffs will be convincing judges that existing scientific evidence actually shows that neuroimaging can facilitate communication with patients. Ultimately, if the appropriate legal framework develops, brain-scanning technology could permit patients in vegetative states to make decisions regarding their own medical care and allow families to communicate with their loved ones. |
| Chin | 2014 | Psychological Science’s Replicability Crisis and What it Means For Science in the Courtroom | Jason M. Chin | 20 PSYCHOL. PUB. POL’Y & L. 225 | In response to what has been termed the “replicability crisis,” great changes are currently under way in how science is conducted and disseminated. Indeed, major journals are changing the way in which they evaluate science. Therefore, a question arises over how such change impacts law’s treatment of scientific evidence. The present standard for the admissibility of scientific evidence in federal courts asks judges to play the role of gatekeeper, determining if the proffered evidence conforms with several indicia of scientific validity. The alternative legal framework, and one still used by several state courts, requires judges to simply evaluate whether a scientific finding or practice is generally accepted within science. This Essay suggests that as much as the replicability crisis has highlighted serious issues in the scientific process, it has should have similar implications and actionable consequences for legal practitioners and academics. In particular, generally accepted scientific practices have frequently lagged behind prescriptions for best practices, which in turn affected the way science has been reported and performed. The consequence of this phenomenon is that judicial analysis of scientific evidence will still be impacted by deficient generally accepted practices. The Essay ends with some suggestions to help ensure that legal decisions are influenced by science’s best practices. |
| MacGillivray | 2014 | Where is the Awareness in Concussion Awareness: Can Concussed Players Really Assume the Risk in a Concussed State? | Heather MacGillivray | 21 JEFFREY S. MOORAD SPORTS L.J. 529 | This comment explains why an athlete cannot validly assume the risk of continued play while in a concussed state. Section II explains the science of a concussion and discusses the assumed risk defense in negligence actions. Section III explains why the science of a concussion prevents an already-concussed athlete from validly assuming the risks associated with continued play. This section also suggests that doctors, coaches and, trainers on the sidelines have an increased duty to prevent injured players from returning to play in the immediate aftermath of a possible concussion because of the difficulty in diagnosing them. Finally, Section IV reiterates the duty of care owed to concussed athletes and suggests ways to minimize the risk of long-term cognitive deficits associated with multiple and repeated concussions. |
| Stern | 2014 | Diffusion Tensor Imaging | Bruce H. Stern | 289-AUG N.J. LAW. 11 | The article describes DTI, gives the standards for admitting it in expert testimony and discusses whether the evidence meets these standards, says where DTI evidence has been admitted, and gives defenses used against DTI imaging. |
| Telis | 2014 | Playing Through the Haze: The NFL Concussion Litigation and Section 301 Preemption | Michael Telis | 102 GEO. L.J. 1841 | While the NFL likely welcomes the long wait for the results of these and other studies, not everyone is so patient. By the beginning of 2012, over one thousand former NFL players (Players) had filed individual lawsuits against the League stemming from the concussion-related injuries they sustained playing football. The League moved to consolidate the cases pursuant to 28 U.S.C. § 1407, which allows for the transfer of cases involving common questions of fact to a multidistrict litigation (MDL) in a single district court for the purpose of coordinated or consolidated pretrial proceedings. The United States Judicial Panel on Multidistrict Litigation granted the League’s motion, resulting in the transfer to the District Court for the Eastern District of Pennsylvania every civil action filed by former NFL players against the League dealing with the League’s treatment of concussions. This Note will address the unanswered preemption issue raised in the League’s motion to dismiss. It will argue that, because adjudication of the Players’ claims would require interpretation of the CBA, the claims would be preempted and the League’s motion to dismiss would be granted.31 Part I discusses Section 301 of the LMRA and the Supreme Court cases addressing Section 301 preemption. Part II argues that the Players’ claims would not be preempted under one prong of the preemption test because the League’s duty to them arises out of the common law rather than out of the CBA. Part III argues that the Players’ claims are nevertheless preempted under the second prong of the preemption test because they require interpretation of the CBA. Part IV rejects the notion that the Players’ fraud claims should survive a preemption chal- lenge even if their other tort claims do not. Part V raises possible alternatives to litigation given the League’s likely success in raising a preemption defense. |
| Wolf | 2015 | Brain Imagining Research on Violence and Aggression: Pitfalls and Possibilities for Criminal Justice | Richard C. Wolf & Michael Koenigs | Science in the Courtroom by the National Courts and Science Institute, Inc. | . |
| Hu | Suppressing Unwanted Autobiographical Memories Reduces Their Automatic Influences: Evidence from Electrophysiology and an Implicit Autobiographical Memory | Xiaoqing Hu, Zara M. Bergström, Galen V. Bodenhausen, J. Peter Rosenfeld | |||
| de Rocha | 2014 | Brain and Law: An EEG Study of How We Decide or Not to Implement a Law | Armando Freitas da Rocha, Eduardo Massad, Fábio T. Rocha, & Marcelo N. Burattini | 4 J. Behavioral and Brain Science 559 | Brazil has introduced a referendum regarding the prohibition of firearm commerce and propaganda arguments has invoked socially and personally driven issues in the promotion of voting in favor of and against firearm control, respectively. Here, we used different techniques to study the brain activity associated with a voter’s perception of the truthfulness of these arguments and their influence on voting decisions. Low Resolution Tomography was used to identify the possible different sets of neurons activated in the analysis of the different types of propaganda. Linear correlation was used to calculate the amount information H(el) provided by different electrodes about how these sets of neurons enroll themselves to carry out this cognitive analysis. The results clearly showed that vote decision was not influenced by arguments that were introduced by propaganda, which were typically driven by specific social or self-interest motives. However, different neural circuits were identified in the analysis of each type of propaganda argument, independently of the declared vote (for or against the control) intention. |
| Uncapher | 2015 | Goal-Directed Modulation of Neural Memory Patterns: Implications for fMRI-Based Memory Detection | Melina R. Uncapher, J. Tyler Boyd-Meredith, Tiffany E. Chow, Jesse Rissman, & Anthony D. Wagner | 35(22) Journal of Neuroscience 8531 | Remembering a past event elicits distributed neural patterns that can be distinguished from patterns elicited when encountering novel information. These differing patterns can be decoded with relatively high diagnostic accuracy for individual memories using multivoxel pattern analysis (MVPA) of fMRI data. Brain-based memory detection—if valid and reliable—would have clear utility beyond the domain of cognitive neuroscience, in the realm of law, marketing, and beyond. However, a significant boundary condition on memory decoding validity may be the deployment of “countermeasures”: strategies used to mask memory signals. Here we tested the vulnerability of fMRI-based memory detection to countermeasures, using a paradigm that bears resemblance to eyewitness identification. Participants were scanned while performing two tasks on previously studied and novel faces: (1) a standard recognition memory task; and (2) a task wherein they attempted to conceal their true memory state. Univariate analyses revealed that participants were able to strategically modulate neural responses, averaged across trials, in regions implicated in memory retrieval, including the hippocampus and angular gyrus. Moreover, regions associated with goal-directed shifts of attention and thought substitution supported memory concealment, and those associated with memory generation supported novelty concealment. Critically, whereas MVPA enabled reliable classification of memory states when participants reported memory truthfully, the ability to decode memory on individual trials was compromised, even reversing, during attempts to conceal memory. Together, these findings demonstrate that strategic goal states can be deployed to mask memory-related neural patterns and foil memory decoding technology, placing a significant boundary condition on their real-world utility. |
| Manders | 2014 | With a Life on the Line, Emerging Technologies Can Contribute in the Determination of Intellectual Disability in Capital Sentencing | Kellie Manders | 55(1) Jurimetrics 115 | The use of capital punishment for intellectually disabled individuals violates the Eighth Amendment through its standard of decency jurisprudence. However, with varying definitions and diagnostics from the American Association on Intellectual and Development Disabilities and the American Psychiatric Association as well as varying state statues defining intellectual disability, there is no consistent understanding of what qualifies a person as intellectually disabled. This problem can be addressed through a uniform definition in diagnostic materials and laws across the United States. Beyond policy definitions, emerging technologies may also establish objective standards that will increase accuracy and ensure justice within our capital sentencing system. With emerging technology, courts have the capability to make careful diagnoses of individuals with reduced mental capacities to mitigate the discrepancies across the nation and prevent intellectually disabled individuals from wrongfully being put to death. |
| Terzian | 2013 | The Right to Bear (Robotic) Arms | Dan Terzian | 117 Penn. St. L. Rev. 755 | Can robotic weapons be “Arms” under the Second Amendment? This Article argues that they can. In particular, it challenges the claim that the Second Amendment protects only weapons that can be carried in one’s hands, which has roots in both Supreme Court Second Amendment doctrine (District of Columbia v. Heller) and scholarship. Scrutinizing these roots shows that Heller did not intend to create such a requirement and that little, if any, constitutional basis for it exists. This Article also contextualizes robotic weapons within the established Second Amendment framework for arms. Robotic weapons are not yet arms, but there is no legal impediment — nor should there be — to them becoming arms. Finally this Article presents an alternative theory of Second Amendment protection for robotic weapons based on auxiliary rights, in light of the Seventh Circuit case United States v. Ezell. It posits that Second Amendment auxiliary rights include the right to employ a bodyguard, whether human or robot. |
| Denno | 2015 | The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases | Deborah W. Denno | 56 Boston College L. Rev. 493 | This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992-2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience evidence as a double-edged sword — one that will either get defendants off the hook altogether or unfairly brand them as posing a future danger to society. To the contrary, my study indicates that neuroscience evidence is typically introduced for a well-established legal purpose — to provide fact-finders with more complete, reliable, and precise information when determining a defendant’s fate. My study also shows that courts accept neuroscience evidence for this purpose, and in fact expect attorneys to raise this evidence when possible on behalf of their clients. This expectation is so entrenched that courts are willing to grant defendants their “ineffective assistance of counsel” claims when attorneys fail to pursue this mitigating evidence. Meanwhile, my study also reveals that the potential future danger posed by defendants is rarely a facet of cases involving neuroscience evidence — again contradicting the myth of the double-edged sword. The cases that do address future danger, however, offer fascinating insight into the complex legal issues raised by neuroscience evidence. As courts continue to embrace neuroscience tools and techniques, the empirical data collected in my study provide a foundation for discussions regarding the use of neuroscience evidence in criminal cases. The findings presented in this Article will ensure that those discussions are grounded in fact rather than hyperbole. |
| Greely | 2015 | Neuroscience, Mindreading, and the Courts: The Example of Pain | Henry T. Greely | 18(2) Journal of Health Care Law and Policy 171 | . |
| Seminowicz | 2015 | Panel 1: Legal and Neuroscientific Perspectives on Chronic Pain | David Seminowicz, Amanda Pustilnik, & Stephen Rigg | 18(2) Journal of Health Care Law and Policy 207 | . |
| Pustilnik | 2015 | Panel 2: “Excess” Pain, Hyperalgesia, and the Variability of Subjective Experience | Amanda Pustilnik, David Seminowicz, & Stephen Rigg | 18(2) Journal of Health Care Law and Policy 237 | . |
| Seminowicz | 2015 | Panel 3: Chronic Pain, “Psychogenic” Pain, and Emotion | David Seminowicz, Amanda Pustilnik, & M. Kaylie Gioioso | 18(2) Journal of Health Care Law and Policy 275 | . |
| Pustilnik | 2015 | Panel 4: Translational Expectations and Issues: Making it Work in Practice | Amanda Pustilnik, David Seminowicz, & M. Kaylie Gioioso | 18(2) Journal of Health Care Law and Policy 295 | . |
| McSherry | 2015 | Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws | Bernadette McSherry | 4 Laws 125 | Neuroscientific endeavours to uncover the causes of severe mental impairments may be viewed as supporting arguments for capacity-based mental health laws that enable compulsory detention and treatment. This article explores the tensions between clinical, human rights and legal concepts of “capacity”. It is argued that capacity-based mental health laws, rather than providing a progressive approach to law reform, may simply reinforce presumptions that those with mental impairments completely lack decision-making capacity and thereby should not be afforded legal capacity. A better approach may be to shift the current focus on notions of capacity to socio-economic obligations under the Convention on the Rights of Persons with Disabilities. |
| Jwa | 2015 | Early Adopters of the Magical Thinking Cap: A Study on Do-It-Yourself (DIY) Transcranial Direct Current Stimulation (tDCS) User Community | Anita Jwa | Journal of Law and the Biosciences | Among currently available technologies, transcranial direct current stimulation (tDCS) is one of the most promising neuroenhancements because it is relatively effective, safe, and affordable. Recently, lay people have begun to build—or purchase—the tDCS device to use it at home for treatment or as a cognitive enhancer. The tDCS device is currently not covered by the existing regulatory framework, but there are still significant potential risks of misusing this device, and its long-term effects on the brain have not been fully explored. Thus, researchers have argued the need for regulations or official guidelines for the personal use of tDCS. However, until now, no systematic research on the do-it-yourself (DIY) tDCS user community has been done. The present study explores the basic demographic characteristics of DIY tDCS users as well as why and how they are using this device through a questionnaire survey, in-depth interviews, and a content analysis of web postings on the use of tDCS. This preliminary but valuable picture of the DIY tDCS user community will shed light on future studies and policy analysis to craft sound regulations and official guidelines for the use of tDCS. |
| Cohen | 2015 | This is Your Brain on Human Rights: Moral Enhancement and Human Rights | I. Glenn Cohen | 9(1) Law and Ethics of Human Rights 1 | It seems fair to say that human rights law takes the human as given. Human beings are particular kinds of entities with particular kinds of psychologies and propensities, and it is the job of human rights law and human rights enforcement to govern that kind of entity, be it through sanctions, education, incentives, or other mechanisms. More specifically, human rights law takes human brains as given. If humans were different kinds of beings, both the mechanisms of getting compliance and possibly the very rules themselves would be different. The purpose of this essay, part of a symposium on Human Rights and Human Minds, is to very tentatively start to tie together thinking in neuroscience, bioethics, and human rights law to ask whether human rights law should take the nature of human beings, and more specifically, human brains, as given. I sketch the alternative possibility and examine it from a normative and (to a lesser extent) scientific perspective: instead of merely crafting laws and setting up structures that get human beings such as they are to respect human rights, that the human rights approach should also consider embracing attempts to remake human beings (and more specifically human brains) into the kinds of things that are more respectful of human rights law. This is currently science fiction, but there is some scientific evidence that moral enhancement may one day be possible. I call the alternative "moral enhancement to respect human rights law." To put the aim of the essay in its mildest form it is to answer the following question: if it becomes possible to use enhancement to increase respect for human rights and fidelity to human rights law (whatever you think is constitutive of those categories), and in particular in a way that reduces serious human rights violations, is it worth "looking into?" Or, by contrast, are the immediate objections to such an endeavor so powerful or hard to refute that going in this direction should be forbidden. |
| Kolber | 2014 | The Limited Right to Alter Memory | Adam Kolber | 40 Journal of Medical Ethics 658 | We like to think we own our memories: if technology someday enables us to alter our memories, we should have certain rights to do so. But our freedom of memory has limits. Some memories are simply too valuable to society to allow individuals the unfettered right to change them. Suppose a patient regains consciousness in the middle of surgery. While traumatized by the experience and incapable of speaking, he coincidentally overhears two surgeons make plans to set fire to the hospital. Assuming there is no way to erase his traumatic memories of intraoperative awareness and still prosecute the surgeons, a patient may well have a moral duty to retain the memories for the greater good. And if the patient has such a moral duty, I argue in this brief comment, then the state plausibly has the right to limit our abilities to erase memories when necessary to protect public safety or prosecute offenders. |
| Chaffee | 2015 | The Death and Rebirth of Codes of Legal Ethics: How Neuroscientific Evidence of Intuition and Emotion in Moral Decision Making Should Impact the Regulation of the Practice of Law | Eric C. Chaffee | 28 Geo. J. Legal Ethics 323 | . |
| Gregory | 2015 | Punishment and Psychopathy: A Case-Control Functional MRI Investigation of Reinforcement Learning in Violent Antisocial Personality Disordered Men | Sarah Gregory, R James Blair, Dominic ffytche, Andrew Simmons, Veena Kumari, Sheilagh Hodgins, & Nigel Blackwood | 2(2) The Lancet Psychiatry 153 | Background Men with antisocial personality disorder show lifelong abnormalities in adaptive decision making guided by the weighing up of reward and punishment information. Among men with antisocial personality disorder, modification of the behaviour of those with additional diagnoses of psychopathy seems particularly resistant to punishment. Methods We did a case-control functional MRI (fMRI) study in 50 men, of whom 12 were violent offenders with antisocial personality disorder and psychopathy, 20 were violent offenders with antisocial personality disorder but not psychopathy, and 18 were healthy non-offenders. We used fMRI to measure brain activation associated with the representation of punishment or reward information during an event-related probabilistic response-reversal task, assessed with standard general linear-model-based analysis. Findings Offenders with antisocial personality disorder and psychopathy displayed discrete regions of increased activation in the posterior cingulate cortex and anterior insula in response to punished errors during the task reversal phase, and decreased activation to all correct rewarded responses in the superior temporal cortex. This finding was in contrast to results for offenders without psychopathy and healthy non-offenders. Interpretation Punishment prediction error signalling in offenders with antisocial personality disorder and psychopathy was highly atypical. This finding challenges the widely held view that such men are simply characterised by diminished neural sensitivity to punishment. Instead, this finding indicates altered organisation of the information-processing system responsible for reinforcement learning and appropriate decision making. This difference between violent offenders with antisocial personality disorder with and without psychopathy has implications for the causes of these disorders and for treatment approaches. |
| Petoft | 2015 | Toward Human Behavior Sciences from the Perspective of Neurolaw | Arian Petoft & Ahmed Momeni-rad | 2(2) International Journal Of Public Mental Health And Neurosciences 29 | One of the most effective paths to improve the quality of human behavior sciences is to integrate each overlapping edge of them together. In other words, interdisciplinary studies have to achieve more accurate and favorable outcomes. Neurolaw, as an interdisciplinary field which links brain to law, facilitates the pathway to better understanding of human behavior in order to regulate it accurately through incorporating neuroscience achievements in legal studies. Since 1990’s, this newly born field, by studying human nervous system as a new dimension of legal phenomena, leads to a more precise explanation for human behavior to revise legal rules and decision-makings. This paper strives up front to bring about significantly a brief introduction to neurolaw so as to take effective steps toward exploring and expanding the scope of law and more thorough understanding of legal effects resulting from individuals’ behaviors in the field at hand. Neurolaw, will bring a bright future to conduct researches upon human behavior. |
| Cyrulnik | 2015 | Le cerveau, nouvel avocat de la justice? | Boris Cyrulnik | 3 Sciences Psy | . |
| Imrey | 2015 | A Commentary on Statistical Assessment of Violence Recidivism Risk | Peter B. Imrey & A. Philip Dawid | 2(1) Statistics and Public Policy | Increasing integration and availability of data on large groups of persons has been accompanied by proliferation of statistical and other algorithmic prediction tools in banking, insurance, marketing, medicine, and other fields (see, e.g., Steyerberg 2009a, b). Controversy may ensue when such tools are introduced to fields traditionally reliant on individual clinical evaluations. Such controversy has arisen about “actuarial” assessments of violence recidivism risk, that is, the probability that someone found to have committed a violent act will commit another during a specified period. Recently, Hart, Michie, and Cooke (2007a) and subsequent papers from these authors in several reputable journals have claimed to demonstrate that statistical assessments of such risks are inherently too imprecise to be useful, using arguments that would seem to apply to statistical risk prediction quite broadly. This commentary examines these arguments from a technical statistical perspective, and finds them seriously mistaken in many particulars. They should play no role in reasoned discussions of violence recidivism risk assessment. |
| McJohn | 2015 | Some Speculation About Mirror Neurons and Copyright | Stephen McJohn | 14 J. Marshall Rev. Intell. Prop. L. 410 | Copyright plays a central role in regulating cultural transmission. Authors are given exclusive rights to copy, adapt, distribute, perform and display their works. These rights have limits, most notable fair use and the non-protection of ideas. In setting the bounds of those limits, courts implicitly follow some basic folk psychology. This paper would explore how neuroscience can be used to illuminate and challenge those background assumptions. Copyright law implicitly assumes that literal copying is not necessary for cultural transmission. If there are many ways to express the same idea, then transmission of an idea will not be restricted by prohibiting copying of one way of expressing that idea. As the Supreme Court stated in Eldred v. Ashcroft, 537 US 186 (2003), fair use and freedom of expression provide less protection for the copying the work of others. However, work with mirror neurons suggests that literal copying may be a necessary step in many kinds of cultural transmission. Rather than ideas being transmitted at an abstract level, much learning and communication may occur as basic imitation. It may be that, contrary to the assumptions of copyright law, abstract ideas are often not so easily separated from their concrete expression. That might have implications for copyright analysis. First, more latitude could be appropriate for some types of literal copying than fair use or the idea/expression dichotomy presently allow. Second, certain types of literal copying would qualify as “transformative” for purposes of fair use, although there is no actual change in the form of the relevant work. |
| Murrow | 2015 | A Hypothetical Neurological Association between Dehumanization and Human Rights Abuses | Gail B. Murrow & Richard Murrow | Journal of Law and the Biosciences | Dehumanization is anecdotally and historically associated with reduced empathy for the pain of dehumanized individuals and groups and with psychological and legal denial of their human rights and extreme violence against them. We hypothesize that ‘empathy’ for the pain and suffering of dehumanized social groups is automatically reduced because, as the research we review suggests, an individual's neural mechanisms of pain empathy best respond to (or produce empathy for) the pain of people whom the individual automatically or implicitly associates with her or his own species. This theory has implications for the philosophical conception of ‘human’ and of ‘legal personhood’ in human rights jurisprudence. It further has implications for First Amendment free speech jurisprudence, including the doctrine of ‘corporate personhood’ and consideration of the potential harm caused by dehumanizing hate speech. We suggest that the new, social neuroscience of empathy provides evidence that both the vagaries of the legal definition or legal fiction of ‘personhood’ and hate speech that explicitly and implicitly dehumanizes may (in their respective capacities to artificially humanize or dehumanize) manipulate the neural mechanisms of pain empathy in ways that could pose more of a true threat to human rights and rights-based democracy than previously appreciated. |
| Preston | 2014 | Legal Osmosis: The Role of Brain Science in Protecting Adolescents | Cheryl B. Preston & Brandon T. Crowther | 43 Hofstra Law Review 447 | In the last decade, the Supreme Court relied on scientific findings presented in amicus curiae briefs filed by various medical and psychological organizations and health professionals in three juvenile justice cases, Roper v. Simmons, Graham v. Florida, and Miller v. Alabama. The research showed that the structure and function of adolescent brains are distinct from those of adults, which supports the position that adolescents, as a class, are generally immature in three separate, but related, ways. First, adolescents are more likely to engage in risky behavior than adults; second, adolescents are less able to control their impulses than adults; and finally, adolescents are less capable of regulating their emotional responses than adults. Notwithstanding the vigorous use of these scientific findings in the juvenile justice cases, the Court did not address these characteristics of minors in its next adolescent law case, Brown v. Entertainment Merchants Association, where it overturned a statute prohibiting the sale of violent video games to minors. Further, no other courts have invoked these findings to address other aspects of the law relating to minors. This Article reviews the scientific evidence used by the Supreme Court and its implications for other aspects of adolescent law. It explains the nature of the scientific evidence related to minors’ brains, how the Court used such evidence in the juvenile justice and video game cases, and reconciles the two approaches. Using the Court’s treatment as a barometer, this Article then proposes principles and methods for correctly incorporating adolescent brain science into legal policy making, concluding with an example from the contract law protections for minors. Casting the teachings of science aside is an enormous disservice to the real people who must operate under legal schema, particularly in the case of the young and impressionable who will carry the burden of gaps in the legal system for the rest of their lives. The proper balance is one where good science guides legal policy, but does not dictate individual results. |
| Fondacaro | 2014 | Rethinking the Scientific and Legal Implications of Developmental Differences Research in Juvenile Justice | Mark Fondacaro | 17 New Crim. L. Rev. 407 | A recent string of Supreme Court cases now ensures that fewer juveniles will be subjected to our most extreme punitive sanctions, a sign of forward movement toward evolving standards of decency in our culture and jurisprudence. However, this article will argue that there are potential long-term costs associated with the interpretation of developmental differences research relied upon by the Court, not only to juveniles and adults accused and convicted of serious crimes, but to the credibility of science and the legitimacy of the criminal law. The article draws on cutting-edge scientific research to argue that juveniles should indeed be treated differently than we currently treat adults for criminal offenses. However, the primary reason we should treat them differently is not because they are developmentally immature (which many of them may indeed be), but because our retributive justifications for adult punishment do not and will not stand up to scientific scrutiny and the ongoing, inevitable advances in the behavioral and biological sciences. Adolescent immaturity is just one example of the growing number of diminished capacities taking aim at the legitimacy of retributive justifications for punishment. As philosophical and commonsense explanations for criminal behavior give way to scientific and empirical analyses across biological, psychological, and social levels, the justification for and responses to criminal responsibility will need to shift from retribution and just desert toward more forward-looking, consequentialist approaches with both juveniles and adults. |
| Sundby | 2015 | Neuroscience in the Law | Christopher Sundby & Owen Jones | 11(2) SCITECH LAWYER 4 | . |
| Grey | 2015 | Biomarkers for Concussion Susceptibility and Effects | Betsy Grey, Gary Marchant, & Cory Tyszka | 11(2) SCITECH LAWYER 12 | The United States is currently suffering a “concussion epidemic.” Concussions, also known as mild traumatic brain injuries (mTBI), are a growing public health problem. The frequency and severity of such injuries to young people have increased due to greater participation and competiveness in athletics. Professional sports leagues also face growing concussion concerns as players have gotten bigger, stronger, and faster. Concussive injuries are common in military personnel and victims of car accidents as well. Successive head injuries can be life-threatening and can cause chronic traumatic encephalopathy (CTE), a progressive, brain-damaging condition resulting in “memory loss, behavioral and personality changes, speech abnormalities, depression, Parkinson’s disease, and Alzheimer’s disease.” |
| Laduke | 2015 | The Admissibility of Neuroscience Evidence in Criminal Cases | Casey Laduke, Emily Haney-Caron, & Christopher Slobogin | 11(2) SCITECH LAWYER 18 | . |
| Bachnyski | 2014 | Youth Sports & Public Health: Framing Risks of Mild Traumatic Brain Injury in American Football and Ice Hockey | Kathleen E. Bachnyski & Daniel S. Goldberg | 42 J.L. MED. & ETHICS 323 | The framing of the risks of experiencing mild traumatic brain injury in American football and ice hockey has an enormous impact in defining the scope of the problem and the remedies that are prioritized. According to the prevailing risk frame, an acceptable level of safety can be maintained in these contact sports through the application of technology, rule changes, and laws. An alternative frame acknowledging that these sports carry significant risks would produce very different ethical, political, and social debates. |
| Bennion | 2015 | Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment | Elizabeth Bennion | 90 Ind. L.J. 741 | The United States engages in extreme practices of solitary confinement that maximize isolation and sensory deprivation of prisoners. The length is often indefinite and can stretch for weeks, months, years, or decades. Under these conditions, both healthy prisoners and those with pre-existing mental health issues often severely deteriorate both mentally and physically. New science and data provide increased insight into why and how human beings (and other social animals) deteriorate and suffer in such environments. The science establishes that meaningful social contacts and some level of opportunity for sensory enrichment are minimum human necessities. When those necessities are denied, the high risks of serious harm apply to all prisoners, no matter how seemingly resilient beforehand. Given these facts, this Article argues that solitary confinement, as commonly practiced in the United States, is cruel and unusual punishment — whether analyzed under current Supreme Court standards or an improved framework. Furthermore, recently released data on states implementing reforms shows that extreme solitary confinement tactics are counterproductive to numerous policy interests, including public safety, institutional safety, prisoner welfare, and cost efficiency. Both the scientific and policy data suggest possible avenues for effective reform. |
| Gordon | 2015 | All Together Now: Using Principles of Group Dynamics to Train Better Jurors | Sara Gordon | 48 IND. L. REV. 415 | We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups to various cognitive biases and errors. Moreover, jurors are often at a disadvantage because most of them have never served on a jury and many of them have never worked with a group to reach a decision about a complex problem. Compounding these issues, jurors are not typically given instructions or training on working in a group or on effective decisionmaking strategies. Although there is an extensive literature examining juries and jury deliberations, “All Together Now” is the first law journal article to consider all of the major scientific studies that examine training in group decisionmaking and apply them to jury decisionmaking. Many studies have examined group processes and group deliberations in the fields of social psychology, organizational psychology, business administration, advertising, and a variety of related areas. Moreover, countless studies examine group decisionmaking and recommend the use of training to improve group performance. Yet almost none of this interdisciplinary knowledge of group dynamics and the efficacy of training on group performance have been applied to one of the most fundamental group decisionmaking bodies — the jury. We can use this literature to create effective juror training procedures and give jurors strategies to more effectively deliberate and reach better group decisions. |
| Jones | 2015 | Law and Neuroscience | Owen D. Jones & Matthew Ginther | International Encyclopedia of Social and Behavioral Sciences, 2d Edition | This article discusses how the intersection of perennial legal questions and new neuroscientific advances has fueled the emergence of a new field: law and neuroscience. It provides an overview of issues, discussing both the promise and the limitations. |
| Wszalek | 2015 | Language Impairments in Youths With Traumatic Brain Injury: Implications for Participation in Criminal Proceedings | Joseph A. Wszalek & Lyn S. Turkstra | 30(2) J Head Trauma Rehabil 86 | As many as 30% of incarcerated juveniles have a history of traumatic brain injury (TBI). Moderate or severe TBI is associated with a high risk of impairment in language comprehension and expression, which may have profound effects on juveniles’ ability to understand and express themselves in criminal proceedings. In this article, we review common language impairments in youths with TBI and discuss potential effects of these impairments on 3 stages of US criminal proceedings: (1) initial encounter with law enforcement; (2) interrogation and Miranda rights; and (3) competence to undergo trial proceedings. We then describe language assessment tools and procedures that may be helpful in legal contexts. Our aim was to inform clinicians and legal staff working with juvenile defendants with TBI, with the long-term goal of developing empirically based guidelines to ensure that juvenile defendants with TBI can fully and effectively participate in criminal proceedings. |
| Davis | 2015 | Book Review: Law and Neuroscience | Andre M. Davis | 11(2) SCITECH LAWYER 24 | . |
| Benforado | 2015 | Unfair: The New Science of Criminal Injustice | Adam Benforado | Penguin Random House | A child is gunned down by a police officer; an investigator ignores critical clues in a case; an innocent man confesses to a crime he did not commit; a jury acquits a killer. The evidence is all around us: Our system of justice is fundamentally broken. But it’s not for the reasons we tend to think, as law professor Adam Benforado argues in this eye-opening, galvanizing book. Even if the system operated exactly as it was designed to, we would still end up with wrongful convictions, trampled rights, and unequal treatment. This is because the roots of injustice lie not inside the dark hearts of racist police officers or dishonest prosecutors, but within the minds of each and every one of us. This is difficult to accept. Our nation is founded on the idea that the law is impartial, that legal cases are won or lost on the basis of evidence, careful reasoning and nuanced argument. But they may, in fact, turn on the camera angle of a defendant’s taped confession, the number of photos in a mug shot book, or a simple word choice during a cross-examination. In Unfair, Benforado shines a light on this troubling new field of research, showing, for example, that people with certain facial features receive longer sentences and that judges are far more likely to grant parole first thing in the morning. Over the last two decades, psychologists and neuroscientists have uncovered many cognitive forces that operate beyond our conscious awareness. Until we address these hidden biases head-on, Benforado argues, the social inequality we see now will only widen, as powerful players and institutions find ways to exploit the weaknesses of our legal system. Weaving together historical examples, scientific studies, and compelling court cases—from the border collie put on trial in Kentucky to the five teenagers who falsely confessed in the Central Park Jogger case—Benforado shows how our judicial processes fail to uphold our values and protect society’s weakest members. With clarity and passion, he lays out the scope of the legal system’s dysfunction and proposes a wealth of practical reforms that could prevent injustice and help us achieve true fairness and equality before the law. |
| Sgarbi | 2015 | The Mystery of Freedom and Neurolaw | Adrian Sgarbi | 6 Beijing Law Review 133 | In the case of Steward Mach. Co. v. Davis, Judge Benjamin Nathan Cardozo said that “Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems”. This hypothesis, which has previously been defended almost wholly within the confines of philosophical reflections on human responsibility, now seems to be undergoing a new wave of considerations. This is because neuroscience has been brought to bear in court proceedings in order to challenge the existence of human free will, in cases of both civil and criminal law. In the media, to a greater or lesser degree, various specialists have published the results of all kinds of experiments along with diagrams and graphs, technical advice and new machines to back up their claims. Currently, the use of some of these techniques in court and their lack of sustainability in many situations has, in turn, been emphasized, especially in the context of judicial proof (and reasonable doubt). In this sense, we can say that the issue of free will has been considered, but not always clearly, on three different levels: as a problem of description, of substance or of prescription. At the descriptive level is the question of what exactly we mean when we talk about free will. On the substantive level is the question of whether or not human beings actually possess this quality called free will. And finally, on the prescriptive level is the question of what we do with this knowledge. In this article, we offer an analysis of the problematic relationships between these three levels, beginning with a critical look at certain descriptive positions. In the end, it is suggested that these isolated descriptions, whether in the field of neuroscience, or philosophy, have led to an impasse whose effect is that the assertion that freedom in human behaviour is an illusion, and free will, a great mystery. As a possible way out, we present three modifications to the debate in order to extend its intelligibility beyond the boundaries of the legal profession. |
| Chandler | 2015 | The Use of Neuroscientific Evidence in Canadian Criminal Proceedings | Jennifer A. Chandler | Journal of Law and the Biosciences | This article addresses the question of how neuroscientific evidence is currently used in the Canadian criminal justice system, with a view to identifying the main contexts in which this evidence is raised, as well as to discern the impact of this evidence on judgements of responsibility, dangerousness, and treatability. The most general Canadian legal database was searched for cases in the five-year period between 2008 and 2012 in which neuroscientific evidence related to the responsibility and recidivism risk of criminal offenders was considered. Canadian courts consider neuroscientific evidence of many types, particularly evidence of prenatal alcohol exposure, traumatic brain injury, and neuropsychological testing. The majority of the cases are sentencing decisions, which is useful given that it offers an opportunity to observe how judges wrestle with the tension that evidence of diminished capacity due to brain damage tends to reduce moral blameworthiness, while it also tends to increase perceptions of risk and dangerousness. This so-called double-edged sword of the biological explanation of criminal behavior was reflected in this study, and raises questions about whether and when the pursuit of such evidence is advisable from the defense perspective. |
| O'Connell | 2014 | Bad Boys’ Brains: Law, Neuroscience and the Gender of ‘Aggressive’ Behavior | Karen O'Connell | in Gendered Neurocultures: Feminist and Queer Perspectives on Current Brain Discourses, Zaglossus, Vienna (eds. Sigrid Schmitz and Grit Hoppner) | As law begins to integrate neuroscientific research about behavior, brain-based models of identity are emerging. In these models, behaviors such as aggression, swearing and impulsivity are increasingly categorized as brain-based disabilities, raising questions about how law should respond. In the public institution of school, an increasing cohort of students are exhibiting what would once have been considered “bad” behavior and a trigger for exclusion from school. Yet with this rapidly expanding knowledge about the biological bases of behavior, students with challenging behavior can increasingly invoke the protection of disability discrimination laws. Such behavior may also be viewed through a criminal lens, as “anti-social” behavior, which ultimately tends to exclusion from public institutions rather than inclusion. Should law take a protective or punitive stance towards people exhibiting “anti-social” behaviors if those behaviors have a biological source? Taking a feminist approach, this paper addresses gender and disability in Australian discrimination cases on “bad” behavior. It argues for a contextual approach to regulating brain-based behavior, one that sees the brain as inseparable from its functioning within the body and embedded in overlapping biological, social and environmental systems. Such an approach makes visible the gendered underpinnings of unacceptable behavior and how it is regulated in law. |
| González-Tapia | 2015 | “Bad Genes” & Criminal Responsibility | María Isabel González-Tapia & Ingrid Obsuth | 39 International Journal of Law and Psychiatry 60 | The genetics of the accused is trying to break into the courts. To date several candidate genes have been put forward and their links to antisocial behavior have been examined and documented with some consistency. In this paper, we focus on the so called "warrior gene", or the low-activity allele of the MAOA gene, which has been most consistently related to human behavior and specifically to violence and antisocial behavior. In preparing this paper we had two objectives. First, to summarize and analyze the current scientific evidence, in order to gain an in depth understanding of the state of the issue and determine whether a dominant line of generally accepted scientific knowledge in this field can be asserted. Second, to derive conclusions and put forward recommendations related to the use of genetic information, specifically the presence of the low-activity genotype of the MAOA gene, in modulation of criminal responsibility in European and US courts. |
| Yaffe | 2013 | Cognitive Neuroscience and Criminal Responsibility | Gideon Yaffe & Uri Maoz | in COGNITIVE NEUROSCIENCE: THE BIOLOGY OF THE MIND, Michael Gazzaniga, et al., eds, Norton | . |
| Johnson | 2014 | Normal Brain Development and Child/Adolescent Policy | Sara B. Johnson & Jay N. Giedd | Handbook of Neuroethics 1721 | In the last 25 years, magnetic resonance imaging technology has fundamentally changed how human brain development is conceptualized. Brain structures and the communication among them are now understood to change well into early adulthood in ways that impact maturity of judgment. The popular conversation about where to draw the line between childhood and adulthood for policy purposes has highlighted a number of complex neuroethical issues including: balancing responsibility and autonomy, the strengths and frailties of human competence, and decision making in the era of neuroimaging. In this chapter, two public policy issues: Informed consent and legal culpability are used to illustrate the emerging neuroethical challenges and opportunities involved in using neuroscience to inform child and adolescent policy. This chapter begins with an overview of historical attempts to use biological benchmarks of adult maturity. This historical perspective is followed by an introduction to the neuroethical issues involved in informed consent and legal culpability for adolescents, and the brain and behavioral science that has been brought to bear on these policy questions. The focus of this scientific review is the development and deployment of the cognitive capacities that are the foundation of maturity of judgment during late childhood and adolescence: self-control, inhibition, emotion regulation, and vulnerability to peer influence. Finally, the opportunities and potential pitfalls involved in using brain science to inform child and adolescent policy are considered. |
| Meegan | 2008 | Neuroimaging Techniques for Memory Detection: Scientific, Ethical, and Legal Issues | Daniel V. Meegan | 8(1) The American Journal of Bioethics 9 | There is considerable interest in the use of neuroimaging techniques for forensic purposes. Memory detection techniques, including the well-publicized Brain Fingerprinting technique (Brain Fingerprinting Laboratories, Inc., Seattle WA), exploit the fact that the brain responds differently to sensory stimuli to which it has been exposed before. When a stimulus is specifically associated with a crime, the resulting brain activity should differentiate between someone who was present at the crime and someone who was not. This article reviews the scientific literature on three such techniques: priming, old/new, and P300 effects. The forensic potential of these techniques is evaluated based on four criteria: specificity, automaticity, encoding flexibility, and longevity. This article concludes that none of the techniques are devoid of forensic potential, although much research is yet to be done. Ethical issues, including rights to privacy and against self-incrimination, are discussed. A discussion of legal issues concludes that current memory detection techniques do not yet meet United States standards of legal admissibility. |
| de Kogel | 2015 | Neuroscientific and Behavioral Genetic Information in Criminal Cases in the Netherlands | C.H. de Kogel & E.J.M.C. Westgeest | Journal of Law and the Biosciences | In this contribution an empirical approach is used to gain more insight into the relationship between neuroscience and criminal law. The focus is on case law in the Netherlands. Neuroscientific information and techniques have found their way into the courts of the Netherlands. Furthermore, following an Italian case in which a mentally ill offender received a penalty reduction in part because of a ‘genetic vulnerability for impulsive aggression’, the expectation was expressed that such ‘genetic defenses’ would appear in the Netherlands too. To assess how neuroscientific and behavioral genetic information are used in criminal justice practice in the Netherlands, we systematically collect Dutch criminal cases in which neuroscientific or behavioral genetic information is introduced. Data and case law examples are presented and discussed. Although cases are diverse, several themes appear, such as prefrontal brain damage in relation to criminal responsibility and recidivism risk, and divergent views of the implications of neurobiological knowledge about addiction for judging criminal responsibility. Whereas in the international ‘neurolaw literature’ the emphasis is often on imaging techniques, the Dutch findings also illustrate the role of neuropsychological methods in criminal cases. Finally, there appears to be a clear need of practice oriented instruments and guidelines. |
| Kiel-Chisholm | 2015 | The Ghost in the Machine: Legal Challenges of Neural Interface Devices | Scott Kiel-Chisholm & John Devereux | 23(1) The Tort Law Review 32 | Neural interface devices and the melding of mind and machine, challenge the law in determining where civil liability for injury, damage or loss should lie. The ability of the human mind to instruct and control these devices means that in a negligence action against a person with a neural interface device, determining the standard of care owed by him or her will be of paramount importance. This article considers some of the factors that may influence the court’s determination of the appropriate standard of care to be applied in this situation, leading to the conclusion that a new standard of care might evolve. |
| Faigman | 2015 | The Supreme Court’s Confused Empirical Jurisprudence | David L. Faigman | Bloomberg BNA | The Supreme Court’s June 29 ruling in Glossip v. Gross—which applied a ‘‘clearly erroneous’’ standard of review in a decision about lethal injections—is a stark reminder that the Justices have ‘‘little understanding of science and make no effort to connect relevant scientific premises to their constitutional decisions,’’ Professor David L. Faigman says. If constitutional decisions rest on scientific bases, as more and more of them do, it is ‘‘incumbent on the Justices to be well versed in the rigors of experimental or statistical technique,’’ the author says. |
| Catley | 2015 | The Use of Neuroscientific Evidence in the Courtroom by Those Accused of Criminal Offenses in England and Wales | Paul Catley & Lisa Claydon | Journal of Law and the Biosciences | This examination of the extent of the use of neuroscientific evidence in England and Wales identifies 204 reported cases in which such evidence has been used by those accused of criminal offenses during the eight-year period from 2005–12. Based on the number of reported cases found, the use of such evidence appears well established with those accused of criminal offenses utilizing such evidence in approximately 1 per cent of cases in the Court of Appeal (Criminal Division). Neuroscientific evidence is used to quash convictions, to lead to convictions for lesser offenses and to lead to reduced sentences. In addition, cases are identified where neuroscientific evidence is used to avoid extradition, to challenge bail conditions and to resist prosecution appeals against unduly lenient sentences. The range of uses identified is wide: including challenging prosecution evidence as to the cause of death or injury, challenging the credibility of witnesses and arguing that those convicted were unfit to plead, lacked mens rea or were entitled to mental condition defenses. The acceptance of such evidence reflects the willingness of the courts in England and Wales to hear novel scientific argument, where it is valid and directly relevant to the issue(s) to be decided. Indeed, in some of the cases the courts expressed an expectation that structural brain scan evidence should have been presented to support the argument being made. |
| Berlin | 2014 | Neuroimaging, Expert Witnesses, and Ethics: Convergence and Conflict in the Courtroom | Leonard Berlin | 5(2) AJOB Neuroscience 3 | Roentgen's discovery of the x-ray in 1895 not only provided physicians with a remarkable visual tool to diagnose and treat human diseases and injuries, but it also provided the judiciary system with the ability to assess the extent and degree of injury suffered by individuals who became victims of negligent conduct by physicians, fellow citizens, industrial entities, or criminal behavior. |
| Wortzel | 2014 | The Potential for Medicolegal Abuse: Diffusion Tensor Imaging in Traumatic Brain Injury | Hal S. Wortzel, A. John Tsiouris & Christopher G. Filippi | 5(2) AJOB Neuroscience 9 | This article discusses the nature and value of diffusion tensor imaging (DTI) in medicolegal settings. Although the technology and theory that supports DTI is provocative and exciting, we argue that expert testimony that confidently relies on DTI is highly problematic. In this article, we discuss the current limitations inherent in acquiring and analyzing DTI data; list problems especially with specificity that limit DTI's appropriateness in single-subject instances; and provide a brief history of the misuse and abuse of neuroimaging in mental illness and brain injury. We conclude with a plea for healthy skepticism regarding the value of these latest modalities in medicolegal settings, especially given the nature of their frequently visually spectacular impact on judges and jurors. |
| Roache | 2014 | Can Brain Scans Prove Criminals Unaccountable? | Rebecca Roache | 5(2) AJOB Neuroscience 35 | Leonard Berlin (2014) reports that neuroscientific data have been presented in court by lawyers wishing to argue that their clients have reduced or absent moral responsibility for their behaviour because their brain function is impaired. Berlin cites evidence showing that such neuroscientific data can influence judges to pass more lenient sentences, and he anticipates that advances in “the neurology of criminal behavior” may lead courts to view certain criminals as having reduced accountability for their actions. Similarly, an advisor to President Obama recently predicted a surge in the number of U.S. defendants appealing to neuroscientific data in criminal court cases in an attempt to reduce sentences and strike out confessions, and commented that this strategy has already been successful in some cases (Sample 2013). |
| Horstkötter | 2014 | Neuroimaging in the Courtroom: Normative Frameworks and Consensual Practices | Dorothee Horstkötter, Carla van El, Maaike Kempes, Jos Egger, Thomas Rinne, Toine Pieters & Guido de Wert | 5(2) AJOB Neuroscience 37 | . |
| Gaudet | 2014 | Functional Magnetic Resonance Imaging in Court | Lyn M. Gaudet, Julia R. Lushing & Kent A. Kiehl | 5(2) AJOB Neuroscience 43 | . |
| Müller | 2014 | Neuroimaging Can Be Useful in the Hand of Neutral Experts Ordered by the Court | Sabine Müller & Henrik Walter | 5(2) AJOB Neuroscience 52 | . |
| Tovino | 2015 | Remarks: Neuroscience, Gender, and the Law | Stacey A. Tovino | 42(3) Akron Law Rev 941 | . |
| Mohapatra | 2015 | No Pain, No Gain: How 'Objective' is Neuroimaging for Women and Minorities? | Seema Mohapatra | Duke Journal of Gender Law & Policy | Approximately 100 million Americans suffer from chronic pain. Currently, the most common way for physicians to test chronic pain is to ask patients to self report their pain from a scale of 1-10. However, there is much hope and promise that neuroimaging, specifically fMRI technology, will be able to used as an “objective” measure of pain. This objective approach to pain testing could change the landscape of pain medicine and lead to new treatments, as well as expose those misusing the medical system to obtain prescription drugs. There are already tort cases where plaintiffs are hiring private companies to do their brain scan to “prove” their pain in court successfully. In the near future, we can expect neuroimaging to be used by the Social Security Administration to adjudicate SSI Disability Benefits based on pain, by physicians to decide who deserves pain management medication, and by insurance companies for coverage determinations. In both the SSA context and physician treatment context, there is already a strong bias against women and minorities when it comes to pain. Studies have shown that women’s complaints of pain are more likely to be dismissed and their pain regarded as not real. One study demonstrated that female emergency room patients were less likely to be given strong pain medicine for abdominal pain than men. Other studies have shown similar results for racial minorities. There is distrust in the medical community of those who complain of chronic pain, and such distrust exacerbates when the patient is female or a racial minority. There is much hope that the use of an objective measure of pain may have the effect of leveling the playing field, and allowing women and minorities to “prove” their pain. This Article, however, argues that the use of such objective testing could actually worsen the pain treatment disparities and disability status disparities by ignoring the subjective experience of pain, and how this varies by race and gender. Without large groups of women and minorities tested in the scientific research, the “objective” test may not truly measure pain in all populations. This Article will examine the state of the technology, and how it has been used in torts and criminal cases thus far. Then the Article will argue that the use of the test as a plaintiff friendly tool in the tort setting will not likely translate to a patient friendly tool in the health care and disability context. This section will review the studies related to pain treatment based on gender and race, in the physician and SSI disability environments. This Article argues that neuroimaging testing will likely be used to deny coverage and disability claims more often than in validating patient complaints of pain. Finally, this Article proposes that rather than relying on so-called “objective” measures of pain, addressing inherent bias and providing physician education may be more patient friendly for those suffering from pain related ailments. |
| McCaleb | 2015 | Rejustifying Retributive Punishment on Utilitarian Grounds in Light of Neuroscientific Discoveries more than Philosophical Calisthenics! | Robert B. McCaleb | 63 Clev. St. L. Rev. 515 | Recent discoveries in neuroscience show that ancient and widely-held popular beliefs about free will, decision making, and voluntary action are deeply flawed, and that these concepts are potentially reducible to discrete, observable chemical events *516 in the brain.1 The classical2 criminal law, however, presupposes the existence of practically unrestrained free will, and demands that it be exercised within certain boundaries and in (or not in) certain ways.3 Accordingly, viewed broadly, classical criminal law and materialist neuroscience rely on philosophically irreconcilable explanations of the sources and causes of volitional behavior. |
| Puzone | 2015 | An Eighth Amendment Analysis of Statutes Allowing or Mandating Transfer of Juvenile Offenders to Adult Criminal Court in Light of the Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience | Katherine I. Puzone | 3 Va. J. Crim. L. 52 | Recent Supreme Court cases have recognized the science underlying the common-sense notion that children are not “little adults.” Their brains function in a completely different manner than those of adults. In 2005, the Court abolished the juvenile death penalty and recognized the neuroscience underlying the claim that those under the age of eighteen should not be subject to the ultimate punishment due to the fundamental immaturity of their brains. Later cases, discussed in depth below, followed similar reasoning in abolishing life without parole for non-homicides for juvenile offenders and in holding that juvenile offenders cannot be subjected to a mandatory life sentence even for homicide. |
| Beecher-Monas | 2014 | Lost in Translation: Statistical Inference in Court | Erica Beecher-Monas | 46 Ariz. St. L.J. 1057 | Scientists and jurists may appear to speak the same language, but they often mean very different things. The use of statistics is basic to scientific endeavors. But judges frequently misunderstand the terminology and reasoning of the statistics used in scientific testimony. The way scientists understand causal inference in their writings and practice, for example, differs radically from the testimony jurists require to prove causation in court. The result is a disconnect between science as it is practiced and understood by scientists, and its legal use in the courtroom. Nowhere is this more evident than in the language of statistical reasoning. |
| Katner | 2015 | Eliminating the Competency Presumption in Juvenile Delinquency Cases | David R. Katner | 24 Cornell J.L. & Pub. Pol'y 403 | The legal presumption used in virtually all juvenile delinquency cases in the U.S. is that all juveniles are competent to stand trial. This Article calls for the elimination of that legal presumption, which is historically based on the Dusky v. United States decision and in the adult criminal justice system. The recent decisions of the U.S. Supreme Court recognize the developmental and organic brain differences between adults and juveniles. Current research demonstrates a higher frequency rate of incompetence based on intellectual deficiencies among children when compared with adults found to be not legally competent to stand trial. By eliminating the competency presumption for juveniles in both delinquency and adult criminal proceedings, the party seeking an adjudication would be responsible for establishing that the accused juvenile is in fact, competent to stand trial. Foreign jurisdictions in Europe, Asia, Africa, and South America have long required higher thresholds--at least fourteen years of age--for holding juveniles accountable for criminal misconduct, none of them presuming that juveniles are competent to go to trial. In the alternative, by expanding the factors currently in use for determination of juvenile competency by adding developmental immaturity and mental illness, juvenile justice systems could identify the reduction of recidivist offending as the primary systemic objective. |
| Lenahan | 2015 | A New Era in Juvenile Justice: Expanding the Scope of Juvenile Protections through Neuropsychology | Scott Lenahan | 20 Suffolk J. Trial & App. Advoc. 92 | Given this premise asserted by the Supreme Court, why do the constitutional protections for juveniles vanish on an individual's eighteenth birthday? The explanation articulated by the Second Circuit is that (1) a line must be drawn to pronounce a categorical rule, and (2) eighteen is the traditional age where society draws that line between adolescence and adulthood. However, recent developments in neuropsychology have led many to question the validity of such an arbitrary rule, especially as the level of culpability between juveniles and adults continues to expand in the courtroom. |
| Kaplan | 2015 | Taking Pedophilia Seriously | Margo Kaplan | 72 Wash. & Lee L. Rev. 75 | This Article pushes lawmakers, courts, and scholars to reexamine the concept of pedophilia in favor of a more thoughtful and coherent approach. Legal scholarship lacks a thorough and reasoned analysis of pedophilia. Its failure to carefully consider how the law should conceptualize sexual attraction to children undermines efforts to address the myriad of criminal, public health, and other legal concerns pedophilia raises. The result is an inconsistent mix of laws and policies based on dubious presumptions. These laws also increase risk of sexual abuse by isolating people living with pedophilia from treatment. The Article makes two central arguments: (1) although pedophilia does not fit neatly into any existing legal rubric, the concept of mental disorder best addresses the issues pedophilia raises; and (2) if the law conceptualizes pedophilia as a mental disorder, we must carefully reconsider how several areas of law address it. Specifically, it argues that sexually violent predator statutes expand state power to civilly commit individuals by distorting the concept of pedophilia as a mental disorder. At the same time, anti-discrimination law is dismissive of pedophilia as a mental disorder, excluding it from civil rights protections ordinarily associated with mental illness. Closer examination of *76 these distinctions reveals them to be based on questionable premises. The law should take pedophilia seriously as a mental disorder. Many individuals living with pedophilia pose a danger to others. Yet we should not categorically deny pedophilia the civil rights protections afforded to other mental disorders without a convincing normative justification supported by cogent scientific evidence. Strengthening civil rights protections for those with pedophilia also increases access to treatment and support that helps prevent child abuse. |
| Bergström | 2013 | Intentional Retrieval Suppression Can Conceal Guilty Knowledge in ERP Memory Detection Tests | Zara M. Bergström, Michael C. Anderson, Marie Buda, Jon S. Simons & Alan Richardson-Klavehn | 94 Biological Psychology 1 | Brain-activity markers of guilty knowledge have been promoted as accurate and reliable measures for establishing criminal culpability. Tests based on these markers interpret the presence or absence of memory-related neural activity as diagnostic of whether or not incriminating information is stored in a suspect's brain. This conclusion critically relies on the untested assumption that reminders of a crime uncontrollably elicit memory-related brain activity. However, recent research indicates that, in some circumstances, humans can control whether they remember a previous experience by intentionally suppressing retrieval. We examined whether people could use retrieval suppression to conceal neural evidence of incriminating memories as indexed by Event-Related Potentials (ERPs). When people were motivated to suppress crime retrieval, their memory-related ERP effects were significantly decreased, allowing guilty individuals to evade detection. Our findings indicate that brain measures of guilty knowledge may be under criminals' intentional control and place limits on their use in legal settings. |
| Rochegude | 2015 | La Justice Resistera-t-elle aux Images Cerebrales? | Anne-Sophie Rochegude | 3 SciencesPSY 20 | Justice and brain imaging: Themis, the Greek goddess, embodies our legal system. Its 3 main symbols – the scales, the blindfold and the sword (the “cold arm” of justice) – ensure its neutrality and impartiality. While neuroscientific data have penetrated the legal system, in particular in American Court of Justice, it is of crucial importance to examine the relevance of their utilization. The latest techniques of cerebral imaging (MRI, fMRI) enable the brain to be observed at work and the level of activity of clearly defined regions to be known during the performance of various mental tasks. They thus appear as a key to understand human behavior and even, to answer the responsibility, culpability and dangerousness of a defendant. Nevertheless, they also raise a number of questions about their scientific and legal legitimacy. To what extent the knowledge of our brain may tell us something about human being? How far could it resolve law matters? Interdisciplinary reflection, involving scientists, lawyers, philosophers as well as ethicists should thus be promoted. |
| Byk | 2015 | L’imagerie Medicale et le Justice | Christian Byk | 3 SciencesPSY 24 | Medical imaging and justice: Will justice be transformed by brain imaging? In 2011, an article was introduced in France’s civil law which allows the use of brain imaging for medical, scientific research or court-ordered appraisal purposes. Christian Byk, magistrate, explains us both stakes and complexity of such integration. Many precautions must be taken and neurosciences contribution to the question of the guilt, responsibility or dangerousness of an individual must be relativized in spite of their apparent objectivity. France, as well as Europe, has undertaken many reflections which should be continued to take into account both juridical, neuroscientific and ethical issues. |
| Cyrulnik | 2015 | Les Etats-Unis et Leur Grand Reseau de Recherches sue le “Neurodroit”: Interview d’Owen Jones | Boris Cyrulnik | 3 SciencesPSY 33 | In 2007, the MacArthur Foundation funded a vast project on Law and Neuroscience. In 2011, a second phase was launched: the Research Network on Law and Neuroscience. This interview with Owen Jones, Director of the Research Network, provides a special focus on this exceptional project, dealing with one main aim: to help the legal system to be better equipped while distinguishing between legitimate and illegitimate inferences of various kinds of neuroscientific evidence. |
| Cyrulnik | 2015 | Du Cerveau, Encore du Cerveau, Rien que du Cerveau? Rencontre avec Stephen J. Morse | Boris Cyrulnik | 3 SciencesPSY 36 | Brain overclaim syndrome: As the new neurosciences advance and gain influence, the role of the brain in explaining complex human behavior is increasingly questioned. Since the ‘90s, United-States law is facing the potential admission of neuroscience data in its Courts. In this interview with Stephen J. Morse, the main question is this: to what extent are neuroscientific data relevant to law? Law is based on the folk psychological concept of mental states: it presupposes that human beings are able to act rationally and intentionally even if determinism is theoretically true. The concept of desert – whether people ever deserve praise and blame, punishment and reward – which is central to guilt only has meaning if people can act intentionally and rationally. Caution is necessary in order to prevent “brain over claim syndrome” which could mislead us by reducing the human being to his biophysical brain states and ignoring the mental states that are so crucial to the law. |
| Pignatel | 2015 | L’emergence du Neurodroit dans le Monde | Laura Pignatel | 3 SciencesPSY 42 | What about neuroscience in the world? The concept of “neurolaw” emerged in United States many years ago but many counties in the world have to currently deal with it. Neurolaw describes neuroscience uses in legal expertise as well as researches related to its potential contributions to legal processes. In presenting the situation at national level (United States, New Zealand, United-Kingdom, Greece, Italy, Netherlands, France), this comparative study sets us a number of issues emerging from the complexity to legislate on neuroscience integration in the justice area. Currently, it seems that neurolaw is more in a drafting phase than a genuine legal reality. |
| Cyrulnik | 2015 | Neurodroit: Les Sciences du Cerveau a la Barre: Interview d’Olivier Oullier | Boris Cyrulnik | 3 SciencesPSY 52 | Questioning Neurolaw: brain sciences in the courtrooms: To date France remains the only country in the world to have a specific section of its (bioethical) laws dedicated to neuroscience. Yet, the mere notion of neuroscience covers so many levels of observation and analysis of the brain and nervous system that one needs to be careful not to be generic when referring to it. The attraction for brain matter(s) is high especially when it comes to images produced by neuroimaging techniques. What role can they play in the courtroom? To what extent function neuroimaging data is reliable enough to be used as a main proof in a trial? Following an extensive report on neurolaw published by the Center for Strategic Analysis of the Prime Minister in 2012, the debate is ongoing as to whether and when neuroscience is ready to fully contribute to policy making. |
| Cyrulnik | 2015 | Un Traumatisme Cranien Peut-il Changer un Homme? Recontre avec Philippe Azouvi | Boris Cyrulnik | 3 SciencesPSY 58 | Brain injury: Might a brain injury lead to a change in behavior and, therefore, might be responsible for aggressive gestures or unlawful acts? As neuroscientist assessments are currently allowed by French law, this question emerges as a crucial issue. It’s thus of paramount importance to understand what’s at stake in a brain injury: nature of this injury, consequences and also both our ability and possibility to make a diagnosis related to brain damages. Medical images have evolved such as our knowledge of the brain; nevertheless, it’s still hard to determine the real extent of the injuries. An individual may become different after a trauma but many other factors also have to be taken into account. It’s important too to integrate brain ability to rebuild and to recover thanks to its natural plasticity. |
| Cyrulnik | 2015 | Attachement, Neurosciences et Justice | Boris Cyrulnik | 3 SciencesPSY 64 | Attachment, neuroscience and justice: Neurosciences may bring valuable inputs related to court assessments. By linking attachment, neurosciences and justice, the main question is: does a failed attachment may provoke cerebral lesion and development’s troubles which could be taken into account by forensic psychiatry? During sensitive periods, as childhood, quality of attachment is crucial: if the child was not given the change to form strong bonds, the development of both his brain and his sociability is at risk. Indeed, his behavior will tend to be either inhibited, either uninhibited or socially inappropriate. Brain traces could be detected by brain imaging but, they don’t mean the person is not responsible of his acts: we all have the liberty to change, in particular when our cultural environment offers possibilities of listening and speaking. We thus have to be very cautious about science’s images: they could participate to explain only partly a behavior. |
| Decety | 2015 | Cerveau et Sens de la Justice | Jean Decety | 3 SciencesPSY 69 | Brain, empathy and sense of justice: We are not equal concerning Justice Sensitivity. Why do people tend to care for upholding principles of justice? And what could explain that some individuals don’t care about them? Jean Decety and Keith Yoder from the University of Chicago examined the association between individual differences in the affective, motivational and cognitive components of empathy, motivation for justice, and psychopathy. The goal of the study was to understand the mechanisms underlying justice motivation. Counter to commonsense, emotional empathy was not related to sensitivity to injustice for others. Rather, individual differences in cognitive empathy and empathic concern predicted sensitivity to justice for others, as well as the endorsement of moral rules. Those conclusions may change our way to promote justice motivation. |
| Cyrulnik | 2015 | Philosophie, Neurosciences et Droit: Rencontre avec Walter Sinnott-Armstrong | Boris Cyrulnik | 3 SciencesPSY 80 | Philosophy, Neuroscience and Law: As this interview with Walter Sinnott-Armstrong shows, the new field of neuroscience and law does not include only neuroscience and law: philosophy may enter into dialogue with them. Bringing brain data into our legal system raises ethical questions about a practical application of science as well as philosophical questions about the concepts at stake. Neurosciences have attained a high level of rigor that commands respect, but they are easy for non-experts to misunderstand and abuse. This “neurobabble” phenomenon describes the indiscriminate illusion, as well as the power of brain images to mislead both judges and jury members. Despite these dangers, justice may benefit from neuroscientific input if it is applied responsibly and flexibly. |
| Coppola | 2015 | Innovating Witness Testimony with Neuroscience-Based Lie Detection: A Hypothetical Normative Framework | Federica Coppola | 1 Law, Sciences and New Technologies 145 | One of the most promising challenges of the scientific and technological innovation in-law involves criminal investigations and trials. In the last decades, the increasing standardization of forensic science techniques, like DNA testing, Bloodstain Patterns Analysis, and Digital Evidence Analysis, has led the gathering of evidence in criminal proceedings to outstanding results. The dramatic impact and pervasive role of science and technology in forensic settings has gone beyond the more traditional fields of investigation, and criminal jurisprudence is increasingly embracing the most advanced branches of behavioral sciences. Today, the leading role of scientific innovation in criminal proceedings is held by neuroscience. |
| Rigoni | 2015 | Looking for the Right Intention: Can Neuroscience Benefit from the Law? | Davide Rigoni, Luca Sammicheli, & Giuseppe Sartori | 9 Front. Hum. Neurosci. 432 | It is argued that neuroscience will eventually revolutionize the law (Wegner, 2002; Greene and Cohen, 2004; O'Hara, 2004; Churchland, 2011). Virtually all legal systems are grounded on the assumption that human beings (can) act on the basis of their own free will; voluntary actions are driven by people's intentions, and individuals are therefore responsible (and punishable) for their own actions. Neuroscience seems to challenge this assumption at two different levels: at the theoretical or anthropological level by proposing a new model of human being, and at the empirical level by attempting to provide scientific evidence that free will is nothing more than an illusion (Sellars, 1963; Frith, 2007; Churchland, 2011). In the following, we will argue (i) that the anthropological challenge to free will is not specific to neuroscience and (ii) that by focusing on an oversimplified operationalization of free will, current empirical research has only limited impact upon the law. In order to be applicable within the legal system, cognitive neuroscience should rather consider how free will—or the different modes of free will—is conceptualized in the legal system, and incorporate these concepts into more appropriate experimental designs. |
| Pyun | 2015 | When Neurogenetics Hurts: Examining the Use of Neuroscience and Genetic Evidence in Sentencing Decisions Through Implicit Bias | John Pyun | 103 Cal. L. Rev. 1019 | . |
| Chaffee | 2015 | An Interdisciplinary Analysis of the Use of Ethical Intuition in Legal Compliance Decision Making for Business Entities | Eric C. Chaffee | 74(3) Maryland L. Rev. | This article challenges the widely held view in legal education and in practice that what lawyers should be doing in providing legal advice consists solely of engaging in legal research and analytic reasoning. This article suggests that ethical intuition — i.e., the unconscious recognition that a specific action is good, evil, or morally neutral — may have a useful role to play in making legal compliance decisions for business entities. Although largely ignored by the legal academy, scholars in numerous disciplines have acknowledged the role that intuition plays in decision making. Philosophers and religious scholars initially recognized the role of intuition in moral decision making centuries ago. Within the past few decades, neuroscientists have validated these theories through the use of various brain scan technologies, which show that humans often resort to intuition first when making moral decisions. Moral psychologists, behavioral economists, and other scholars have employed the work of neuroscientists to develop sophisticated models of moral decision making that better reflect how people behave when making moral decisions. This article argues that ethical intuition can provide insights into the foundations of law, assist in discovering the law, and help to protect business entities because intuition can give insight into the legal and extra-legal punishments that may be visited upon a business entity as a result of its legal compliance decisions. This is not to claim that legal research and analytic reasoning should play no role in making legal compliance decisions for business entities. Exhaustive legal research should be at the heart of any legal compliance decision. Lessons from philosophy, neuroscience, moral psychology, behavioral economics, however, demonstrate that a dual process approach that incorporates both intuition and analytic reason is best for considering issues relating to a business entity’s compliance with the law. This article argues for such a dual process model approach to legal decision making and offers various methods for incorporating intuition into the legal compliance decision making process. |
| Drobac | 2015 | The Myth of 'Legal' Consent in a Consumer Culture | Jennifer Ann Drobac | in Facets of Consumerism in a Global Economy (Anand Pawar, ed., Twenty First Century Publications) | This Essay challenges the legal default of unquestioned human capacity for consent. It posits that legal capacity for consent is not an “on/off” switch. It questions the notion that capacity – our rough filter for the ability to consent – flips on at some relatively arbitrary time that one might, as a matter of tradition, call “the age of consent,” and off again with early onset dementia or Alzheimer’s disease. A more nuanced view of consumer capacities rests, in part, on the understanding neuroscience and psychosocial evidence provide. This perspective suggests that we should match our rules and jurisprudential approaches to the variable capacities that we all show in different contexts and stages of life. By highlighting that most negotiating parties, in a given moment or context, may possess rather less than legally presumed capacity to consent, this Essay emphasizes the need for legal reform. |
| CQ Researcher | 2015 | Reforming Juvenile Justice | . | 25(32) CQ Researcher 745 | Should teens who murder be treated as adults? |
| Bruton | 2015 | Mind-Movies: Original Authorship as Applied to Works from "Mind-Reading" Neurotechnology | Theo Austin Bruton | 41(1) Chicago-Kent Journal of Intellectual Property 263 | U.S. courts frequently analyze new technology under copyright law. Over the years, the courts have applied copyright law to photographic cameras, computer programs, digital video recorders, and much more. However, a recent breakthrough in the neuroscience community may force judges to apply copyright standards in an unorthodox fashion. A group of researchers at UC Berkeley devised a process that reconstructs video sequences from the human brain, essentially creating a movie from the person’s mind. As this neurotechnology develops, it is uncertain how judges will apply copyright law to content taken directly from the brain. Nevertheless, this Article argues that such content meets the originality standard under U.S. copyright law. Specifically, videos taken from the brain are original to the author based on the author’s unique visual experiences and unique mental processes. |
| Appelbaum | 2015 | Effects of Behavioral Genetic Evidence on Perceptions of Criminal Responsibility and Appropriate Punishment | Paul S. Appelbaum, Nicholas Scurich, & Raymond Raad | 21(2) Psychology, Public Policy, and Law 134 | Demonstrations of a link between genetic variants and criminal behavior have stimulated increasing use of genetic evidence to reduce perceptions of defendants' responsibility for criminal behavior and to mitigate punishment. However, because only limited data exist regarding the impact of such evidence on decision makers and the public at large, we recruited a representative sample of the U.S. adult population (n=960) for a web-based survey. Participants were presented with descriptions of three legal cases and were asked to: determine the length of incarceration for a convicted murderer; adjudicate an insanity defense; and decide whether a defendant should receive the death penalty. A fully crossed, between-participants, factorial design was used, varying the type of evidence (none, genetic, neuroimaging, both), heinousness of the crime, and past criminal record, with sentence or verdict as the primary outcome. Also assessed were participants' apprehension of the defendant, belief in free will, political ideology, and genetic knowledge. Across all three cases, genetic evidence had no significant effects on outcomes. Neuroimaging data showed an inconsistent effect in one of the two cases in which it was introduced. In contrast, heinousness of the offense and past criminal record were strongly related to participants' decisions. Moreover, participants' beliefs about the controllability of criminal behavior and political orientations were significantly associated with their choices. Our findings suggest that neither hopes that genetic evidence will modify judgments of culpability and punishment nor fears about the impact of genetic evidence on decision makers are likely to come to fruition. |
| Buckholtz | 2015 | From Blame to Punishment: Disrupting Prefrontal Cortex Activity Reveals Norm Enforcement Mechanisms | Joshua W. Buckholtz, Justin W. Martin, Michael T. Treadway, Katherine Jan, David H. Zald, Owen Jones, & René Marois | 87 Neuron 1 | The social welfare provided by cooperation depends on the enforcement of social norms. Determining blameworthiness and assigning a deserved punishment are two cognitive cornerstones of norm enforcement. Although prior work has implicated the dorsolateral prefrontal cortex (DLPFC) in norm-based judgments, the relative contribution of this region to blameworthiness and punishment decisions remains poorly understood. Here, we used repetitive transcranial magnetic stimulation (rTMS) and fMRI to determine the specific role of DLPFC function in norm-enforcement behavior. DLPFC rTMS reduced punishment for wrongful acts without affecting blameworthiness ratings, and fMRI revealed punishment-selective DLPFC recruitment, suggesting that these two facets of norm-based decision making are neurobiologically dissociable. Finally, we show that DLPFC rTMS affects punishment decision making by altering the integration of information about culpability and harm. Together, these findings reveal a selective, causal role for DLPFC in norm enforcement: representational integration of the distinct information streams used to make punishment decisions. |
| Choi | 2015 | Detecting Deception Using Neuroscience: A Review on Lie Detection Using Functional Magnetic Resonance Imaging | Y Choi, S Kim, H Do, KS Shin, & JE Kim | 22(3) Korean J Biol Psychiatry 109 | Since the early 2000s, there has been a continued interest in lie detection using functional magnetic resonance imaging (fMRI) in neuroscience and forensic sciences, as well as in newly emerging fields including neuroethics and neurolaw. Related fMRI studies have revealed converging evidence that brain regions including the prefrontal cortex, anterior cingulate cortex, parietal cortex, and anterior insula are associated with deceptive behavior. However, fMRI-based lie detection has thus far not been generally accepted as evidence in court, as methodological shortcomings, generalizability issues, and ethical and legal concerns are yet to be resolved. In the present review, we aim to illustrate these achievements and limitations of fMRI-based lie detection. |
| Fondacaro | 2015 | American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime | Mark R. Fondacaro & Megan O'Toole | 18(4) New Criminal L. Rev. 477 | A recent National Academy of Sciences Report entitled, ‘‘The growth of incarceration in the United States: Exploring causes and consequences,’’ examined the drivers of the fourfold increase in incarceration rates in the United States and provided a firm recommendation for significant reduction in incarceration rates (Travis, Western, & Redburn, 2014). Policy makers representing the entire political spectrum are now publicly airing their views on the need for reform. Although public sentiment is generally favorably disposed toward reform in the abstract, when confronted with specific examples of crime, they tend to favor more. |
| Fondacaro | 2015 | The Rebirth of Rehabilitation in Juvenile and Criminal Justice: New Wine in New Bottles | Mark R. Fondacaro, Stephen Koppel, Megan O'Toole, & Joanne Crain | 41 Ohio N. U. L. Rev. 697 | These are indeed exciting times for those of us interested in the reform of our juvenile and adult criminal justice systems. Innovation is in the air among legal scholars, behavioral scientists, and both legal and clinical practitioners. Not many in the legal and scientific communities seem satisfied with the status quo. Fresh thinking and new evidence-based practices generated within each of these professional domains are beginning to benefit from collaborative efforts at cross-fertilization and integration. Increasingly, policy makers seem to be taking notice and are beginning to publicize their views on the need for reform. Topics such as mass incarnation, racial bias in criminal justice, and wrongful conviction, which were not long ago highly controversial if not taboo, are being openly discussed in public by policy makers representing the entire political spectrum. A confluence of social, scientific, legal, and policy influences is beginning to pave the way for the rebirth of rehabilitation in our criminal justice system. However, to ensure a healthy delivery of rehabilitation in the 21st Century criminal justice system in America, we must rethink the substance and delivery of rehabilitation in a way that is best captured by David Wexler’s metaphor of “Pouring New Wine into New Bottles.” The new wine represents evidence-based intervention strategies that draw on social ecological theories of human behavior to not only understand the social, psychological and biological drivers of crime, but to identify intervention strategies that are effective in preventing crime and reducing recidivism. The new bottles represent a shift away from a backward-looking moral judgment model of criminal responsibility toward a more forward-looking approach to legal accountability that aims systematically at the individual prevention of criminal behavior and the promotion of public safety in the least restrictive and most cost-effective manner. This article will provide an overview of the historical background of rehabilitation and punishment in the American criminal justice systems and will discuss social, psychological, legal, scientific, and policy considerations that have kindled the rebirth of rehabilitation in juvenile and criminal justice. We will focus on the relationship between the juvenile and adult criminal justice systems and how reforms of juvenile justice and advances in the social, behavioral and neurosciences have and should pave the way for reforms in how we judge criminal responsibility and respond to criminal behavior in the 21st Century. Section I provides an overview of the rise and fall of rehabilitation in the 20th Century in both the juvenile and adult criminal justice systems. The ultimate limitations of both clinical models of intervention and legal conceptualizations of due process on which rehabilitation were based are emphasized. Section II focuses on the consequences of the “death” of rehabilitation in both the juvenile and adults systems for individual offenders and society at large, culminating in our present levels of mass incarceration and racial disparities. Section III focuses on the ingredients necessary for the healthy rebirth of rehabilitation, including recent advances in behavioral, neuroscience, and intervention research that are informing evidence-based intervention strategies that work — for both juveniles and for adults. This “new wine” is being coupled with and poured into “new bottles” or legal procedures and policies aimed at promoting accuracy, fairness and effectiveness in legal decision making and sentencing. Finally, section IV concludes with an integrative framework for ensuring that forward-looking, rehabilitative, consequentialist responses to crime supplant scientifically, socially, economically, and morally deficient retributive justifications for punishment in the American criminal justice systems. |
| Faigman | 2016 | Gatekeeping Science: Using the Structure of Scientific Research to Distinguish Between Admissibility and Weight in Expert Testimony | David L. Faigman, Christopher Slobogin, & John Monahan | 110 Northwestern University Law Review | Fundamental to all evidence rules is the division of responsibility between the judge, who determines the admissibility of evidence, and the jury, which gauges its weight. In most evidence contexts, such as hearsay and character, threshold admissibility obligations are clear and relatively uncontroversial. The same is not true for scientific evidence. The complex nature of scientific inference, and in particular the challenges of reasoning from group data to individual cases, has bedeviled courts. As a result, courts vary considerably on how they define the judge’s gatekeeping task under Federal Rule of Evidence 702 and its state equivalents. This article seeks to reconceptualize gatekeeping analysis in scientific evidence cases based on the nature of science itself, specifically, the division between general and case-specific scientific findings. Because expert testimony describing basic science, “framework” science, and the scientific methods an expert uses to reach his or her conclusions transcend the case-at-hand, the validity of these preliminary facts ought to be determined by the judge. In contrast, when an expert claims to have used a methodology approved by the judge but there is a dispute as to whether he or she in fact did so, the question becomes one of credibility specific to the case, and is for the jury. This division between general and case-specific preliminary facts is simpler to administer than other admissibility/weight frameworks, which have relied primarily on problematic attempts to distinguish scientific methods from scientific conclusions. It is also fully consistent with, and helps implement, basic principles of both constitutional and evidentiary jurisprudence by ensuring that the trial judge — presumptively better attuned to matters of general import — decides reliability issues, while the jury — historically viewed as trier of the facts — is the ultimate arbiter of those case-specific matters requiring a credibility assessment. Because the general-specific divide likewise argues for a stiff standard of appellate review on scientific reliability issues, our alignment of evidence law with the nature of scientific research also provides the best court-monitored mechanism for ensuring that courtroom use of science is both sophisticated and consistent across cases. |
| King-Ries | 2015 | Arbitrary and Godlike Determinations: Insanity, Neuroscience, and Social Control in Montana | Andrew King-Ries | 76 Mont. L. Rev. 281 | . |
| Leonard | 2015 | Forensic Neuropsychology and Expert Witness Testimony: An Overview of Forensic Practice | Elizabeth L. Leonard | International Journal of Law and Psychiatry | Neuropsychologists are frequently asked to serve as expert witnesses in an increasing number of legal contexts for civil and criminal proceedings. The skills required to practice forensic neuropsychology expand upon the knowledge, skills, and abilities developed by clinical neuropsychologists. Forensic neuropsychologists acquire expertise in understanding the roles and various functions of the legal system, as well as their role in addressing psycholegal questions to assist fact finders in making legal decisions. The required skills and the unique circumstances for clinical neuropsychologists pursing forensic work are reviewed. |
| Stanley | 2012 | Race and Reputation: Perceived Racial Group Trustworthiness Influences the Neural Correlates of Trust Decisions | Damian A. Stanley, Peter Sokol-Hessner, Dominic S. Fareri, Michael T. Perino, Mauricio R. Delgado, Mahzarin R. Banaji, and Elizabeth A. Phelps | 367 Philosophical Transactions of the Royal Society of London Biological Sciences 744 | Decisions to trust people with whom we have no personal history can be based on their social reputation—a product of what we can observe about them (their appearance, social group membership, etc.)—and our own beliefs. The striatum and amygdala have been identified as regions of the brain involved in trust decisions and trustworthiness estimation, respectively. However, it is unknown whether social reputation based on group membership modulates the involvement of these regions during trust decisions. To investigate this, we examined blood-oxygenation-level-dependent (BOLD) activity while participants completed a series of single-shot trust game interactions with real partners of varying races. At the time of choice, baseline BOLD responses in the striatum correlated with individuals' trust bias—that is, the overall disparity in decisions to trust Black versus White partners. BOLD signal in the striatum was higher when deciding to trust partners from the race group that the individual participant considered less trustworthy overall. In contrast, activation of the amygdala showed greater BOLD responses to Black versus White partners that scaled with the amount invested. These results suggest that the amygdala may represent emotionally relevant social group information as a subset of the general detection function it serves, whereas the striatum is involved in representing race-based reputations that shape trust decisions. |
| Stanley | 2011 | Implicit Race Attitudes Predict Trustworthiness Judgments and Economic Trust Decisions | Damian A. Stanley, Peter Sokol-Hessner, Mahzarin R. Banaji, and Elizabeth A. Phelps | 108 PNAS 7710 | Trust lies at the heart of every social interaction. Each day we face decisions in which we must accurately assess another individual’s trustworthiness or risk suffering very real consequences. In a global marketplace of increasing heterogeneity with respect to nationality, race, and multiple other social categories, it is of great value to understand how implicitly held attitudes about group membership may support or undermine social trust and thereby implicitly shape the decisions we make. Recent behavioral and neuroimaging work suggests that a common mechanism may underlie the expression of implicit race bias and evaluations of trustworthiness, although no direct evidence of a connection exists. In two behavioral studies, we investigated the relationship between implicit race attitude (as measured by the Implicit Association Test) and social trust. We demonstrate that race disparity in both an individual’s explicit evaluations of trustworthiness and, more crucially, his or her economic decisions to trust is predicted by that person’s bias in implicit race attitude. Importantly, this relationship is robust and is independent of the individual’s bias in explicit race attitude. These data demonstrate that the extent to which an individual invests in and trusts others with different racial backgrounds is related to the magnitude of that individual’s implicit race bias. The core dimension of social trust can be shaped, to some degree, by attitudes that reside outside conscious awareness and intention. |
| Choi | 2015 | Using fMRI for Lie Detection: Ready for Court? | Octavio Choi | in Psychiatric Expert Testimony: Emerging Applications, Kenneth Weiss and Clarence Watson, eds. | In legal settings, ascertaining matters of fact depends on the truthfulness of witnesses and the jury’s ability to detect deception. Similarly, forensic psychiatrists rely in part on evaluees’ truthful responses to questions. Lying wastes judicial resources and impedes the pursuit of justice in the legal system. Studies have shown that the innate ability of humans to detect lies is limited and unreliable. Thus, the notion of technological aids that can detect deception has been particularly compelling. The most recent of these technological methods, functional magnetic resonance imaging (fMRI), offers the direct approach of peering into a potential liar’s brain. This chapter reviews the techniques and limitations associated with fMRI-based lie detection and whether expert testimony based on fMRI lie-detection examinations is admissible in court. The chapter also discusses the legal concerns regarding lie-detection technologies. |
| Farahany | 2015 | Neurolaw: A Conversation with Nita Farahany | Nita Farahany | Ideas Roadshow | Nita explores the growing impact of modern neuroscience on the law, deepening our understanding of a wide range of issues, from legal responsibility to the American Constitution's Fifth Amendment privilege against self-incrimination. |
| Morse | 2015 | Indispensable Forensic Psychiatry and Psychology: The (Non) Challenge from Neuroscience | Stephen J. Morse | in The Evolution of Forensic Psychiatry History, Current Developments, Future Directions, Robert L. Sadoff, ed. | This chapter suggests that forensic psychiatry and psychology will remain indispensable contributors to criminal (and civil) law for the foreseeable future despite any likely advances from neuroscience or any other science. The reason is straightforward. The criminal law’s criteria for responsibility and competence are acts and mental states and the law’s model of the person is folk psychological, a being that can potentially be guided by reason and thus for whom mental states do play a partial causal explanatory role. Even when most relying on a scientific data base, forensic psychiatry and psychology are also resolutely folk psychological because they attempt to shed light on the subjects acts and mental states. Therefore, the most resolutely biologically oriented forensic psychiatry or psychology will have to translate its biological or other scientific data into the law’s folk psychological criteria. A neuroscientist or geneticist, for example, cannot do this directly. At most, they can provide useful data. It is the forensic practitioner that must explain the meaning of such data and clinical findings. |
| Morse | 2015 | Genetics and Criminal Justice | Stephen J. Morse | in The Oxford Handbook of Molecular Psychology, Turhan Canli, ed. | This essay addresses the relevance of genetic data, including gene-by-environment interactions, to criminal responsibility and sentencing. After describing the criminal law's implicit psychology and criteria for responsibility, it considers the present and future contributions genetics may make. It suggests that, at present, genetics should not play a large role in the adjudication of individual cases unless it translates directly into the law's folk psychological criteria for responsibility, which it seldom does. Future discoveries may increase the usefulness of genetics to rational adjudication, however. The role of genetics at sentencing may be somewhat more promising, especially concerning the prediction of future behavior. |
| Morse | 2015 | Neuroscience, Free Will, and Criminal Responsibility | Stephen J. Morse | in Free Will and the Brain: Neuroscientific, Philosophical, and Legal Perspectives, Walter Glannon, ed. | This chapter argues that the folk-psychological model of the person and responsibility is not challenged by determinism in general or by neurodetcrminism in particular. Until science conclusively demonstrates that human beings cannot be guided by reasons and that mental states play no role in explaining behavior, the folk-psychological model ofresponsibility is justified. 'T'his chapter discusses the motivations to turn to science to solve the hard normative problems the law addresses, as well as the law's psychology and its concepts of the person and responsibility. Then it considers the general relation of neuroscience to law, which I characterize as the issue of "translation." The limits of neurolaw are canvassed and the chapter argues that neurolaw poses no radical challenge to the concepts of the person and responsibility. The chapter is cautiously optimistic about the contribution that neuroscience may make to law in the near and intermediate term. The penultimate section examines some of the claims concerning responsibility made in other chapters in this volume followed by a brief conclusion. |
| Bennett | 2015 | Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness | Mark W. Bennett | 64 American University L. Rev. 1331 | The soul of America’s civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses’ memories and the effect of the witnesses’ demeanor on their credibility. Almost all jurisdictions’ pattern jury instructions about witness credibility explain nothing about how a witness’s memories for events and conversations work — and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness’s “memory” — with no additional guidance. Similarly, the same pattern jury instructions on demeanor seldom do more than ask jurors to speculate about a witness’s demeanor by instructing them to merely observe “the manner of the witness” while testifying. Yet, thousands of cognitive psychological studies have provided major insights into witness memory and demeanor. The resulting cognitive psychological principles that are now widely accepted as the gold standard about witness memory and demeanor are often contrary to what jurors intuitively, but wrongly, believe. Most jurors believe that memory works like a video camera that can perfectly recall the details of past events. Rather, memory is more like a Wikipedia page where you can go in and change it, but so can others. Memories are so malleable, numerous, diverse, and innocuous post-event information alters them, at times in very dramatic ways. Memories can be distorted, contaminated, and even, with modest cues, falsely imagined, even in good faith. For example, an extremely small universe of people have highly superior autobiographical memory (HSAM). They can recall past details (like the color of the shirt they were wearing on August 1, 1995) from memory almost as well as a video camera. Yet, in one study, HSAM participants falsely remembered seeing news film clips of United Flight 93 crashing in a field in Pennsylvania on September, 11, 2001. No such film exists. Thus, no group has ever been discovered that is free from memory distortions. In one interesting study, students on a college campus were asked to either perform or imagine certain normal and bizarre actions: (1) check the Pepsi machine for change; (2) propose marriage to the Pepsi machine. Two weeks later, the students were tested and demonstrated substantial imagination inflation leading to false recognition of whether they performed or imagined the actions. Few legal principles are more deeply embedded in American jurisprudence than the importance of demeanor evidence in deciding witness credibility. Historically, demeanor evidence is one of the premises for the need for live testimony, the hearsay rule, and the right of confrontation under the Sixth Amendment to the U.S. Constitution. Yet, cognitive psychological studies have consistently established that the typical cultural cues that jurors rely on, averting eye contact, a furrowed brow, a trembling hand, and stammering speech, for example, have little or nothing to do with a witness’s truthfulness. Also, jurors all too often wrongly assume that there is a strong correlation between a witness’s confidence and the accuracy of that witness’s testimony. Studies have determined that jurors’ perceptions of witness confidence are more important in determining credibility than the witness’s consistency or inconsistency. Another series of studies indicate that demeanor evidence predicts witness truthfulness about as accurately as a coin flip. Once credibility determinations are made by the fact-finder, it is nearly impossible to overturn those decisions on post-trial motions or appeal. While the secrecy in which credibility determinations are made promotes the legitimacy of fact-finding, it also shrouds its countless failings. Despite years of overwhelming consensus among cognitive psychology scholars and numerous warnings from thoughtful members of the legal academy — judges have done virtually nothing to identify or begin to try and solve this serious problem. The one exception is eyewitness identification of suspects in criminal cases where several state supreme courts have relied heavily on cognitive psychological research to craft better science- based specialized jury instructions. This article examines in detail and analyzes the often amazing and illuminating cognitive psychological research on memory and demeanor. It concludes with a Proposed Model Plain English Witness Credibility Instruction that synthesizes and incorporates much of this remarkable research. |
| Schafran | 2014 | Domestic Violence, Developing Brains, and the Lifespan: New Knowledge from Neuroscience | Lynn Hecht Schafran | 53(3) The Judges' Journal 32 | . |
| Blumoff | 2014 | Rationality, Insanity, and the Insanity Defense: Reflections on the Limits of Reason | Theodore Y. Blumoff | 39 Law & Psychol. Rev. 161 | Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge, a quality M’Nagthen requires for exculpation; they lack control, and the laws of the many states that fail to recognize this reality are incarcerating individuals who lack blameworthiness. |
| Monahan | 2015 | Juvenile Justice Policy and Practice: A Developmental Perspective | Kathryn Monahan, Laurence Steinberg, & Alex R. Piquero | 44 Crime & Just. 557 | . |
| Pustilnik | 2015 | Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform the Law | Amanda C. Pustilnik | 66(5) Alabama L. Rev. 1099 | What would the law do differently if it could see into the black box of the mind? One of the most valuable things it might do is reform the ways it deals with pain. Pain is ubiquitous in law, from tort to torture, from ERISA to expert evidence. Yet legal doctrines grapple with pain poorly, embodying concepts that are generations out of date and that cast suspicion on pain sufferers as having a problem that is “all in their heads.” Now, brain-imaging technologies are allowing scientists to see the brain in pain — and to reconceive of many types of pain as neurodegenerative diseases. Brain imaging proves that the problem is in sufferers’ heads: Long-term pain shrinks the brain and changes the way it functions. This new science has immediate practical and theoretical applications for the law. This Article first proposes reforms to disability law doctrines and their judicial interpretation. It then proposes ways in which pain neuroimaging ought to be handled as a matter of expert evidence in state, federal, and administrative proceedings. Drawing on work in evidence theory, it considers black letter evidence law as well as normative practices that shape how decision makers weigh evidence and credibility. It also offers limits on the use of brain images. In opening a window into how the brain generates subjective experiences, neuroimaging should lead to doctrinal and practice-based revisions that increase law’s accuracy and fairness. So doing, brain imaging should change the law’s mind about the nature of pain and may require the law to rethink its dualism between body and mind. |
| Grey | 2015 | Biomarkers, Concussions and the Duty of Care | Betsy Grey & Gary E. Marchant | 2015 Mich. St. L. Rev. 1911 | The United States is currently facing a “concussion epidemic.” Concussions, also known as mild traumatic brain injuries, have increased in numerous settings, including transportation accidents, military combat, workplace injuries, domestic abuse, falls, and sports. The epidemic imposes huge costs on society. At the same time, our understanding of the injury remains limited. Currently, no proven way exists to physiologically detect concussion risk or damage. Determining whether a concussion has occurred and been resolved remains largely a clinical diagnosis, relying mostly on self-reported symptoms. Our knowledge of long term implications of repetitive concussions is also limited. Science is racing to develop objective measures, or biomarkers, of concussive injury that will tell us who is more likely than not to be susceptible to harm and the extent of harm they may have already suffered. The availability of biomarkers will lead to a deeper understanding of changes to the brain that occur in a concussion and enable us to trace back earlier into what we think of as a diseased state. These scientific developments will have enormous implications for questions of risk and loss distribution in society. In particular, they portend a major reexamination of fundamental tort issues of duty, breach, causation, and fault allocation. Applying the developing research to the legal landscape will shed light on duties, as well as causal issues, and may help substantiate latent injury claims. This article examines those questions in the context of youth sports. The development of biomarkers will modify responsibilities for mitigating risks, screening and monitoring players, and the ability of the player to assume risks, as well as implicate privacy interests. In general, the development of these biomarkers will shift responsibilities in the diagnosis and management of concussions, as well as long term injuries, to those most directly involved in the player’s participation. |
| Hoffman | 2015 | Neuroscience Cannot Answer These Questions: A Response to G. and R. Murrow's Essay Hypothesizing a Link between Dehumanization, Human Rights Abuses and Public Policy | Morris B. Hoffman | J Law Biosci | The Murrows' paper, ‘A hypothetical link between dehumanization and human rights abuses’, in which they propose that neuroscience may answer some difficult public policy questions, including questions about the First Amendment, is an unfortunate foray into law and public policy unjustified by the current state of neuroscience. Neuroscientific insights may one day have important implications for the law, and for some of the folk psychological assumptions embedded in the law, but they will never change the words of the written Constitution, or answer difficult policy questions in the interstices of those words. Suggesting that neuroscience can today inform these questions does a disservice to science, law and the complexity of the human condition. |
| Shniderman | 2015 | Cosmetic Psychopharmacology for Prisoners: Reducing Crime and Recidivism Through Cognitive Intervention | Adam B. Shniderman & Lauren B. Solberg | 8(3) Neuroethics 315 | Criminologists have long acknowledged the link between a number of cognitive deficits, including low intelligence and impulsivity, and crime. A new wave of research has demonstrated that pharmacological intervention can restore or improve cognitive function, particularly executive function (including the inhibition of impulsive response), and restore neural plasticity. Such restoration and improvement can allow for easier acquisition of new skills and as a result, presents significant possibilities for the criminal justice system. For example, studies have shown that supplements of Omega-3, a fatty acid commonly found in food such as tuna, can decrease frequency of violent incidents in an incarcerated population. Research has also begun to explore the use of selective serotonin reuptake inhibitors (SSRIs) to reduce impulsivity in some violent offenders. However, there are significant legal and ethical implications when moving from dietary supplements to prescription pharmaceuticals and medical devices for cognitive intervention. This paper will explore the legal and ethical issues surrounding the use of pharmacological intervention on prisoners as an effort to reduce crime and recidivism. |
| Tennison | 2015 | And If Your Friends Jumped Off a Bridge, Would You Do It Too?': How Developmental Neuroscience Can Inform Legal Regimes Governing Adolescents | Michael N. Tennison & Amanda C. Pustilnik | 12 Indiana Health Law Review 533 | Legal models of adolescent autonomy and responsibility in various domains of law span a spectrum from categorical prohibitions of certain behaviors to recognitions of total adolescent autonomy. The piecemeal approach to the limited decision-making capacity of adolescents lacks an empirical foundation in the differences between adolescent and adult decision-making, leading to counterintuitive and inconsistent legal outcomes. The law limits adolescent autonomy with respect to some decisions that adolescents are perfectly competent to make, and in other areas, the law attributes adult responsibility and imposes adult punishments on adolescents for making decisions that implicate their unique volitional vulnerabilities. As developmental neuroscientists discover more about the biological underpinnings of juvenile decision-making, policymakers now have the opportunity to enhance consistency within and across the legal domains that regulate adolescent behavior. To serve this goal, our paper typologizes extant legal regimes that account for the limitations of adolescent decision making, reviews the neuroscientific evidence about how the brain’s developing structures and functions affect decision making, explores case studies of how certain youth behaviors that implicate the adolescent brain’s unique vulnerabilities intersect with the legal system, and proposes a matrix-based approach for the consistent legal evaluation of adolescent behavior. |
| Donald | 2015 | On the Brain: Neuroscience and Its Implications for the Criminal Justice System | Bernice B. Donald | 30-FALL Crim. Just. 1 | . |
| Maoz | 2016 | What Does Recent Neuroscience Tell Us About Criminal Responsibility? | Uri Maoz & Gideon Yaffe | J Law Biosci | A defendant is criminally responsible for his action only if he is shown to have engaged in a guilty act—actus reus (eg for larceny, voluntarily taking someone else's property without permission)—while possessing a guilty mind—mens rea (eg knowing that he had taken someone else's property without permission, intending not to return it)—and lacking affirmative defenses (eg the insanity defense or self-defense). We therefore first review neuroscientific studies that bear on the nature of voluntary action, and so could, potentially, tell us something of importance about the actus reus of crimes. Then we look at studies of intention, perception of risk, and other mental states that matter to the mens rea of crimes. And, last, we discuss studies of self-control, which might be relevant to some formulations of the insanity defense. As we show, to date, very little is known about the brain that is of significance for understanding criminal responsibility. But there is no reason to think that neuroscience cannot provide evidence that will challenge our understanding of criminal responsibility. |
| Balmakund | 2015 | The Realities of Neurolaw: A Composition of Data & Research | Zurizadai Balmakund | 9 U. St. Thomas J. L. & Pub. Pol’y 189 | The purpose of the law is to protect the interests of society, and promote justice. The following paper explores how the interests of justice are challenged and strengthened by the introduction of interdisciplinary research. Today the integration of law and neuroscience is at the forefront of legal admissibility. Cognitive neuroscience has the potential to contribute a great deal to the legal profession, but the question is whether neuroscience is prepared to make those contributions right now. In order to answer this question, medical researchers, scholars, and legal professionals need to gauge whether neuroscience can measure criminal responsibility. To begin the process researchers must first "clarify legal criteria for criminal responsibility," and then determine how neurological findings can be used to demonstrate cohesion to the criteria. The visionaries in each perspective field have the ability to guide new medical techniques, which have the power of influence over the law and future public policy. This study examines a sample of neuroscientific and legal literature, and follows with a comparative study of DNA and neuroimaging evidence. |
| Liu | 2015 | Scanning the Evidence: The Evidentiary Admissibility of Expert Witness Testimony on MRI Brain Scans in Civil Cases in the Post-Daubert Era | Christina T. Liu | 70 N.Y.U. Ann. Surv. Am. L. 479 | . |
| Kilbride | 2015 | Neuro Lie Detection and Mental Privacy | Madison Kilbride & Jason Iuliano | 75 Md. L. Rev. 163 | . |
| Greene | 2015 | Beyond Point-and-Shoot Morality: Why Cognitive (Neuro)Science Matters for Ethics | Joshua D. Greene | 9 Law & Ethics Hum. Rts. 141 | . |
| Farahany | 2016 | Neuroscience and Behavioral Genetics in US Criminal Law: An Empirical Analysis | Nita Farahany | J Law Biosci | The goal of this study was to examine the growing use of neurological and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005–12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Yet, criminal defendants are increasingly introducing such evidence to challenge defendants’ competency, the effectiveness of defense counsel at trial, and to mitigate punishment. |
| Roginsky | 2016 | Hate Speech, Volition, and Neurology | Alexandra B. Roginsky & Alexander Tsesis | J Law Biosci | . |
| Rissman | 2016 | Decoding fMRI Signatures of Real-world Autobiographical Memory Retrieval | Jesse Rissman, Tiffany E. Chow, Nicco Reggente, & Anthony D. Wagner | 28(4) Journal of Cognitive Neuroscience 1 | Extant neuroimaging data implicate frontoparietal and medial-temporal lobe regions in episodic retrieval, and the specific pattern of activity within and across these regions is diagnostic of an individual's subjective mnemonic experience. For example, in laboratory-based paradigms, memories for recently encoded faces can be accurately decoded from single-trial fMRI patterns [Uncapher, M. R., Boyd-Meredith, J. T., Chow, T. E., Rissman, J., & Wagner, A. D. Goal-directed modulation of neural memory patterns: Implications for fMRI-based memory detection. Journal of Neuroscience, 35, 8531–8545, 2015; Rissman, J., Greely, H. T., & Wagner, A. D. Detecting individual memories through the neural decoding of memory states and past experience. Proceedings of the National Academy of Sciences, U.S.A., 107, 9849–9854, 2010]. Here, we investigated the neural patterns underlying memory for real-world autobiographical events, probed at 1- to 3-week retention intervals as well as whether distinct patterns are associated with different subjective memory states. For 3 weeks, participants ( n = 16) wore digital cameras that captured photographs of their daily activities. One week later, they were scanned while making memory judgments about sequences of photos depicting events from their own lives or events captured by the cameras of others. Whole-brain multivoxel pattern analysis achieved near-perfect accuracy at distinguishing correctly recognized events from correctly rejected novel events, and decoding performance did not significantly vary with retention interval. Multivoxel pattern analysis classifiers also differentiated recollection from familiarity and reliably decoded the subjective strength of recollection, of familiarity, or of novelty. Classification-based brain maps revealed dissociable neural signatures of these mnemonic states, with activity patterns in hippocampus, medial pFC, and ventral parietal cortex being particularly diagnostic of recollection. Finally, a classifier trained on previously acquired laboratory-based memory data achieved reliable decoding of autobiographical memory states. We discuss the implications for neuroscientific accounts of episodic retrieval and comment on the potential forensic use of fMRI for probing experiential knowledge. |
| O'Connell | 2016 | Unequal Brains: Disability Discrimination Laws and Children with Challenging Behaviour | Karen O'Connell | Med Law Rev | At a time when brain-based explanations of behaviour are proliferating, how will law respond to the badly behaved child? In Australia, children and youth with challenging behaviours such as aggression, swearing, or impulsivity are increasingly understood as having a behavioural disability and so may be afforded the protections of discrimination law. A brain-based approach to challenging behaviour also offers a seemingly neutral framework that de-stigmatises a child's ‘bad’ behaviour, making it a biological or medical issue rather than a failure of discipline or temperament. Yet this ‘brain-based’ framework is not as neutral as it appears. How law regulates the brain-based subject in the form of the badly behaved child depends on how law conceptualises the brain. This article examines two competing approaches to the brain in law: a structural, deterministic model and a ‘plastic’, flexible model. Each of these impacts differently on disabled and abled identity and consequently on discrimination law and equality rights. Using examples from Australian discrimination law, this article argues that as new brain-based models of identity develop, existing inequalities based on race, gender, and disability are imported, and new forms of stigma emerge. In the neurological age, not all brains are created equal. |
| Tran | 2015 | (De)Regulating Neuroenhancement | Jasper L. Tran & Derek Tri Tran | 37 La Verne Law Review 179 | A recent rise in abusing neuroenhancing pharmaceuticals without a prescription, especially in academic settings, has generated a lot of press coverage. Movies like Lucy and Limitless “predict[] a future in which a smart pill allows one to achieve almost limitless learning and memory ability.” Whether and how regulations should be introduced to address neuroenhancement remain open questions. This Article explores these questions, and proposes to allow each individual, either as adult or a parent of minors, to self-regulate his/her or his/her children’s use of neuroenhancing pharmaceuticals. Government efforts and funding should instead be focused on educating users on the side effects of neuroenhancers. There should be a strict prohibition against coercion and discrimination in the employment settings. With neuroenhancing internal devices, the FDA should defer to the medical professionals to determine whether an individual would benefit from such technology without much harm. There are three main arguments for this proposal. First, this proposal would likely solve the current systemic unfairness problem and level the playing field for individuals not having access to neuroenhancing pharmaceuticals. Second, this proposal would likely promote individualism, which aligns well with our Constitution’s guaranty of freedom. Third, this proposal would likely result in a positive net effect on the society at large, such as “smarter,” less stressed and healthier people, more innovations, preserving healthcare resources, and ultimately benefiting the U.S. economy. |
| Sirgiovanni | 2016 | A Recap on Italian Neurolaw: Epistemological and Ethical Issues | Elisabetta Sirgiovanni, Gilberto Corbellini, & Cinzia Caporale | Mind & Society 1 | Italy is in the forefront of forensic neuroscience practice among European nations. In recent years, the country presented two major criminal cases, the Trieste Case in 2009 and the Como Case in 2011, which were the first cases employing neurogenetic and functional neuroimaging methods in European courts. In these paper we will discuss the consequences that an understanding of the neural and genetic determinants of human (mis)behavior will have on law, especially on the Italian legal context. Some claim that such consequences will actually be revolutionary, while others argue that legal doctrine assumptions won’t be undermined by neuroscientific findings. In the first section of the paper, we introduce the general debate and follow with a section devoted to the two Italian cases. In the third and final section, we discuss epistemological and ethical issues regarding Italian neurolaw. We defend a position which diverges from those prevailing in the debate. While negative outcomes and concerns were usually evidenced, we focus on positive changes coming with the new paradigm of interaction between neuroscience and the law. Our view is that these cases are clearly pioneering ones, anticipating what will happen in the courtrooms of the European Union in the whole, in the near future. |
| Meijer | 2016 | Deception Detection with Behavioral, Autonomic, and Neural Measures: Conceptual and Methodological Considerations That Warrant Modesty | Ewout H. Meijer, Bruno Verschuere, Matthias Gamer, Harald Merckelbach, & Gershon Ben-Shakhar | Psychophysiology 1 | The detection of deception has attracted increased attention among psychological researchers, legal scholars, and ethicists during the last decade. Much of this has been driven by the possibility of using neuroimaging techniques for lie detection. Yet, neuroimaging studies addressing deception detection are clouded by lack of conceptual clarity and a host of methodological problems that are not unique to neuroimaging. We review the various research paradigms and the dependent measures that have been adopted to study deception and its detection. In doing so, we differentiate between basic research designed to shed light on the neurocognitive mechanisms underlying deceptive behavior and applied research aimed at detecting lies. We also stress the distinction between paradigms attempting to detect deception directly and those attempting to establish involvement by detecting crime-related knowledge, and discuss the methodological difficulties and threats to validity associated with each paradigm. Our conclusion is that the main challenge of future research is to find paradigms that can isolate cognitive factors associated with deception, rather than the discovery of a unique (brain) correlate of lying. We argue that the Comparison Question Test currently applied in many countries has weak scientific validity, which cannot be remedied by using neuroimaging measures. Other paradigms are promising, but the absence of data from ecologically valid studies poses a challenge for legal admissibility of their outcomes. |
| Beecher-Monas | 2015 | Overselling Images: fMRI and the Search for Truth | Erica Beecher-Monas & Edgar Garcia-Rill | 48 J. Marshall L. Rev. 651 | . |
| Morse | 2015 | Neuroprediction: New Technology, Old Problems | Stephen J. Morse | 8 Bioethica Forum 128 | Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present. |
| Perlin | 2016? | In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process | Michael L. Perlin & Alison J. Lynch | Virginia Journal of Criminal Law | This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment. Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice. However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated. In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker. Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging. Next, we consider how the use of such evidence continues to expand in the criminal trial process. Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence. Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system. |
| Gkotsi | 2015 | Critique de l'utilisation des neurosciences dans les expertises psychiatriques pénales: le cas de la responsabilité pénale (Critique of the use of neuroscience in forensic psychiatric assessments: The case of criminal responsibility) | Georgia-Martha Gkotsi & Jacques Gasser | L’Evolution Psychiatrique | . |
| Gkotsi | 2014 | Une «neuro-jurisprudence» émergente : quelques cas aux Etats Unis | Georgia-Martha Gkotsi | in "Droit pénal et nouvelles technologies" (pp. 81-100), Editions L’Harmattan | . |
| Taylor | 2015 | Neurolaw and Traumatic Brain Injury: Principles for Trial Lawyers | J. Sherrod Taylor | 84(2) UMKC Law Rev 397 | Traumatic brain injury (TBI) spawned the first branch of the neurolaw revolution in 1991. Inspired by the classic work Neurophilosophy, neurolaw constituted a synthesis of law, medicine, and rehabilitation that dealt with the medicolegal implications of neurological injury--most notably, acquired brain damage. After almost twenty-five years, neurolaw continues to impact neurological injury litigation. Neurolaw, as originally conceived, now stands at the frontier of law and neuroscience, as a second branch of neurolegal inquiry emerges. Largely due to the advent of improved neuroimaging techniques (e.g., functional magnetic resonance imaging or fMRI), this new prong of neurolaw explores "whether, when, and how brain science should be, and will be, incorporated into legal proceedings. " In 2007, The John D. and Catherine T. MacArthur Foundation established its Law and Neuroscience Project and now generously funds much important research in this new branch of neurolaw. Additionally, the coursebook--Law and Neuroscience--offers the first comprehensive review of this branch. This article examines both branches of neurolaw and emphasizes those aspects of each that impact TBI litigation. Specifically, Part I of this article recalls the early years of the Congressionally-declared "Decade of the Brain " (1990-1999) and looks at the development of neurolaw as a recognized area of legal practice. Part II describes the fundamental principles of neurolaw that may be employed to guide attorneys and witnesses during TBI cases. Part III discusses some current neurolegal ideas, which are applicable to personal injury cases, and may play significant roles in future litigation. |
| Cohen | 2016 | When Is an Adolescent an Adult? Assessing Cognitive Control in Emotional and Nonemotional Contexts | Alexandra O. Cohen, Kaitlyn Breiner, Laurence Steinberg, Richard J. Bonnie, Elizabeth S. Scott, Kim A. Taylor-Thompson, Marc D. Rudolph, Jason Chein, Jennifer A. Richeson, Aaron S. Heller, Melanie R. Silverman, Danielle V. Dellarco, Damien A. Fair, Adriana Galván, & B. J. Casey | Psychological Science | An individual is typically considered an adult at age 18, although the age of adulthood varies for different legal and social policies. A key question is how cognitive capacities relevant to these policies change with development. The current study used an emotional go/no-go paradigm and functional neuroimaging to assess cognitive control under sustained states of negative and positive arousal in a community sample of one hundred ten 13- to 25-year-olds from New York City and Los Angeles. The results showed diminished cognitive performance under brief and prolonged negative emotional arousal in 18- to 21-year-olds relative to adults over 21. This reduction in performance was paralleled by decreased activity in fronto-parietal circuitry, implicated in cognitive control, and increased sustained activity in the ventromedial prefrontal cortex, involved in emotional processes. The findings suggest a developmental shift in cognitive capacity in emotional situations that coincides with dynamic changes in prefrontal circuitry. These findings may inform age-related social policies. |
| Yu | 2015 | Neural Substrates of Intention–Consequence Integration and Its Impact on Reactive Punishment in Interpersonal Transgression | Hongbo Yu, Jia Li, & Xiaolin Zhou | 35(12) Journal of Neuroscience 4917 | When evaluating interpersonal transgressions, people take into account both the consequential damage and the intention of the agent. The intention and consequence, however, do not always match, as is the case with accidents and failed attempts. We combined an interactive game and functional MRI to investigate the neural substrates underlying the processing of intention and consequence, and its bearing on reactive punishment. The participant interacted with anonymous partners, who decided to deliver pain stimulation either to himself/herself or to the participant to earn a monetary reward. In some cases, the decision was reversed by the computer. After pain delivery, the partner's intention was revealed. Unbeknownst to the partner, the participant was then allowed to punish the partner by reducing his/her monetary reward. Behaviorally, the punishment was lower in the accidental condition (unintended harm relative to intended harm) but higher in the failed-attempt condition (unintended no-harm relative to intended no-harm). Neurally, the left amygdala/hippocampus was activated in the conditions with blameworthy intention (i.e., intentional harm and failed attempt). The accidental (relative to intentional) harm activated the right temporoparietal junction (TPJ) and the anterior inferior frontal gyrus (IFG), while the failed attempt (relative to genuine no-harm) activated the anterior insula (AI) and the posterior IFG. Effective connectivity analysis revealed that in the unintentional conditions (i.e., accidental and failed attempt) the IFG received input from the TPJ and AI, and sent regulatory signals to the amygdala. These findings demonstrate that the processing of intention may gate the emotional responses to transgression and regulate subsequent reactive punishment. |
| Bigler | 2015 | Structural Neuroimaging in Forensic Settings | Erin D. Bigler, Paul B. Jantz, David Freedman, & George W. Woods | 84(2) UMKC Law Rev 301 | . |
| Caspar | 2016 | Coercion Changes the Sense of Agency in the Human Brain | Emilie A. Caspar, Julia F. Christensen, Axel Cleeremans, & Patrick Haggard | 26(5) Current Biology 585 | People may deny responsibility for negative consequences of their actions by claiming that they were “only obeying orders.” The “Nuremberg defense” offers one extreme example, though it is often dismissed as merely an attempt to avoid responsibility. Milgram’s classic laboratory studies reported widespread obedience to an instruction to harm, suggesting that social coercion may alter mechanisms of voluntary agency, and hence abolish the normal experience of being in control of one’s own actions. However, Milgram’s and other studies relied on dissembling and on explicit measures of agency, which are known to be biased by social norms. Here, we combined coercive instructions to administer harm to a co-participant, with implicit measures of sense of agency, based on perceived compression of time intervals between voluntary actions and their outcomes, and with electrophysiological recordings. In two experiments, an experimenter ordered a volunteer to make a key-press action that caused either financial penalty or demonstrably painful electric shock to their co-participant, thereby increasing their own financial gain. Coercion increased the perceived interval between action and outcome, relative to a situation where participants freely chose to inflict the same harms. Interestingly, coercion also reduced the neural processing of the outcomes of one’s own action. Thus, people who obey orders may subjectively experience their actions as closer to passive movements than fully voluntary actions. Our results highlight the complex relation between the brain mechanisms that generate the subjective experience of voluntary actions and social constructs, such as responsibility. |
| Willmott | 2016 | Use of Genetic and Neuroscientific Evidence in Criminal Cases: A Brief History of “Neurolaw” | Chris Willmott | in Biological Determinism, Free Will and Moral Responsibility 41 | As scientific understanding of behavioural genetics and brain physiology have increased, so too have attempts to utilise this information in criminal cases. Defendants in a growing number of jurisdictions have sought the influence of such factors upon a favourable outcome for their trials or a reduction in the subsequent sentence received. This chapter reviews some of the most prominent international cases in which attempts have been made to introduce genetic or brain imaging evidence into criminal proceedings. The majority have taken place in the USA, which seems to have been quicker to allow consideration of this kind of evidence within the legal system. A willingness to reflect on the merits of evidence of this kind does not necessarily translate into a willingness to let it influence the decisions made. To date, there remain relatively few examples where neuroscientific evidence has had a significant impact on the outcome of the case, but there have been some, and their number is growing. |
| Willmott | 2016 | Are We Ready for an Expanded Use of Neuroscientific Evidence in the Courtroom? | Chris Willmott | in Biological Determinism, Free Will and Moral Responsibility 65 | Evidence in the form of behavioural genetics and brain imaging has started to reach the courtroom. In this concluding chapter, the underlying validity of these methods will be examined. After review it will be determined that electroencephalography, positron emission tomography and functional magnetic resonance imaging are all appropriate techniques for examining the working brain. Despite being scientifically valid, however, it does not follow automatically that the uses for which such evidence has been offered in criminal cases were necessarily justified. Based on current experience, judiciaries would be wise to wait for more robust validation of neurobiological evidence before expansion of its use. This does not mean, however, that data derived via these techniques will not be integral to criminal proceedings in the future. Before taking that step, more closely matched reference populations need to be established, and the interaction of environmental stimuli alongside genetics needs to be better understood. |
| Murrow | 2016 | A Valid Question: Could Hate Speech Condition Bias in the Brain? | Gail B. Murrow & Richard Murrow | J Law Biosci | . |
| Scurich | 2016 | The Blunt-Edged Sword: Genetic Explanations of Misbehavior Neither Mitigate Nor Aggravate Punishment | Nicholas Scurich & Paul Appelbaum | J Law Biosci | Links between genetic variants and negatively valenced behaviors have stimulated intense commentary about the implications for responsibility and punishment. Previous research has suggested that behavioral genetic evidence of a predisposition to negative behaviors has modest to no impact on mitigation of punishment, at least for serious crimes. Data are presented on the effect of such evidence in a representative sample of the general population (n = 640) asked to consider three vignettes describing lesser offenses, dealt with in less formal adjudicatory settings and in everyday life. Genetic explanations of behavior had no effect on the severity of the punishment selected in any case, in contrast to the egregiousness of the behavior and respondents’ beliefs in free-will. Public views of genetic influences on behavior may be less deterministic and more nuanced than is often thought, or genetic explanations may simply not have the salience for decision makers that is frequently attributed to them. |
| Bellucci | 2016 | Effective Connectivity of Brain Regions Underlying Third-Party Punishment: Functional MRI and Granger Causality Evidence | Gabriele Bellucci, Sergey Chernyak, Morris Hoffman, Gopikrishna Deshpande, Olga Dal Monte, Kristine M. Knutson, Jordan Grafman, & Frank Krueger | Social Neuroscience | Third-party punishment (TPP) for norm violations is an essential deterrent in large-scale human societies, and builds on two essential cognitive functions: evaluating legal responsibility and determining appropriate punishment. Despite converging evidence that TPP is mediated by a specific set of brain regions, little is known about their effective connectivity (direction and strength of connections). Applying parametric event-related functional MRI in conjunction with multivariate Granger causality analysis, we asked healthy participants to estimate how much punishment a hypothetical perpetrator deserves for intentionally committing criminal offenses varying in levels of harm. Our results confirmed that TPP legal decisions are based on two domain-general networks: the mentalizing network for evaluating legal responsibility and the central-executive network for determining appropriate punishment. Further, temporal pole (TP) and dorsomedial prefrontal cortex (PFC) emerged as hubs of the mentalizing network, uniquely generating converging output connections to ventromedial PFC, temporo-parietal junction, and posterior cingulate. In particular, dorsomedial PFC received inputs only from TP and both its activation and its connectivity to dorsolateral PFC correlated with degree of punishment. This supports the hypothesis that dorsomedial PFC acts as the driver of the TPP activation pattern, leading to the decision on the appropriate punishment. In conclusion, these results advance our understanding of the organizational elements of the TPP brain networks and provide better insights into the mental states of judges and jurors tasked with blaming and punishing legal wrongs. |
| Patrick | 2015 | A New Synthesis for Law and Emotions: Insights from the Behavioral Sciences | Carlton Patrick | 47 Arizona State Law Journal 1239 | The business of the law is to influence human behavior. To do this effectively, lawmakers must make assumptions about human psychology and how people think. While the behavioral sciences dedicate their entire enterprises to investigating these questions, the law, even at its best, incorporates knowledge from those disciplines in a fragmentary and unsystematic fashion. At its worst, the legal system overlooks or ignores advances in other fields and instead relies on inherited intuitions of behavior that can be both naive and difficult to enumerate with precision. Nowhere is this phenomenon more evident than in the law’s longstanding struggle with emotions, where attempts to codify, incorporate, explain, and otherwise reckon with our feelings have produced many of the law’s most nebulous and imprecise concepts. Using insights from the modern behavioral sciences, especially those informed by an evolutionary approach to human behavior, this article attempts to inform a legal analysis of emotions and address many of the unsettled questions of the Law and Emotions movement. |
| Cohen | 2016 | The Impact of Emotional States on Cognitive Control Circuitry and Function | Alexandra O. Cohen, Danielle V. Dellarco, Kaitlyn Breiner, Chelsea Helion, Aaron S. Heller, Ahrareh Rahdar, Gloria Pedersen, Jason Chein, Jonathan P. Dyke, Adriana Galvan, & BJ Casey | 28(3) Journal of Cognitive Neuroscience 446 | Typically in the laboratory, cognitive and emotional processes are studied separately or as a stream of fleeting emotional stimuli embedded within a cognitive task. Yet in life, thoughts and actions often occur in more lasting emotional states of arousal. The current study examines the impact of emotions on actions using a novel behavioral paradigm and functional neuroimaging to assess cognitive control under sustained states of threat (anticipation of an aversive noise) and excitement (anticipation of winning money). Thirty-eight healthy adult participants were scanned while performing an emotional go/no-go task with positive (happy faces), negative (fearful faces), and neutral (calm faces) emotional cues, under threat or excitement. Cognitive control performance was enhanced during the excited state relative to a nonarousing control condition. This enhanced performance was paralleled by heightened activity of frontoparietal and frontostriatal circuitry. In contrast, under persistent threat, cognitive control was diminished when the valence of the emotional cue conflicted with the emotional state. Successful task performance in this conflicting emotional condition was associated with increased activity in the posterior cingulate cortex, a default mode network region implicated in complex processes such as processing emotions in the context of self and monitoring performance. This region showed positive coupling with frontoparietal circuitry implicated in cognitive control, providing support for a role of the posterior cingulate cortex in mobilizing cognitive resources to improve performance. These findings suggest that emotional states of arousal differentially modulate cognitive control and point to the potential utility of this paradigm for understanding effects of situational and pathological states of arousal on behavior. |
| Bair | 2016 | The Impact of Emotional States on Cognitive Control Circuitry and Function | Stephanie Plamondon Bair | Boston U. L. Rev. | The biggest debate in copyright law is also the most fundamental: for what purpose does copyright exist? There are two schools of thought about the appropriate answer to this key question. The first, dominant school focuses on economic efficiency, while the second emphasizes fairness and other moral concerns. As evidenced by scholarly response to the Blurred Lines litigation and Mark Lemley’s recent piece, Faith-Based Intellectual Property, proponents of each school are often at odds with each other. There is little middle ground. This either/or view of efficiency and moral rights is detrimental to a productive scholarly debate about the value of copyright. More importantly, it is wrong. Scholars like Jeanne Fromer, Christopher Buccafusco, and David Fagundes have recently pointed out that moral concerns are not necessarily inconsistent with, and could in some circumstances even promote utilitarian ends. Here, I reframe the debate by suggesting that the dichotomy between moral rights and utility should be abolished altogether. Drawing on insights from neuroscience, psychology, and organizational behavior, I demonstrate that when it comes to creation, fairness — a moral rights concern — often is utility in a very real sense. The evidence suggests that treating creators fairly acts as a powerful motivator for creative work, results in objectively more creative output, and aligns well with public and legal decision-makers’ moral intuitions. In other words, the most efficient copyright system is a fair one. This conclusion has implications for both copyright scholarship and policy. On the scholarship side, it builds a tangible bridge between utilitarian and moral rights camps. Moral rights advocates previously accused of a blind faith in the value of fairly administered rights can now respond that their faith is rational. On the policy side, I explain how novel fairness-enhancing mechanisms like individualized permissive use and an increased focus on distributive concerns in applying the fair use doctrine can increase the overall efficiency of the copyright system — a proposition that should appeal to scholars on both sides of the debate. |
| Fiser | 2016 | The Treatment for Malpractice - Physician, Enhance Thyself: The Impact of Neuroenhancements for Medical Malpractice | Harvey L. Fiser | 36 Pace L. Rev. 438 | This article will introduce some of the issues and offer some possible guidelines which may eventually guide cases of medical malpractice and medical care in the face of neurointerventions. First, I will briefly address the standard of care in medical malpractice cases in general. Second, I will discuss some of the existing and potential physical and neurological enhancements available for physicians. Finally, I will explore how these neurointerventions could alter the standards for medical malpractice for both the enhanced doctors and the entire medical profession. |
| Zangrossi | 2015 | "I Didn't Want To Do It!" The Detection of Past Intentions | A. Zangrossi, S. Agosta, G. Cervesato, F. Tessarotto, & G. Sartori | 9 Front Hum Neurosci. 608 | In daily life and in courtrooms, people regularly analyze the minds of others to understand intentions. Specifically, the detection of intentions behind prior events is one of the main issues dealt with in courtrooms. To our knowledge, there are no experimental works focused on the use of memory detection techniques to detect past intentions. This study aims at investigating whether reaction times (RTs) could be used for this purpose, by evaluating the accuracy of the autobiographical Implicit Association Test (aIAT) in the detection of past intentions. Sixty healthy volunteers took part in the experiment (mean age: 36.5 y; range: 18-55; 30 males). Participants were asked to recall and report information about a meeting with a person that had occurred at least 1 month before. Half of the participants were required to report about an intentional meeting, whereas the other half reported on a chance meeting. Based on the conveyed information, participants performed a tailored aIAT in which they had to categorize real reported information contrasted with counterfeit information. Results demonstrated that RTs can be a useful measure for the detection of past intentions and that aIAT can detect real past intentions with an accuracy of 95%. |
| Morse | 2015 | Criminal Law and Common Sense: An Essay on the Perils and Promise of Neuroscience | Stephen J. Morse | 99 Marquette L. Rev. 39 | This article is based on the author’s Barrock Lecture in Criminal Law presented at the Marquette University Law School. The central thesis is that the folk psychology that underpins criminal responsibility is correct and that our commonsense understanding of agency and responsibility and the legitimacy of criminal justice generally are not imperiled by contemporary discoveries in the various sciences, including neuroscience and genetics. These sciences will not revolutionize criminal law, at least not anytime soon, and at most they may make modest contributions to legal doctrine, practice, and policy. Until there are conceptual or scientific breakthroughs, this is my story and I’m sticking to it. |
| Rakoff | 2016 | Neuroscience and the Law: Don’t Rush In | Jed S. Rakoff | The New York Review of Books | . |
| Patterson | 2016 | Criminal Law, Neuroscience, and Voluntary Acts | Dennis Patterson | 3 J. L. & Biosciences 355 | The intersection between law and neuroscience is fertile ground for a variety of issues that implicate both scientific and philosophical questions. In the context of the criminal law, the most fertile ground for inquiry is the interplay between states of mind and judgments of culpability. In their interesting and provocative article, ‘What does neuroscience tell us about criminal responsibility?’,1 Uri Maoz and Gideon Yaffe consider the degree to which neuroscientific research bears on the question of criminal responsibility. Their article is a thorough and informative account of just how neuroscience can contribute to a better understanding of responsibility for action. |
| Gkotsi | 2016 | Neuroscience in Forensic Psychiatry: From Responsibility to Dangerousness. Ethical and Legal Implications of Using Neuroscience for Dangerousness Assessments | Georgia Martha Gkotsi & Jacques Gasser | International Journal of Law and Psychiatry | Neuroscientific evidence is increasingly being used in criminal trials as part of psychiatric testimony. Up to now, “neurolaw” literature remained focused on the use of neuroscience for assessments of criminal responsibility. However, in the field of forensic psychiatry, responsibility assessments are progressively being weakened, whereas dangerousness and risk assessment gain increasing importance. In this paper, we argue that the introduction of neuroscientific data by forensic experts in criminal trials will be mostly be used in the future as a means to evaluate or as an indication of an offender's dangerousness, rather than their responsibility. Judges confronted with the pressure to ensure public security may tend to interpret neuroscientific knowledge and data as an objective and reliable way of evaluating one's risk of reoffending. First, we aim to show how the current socio-legal context has reshaped the task of the forensic psychiatrist, with dangerousness assessments prevailing. In the second part, we examine from a critical point of view the promise of neuroscience to serve a better criminal justice system by offering new tools for risk assessment. Then we aim to explain why neuroscientific evidence is likely to be used as evidence of dangerousness of the defendants. On a theoretical level, the current tendency in criminal policies to focus on prognostics of dangerousness seems to be “justified” by a utilitarian approach to punishment, supposedly revealed by new neuroscientific discoveries that challenge the notions of free will and responsibility. Although often promoted as progressive and humane, we believe that this approach could lead to an instrumentalization of neuroscience in the interest of public safety and give rise to interventions which could entail ethical caveats and run counter to the interests of the offenders. The last part of this paper deals with some of these issues—the danger of stigmatization for brain damaged offenders because of adopting a purely therapeutic approach to crime, and the impact on their sentencing, in particular. |
| Bard | 2016 | "Ah Yes, I Remember It Well": Why the Inherent Unreliability of Human Memory Makes Brain Imaging Technology a Poor Measure of Truth-Telling in the Courtroom | Jennifer S. Bard | 94 Or. L. Rev. 295 | It is not often that the science of how the human mind perceives and then retrieves information trends on Twitter, but that was the case over the last year as first the story broke that Brian Williams had, for years, been claiming to witness events he had only seen in photographs. More recently, the world was transfixed by a quirk of visual perception that caused some people to see a dress as white and gold, while others were just as sure it was blue and black. These events, although matters of pop culture, are important to understanding a very serious legal issue: the inherent unreliability of eyewitness testimony. By now, stories coming from the Innocence Projects established all over the country have shown how often witnesses who are completely confident in their identification of a criminal at the initial police lineup, or even at trial, are proved absolutely mistaken. This Article demonstrates why efforts to develop brain imaging technology that will enhance the human ability to detect deliberate deception are doomed to failure because they are based on false assumptions about how our brains perceive and store information. It does so by bringing together the literature of disparate fields of study, including the laws of evidence involving the admission of eyewitness testimony and forensic science; contemporary advances in neuroimaging; and recent claims of technology that not only detects lies, but actually may extract memories of past events from unwilling witnesses. This Article then explains that the human mind does not passively store events for later retrieval, but rather is always actively engaged in making sense of information of past and present events. Moreover, even while an event is happening, the information perceived by one person may be very different than that perceived by others. Therefore, even if reliable markers for deliberate deception are discovered, they will not necessarily provide reliable information about past events. “After decades of concerted effort on the part of neuroscientists, psychologists, and philosophers, only one proposition about how the brain makes us conscious—how it gives rise to sensation, feeling, subjectivity—has emerged unchallenged: we don’t have a clue.” |
| Mathias | 2008 | Behavioral Measures of Impulsivity and the Law | C.W. Mathias, D.M. Marsh-Richard and D.M. Dougherty | Behavioral Sciences and the Law 26, 691-707 | The General Theory of Crime proposes that crime is explained by the combination of situational opportunity and lack of self-control. Impulsivity is one of the important components of self- control. Because behavioral measures of impulsivity are becoming more commonly utilized to assess forensic populations, this manuscript provides an overview of three current behavioral measures. In doing so, an example of their application is provided using a group of individuals likely to come into contact with the legal system: adolescents with Conduct Disorder. Earlier age of onset of Conduct Disorder symptoms has been shown to be an important predictor of the persistence of poor outcomes into adulthood including participation in criminal activities. This study found differential behavioral profiles across distinct measures of impulsivity by those with childhood- versus adolescent-onset Conduct Disorder. Legal implications for defining behavioral deficits using behavioral measures of impulsivity and their current limitations are discussed. |
| Farrer | 2011 | Prevalence of Traumatic Brain Injury in Incarcerated Groups Compared to the General Population: A Meta-Analysis | Thomas J. Farrer & Dawson W. Hedges | Progress in Neuro-Psychopharmacology & Behavioral Psychiatry 35, 390-94 | Traumatic brain injury can cause numerous behavioral abnormalities including aggression, violence, impulsivity, and apathy, factors that can be associated with criminal behavior and incarceration. To better characterize the association between traumatic brain injury and incarceration, we pooled reported frequencies of lifetime traumatic brain injury of any severity among incarcerated samples and compared the pooled frequency to estimates of the lifetime prevalence of traumatic brain injury in the general population. We found a significantly higher prevalence of traumatic brain injury in the incarcerated groups compared to the general population. As such, there appears to be an association between traumatic brain injury and incarceration. |
| Shiroma | 2012 | Prevalance of Traumatic Brain Injury in an Offender Population: A Meta-Analysis | Eric J. Shiroma, P.L. Ferguson, & Emily E. Pikelsimer | J. Head Trauma Rehabilitation 27, 3, E1-E10 | Traumatic brain injury (TBI) can create challenges to managing offenders and to their successful community reentry upon release. In this study, the researchers reviewed relevant articles in Pubmed, PsycInfo, Medline, and EmBase (1983 to 2009) and communicated with other researchers to identify 20 epidemiologic studies that met preestablished inclusion criteria. Random-effects meta- and subgroup analyses were conducted to calculate the prevalence of TBI and the effects of gender, offender type, and definition and method of identifying TBI. The estimated prevalence of TBI in the overall offender population was 60.25 (95% confidence interval: 48.08 to 72.41). A truer estimate of TBI prevalence in offending populations could lead to more appropriate resource allocation, screening, and management of offenders. |
| Siegel | 2011 | Who's Flying the Plane: Serotonin Levels, Aggression and Free Will | A. Siegel & J. Douard | Int'l J. L. & Psychiatry 34, 1, 20-29 | The present paper addresses the philosophical problem raised by current causal neurochemical models of impulsive violence and aggression: to what extent can we hold violent criminal offenders responsible for their conduct if that conduct is the result of deterministic biochemical processes in the brain. This question is currently receiving a great deal of attention among neuroscientists, legal scholars and philosophers. We examine our current knowledge of neuroscience to assess the possible roles of deterministic factors which induce impulsive aggression, and the extent to which this behavior can be controlled by neural conditioning mechanisms. Neural conditioning mechanisms, we suggest, may underlie what we consider the basis of responsible (though not necessarily moral) behavior: the capacity to give and take reasons. The models we first examine are based in part upon the role played by the neurotransmitter, serotonin, in the regulation of violence and aggression. Collectively, these results would appear to argue in favor of the view that low brain serotonin levels induce impulsive aggression which overrides mechanisms related to rational decision making processes. We next present an account of responsibility as based on the capacity to exercise a certain kind of reason-responsive control over one's conduct. The problem with such accounts of responsibility, however, is that they fail to specify a neurobiological realization of such mechanisms of control. We present a neurobiological, and weakly determinist, framework for understanding how persons can exercise guidance control over their conduct. This framework is based upon classical conditioning of neurons in the prefrontal cortex that allow for a decision making mechanism that provides for prefrontal cortical control of the sites in the brain which express aggressive behavior that include the hypothalamus and midbrain periaqueductal gray. The authors support the view that, in many circumstances, neural conditioning mechanisms provide the basis for the control of human aggression in spite of the presence of brain serotonin levels that might otherwise favor the expression of impulsive aggressive behavior. Indeed if those neural conditioning mechanisms underlie the human capacity to exercise control, they may be the neural realization of reason-responsiveness generally. |
| Werner | 2013 | The Neuroscience of Face Processing and Identification in Eyewitnesses and Offenders | Nicole-Simone Werner, Sina Kühnel, & Hans J. Markowitsch | Frontiers in Behavioral Neuroscience 7, 189 | Humans are experts in face perception. We are better able to distinguish between the differences of faces and their components than between any other kind of objects. Several studies investigating the underlying neural networks provided evidence for deviated face processing in criminal individuals, although results are often confounded by accompanying mental or addiction disorders. On the other hand, face processing in non-criminal healthy persons can be of high juridical interest in cases of witnessing a felony and afterward identifying a culprit. Memory and therefore recognition of a person can be affected by many parameters and thus become distorted. But also face processing itself is modulated by different factors like facial characteristics, degree of familiarity, and emotional relation. These factors make the comparison of different cases, as well as the transfer of laboratory results to real live settings very challenging. Several neuroimaging studies have been published in recent years and some progress was made connecting certain brain activation patterns with the correct recognition of an individual. However, there is still a long way to go before brain imaging can make a reliable contribution to court procedures. |
| Kozel | 2008 | Functional MRI Detection of Deception After Committing a Mock Sabotage Crime | F. Andrew Kozel, Kevin A. Johnson, Emily L. Grenesko, Steven J. Laken, Samit Kose, Xinghua Lu, Dean Pollina, Andrew Ryan, & Mark S. George | J. of Forensic Science 54, 1, 220-31 | Using Blood Oxygen Level Dependent (BOLD) functional MRI (fMRI) to detect deception is feasible in simple laboratory paradigms. A mock sabotage scenario was used to test whether this technology would also be effective in a scenario closer to a real-world situation. Healthy, nonmedicated adults were recruited from the community, screened, and randomized to either a Mock- crime group or a No-crime group. The Mock-crime group damaged and stole compact discs (CDs), which contained incriminating video footage, while the No-crime group did not perform a task. The Mock-crime group also picked up an envelope from a researcher, while the No-crime group did not perform this task. Both groups were instructed to report that they picked up an envelope, but did not sabotage any video evidence. Participants later went to the imaging center and were scanned while being asked questions regarding the mock crime. Participants also performed a simple laboratory based fMRI deception testing (Ring-Watch testing). The Ring-Watch testing consisted of “stealing” either a watch or a ring. The participants were instructed to report that they stole neither object. We correctly identified deception during the Ring-Watch testing in 25 of 36 participants (Validated Group). In this Validated Group for whom a determination was made, computer-based scoring correctly identified nine of nine Mock-crime participants (100% sensitivity) and five of 15 No-crime participants (33% specificity). BOLD fMRI presently can be used to detect deception concerning past events with high sensitivity, but low specificity. |
| Buller | 2005 | Can We Scan for Truth in a Society of Liars? | T. Buller | Am. J. Bioethics 5, 2, 58-60 | . |
| Wolpe | 2005 | Emerging Neurotechnologies for Lie-Detection: Promises and Perils | Paul Root Wolpe, K.R. Foster, & D.D. Langleben | Am. J. Bioethics 5, 2, 39-49 | Detection of deception and con rmation of truth telling with conventional polygraphy raised a host of technical and ethical issues. Recently, newer methods of recording electromagnetic signals from the brain show promise in permi ing the detection of deception or truth telling. Some are even being promoted as more accurate than conventional polygraphy. While the new technologies raise issues of personal privacy, acceptable forensic application, and other social issues, the focus of this paper is the technical limitations of the developing technology. ose limitations include the measurement validity of the new technologies, which remains largely unknown. Another set of questions pertains to the psychological paradigms used to model or constrain the target behavior. Finally, there is li le standardization in the eld, and the vulnerability of the techniques to countermeasures is unknown. Premature application of these technologies outside of research se ings should be resisted, and the social conversation about the appropriate parameters of its civil, forensic, and security use should begin. |
| Kuersten | 2016 | Minding the 'Gaps' in the Federal Regulation of Transcranial Direct Current Stimulation Devices | Andreas Kuersten & Roy H. Hamilton | J. L. & Biosciences 1-9 | . |
| Fozdar | 2016 | The Relevance of Modern Neuroscience to Forensic Psychiatry Practice | Manish A. Fozdar | J. Am. Acad. of Psychiatry & L. 44, 2, 145-50 | |
| Hopkins | 2016 | "This Position Requires Some Alteration of Your Brain": On the Moral and Legal Issues of Using Neurotechnology to Modify Employees | Patrick D. Hopkins & Harvey L. Fiser | J. Bus. Ethics 1-15 | Employers have long had programs for improving employee attitude and performance, from the simple such as free coffee in the break room to the more extensive such as gyms, counseling, team-building seminars, and skills training. Employees have also long used techniques for making themselves more competitive and productive for purposes of securing new positions or promotions. But what about more direct means of altering employee performance? Neurotechnology could allow for more powerful and precise methods of screening for desired traits and for modifying abilities—from memory to motivation to morality. In this paper, we examine the moral and legal issues of using neurotechnology in the employment context. We identify major types of technologies, the areas of employment where they might be used, and the moral and legal principles most likely to frame debates about use. We do not recommend a specific moral judgment but instead introduce the issues, describe the major possible policies that could be implemented to deal with employment neurotechnology, compare those policies to current ones, and lay out an analytical framework for further discussion based on the broad effectiveness of neurotechnology, balancing interests of employers and employees, and existing ethical and legal principles. |
| Moore | 2017 | Privacy, Neuroscience, and Neuro-Surveillance | Adam D. Moore | 23(2) Res Publica 159 (2017) | The beliefs, feelings, and thoughts that make up our streams of consciousness are inherently private. Nevertheless, modern neuroscience is offering to open up the sanctity of this domain to outside viewing. A common retort often voiced to this worry is something like, “Privacy is difficult to define and has no inherent moral value. What’s so great about privacy?” In this article I will argue against these sentiments. A definition of privacy is offered along with an account of why privacy is morally valuable. In the remaining sections, several privacy protecting principles are defended that would limit various sorts of neuro-surveillance promised by advancements in neuroscience. |
| Nordberg | 2017 | Defining Human Enhancement: Towards a Foundational Conceptual Tool for Enhancement Law | Ana Nordberg | 25(3) J. L., Info. & Sci. | Emerging technologies open the prospect of extraordinary interventions on the human body. These may go beyond what is strictly necessary to sustain health and well-being. While responding to social and ethical challenges of such advances, the Law simultaneously faces the challenge of reflecting on the legitimacy to legislate and on whether the existing legal framework is appropriate to address the various concerns. In order to do so, it is crucial to establish clear legal definitions. Precise distinctions between interventions on the human body are intrinsically difficult to formulate. However, subject-matter definitions are vital legal tools to determine what is currently regulated in established fields of law and whether there is room for a new legal field – Enhancement Law. This paper provides a reflection on the relevance of establishing a legal definition of human enhancement and to what extent different legal fields and jurisdictions may warrant different understandings of such concept. It reviews a number of different and often divergent concepts and taxonomies of human enhancement and concludes with the proposal and analysis of a definition: Use of technological means with the intention to improve, modify or introduce in the human body aesthetic features, physical, emotional or cognitive performance levels and abilities beyond the human species typical standards under the current evolutionary state, and resulting in induced permanent alterations in the human body. |
| Aggarwal | 2009 | Neuroimaging, Culture, and Forensic Psychiatry | Neil K. Aggarwal | J. Am. Acad. of Psychiatry & L. 37, 239-44 | The spread of neuroimaging technologies around the world has led to diverse practices of forensic psychiatry and the emergence of neuroethics and neurolaw. This article surveys the neuroethics and neurolegal literature on the use of forensic neuroimaging within the courtroom. Next, the related literature within medical anthropology and science and technology studies is reviewed to show how debates about forensic neuroimaging reflect cultural tensions about attitudes regarding the self, mental illness, and medical expertise. Finally, recommendations are offered on how forensic psychiatrists can add to this research, given their professional interface between law and medicine. At stake are the fundamental concerns that surround changing conceptions of the self, sickness, and expectations of medicine. |
| Baum | 2011 | Neurolaw: Do We Have a Reposnsibility to Use Neuroscience to Inform Law? | Matt Baum | University of Oxford, Practical Ethics | |
| Bush | 2013 | Neuroscience and Neurolaw | Shane S. Bush & Chriscelyn M. Tussey | Psychological Injury & L. 6, 1, 1-2 | At the intersection of neuroscience and psychological science stands neuropsychology, providing patients, triers of fact, and other parties a quantifiable, evidence-based method for understanding cognitive, emotional, and behavioral changes that occur in the context of injury or disease. The purposes of this special issue of Psychological Injury and Law are to (1) illustrate the ways in which neuroscience, psychological practice, professional ethics, and laws are intertwined in the evaluation and treatment of persons who have been injured or are experiencing a neurological disease, (2) demonstrate the ways in which neuropsychological practice is applied to forensic questions, and (3) promote quality neuropsychological practice and services to patients, courts, and other consumers of neuropsychological services. This special issue provides a sample of the types of ways that practitioners integrate neuroscience and clinical psychology, informed by and consistent with relevant laws and professional ethics, to understand people who have cognitive, emotional, and/or behavioral problems stemming from neurological injuries or other disorders. |
| Leeman | 2009 | Behavioral and Neurological Foundations for the Moral and Legal Implications of Intoxication, Addictive Behaviors and Disinhibition | R. F. Leeman, J. E. Grant, & M. N. Potenza | Behavioral Science L. 27, 2, 237-59 | Disinhibition and addictive behaviors are related and carry moral implications. Both typically involve diminished consideration of negative consequences, which may result in harm to oneself or others. Disinhibition may occur on state and trait levels, and addictive substances may elicit disinhibitory states, particularly when intoxication is reached. Data suggest that trait disinhibition and addictions may be conceptualized as involving misdirected motivation with underlying biological bases including genetic factors, alterations in neurotransmitter systems and differences in regional brain function. The influences of intoxication on the brain share similarities with cognitive impairments in individuals with chronic substance abuse and those with trait disinhibition related to frontal lobe injuries. These findings raise questions about volitional impairment and morality. Although impaired volition related to disinhibition and addictive behaviors has been studied from multiple perspectives, additional research is needed to further characterize mechanisms of impairment. Such findings may have important implications in multiple legal and psychiatric domains. |
| Sinnott-Armstrong | 2011 | Neurolaw and Consciousness Detection | Walter P. Sinnott-Armstrong | Cortex 47, 10, 1246-47 | |
| Taylor | 1991 | Neuropsychologists and Neurolawyers | J. Sherrod Taylor, J. Anderson Harp, & Tyron Elliott | Neuropsychology, 5, 4, 293-305 | Describes the US civil justice system and analyzes the roles played by neuropsychologists (NPs) and neurolawyers (NLs) within this system. Traumatic brain injuries (TBIs) occur in a variety of accidents, which may become the subject of personal injury claims or litigation. Competent clinical NPs can provide convincing evidence of the reality of brain injury deficits. NPs are most likely to become involved in such aspects of personal injury cases as testing and treatment of the TBI claimant, conference with the claimant's lawyer, reporting the patient's status to the lawyer, giving a deposition during discovery, and presenting direct evidence and being cross-examined at the trial. The relationship between NPs and NLs is highlighted. |
| Jennings | 2010 | Juvenile Justice, Sullivan, and Graham: How the Supreme Court's Decision Will Change the Neuroscience Debate | Johanna C. Jennings | Duke L. & Tech. Rev. 6 | Over the past twenty years, neuroscientists have discovered that brain maturation continues through an individual’s mid- twenties. The United States Supreme Court cited this research to support its abolition of the juvenile death penalty in Roper v. Simmons. Now the Court is faced with two cases that challenge the constitutionality of sentencing juveniles to life imprisonment without parole. Many believe these studies indicate that juveniles are both less culpable for their actions and more likely to reform; therefore, life in prison for juveniles is disproportionate, cruel, and unusual. However, others caution against the use of these studies in deciding issues of juvenile justice. This iBrief summarizes the cases currently before the Court, presents the arguments for and against the use of neuroscience in the juvenile justice debate, and analyzes the impact these cases will have on the future of neuroscience’s role in juvenile justice. |
| Jochnowitz | 2010 | Missed or Foregone Mitigation: Analyzing Claimed Error in Missouri Capital Clemency Cases | Leona D. Jochnowitz | Crim. L. Bull. 46, 3, 347-427 | This research is an exploratory study which captures the prevalence of the types and reasons for claims of missed mitigation in 36 of 80 un-reversed Missouri death penalty cases reaching the clemency stage of review from convictions between 1980-1995. Missed mitigation claims raised in clemency cases may be claims of persistent error which undermine the reliability of death penalty sentencing. The research identifies the conditions which might contribute to the prevalence of claimed error. The study concludes that missed mitigation claims are ubiquitous in un-reversed capital cases which have passed all rounds of judicial inspection and have reached clemency. The high prevalence of sentencing error claims shows that structural overhaul of the capital trial may be needed. |
| Morse | 2016 | Law and Sciences of the Brain/Mind | Stephen Morse | Oxford Handbook on L. & Reg. of Tech. (forthcoming); U of Penn Law School, Public Law Research Paper No. 16-15 | This chapter is a submission to the Oxford Handbook of Law and the Regulation of Technology edited by Roger Brownsword. It considers whether the new sciences of the brain/mind, especially neuroscience and behavioral genetics, are likely to transform the law’s traditional concepts of the person, agency and responsibility. The chapter begins with a brief speculation about why so many people think these sciences will transform the law. After reviewing the law’s concepts, misguided challenges to them, and the achievements of the new sciences, the chapter confronts the claim that these sciences prove that we are really not agents and that no one is responsible. It argues that this claim cannot be supported empirically or conceptually and no revolution in legal thinking is foreseeable. The chapter concludes by suggesting that the new sciences have little to offer the law at present, but in the future they may contribute modestly to reforming doctrine, policy and practice. |
| Faigman | 2016 | It Ain't Brain Surgery, but it's Close: A Review of Owen D. Jones, Jeffrey D. Schall, and Francix X. Shen, Law and Neuroscience (2014) | David L. Faigman | Jurimetrics 56, 197-208 | |
| Buckholtz | 2016 | A Neuro-Legal Lingua Franca: Bridging Law and Neuroscience on the Issue of Self-Control | Joshua W. Buckholtz, Valerie F. Reyna, & Christopher Slobogin | Mental Health L. & Policy J., Vanderbilt Owen Graduate School of Management Research Paper No. 16-32 (forthcoming) | Neuroscientists are rapidly adding to our understanding of human behavior. This article argues that if the law wants the full benefits of neuro-scientific knowledge, it should attempt to develop a lingua franca — a method of communication understandable to both scientists and lawyers — based on neuro-scientific concepts. As a demonstration of such an attempt, we describe in a preliminary way how the criminal law’s concept of self-control might be operationalized using constructs, domains, processes and tasks familiar to neuroscientists. In the course of doing so, we stress the limits of scientific inference (particularly as it pertains to legally relevant individual-level assessment) and the fact that, despite semantic similarities, scientific constructs often do not track with its normative precepts. |
| Morse | 2016 | Actions Speak Louder Than Images: The Use of Neuroscientific Evidence in Criminal Cases | Stephen J. Morse | J. L. & Biosciences 1-7 | |
| Sozio | 2015 | What Punishment in a "Brave Neuro World"? | Maurizio Sozio | What Punishment in a "Brave Neuro World"?, in Universality of Punishment, 107-34 | |
| Matuszewski | 2016 | The Mistaken Emphasis on Organic Brain Damage in Capital Habeas Litigation | Aleksandra Matuszewski | 67 Ala. L. Rev. 1217 | The increasing use of evidence about how the human brain works is sure to be one of the defining features of practicing law in the twenty-first century. One area of litigation where the use of neuroscience evidence has already become fairly widespread is death penalty litigation, particularly federal habeas proceedings. Habeas petitioners now frequently claim that they have diminished culpability because they suffer from “organic brain damage.” Yet the petitioners raising such claims, and the courts resolving them, have not been particularly precise in defining exactly what “organic brain damage” means. A review of the medical literature, however, reveals that this lack of precision is understandable. The truth is that “organic brain damage” is not a specific, recognized condition. Instead, it is an umbrella term that habeas petitioners use to cover a broad range of brain pathologies. The continued uninformed use of the term leads to its imprecise use in the sentencing context. This Note proceeds in three parts. First, it offers an explanation for why evidence of organic brain damage has become so popular in capital litigation and identifies how litigants and courts have used the term without recognizing its imprecise nature. Second, it reviews the relevant neuroscience literature to demonstrate that neuroscience evidence still presents serious unresolved shortcomings in the courtroom context. Finally, it argues that there is only a tenuous relationship between brain function assessments and criminal responsibility. |
| Wortzel | 2011 | Diffusion Tensor Imaging in Mild Traumatic Brain Injury Litigation | Hal S. Wortzel, Marilyn F. Kraus, Christopher M. Filley, C. Alan Anderson, & David B. Arciniegas | J. Am. Acad. Psychiatry L. 39, 511-23 | A growing body of literature addresses the application of diffusion tensor imaging (DTI) to traumatic brain injury (TBI). Most TBIs are of mild severity, and their diagnosis and prognosis are often challenging. These challenges may be exacerbated in medicolegal contexts, where plaintiffs seek to present objective evidence that supports a clinical diagnosis of mild (m)TBI. Because DTI permits quantification of white matter integrity and because TBI frequently involves white matter injury, DTI represents a conceptually appealing method of demonstrating white matter pathology attributable to mTBI. However, alterations in white matter integrity are not specific to TBI, and their presence does not necessarily confirm a diagnosis of mTBI. Guided by rules of evidence shaped by Daubert v. Merrell Dow Pharmaceuticals, Inc., we reviewed and analyzed the literature describing DTI findings in mTBI and related neuropsychiatric disorders. Based on this review, we suggest that expert testimony regarding DTI findings will seldom be appropriate in legal proceedings focused on mTBI. |
| Wortzel | 2013 | Traumatic Brain Injury and Chronic Traumatic Encephalopathy: A Forensic Neuropsychiatric Perspective | Hal S. Wortzel, Lisa A. Brenner, & David B. Arciniegas | Behav. Sci. L. | Recent scientific reports and popular press describing chronic traumatic encephalopathy (CTE) collectively link this condition to a broad array of neuropsychiatric symptoms, including extremely rare and multi-determined behaviors such as murder-suicide. These reports are difficult to reconcile with several decades of research on the science of traumatic brain injury (TBI) and its consequences, especially the natural history and prognosis of mild TBI. This article attempts to reconcile these sources by reviewing the state of the science on CTE, with particular attention to case definitions and neuropathological criteria for this diagnosis. The evidence for links between TBI, CTE, and catastrophic clinical events is explored, and the complexity of attributing rare frequency behavioral events to CTE is highlighted. The clinical and medicolegal implications of the best available evidence are discussed, concluding with a cautionary note against prematurely generalizing current findings on CTE to entire populations of persons with, or at risk for, concussion exposures. |
| Wortzel | 2013 | A Forensic Neuropsychiatric Approach to Traumatic Brain Injury, Aggression, and Suicide | Hal S. Wortzel & David B. Arciniegas | J. Am. Acad. Psychiatry L. 41, 274-86 | Aggression is a common neuropsychiatric sequela of traumatic brain injury (TBI), one which interferes with rehabilitation efforts, disrupts social support networks, and compromises optimal recovery. Aggressive behavior raises critical safety concerns, potentially placing patients and care providers in harm’s way. Such aggression may be directed outwardly, manifesting as assaultive behavior, or directed inwardly, resulting in suicidal behavior. Given the frequency of TBI and posttraumatic aggression and the potential medicolegal questions surrounding the purported causal relationships between the two, forensic psychiatrists need to understand and recognize post- traumatic aggression. They also must be able to offer cogent formulations about the relative contributions of neurotrauma versus other relevant neuropsychiatric factors versus combinations of both to any specific act of violence. This article reviews the relationships between TBI and aggression and discusses neurobiological and cognitive factors that influence the occurrence and presentation of posttraumatic aggression. Thereafter, a heuristic is offered that may assist forensic psychiatrists attempting to characterize the relationships between TBI and externally or internally directed violent acts. |
| Sörman | 2016 | Boldness and its Relation to Psychopathic Personality: Prototypicality Analyses Among Forensic Mental Health, Criminal Justice, and Layperson Raters | Karolina Sörman, John F. Edens, Shannon Toney Smith, John W. Clark, Marianne Kristiansson, Olof Svensson | L. & Human Behavior, 40, 3, 337-49 | Research on psychopathic personality has been dominated by a focus on criminality and social deviance, but some theoretical models argue that certain putatively adaptive features are important components of this construct. In 3 samples (forensic mental health practitioners, probation officers and a layperson community sample), we investigated adaptive traits as conceptualized in the Triarchic model of psychopathy (Patrick et al., 2009), specifically the relevance of boldness to construals of psychopathic personality. Participants completed prototypicality ratings of psychopathic traits, including 3 items created to tap components of boldness (Socially bold, Adventurous, Emotionally stable), and they also rated a series of attitudinal statements (e.g., perceived correlates of being psychopathic, moral judgments about psychopaths). The composite Boldness scale was rated as moderately to highly prototypical among forensic mental health practitioners and probation officers and positively associated with other theoretically relevant domains of psychopathy. Across samples, higher composite Boldness ratings predicted greater endorsement of adaptive traits (e.g., social skills) as characteristic of psychopathy. For the individual items, Socially bold was rated as highly prototypical and was associated with theoretically relevant correlates. Adventurous also was seen as prototypical, though to a lesser degree. Only forensic mental health practitioners endorsed Emotionally stable as characteristic of psychopathy. Our results provide partial support for the contention that the boldness concept is viewed as an important component of psychopathy, particularly among professionals who work directly with offender populations. |
| Epstein | 2016 | "Gruesome" Evidence, Science, and Rule 403 | Jules Epstein & Suzanne Mannes | The Judicial Edge, The National Judicial College | |
| James | 2016 | Ringing the Bell for the Last Time: How the NFL's Settlement Agreement Overwhelmingly Disfavors NFL Players Living with Chronic Traumatic Encephalopathy (CTE) | Sarah James | J. Health & Biomedical L. 11, 391 | |
| Wood | 2015 | Traumatic Brain Injury in Criminal Litigation | Stacey Wood & Bhushan S. Agharkar | 84 UMKC L. Rev. 411 | Traumatic brain injury (TBI) is a highly prevalent cause of neurocognitive disorders resulting in approximately 2.5 million emergency department visits per year. As a result, the prevalence rate of traumatic brain injury is remarkably high among criminal defendants as derived from studies of individuals in prisons and jails. The Center for Disease Control (CDC) estimated that twenty-five to eighty-seven percent of individuals in jail and prison report having experienced a TBI. In this review we discuss common referral questions involving individuals with a history of TBI in criminal litigation. We cover competency to proceed, mental state defenses, and mitigation in capital and non-capital cases. |
| Torregrossa-O'Connor | 2015 | New Jersey's Juvenile Waiver Reform and the Nexus Between Adolescent Development and Criminal Responsibility | Ellen Torregrossa-O'Connor | New Jersey Lawyer | |
| Cosgrove | 2015 | The Illusive "Reasonable Person": Can Neuroscience Help the Mentally Disabled? | Ian J. Cosgrove | 91 Notre Dame L. Rev. 421 | |
| Johndro | 2010 | Thwarting California's Presumptive LWOP Penalty for Adolescents: Psychology's and Neuroscience's Message for the California Justice System | Ashley N. Johndro | 83 SCALR 341 | In California, adolescents convicted of special circumstance first- degree murder are presumptively sentenced to life without the possibility of parole (“LWOP”) pursuant to section 190.5 of the California Penal Code. To date, California has sentenced more than 250 adolescents to die behind bars. Recent studies in psychology and neuroscience challenge this status quo. These disciplines suggest that adolescents are biophysically determined to suffer from poor decisionmaking capacities and behavior control. This Note argues that adolescent culpability is mitigated by currently valued standards, informed by science’s conception of the adolescent, and that adolescent crimes consequently warrant the lesser punishment of twenty-five years to life. |
| Griggs | 2008 | Diffuse Axonal Injury from Mild to Moderate Impacts---A Plaintiff's Perspective | Richard A. Griggs | 37 The Brief 3 | Cases involving mild to moderate brain injuries are harder to tackle than cases in which there is objectively discernible injury such as loss of consciousness, skull fracture, or intracranial bleeding on imaging studies. Often such cases involve allegations of diffuse axonal injury (DAI), an injury to the brain that can occur at the microscopic level and not be detectable even by computerized tomography or magnetic resonance imaging. The author explores DAI claims and addresses basic medical information, documentation needed for investigation, and expert testimony required in an emerging area that is gaining support in the medical community and plaintiffs bar and is taken more seriously by defense counsel and insurers. |
| Meixner Jr. | 2016 | The Use of Neuroscience Evidence in Criminal Proceedings | John B. Meixner Jr. | J. L. & Biosciences, 3, 1 | While law and neuroscience has been an increasingly popular topic in academic discourse, until now, little systematic research had examined how neuroscience evidence has actually been used in court. Do courts actually admit and consider evidence of brain trauma that might indicate that an individual did not have the capacity to achieve the mental state required for conviction of particular crime? Do they use such evidence to consider the relative culpability for the crime in the event of conviction? Do they consider or understand brain scan data? For much of the life of this infant field, we have only been able to guess as to the answers to these questions. The four papers discussed here begin to fill that gap in the literature. Each provides a critically important window into use of neuroscience evidence in a large sample of criminal cases of a particular jurisdiction. Importantly, this work provides a guidepost for neuroscientists and legal scholars as to what types of neuroscience evidence courts find relevant and useful—critically important information that should allow scholars to target their work if they hope for it to have practical effects in the courts. Essentially, this type of research provides the critical link between producers of the law and neuroscience product (i.e., researchers producing scholarship) and the most important consumers of that product (i.e., courts applying that research to more fairly resolve cases). In this peer commentary, I briefly provide a summary of what I think are the most important aspects shared between four papers, and discuss critical differences between them. I also provide some suggestions for follow-up work, building on the framework laid out by these authors, and make some predictions as to how neuroscience evidence might be used in the future. |
| Shapiro | 2016 | Truth, Deceit, and Neuroimaging: Can Functional Magnetic Resonance Imaging Serve as a Technology-Based Method of Lie Detection? | Zachary E. Shapiro | Harv. J. L. & Tech. 29, 527 | |
| Shen | 2016 | Neurolegislation: How U.S. Legislators are Using Brain Science | Francis X. Shen | Harv. J. L. & Tech. 29, 495 | |
| Shen | 2016 | Neuroscientific Evidence as Instant Replay | Francis X. Shen | J. L. & Biosciences, 1-7 | |
| Ginther | 2016 | Neuroscience or Neurospeculation? Peer Commentary on Four Articles Examining the Prevalence of Neuroscience in Criminal Cases Around the World | Matthew Ginther | J. L. & Biosciences, 1-6 | |
| Johnston | 2016 | Brain Scanning and Lie Detectors: The Implications for Fundamental Defence Rights | Ed Johnston | 22 European Journal of Current Legal Issues 2 (Special Issue on Criminal Responsibility and Neuroscience) | This paper will examine how advancing neuroscientific technologies may impact on the fundamental human rights of the citizen accused. The paper takes an exploratory approach to analysis; the techniques explored throughout the paper are in their infancy and yet to permeate the criminal justice process of England and Wales. As such develops, other jurisdictions may start relying on the technology and they may be utilized more frequently in criminal trials in countries around the world; which may influence the techniques use in England and Wales. The paper will argue that adversarial criminal justice process of England and Wales should be concerned with both the domestic and international developments in "lie detection" technology. Furthermore, England and Wales should resist any advances to utilize the technology at the pre-trial investigation or trial stage. The paper will conclude that there is a role for neuroscientific evidence to play in the criminal justice process; we just need to ascertain the parameters for its use. |
| Wishart | 2016 | Young Minds, Old Legal Problems: Can Neuroscience Fill the Void? | Hannah Wishart | 22 European Journal of Current Legal Issues 2 (Special Issue on Criminal Responsibility and Neuroscience) | From 10 years of age the criminal law requires a person demonstrate a reasonable degree of normative competence. But what if a young person aged between 10-14 does not possess such mental capacities, cannot do anything about it, and is not capable of holding responsibility? Should the criminal law make allowances for him in these circumstances? I will argue that it should, because neuroscientific studies reveal young adolescents to be incapable of exercising normative competence. For evidence suggests that they are only capable of performing basic mental functions, for instance, self-directed reasoning and appreciating short-term consequences of their actions. In agreement is Lord Dholakia, the principal drafter of the Age of Criminal Responsibility Bill (2015) since the law's idea of what a 10-year-old is mentally capable of is at odds with the degree of maturational development obtained. As a consequence Lord Dholakia proposes that there be an increase the minimum age of criminal responsibility from 10 to 12 years. Though the underlying premise to increase the threshold age is sound, numerous objections will be made, for it will be defended this proposition rests on insufficient neuroscientific evidence. |
| Claydon | 2016 | Fear, Loss of Control and Cognitive Neuroscience | Lisa Claydon & Caroline Rödiger | 22 European Journal of Current Legal Issues 2 (Special Issue on Criminal Responsibility and Neuroscience) | This article considers the introduction of the partial defence to murder of loss of control in England and Wales. It examines whether the structuring of one of the triggers of the defence around the need for fear of serious violence will be helpful to jurors. The article looks at the case law of three jurisdictions: England and Wales, Germany and Australia. It considers a case from each jurisdiction which required the evaluation by the court as to whether someone who killed his or her abusive partner deserved to be excused criminal responsibility. The article considers how the fear of serious violence might be interpreted in the future by the English courts; and whether the jury will be able to appreciate the circumstances of an abused person when evaluating his or her actions. It will also consider how expert evidence may or may not help and what neuroscience tells us about the emotional states of anger and fear. Finally, it concludes by considering the question are these emotional states separable and, if they are not, will that pose a difficulty for jurors? |
| Shaw | 2016 | Psychopathy, Moral Understanding and Criminal Responsibility | Elizabeth Shaw | 22 European Journal of Current Legal Issues 2 (Special Issue on Criminal Responsibility and Neuroscience) | In Scotland and England individuals cannot be relieved from criminal responsibility on the basis that they have psychopathic personality disorder. The insanity defence in England is due to be reformed and, if the Law Commission's proposals are implemented, it is likely that psychopaths will continue to be excluded from that defence. However, some philosophers and neuroscientists have argued that psychopaths should be entitled to a defence, as psychopathy can undermine a person's ability to understand the wrongfulness of criminal conduct. This article will focus on empirical evidence, including findings from neuroscience, which lends some support to this argument. It will argue that brain scans, autonomic testing, interviews and cognitive tests suggest that psychopaths' moral reasoning is impaired. Such evidence should be placed before the jury so that the jury can decide on a case-by-case basis whether individuals with psychopathy should be relieved from criminal responsibility. |
| Catley | 2016 | The Future of Neurolaw | Paul Catley | 22 European Journal of Current Legal Issues 2 (Special Issue on Criminal Responsibility and Neuroscience) | Neuroscientific evidence is being used in civil and criminal courtrooms across the world. It is being used to establish the cause and extent of injuries and the likely prognosis of those injured as well as to support or deny mental condition defences, claims of unfitness to plead and determinations of capacity, responsibility and risk. In the future, as scientific understanding of the workings of the human brain improve, its potential use is huge. It may influence the shaping of the law for example in terms of the age of criminal responsibility and/or the structure of mental condition defences. Future technological advances may enable chronic pain to be identified and measured relatively accurately; with potentially very significant implications for personal injury claimants, medical treatment and possibly end of life decisions potentially for those unable to communicate their wishes. Challenges to current legal approaches may arise through greater understanding of how we lay down memory which may challenge many assumptions about the reliability of witness testimony. Greater challenges may arise in the potential of neuroimaging to identify lies, memory and possibly even thoughts. If such technology becomes accepted as being sufficiently robust then major privacy issues will arise. The potential use to determine whether a suspect or witness is lying or concealing guilty knowledge may to a significant degree usurp the court’s role in determining the veracity of witnesses, but if it is more accurate then should it be embraced in the interests of justice? Pressure to use such technology is unlikely to be limited to courtroom settings, employers may seek to use it as may the security agencies. Different challenges are raised by neuro-enhancement which may not only challenge conceptions as to what it is to be human, but also whether it there should be new rules against unfair competition. |
| Petoft | 2015 | Neurolaw: A Brief Introduction | Arian Petoft | 14 Iran J. Neurol. 53 | Neurolaw, as an interdisciplinary field which links the brain to law, facilitates the pathway to better understanding of human behavior in order to regulate it accurately through incorporating neuroscience achievements in legal studies. Since 1990’s, this emerging field, by study on human nervous system as a new dimension of legal phenomena, leads to a more precise explanation for human behavior to revise legal rules and decision-makings. This paper strives to bring about significantly a brief introduction to neurolaw so as to take effective steps toward exploring and expanding the scope of law and more thorough understanding of legal issues in the field at hand. |
| Krueger | 2016 | The Emerging Neuroscience of Third-Party Punishment | Frank Krueger & Morris Hoffman | 39(8) Trends in Neuroscience 499 | Although it is far too early to say that cognitive neuroscience will have any direct impact on how we sentence criminals, patterns are nevertheless emerging that suggest a neural framework for punishment that could one day have important legal and social consequences. |
| Baum | 2016 | The Neuroethics of Biomarkers: What the Development of Bioprediction Means for Moral Responsibility, Justice, and the Nature of Mental Disorder | Matthew L. Baum | Oxford Series in Neuroscience and Philosophy 1st Edition | Neuroscientists are mining nucleic acids, blood, saliva, and brain images in hopes of uncovering biomarkers that could help estimate risk of brain disorders like psychosis and dementia; though the science of bioprediction is young, its prospects are unearthing controversy about how bioprediction should enter hospitals, courtrooms, or state houses. While medicine, law, and policy have established protocols for how presence of disorders should change what we owe each other or who we blame, they have no stock answers for the probabilities that bioprediction offers. The Neuroethics of Biomarkers observes, however, that for many disorders, what we really care about is not their presence per se, but certain risks that they carry. The current reliance of moral and legal structures on a categorical concept of disorder (sick verses well), therefore, obscures difficult questions about what types and magnitudes of probabilities matter. Baum argues that progress in the neuroethics of biomarkers requires the rejection of the binary concept of disorder in favor of a probabilistic one based on biological variation with risk of harm, which Baum names a "Probability Dysfunction." This risk-reorientation clarifies practical ethical issues surrounding the definition of mental disorder in the DSM-5 and the nosology of conditions defined by risk of psychosis and dementia. Baum also challenges the principle that the acceptability of bioprediction should depend primarily on whether it is medically useful by arguing that biomarkers can also be morally useful through enabling moral agency, better assessment of legal responsibility, and fairer distributive justice. The Neuroethics of Biomarkers should be of interest to those within neuroethics, medical ethics, and the philosophy of psychiatry. |
| Rolfe | 2016 | Mind Over Matters: How Neuroscience is Changing the Law | Dominic Rolfe | 22 L. Soc'y of NSW J. 26 | It wasn't me, it was my brain. The rate of neuroscientific evidence being mentioned in US court cases doubled between 2005 and 2012. While still in its infancy in Australian courts, Dominic Rolfe reports on a growing trend. |
| Cohen | 2016 | When Does a Juvenile Become an Adult? Implications for Law and Policy | Alexandra O. Cohen, Richard J. Bonnie, Kim Taylor-Thompson, & BJ Casey | 88 Temp. L. Rev. 769 | |
| Denno | 2016 | The Place for Neuroscience in Criminal Law | Deborah W. Denno | in Philosophical Foundations of Law and Neuroscience. New York: Oxford University Press 69-83 (Dennis Patterson & Michael Pardo, eds. 2016) | The last thirty years have seen an explosion of neuroscience research on how the mind functions. This research paints a revised image of what constitutes human nature and behavior and how the criminal law can handle those extremes of it that endanger individuals and their society. The revision is important to the criminal law because key criminal law concepts of culpability depend on the internal workings of individuals’ minds. Research into intentionality, consciousness, and brain plasticity are just some examples of areas where new discoveries could help enhance validity and reliability within the criminal justice system. Not surprisingly, lawyers have increasingly introduced neuroscience evidence into the courtroom, a trend suggesting that the complexity of the legal issues raised will only expand as the science progresses. On a more fundamental level, neuroscience is also an excellent resource to revitalize the Model Penal Code’s original focus on subjective determinations of an individual defendant’s blameworthiness, based on that particular defendant’s mental state. Over the last sixty years, the American criminal justice system has become far more punitive, and the subjective inquiry has been overshadowed by a more objective standard that downplays the need to assess individual culpability. The incorporation of modern neuroscience research into the criminal law would bring back a system of justice that more accurately reflects a given defendant’s mental state as well more effectively protects the rest of society. But to benefit from neuroscience in this way, we must first penetrate the mystique that often surrounds the meaning and applicability of the science. We must move on from misconceptions, fears, and misguided debates. And we must realize that although neuroscience brings unique insight to the law, there is nothing about neuroscience that merits unique treatment by the law. |
| Persad | 2016 | Law, Science, and the Injured Mind | Govind Persad | 67 Ala. L. Rev. 1179 | Even while we widely recognize legal liability for physical injury, we frequently discount mental, emotional, and psychological injury. We disfavor tort liability for emotional distress; we prohibit prisoners from suing for purely psychological injuries; and we tax the damages victims of emotional injury receive even while leaving damages for physical injury untaxed. This Article argues that neuroscientific, psychological, and technological advances challenge our traditional ideas about the set of injuries that are possible and that merit legal redress. The Article goes on to contend that, while these advances challenge our traditional ideas, they do not inevitably overturn traditional distinctions within tort law. Rather, they present the task of critically examining and clarifying the normative foundations of distinctions we have historically taken for granted, and considering whether those distinctions survive that searching examination. Part I defines what I call “mind-dependent” injury and presents a set of test cases that challenge current legal approaches to injury and compensation, and discusses the neuroscientific, psychological, and technical underpinnings that moved these cases from science fiction into scientific reality. Part II reviews and examines several legal contexts that distinguish different types of injury and that provide legal remedies for some but not others. Part III considers normative justifications that might be offered for this differentiation, particularly in light of the new information we have. Ultimately, I argue that while new knowledge may require us to reevaluate the distinctions we traditionally have drawn, it does not completely undermine the possibility of normative distinctions between different types of injury. However, it challenges us to better defend those distinctions and ultimately should lead us to abandon the bifurcation between “emotional” and “physical” injuries in favor of a more nuanced approach. |
| Kerkmans | 2016 | Daubert on the Brain: How New Mexico's Daubert Standard Should Inform its Handling of Neuroimaging Evidence | Jason P. Kerkmans & Lyn M. Gaudet | 46 N.M. L. Rev. 383 | The scientific and expert evidence admissibility standard as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.1 and its progeny have been the subject matter of legal scholarship for more than two decades. Daubert remains the reigning guidance on how to approach the admissibility of scientific evidence and has been adopted by the majority of jurisdictions across the country. Since being decided Daubert has also been the subject of much fear and relief, support and challenge from attorneys seeking both greater and lesser limits on the inclusion of scientific evidence in the courtroom. Regardless of whether one believes judges should enforce their power in deciding where the line between junk science and real science is drawn, or if the fact finder should see all evidence and determine its weight accordingly, Daubert is as relevant today as it was in 1993 when the case was decided. This paper seeks to add to the body of literature on how best to analyze scientific evidence by highlighting the importance of a recent contribution to legal scholarship and its application to the growing amount of proffered neuroimaging evidence. Specifically, this paper discusses the G2i framework as articulated by law Professors Faigman, Monahan, and Slobogin, when evaluating proffered expert evidence and corresponding testimony in states that have adopted the Daubert approach. Taking a bifurcated view of all expert evidence, the G2i framework provides courts with the structure for assessing the reliability of both the scientific theory’s general proposition and the individual application of that general proposition to the facts at hand. Part I of this article reviews the expert evidence admissibility standard set forth in Daubert v. Merrell Dow Pharm., Inc. and New Mexico’s adoption of the Daubert standard in State v. Alberico.2 Part II of the article provides a summary of the framework expressed in the 2014 publication Group to Individual (G2i) Inference in Scientific Expert Testimony.3 Part III explores case law where DNA testing was considered as evidence and why the courts have concluded that DNA evidence complies with Daubert/Alberico standards. Part IV provides a summary of the use of neuroimaging evidence in court and provides an overview of the different neuroimaging techniques being used. Neuroimaging evidence is being increasingly offered in both criminal and civil cases and as a result we believe that a basic familiarity with the different types of techniques is important for all jurists. Part V highlights the distinction between novel science and clinically-established science in showing that Daubert finds its highest purpose when evaluating novel techniques and theories. Part VI concludes that certain types of neuroscience data can be and has been deemed reliable at both the general and individual level through the application of Daubert under a G2i framework. |
| Moratti | 2016 | Legal Insanity and the Brain | Sofia Moratti & Dennis Patterson | Sofia Moratti & Dennis Patterson, Legal Insanity and the Brain (1st ed. 2016) | This landmark publication offers a unique comparative and interdisciplinary study of criminal insanity and neuroscience. Criminal law theories and ideologies which underpin the regulation of criminal insanity have always been the subject of controversy. The history of criminal insanity is characterised by conceptual and empirical tension between two disciplinary realms: the law and the mind sciences. The authors in this anthology explore in depth the state of the art of legal insanity and the numerous intricate, fascinating, pioneering and sophisticated questions raised by the integration of different criminal law and behaviour theories, diverse disciplines and methodologies, in a genuinely interdisciplinary perspective. This volume will serve as a practical guide for the comparative legal scholar and the judge, as well as stimulating scholarly reading for the neuroscientist, the social scientist and the philosopher with interdisciplinary scientific interests. - See more at: http://www.bloomsburyprofessional.com/uk/legal-insanity-and-the-brain-9781509902323/#sthash.KQVPZRm4.dpuf |
| Chamberlain | 2016 | What Can You See? Promise and Limits of Neuroimaging as Evidence | John R. Chamberlain | Case in Point: The Brain Issue, The Magazine of the National Judicial College, 9-13 | . |
| Uekert | 2016 | The Aging Brain and Capacity: Misconceptions and Advances | Brenda K. Uekert | Case in Point: The Brain Issue, The Magazine of the National Judicial College, 18-21 | . |
| Tait | 2016 | Procedural Fairness: A Treat For the Brain | Kelly Tait | Case in Point: The Brain Issue, The Magazine of the National Judicial College, 25-26 | . |
| García-López | 2016 | Psicopatología Forense. Derecho, Neurosiencias y Sistema de Justicia Penal | Eric García-López, Feggy Ostrosky, Gerardo Laveaga, & Enrique Esbec Rodríguez | Eric García-López, et al., Psicopatología Forense. Derecho, Neurosiencias y Sistema de Justicia Penal (2016). | Featured jurors, notable neuropsychologists, experts in victimology and forensic psychopathology have come together in this new book to jointly analyze the importance of one word that invites the necessary process of rethinking the right […] the proposition involves four perspectives over the relationships between the Rights and the Neurosciences through one concept, one word. This word – Neurolaw – has a transcendence of such magnitude, that universities such as Oxford, Harvard, or Stanford have created investigation centers, communication programs, and specialized studies on it. In the case of our country, the National Autonomous University of Mexico (UNAM) has inaugurated a permanent seminar in Legal Neuroscience and Forensic Psychopathology, which demonstrates the relevance and actuality of the concept that is profoundly studied in this work. Those that have written this book are also leading university professors, scientists, and referred authors, that notably bring together their academic formation with ample experience from their professional practice. They allow you to raise possibilities of social transcendence and real application to the problematic relationships with the interaction within the legal study and the neuroscience studies that benefit the justice system. The lecturer has in their hands a pioneered work, one of the first examples written in Spanish on the importance of the concept Neurolaw and its relationship with the Right. |
| Gaudet | 2016 | Under the Radar: Neuroimaging Evidence in the Criminal Courtroom | Lyn M. Gaudet & Gary E. Marchant | 65 Drake L. Rev. 577 | This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013– 2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases. In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual. As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data. |
| Dumit | 1999 | Objective Brains, Prejudicial Images | Joseph Dumit | 12 Sci. Context 173 | In this article I argue that brain images constructed with computerized tomo- graphy (CT) and positron emission tomography (PET) are part of a category of "expert images" and are both visually persuasive and also particularly difficult to interpret and understand by non-experts. Following the innovative judicial analogy of "demonstrative evidence" traced by Jennifer Mnookin (1998), I show how brain images are more than mere illustrations when they enter popular culture and courtrooms. Attending to the role of experts in producing data in the form of images, in selecting extreme images for publication, and in testifying as to their relevance, 1 argue that there is an undue risk in courtrooms that brain images will not be seen as prejudiced, stylized representations of correlation, but rather as straightforward, objective photographs of, for example, madness. |
| Roskies | 2007 | Are Neuroimages Like Photographs of the Brain? | Adina L. Roskies | 74 Philosophy of Sci. 860 | Images come in many varieties, but for evidential purposes, photographs are privileged. Recent advances in neuroimaging provide us with a new type of image that is used as scientific evidence. Brain images are epistemically compelling, in part because they are liable to be viewed as akin to photographs of brain activity. Here I consider features of photography that underlie the evidential status we accord it, and argue that neu- roimaging diverges from photography in ways that seriously undermine the photo- graphic analogy. While neuroimaging remains an important source of scientific evi- dence, proper interpretation of brain images is much more complex than it appears. |
| Pratt | 2005 | "Soft" Science In the Courtroom?: The Effects of Admitting Neuroimaging Evidence Into Legal Proceedings | Bridget Pratt | 1 Penn Bioethics J. 1 | . |
| Ginther | 2016 | Parsing the Behavioral and Brain Mechanisms of Third-Party Punishment | Matthew R. Ginther, Richard J. Bonnie, Morris B. Hoffman, Francis X. Shen, Kenneth W. Simons, Owen D. Jones, & René Marois | 36 J. Neuroscience 9420 | The evolved capacity for third-party punishment is considered crucial to the emergence and maintenance of elaborate human social organization and is central to the modern provision of fairness and justice within society. Although it is well established that the mental state of the offender and the severity of the harm he caused are the two primary predictors of punishment decisions, the precise cognitive and brain mechanisms by which these distinct components are evaluated and integrated into a punishment decision are poorly understood. Using fMRI, here we implement a novel experimental design to functionally dissociate the mechanisms underlying evaluation, integration, and decision that were conflated in previous studies of third-party punishment. Behaviorally, the punishment decision is primarily defined by a superadditive interaction between harm and mental state, with subjects weighing the interaction factor more than the single factors of harm and mental state. On a neural level, evaluation of harms engaged brain areas associated with affective and somatosensory processing, whereas mental state evaluation primarily recruited circuitry involved in mentalization. Harm and mental state evaluations are integrated in medial prefrontal and posterior cingulate structures, with the amygdala acting as a pivotal hub of the interaction between harm and mental state. This integrated information is used by the right dorsolateral prefrontal cortex at the time of the decision to assign an appropriate punishment through a distributed coding system. Together, these findings provide a blueprint of the brain mechanisms by which neutral third parties render punishment decisions. |
| Scott | 2016 | Young Adulthood as a Transitional Legal Category: Science, Social Change and Justice Policy | Elizabeth Scott, Laurence Steinberg, & Richard J. Bonnie | Fordham L. Rev. (forthcoming 2016) | . |
| Scott | 2016 | Juvenile Sentencing Reform in a Constitutional Framework | Elizabeth Scott, Thomas Grisso, Marsha Levick, & Laurence Steinberg | 88 Temple L. Rev. 675 | . |
| Fernandez | 2008 | Interpretação Jurídica: Razão E Emoção | Atahualpa Fernandez | Universo Jurídico, Juiz de For a, ano XI | When a law professor (particularly the judge) processes what is (or should be) emotional material as if there is no connotation whatsoever, their behavior is much like that of a psychopathic individual: their activity would be characterized by an insufficient activation of brain regions associated with emotion, and poor integration of the cognitive and emotional processes. For an operator of this type, which should necessary be a cognitive/emotional experience, not merely be a purely cognitive or intellectual fact: a psychopath with a robe. |
| Fernandez | 2005 | Law and Neuroscience | Atahualpa Fernandez | Berkeley Electronic Press, Working Paper No. 623 | Localizing the brain correlates related to moral judgments, using neuroimage techniques (and also studies on brain lesions), seems to be, without doubt, one of the big events in the history of the normative social sciences.The best neuroscientific model of normative judgment available today establishes that the ethical-cerebral law operator counts on, in his neural evaluative-affective systems, a permanent presence of requirements, obligations and strategies, with a “should be” that incorporates internally rational and emotional reasons, that are constitutively integrated in all the activities at the practical, theoretical and normal levels of every process of exercising the law. |
| Fernandez | 2006 | Mind, Brain and the Law | Atahualpa Fernandez | Berkeley Electronic Press, Working Paper No. 1530 | The possibility of using neuroimaging techniques to identify the neural correlates of moral judgment by means of is, undoubtedly, one of the most important developments in the history of normative social sciences. As neuroscience gradually affords a more sophisticated knowledge of the brain, the possible moral, legal and social implications of the knowledge about out cognitive ontogenetic program are beginning to be considered under a more empirical perspective and in a way which is more respectful with scientific methods. |
| Fernandez | 2011 | Recionalidade Jurídica, Emoção E Atividade Jurisdicional | Atahualpa Fernandez & Manuella Maria Fernandez | Âmbito Jurídico | Despite the variety of the set of theories elaborated on the legal interpretation, most contemporary models developed on the task and the very unity of the realization of the right continue to not give due importance to the role of emotions in decision-making processes in the legal realm - that are constructed from theoretical models without any minimally serious empirical scrutiny, lacking the slightest self-consciousness regarding the neuronal reality that constitutes us and the deep philosophical and neuropsychological problems that imply any theory of intentional human action. |
| Fernandez | 2012 | Interpretação E Racionalidade Jurídica: Teorias Convincentes, Mas Equivocadas | Atahualpa Fernandez & Marly Fernandez | Boletim Jurídico | . |
| Fernandez | 2006 | Derecho Y Neurociencia | Atahualpa Fernandez | 13 Ludus Vitales 131 | This article discusses some questions regarding the impact that cognitive neuroscience can have for the current theoretical and methodological building of legal science. The location of the cerebral correlates related to moral judgment, both using neuroimaging techniques and through studies on brain injuries, seems to be, without doubt, one of the great news in the history of the normative social sciences. The best neuroscientific model of normative judgment available today establishes that the operator of law has, in its neuronal evaluative-affective systems, a permanent presence of the demands, obligations and strategies, with a "must-be" that internally incorporates and emotions and that is constitutively integrated into the activities of the practical levels. |
| Fernandez | 2006 | El Derecho Y El Órgano De La Moral | Atahualpa Fernandez | 13 Nómadas. Revista Critica de Ciencias Sociales y Jurídicas 1 | . |
| Fernandez | 2005 | Law and Human Nature: The Social-Adaptive Function of the Normative Behavior | Atahualpa Fernandez | Berkeley Electronic Press | The objective of this article is to offer a critical (re)interpretation of gene- sis and evolution, object and purpose, as well as useful qualified methods for interpreting, justifying and applying modern practical law, all with the inten- tion of putting philosophic thought and contemporary formal theory of reason at the service of hermeutics and juridical argumentation. Law is no more—no less—than an social-adaptive strategy, evermore complex, but always noticeably deficient, used to articulate argumentatively—in fact, not always with justice— through the virtue of prudence, elementary relational social ties through which men construct approved styles of interaction and social structure, i.e., to orga- nize and ethically improve political and social life in such a way as to permit that no free citizen—rich or poor—should fear the arbitrary interference of other social actors in his life plan. |
| Fernandez | 2006 | Moral Intelligence: Mind, Brain and the Law | Atahualpa Fernandez | Berkeley Electronic Press, Working Paper 659 | This paper discusses several issues at the impact of cognitive neuroscience have to do with the current theoretical and methodological edifice of juridical science. Localizing the brain correlates related to moral judgments, using neuroimage techniques (and also studies on brain lesions), seems to be, without doubt, one of the big events in the history of the normative social sciences. The best neuroscientific model of normative judgment available today establishes that the ethical-cerebral law operator counts on, in his neural evaluative-affective systems, a permanent presence of requirements, obligations and strategies, with a “should be” that incorporates internally rational and emotional reasons, that are constitutively integrated in all the activities at the practical, theoretical and normal levels of every process of exercising the law. |
| Fernandez | 2006 | Naturaleza Humana Y Derecho: Un Modelo De Discurso Jurídico Revisado | Atahualpa Fernandez | . | I do not think, so far, the development of knowledge in my discipline has contributed much to alter the possibilities of human action. |
| Jones | 2016 | Readying the Legal Community for More Neuroscientific Evidence. OPINION: Understanding Complex Advances in Neurolaw Can Aid the Administration of Justice | Owen D. Jones | The Nat'L L. J. | . |
| Patterson | 2016 | The Promise of Neuroscience for Law: 'Overclaiming' in Jurisprudence, Morality, and Economics | Dennis Patterson & Michael S. Pardo | (Dennis Patterson & Michael S. Pardo eds., 2016) | This chapter considers the claims made on behalf of neuroscience in three areas: legal philosophy, emotion and moral judgment, and economics. It argues that reductionist claims made for the explanatory power of neuroscience are simply not demonstrated in these areas. Neuroscience, at least so far, tells us nothing of import in the area of legal philosophy. With respect to moral judgments, there are many interesting claims made about the roles of emotion, but there is no evidence that neuroscientific data about the brain provides answers to the difficult normative questions. Finally, even if neuroscience can tell where in the brain one finds the neural correlates of economic decisions, it is questionable whether this information answers any normative questions about rationality or economic reasoning. |
| Gligorov | 2016 | Brain Imaging and the Privacy of Inner States | Nada Gligorov | in Neuroethics and the Scientific Revision of Common Sense | Improvements in our ability to identify brain function as it is occurring through brain imaging have brought to the forefront the issue of mental privacy. Several authors have cited potential infringement on privacy as one of the primary ethical issues related to the application of brain imaging technology to clinical, research, and legal contexts. I challenge the argument that the use of functional magnetic resonance imaging (fMRI) poses a threat to mental privacy and that this type of privacy requires extra protections. I review all the positions about the nature of mental states that establish a category of mental privacy and conclude that none of those views can support both the claim that there is a category of mental privacy and that this type of privacy can be violated through the use of brain imaging. I further argue that the only position about the nature of mental states that erases the epistemological gap between introspection and third-person access to our inner states is eliminative materialism. Eliminativism, however, does this by denying the categories of folk psychology, including the category of mental privacy. Finally, I argue that because no view about the nature of mental states can support the argument that ‘brain reading’ will result in ‘mindreading,’ fMRI does not pose a threat to mental privacy. I conclude that special protections for mental privacy are not required because informational privacy already protects, at least in principle, the privacy of information about patients and about research participants in whatever way it is obtained. |
| Picozza | 2016 | Neuro Law: Validity and Limits of a Neuroscientific Approach to Problems Relating to Law and Justice | Eugenio Picozza | in Neurolaw: An Introduction (Eugenio Picozza, ed., 2016) | In a not too far past, the so-called cognitive neuroscience started to spread its influence also over issues regarding law and justice, arousing a general interest. As a consequence, a new expression, neurolaw has been coined. The author used to point out that an imprecise generalization should not be applied to the ontological problems of law and justice and that they instead should be kept separated. Starting from the basis of Descartes’ thought, the author underlies how this construction was challenged about a century ago by the psychoanalysis, which demonstrated that human actions are strongly conditioned by the unconscious impulses. The essay continues to throw some light on the paths leading to both the comprehension and the use of single disciplines, first, the different branches of law. Thus, the author shows how difficult it is today to deal with the subject of the interpretation which—together with the efficiency of the juridical system—is still now the core of the legal world and in particular in the fields of the philosophy of law, in the general theory and in the so-called juridical dogmatic. |
| Terracina | 2016 | Criminal Law Issues | David Terracina | in Neurolaw: An Introduction (Eugenio Picozza, ed., 2016) | Acquisitions coming from cognitive neuroscience about the way our mind works and the close link between mind and brain require both to the lawyer in general, but even more to the criminal lawyer, to ask himself some basic questions about the correspondence between the current criminal law and the modern idea of human being. In fact, a criminal law that aspires to be truly democratic, it is to say that wishes to consider the human being as end in himself and not as here mean (Kant), it will not (be) contemplated without an accurate knowledge of the man himself. Therefore, the question is whether the acquisitions of neuroscience—virtually putting in crisis the traditional categories of criminal law, such as free will—can also put in crisis the traditional categories of criminal law, or whether they require a serious afterthought of their own. |
| Capraro | 2016 | Criminal Procedure Issues | Laura Capraro | in Neurolaw: An Introduction (Eugenio Picozza, ed., 2016) | The chapter focuses on the possible reflections of cognitive neuroscience within the criminal trial. On one hand neuroscientific methods in the perspective of judicial reconstructions of the fact will be considered; on the other hand how judges’ decision-making is influenced by emotion will be addressed. |
| Cuzzocrea | 2016 | General Issues | Vera Cuzzocrea | in Neurolaw: An Introduction (Eugenio Picozza, ed., 2016) | The contribution reflects the concepts of imputability and personal responsibility, and aims to reflect on the relationship between neuroscientific evidence and deterministic logic in general. While research shows the neurobiological basis of many behaviors, opening a new way of interpreting the disease, diagnose and intervene on them, it also helps us understand how complicated it is to establish, in criminal cases, the degree of self-determination of certain types of people who commit crimes. It is believed that the complex nature of the act human, hence, also the deviant personality, the decisions taken at the level of delinquent and the results that follow, also in terms of criminal response, must be assumed that the “biological push” is not sufficient to explain this complexity. |
| Picozza | 2016 | Neurolaw: An Introduction | Eugenio Picozza | (Eugenio Picozza, ed., 2016) | . |
| Senholzi | 2016 | The Neural Mechanisms of Prejudice Intervention | Keith B. Senholzi & Jennifer T. Kubota | in Neuroimaging Personality, Social Cognition, and Character (Jasmin Cloutier, ed., 2016) | The purpose of this chapter is to integrate across the behavioral science and neuroimaging literature on prejudice in an effort to elucidate the mechanisms of prejudice intervention from which scientists can derive innovative theoretical insights for future research. We will focus our overview and analysis primarily on racial prejudice directed toward Blacks in the United States, not because other types of prejudice do not exist, but primarily due to the unfortunate lack of available data involving other types of prejudice and groups (see the Discussion section for suggestions regarding potentially fruitful avenues for future research relating to this concern). |
| Funk | 2009 | The Functional Brain Architecture of Human Morality | Chadd M. Funk & Michael S. Gazzaniga | 19 Current Opinion in Neurobiology 678 | Human morality provides the foundation for many of the pillars of society, informing political legislation and guiding legal decisions while also governing everyday social interactions. In the past decade, researchers in the field of cognitive neuroscience have made tremendous progress in the effort to understand the neural basis of human morality. The emerging insights from this research point toward a model in which automatic processing in parallel neural circuits, many of which are associated with social emotions, evaluate the actions and intentions of others. Through various mechanisms of competition, only a subset of these circuits ultimately causes a decision or an action. This activity is experienced consciously as a subjective moral sense of right or wrong, and an interpretive process offers post hoc explanations designed to link the social stimulus with the subjective moral response using whatever explicit information is available. |
| Shafi | 2009 | Neuroscience and Law: The Evidentiary Value of Brain Imaging | Noel Shafi | 11 Graduate Student J. Psychology 27 | Neuroimaging evidence should be restricted in terms of admissibility in the courts, and should only be considered reliable under scientifically valid clinical methods. This topic will be approached in four stages: (1) a brief introduction to neuroscience and law, (2) a discussion of evidentiary laws in the American legal system, (3) a review of modern neuroimaging and the admissibility and applicability of neuroimaging evidence in the courtroom using actual cases, and 4) a closing argument, including interdisciplinary perspectives on neuroscience and law. |
| Gaudet | 2016 | Can Neuroscience Help Predict Future Antisocial Behavior? | Lyn M. Gaudet, Jason Kerkmans, Nathaniel Anderson & Kent Kiehl | 85 Fordham L. Rev. 503 | Our society is founded on a collection of rules regarding acceptable and unacceptable behavior. These rules are shaped by beliefs and values and are subject to revision through the democratic legislative process. For the most part, the rules are well known and widely followed. Society functions on the premise that its members are aware of and will follow the rules. Our criminal justice system, in turn, is designed to determine if a violation of society’s rules occurred and whether that violation warrants a sanction. If so, the justice system assesses the level of responsibility, culpability, and punishment appropriate for individual offenders. Given these responsibilities, the criminal justice system has to make decisions regarding individuals. These decisions often involve prediction. Indeed, most decisions in the criminal justice system involve some form of prediction. Consider, for example, the following decisions: choosing whether or not to grant bail, probation, or parole to an individual; establishing whether an individual is eligible for treatment; and determining his or her appropriate sentence. Each of these processes involves some type of evaluation of an individual in order to make a decision — ideally an informed, objective, and reliable decision — about what he or she is likely to do or to not do in the future. A key concern for the criminal justice system is an individual’s likelihood of displaying future antisocial behavior, or behavior that involves a disregard for the rules and the well-being of others. The traditional assessments used to evaluate offenders for future risk of antisocial or violent behavior include self-reporting measures, various types of interviews, and expert-administered test batteries. These tools seek to assess possible intellectual and cognitive impairment and to measure psychological and neuropsychological constructs, including personality states and traits. But, given that the brain has the most proximal influence on behavior, direct measures of brain structure and function may be better than proxy measures in predicting future antisocial behavior. The question then becomes: If we can get information from neuroscience techniques, does that information add predictive utility to understanding and assessing antisocial behavior? To date, studies suggest that it does. Part I of this Article reviews the tools currently available to predict antisocial behavior. Part II discusses legal precedent regarding the use of, and challenges to, various prediction methods. Part III introduces recent neuroscience work in this area and reviews two studies that have successfully used neuroimaging techniques to predict recidivism. Part IV discusses some criticisms that are commonly levied against the various prediction methods and highlights the disparity between the attitudes of the scientific and legal communities toward risk assessment generally and neuroscience specifically. Lastly, Part V explains why neuroscience methods will likely continue to help inform and, ideally, improve the tools we use to help assess, understand, and predict human behavior. |
| Denno | 2016 | How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence | Deborah W. Denno | 85 Fordham L. Rev. 453 | Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence. For example, according to some commentators, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility for their offenses. In contrast, the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society. This “double- edged sword” view of neuroscience evidence is important for flagging concerns about the law’s construction of criminal responsibility and punishment: it demonstrates that the same information about the defendant can either be mitigating or aggravating depending on who is raising it. Yet empirical assessments of legal decisions reveal a far more nuanced reality, showing that public beliefs about the impact of neuroscience on the criminal law can often be wrong. |
| Editorial | 2008 | Deceiving the Law | Editorial | 11 Nature Neuroscience 1231 | Lie-detection tests have not been scientifically proven to reliably detect deception at an individual level, yet they are being marketed by several companies and have even been admitted as evidence in an Indian court. This calls for a critical appraisal of these technologies and regulatory measures to prevent misuse. |
| Langleben | 2016 | Polygraphy and Functional Magnetic Resonance Imaging in Lie Detection: A Controlled Blind Comparison Using the Concealed Information Test | Daniel D. Langleben, Jonathan G. Hakun, David Seelig, An-Li Wang, Kosha Ruparel, Warren B. Bilker & Ruben C. Gur | 77 J. Clinical Psychiatry 1372 | Intentional deception is a common act that often has detrimental social, legal, and clinical implications. In the last decade, brain activation patterns associated with deception have been mapped with functional magnetic resonance imaging (fMRI), significantly expanding our theoretical understanding of the phenomenon. However, despite substantial criticism, polygraphy remains the only biological method of lie detection in practical use today. We conducted a blind, prospective, and controlled within-subjects study to compare the accuracy of fMRI and polygraphy in the detection of concealed information. Data were collected between July 2008 and August 2009. Participants (N = 28) secretly wrote down a number between 3 and 8 on a slip of paper and were questioned about what number they wrote during consecutive and counterbalanced fMRI and polygraphy sessions. The Concealed Information Test (CIT) paradigm was used to evoke deceptive responses about the concealed number. Each participant’s preprocessed fMRI images and 5-channel polygraph data were independently evaluated by 3 fMRI and 3 polygraph experts, who made an independent determination of the number the participant wrote down and concealed. Using a logistic regression, we found that fMRI experts were 24% more likely (relative risk = 1.24, P < .001) to detect the concealed number than the polygraphy experts. Incidentally, when 2 out of 3 raters in each modality agreed on a number (N = 17), the combined accuracy was 100%. These data justify further evaluation of fMRI as a potential alternative to polygraphy. The sequential or concurrent use of psychophysiology and neuroimaging in lie detection also deserves new consideration. |
| Shniderman | . | The Slippery Slope of Reasons-Responsiveness for the Criminal Justice System | Adam B. Shniderman & Lauren B. Solberg | Am. J. Bioethics | Darby, Edersheim, and Price (2016) suggest that reasons-responsiveness is a useful way of conceptualizing moral and legal responsibility for individuals with bvFTD and other psychological conditions that impair the ability to alter behavior in response to logic/reason. We contend that these are limitations inherent in criminality - those who violate social norms have demonstrated an inability or unwillingness to conform their conduct to the law, leaving open the possibility that under certain formulations of reasons-responsiveness the act of committing a crime makes one not responsible for that crime. This concept of moral and legal responsibility requires that society draws distinctions based on etiology - treating an individual who has no regard for consequences because of disease, differently from an individual who commits a theft due to deficits in risk-responsiveness because of long-term socialization. Otherwise, reason-responsiveness might force us to excuse an individual that seems to be the very type of individual the penal system is in place to address. Additionally, we contend that excuse or diminution of responsibility under reason-responiveness ignores other penological aims of the criminal justice system, particularly incapacitation for the protection of others in society. |
| Johnson | 2016 | When Empathy Bites Back: Cautionary Tales from Neuroscience for Capital Sentencing | Sheri Lynn Johnson, Amelia Hritz, Caisa Royer & John H. Blume | 85 Fordham L. Rev. (forthcoming 2016), Cornell Legal Studies Research Paper No. 16-39 | Empathy lies at the core of the capital trial. If jurors come to see the defendant as “different,” “other,” or not “fully human,” they are more likely to determine that the defendant “deserves” the ultimate punishment, making what the Supreme Court has described as essentially a moral judgment about the value of the life of the accused. Conversely, if jurors can identify with the defendant, imagine his “walk in life,” or “see the world through his eyes,” they are less likely to choose the death penalty. Despite its importance and decades of research, empathy is not clearly understood, and its implications for capital trials are largely unexplored. This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We consider implications for jury selection, the presentation of evidence, and arguments by counsel. We conclude that the neuroscience findings we have summarized provide additional support for our prior conviction: It is not possible for a system of capital punishment to neutrally determine which defendants “deserve” death. |
| Gertner | 2016 | Neuroscience and Sentencing | Nancy Gertner | 85 Fordam L. Rev. 533 | This symposium comes at a propitious time for me. I am reviewing the sentences I was obliged to give to hundreds of men—mostly African American men—over the course of a seventeen-year federal judicial career. As I have written elsewhere, I believe that 80 percent of the sentences that I imposedwereunfair,unjust,anddisproportionate. EverythingthatIthought was important—that neuroscientists, for example, have found to be salient in affecting behavior—was irrelevant to the analysis I was supposed to conduct. My goal—for which this symposium plays an important part—is to reevaluate those sentences now under a more rational and humane system, this time at least informed by the insights of science. The question is how to do that: How can neuroscience contribute to the enterprise and what are the pitfalls? This Article represents a few of my preliminary conclusions, but my retrospective analysis is not complete. I approach the issue of neuroscience and sentencing from three vantage points. First, I look at the sentencer’s brain. I ask who the sentencing decision maker is and what cognitive and other pressures the sentencer experiences. Theinsightsofneurosciencewillbeanullityiftheyarefiltered through a system—like the one I labored under—that makes them irrelevant, ignored, and even trivialized. Likewise, science will be irrelevant if decades of a mandatory sentencing system has affected the cognitive lens through which judges today see the sentencing task, as I believe it has. Nearly thirty years of sentencing by a flawed formula—of avoiding the exercise of meaningful discretion; of major changes in the division of labor on sentencing between Congress, prosecutors, and the U.S. Sentencing Commission; and of a relentless focus on retribution and sentencing disparity, rather than rehabilitation or deterrence—has altered the “sentencer’s brain.” Second, I address the sentencing stage, the context in which neuroscience may play a role, and the rules governing it. Sentencing is the territory of what I have described as “good enough” evidence, where the rules of evidence, including the rules on the admission of expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., do not apply and where there are few constitutional protections guaranteeing the defense’s access to information. This is a setting that poses considerable promise and dangers for science: the promise of using neuroscience to meaningfully individualize sentences on the one hand, and the risks of manipulation in the introduction of junk science on the other. Third, I address—at a very preliminary level—what kind of substantive content neuroscience can bring to sentencing decisions. Because the science is changing rapidly, this section is suggestive at best. Its implications for sentencing could well fill a tome, not an article. |
| Gur | 2016 | A Perspective on the Potential Role of Neuroscience in the Court | Ruben C. Gur, Oren M. Gur, Arona E. Gur & Alon G. Gur | 85 Fordham L. Rev. 547 | This Article presents some lessons learned while offering expert testimony on neuroscience in courts. As a biomedical investigator participating in cutting-edge research with clinical and mentoring responsibilities, Dr. Ruben Gur, Ph.D., became involved in court proceedings rather late in his career. Based on the success of Dr. Gur and other research investigators of his generation, who developed and validated advanced methods for linking brain structure and function to behavior, neuroscience findings and procedures became relevant to multiple legal issues, especially related to culpability and mitigation. Dr. Gur found himself being asked to opine in cases where he could contribute expertise on neuropsychological testing and structural and functional neuroimaging. Most of his medical-legal consulting experience has been in capital cases because of the elevated legal requirement for thorough mitigation investigations in such cases, and his limited availability due to his busy schedule as a full-time professor and research investigator who runs the Brain and Behavior Lab at the University of Pennsylvania (“Penn”). Courtroom testimony, however, has not been a topic of his research and so he has not published extensively on the issues in peer-reviewed literature. Dr. Gur’s specific experience has been providing testimony as to the potential behavioral effects of brain damage in certain regions of the brain. Although the law has a long history with testimony on this subject, the slow process of creating legislation and establishing precedent leaves the law behind the rapid pace of scientific innovation. The law has yet to fully absorb the kind of rigorously tested brain behavior science that is increasingly available. It is no surprise that there are opponents of introducing neuroscience testimony, either because they feel it is flawed in some way (methodologically or as applied) or because they feel that its probative value is outweighed by the potential to unduly influence the trier of fact. Still, the field is rapidly evolving, and multimodal integration will pave the way for additional, heretofore unimaginable mechanistic insights. Ironically, a potential hurdle for the neuroscientist involved in expert testimony is that, while more precise and reliable, data will become increasingly more difficult to understand and, therefore, explain. It has become hard to find experts who can speak knowledgeably about behavior and the range of neuroimaging parameters relevant to its interpretation. To provide a framework for appreciating the contribution that neuroscience can make to the courts, this Article begins in Part I with a brief historical overview of the evolution of behavioral neuroscience to the point of becoming relevant in court. Next, Part II presents a brief account of how Dr. Ruben Gur became involved in litigation, primarily offering neuroscience-based expertise as mitigation evidence in capital cases. Part II also briefly describes the typical analytical processes4 used by Dr. Gur and other neuroscience experts he consults with when responding to requests for expert analysis. Part III then outlines some of the lessons learned from testifying as a neuroscience expert. Finally, Part IV concludes with a discussion of some of the objections raised against the use of neuroscience testimony in the courtroom. |
| Murphy | 2016 | Neuroscience and the Civil/Criminal Daubert Divide | Erin Murphy | 85 Fordam L. Rev. 619 | Advances in neuroscience have dramatically expanded our knowledge of the brain and how it operates. Although many mysteries remain, the early architectures of our understanding have already left impressions on the legal system. Neuroscientific evidence has been offered to support claims by litigants in both civil and criminal cases, ranging from broad-based generalities (such as “juvenile brains are generally immature in these ways”) to individualized opinions (such as “this defendant lacked the cognitive capacity to control this behavior”). As such evidence trickles into the courts, scholars have debated the scientific foundation of such claims, the scope of their applicability, and whether such evidence has met some threshold of reliability imposed before courts and fact-finders ought to accept them. But most scholarly treatments of neuroscientific proof overlook a more fundamental question regarding evidentiary admissibility: What impact will the standard applied to determine admission—both de jure and de facto—have on the rate of acceptance of this new evidence? History suggests that, when it comes to proffers of scientific evidence, civil and criminal proceedings are not in fact created equal. Moreover, the application of evidentiary standards varies widely, and constitutional oversight of evidentiary rules is, for litigants other than a criminal defendant, somewhere between threadbare and nonexistent. This Article thus speculates on the course of neuroscience-as-proof with an eye toward the actual admissibility standards that will govern the acceptance of such evidence by courts, not just as a matter of formal law but also as a function of historical custom. Given the legal system’s spotty record with scientific evidence—which is to say, both the demonstrated willingness of the system to admit unproven “science” or to exclude evidence despite a seemingly adequate scientific foundation—the trajectory of neuroscience in the courts cannot be predicted simply by asking about its scientific legitimacy in the abstract. Rather, an observer must ponder whether patterns of admissibility long evident in criminal and civil courts will persevere with respect to neuroscientific proof. One clarification is warranted. Throughout this Article, I use the phrases “novel neuroscience” and “novel neuroscientific evidence.” Capturing precisely what is meant by “neuroscience,” much less “novel neuroscience,” can often prove more elusive than seems at first glance. I generally follow Professor Nita Farahany’s approach, which prefers the word “neurobiological” to capture “evidence about the study of the brain and the nervous system,” which includes “claims about the ‘normal’ brain, abnormal brain, effects on neurotransmitters, brain structure, function, and genetic contributions to neurological functioning and structure.” Professor Farahany’s definition also broadly encompasses evidence based on imaging techniques (such as CT or MRI), as well as findings drawn from interviews (intended to elicit, for instance, whether a person had a brain injury) or psychological assessments. I further circumscribe this category to “novel neuroscience.” By this, I mean to exclude relatively noncontroversial uses of neuroscience, such as those that show an undisputed physical insult or injury to the brain, or its fairly noncontroversial consequence, like a car accident that results in visible damage to a portion of the brain affecting speech, where the injured person developed precisely that expected speech impairment. I also intend to exclude assessments that have only remote connection to the physical condition of the brain, such as psychological assessments that have no connection to any observed physiological conditions. In short, I mainly intend to speak to precisely what the phrase suggests: novel or cutting-edge methods—whether scan-based or assessment-based—that purport to link a finding about the structure or physiological function of the brain to a manifested behavior, cognitive power, or psychology. Moreover, this Article considers the likely treatment of novel neuroscientific evidence when offered in courts at this moment in scientific understanding; in other words, it does not assume any game-changing breakthroughs on what may reliably be proven. Part I begins by recounting the historical divide between civil and criminal courts with respect to the treatment of novel scientific evidence. Part II then explores, both by examining current trends and predicting future trajectories, whether this pattern of differential treatment is likely to endure as courts begin to confront the admissibility of novel neuroscience. |
| Donald | 2016 | A Glimpse Inside the Brain's Black Box: Understanding the Role of Neuroscience in Criminal Sentencing | Bernice B. Donald & Erica Bakies | 85 Fordam L. Rev. 481 | It is not a secret: size matters. And where it matters most is within the most complex structure in the universe—the brain, a mass of gray and white matter that controls an extraordinary number of functions and processes that allow us to walk, talk, breathe, reason, feel emotions, and perceive and experience the world around us. While we have made great strides in studying this three-pound ball of cells, it still mostly remains a mystery beyond our grasp of comprehension. But what little we do know has led to great developments in the legal community and especially in the criminal justice system. This Article focuses on the utilization of neuroscience and its developing technology in the courtroom, particularly at the sentencing phase of trial. While the brain encompasses a wide variety of fields of study, neuroscience offers specific and tangible insight into brain underdevelopment and brain injuries. For example, neuroscience demonstrates that what our childhood was like—whether good, bad, or in between—greatly impacts the full development of this vital organ. Studies show that exposure to stress and instability actually prevents the brain from fully developing. In other words, the brain remains small and those processes it controls immature. Children exposed to trauma face a number of disorders, including “depression, attention-deficit/hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), conduct disorder, anxiety disorders, eating disorders, sleep disorders, communication disorders, separation anxiety disorder, and/or reactive attachment disorder,” to name a few. Because the effects of childhood trauma stem from one’s surroundings, children who live in inner cities that are plagued with violence and racial tension often experience childhood trauma and the diagnoses that follow it. Notably, the same types of experiences are present in children who are exposed to the welfare system. While most people are familiar with posttraumatic stress disorder (PTSD), children who are constantly exposed to trauma and dangerous situations, like those in dangerous inner-city neighborhoods, face a far more compounded scenario: complex trauma. Complex trauma is “the dual problem of children’s exposure to multiple traumatic events and the impact of this exposure on immediate and long- term outcomes.” Those outcomes include “psychiatric and addictive disorders, chronic medical illness, and legal, vocational, and family problems.” In short, neuroscience can identify both childhood trauma and its lasting impression on an individual as they become an adult. Now that current neuroscience technology has the ability to demonstrate how exposure to childhood trauma affects an individual’s brain, the next question is how this science and its conclusions in the courtroom can be effectively utilized. This question becomes very apparent in the context of sentencing, where a judge may consider a wide range of factors in determining an appropriate sentence for those defendants standing before her. Without disregarding the criminal justice system’s ability to hold those accountable for their actions, neuroscience can be utilized to demonstrate that certain actions may actually be the result of developmental problems associated with the brain, like the effects of complex trauma on children. A judge may also use neuroscience to combat her implicit biases, which have ways of manifesting themselves in the courtroom and therefore need to be explicitly acknowledged. Neuroscience can offer additional insight into a defendant’s thought process and accordingly provide a means for the judge to address and correct those biases. This Article begins by discussing what neuroscience and the smaller associated field of study, neuropsychology, are and what they can tell us about an individual. It then recounts a brief history of sentencing in the United States. Additionally, it expounds on how the legal system currently utilizes neuroscience in the courts, noting specifically the ways in which neuroscience can be presented during the sentencing phase of trial. Finally, it discusses the use of neuroscience as a mitigating factor during sentencing and how judges can use neuroscience to combat their implicit biases. |
| Meynen | 2016 | Neurolaw: Recognizing Opportunities and Challenges for Psychiatry | Gerben Meynen | 4 J. Psychiatry Neuroscience 3 | A 40-year-old schoolteacher begins secretly collecting child pornography and making advances toward his young stepdaughter. After evaluation by a psychiatrist and neurologist, an MRI is obtained, and it shows a huge orbitofrontal tumour. As soon as it has been resected, the legally relevant sexual behaviour stops. A few months later, however, the behaviour returns. As becomes clear on MRI, the tumour has also regrown. It is, again, resected, and the legally relevant sexual behaviour stays away, apparently permanently. To what extent should this schoolteacher be considered criminally responsible for his behaviour? What does a case like this mean for the criminal responsibility of people with (acquired) pedophilic behaviour in general? What does it mean for the role neuroimaging should play in criminal cases? These are just some questions that may come to mind regarding this often-cited case, described by Burns and Swerdlow. Such questions can be categorized as “neurolaw” questions. Neurolaw is a rapidly developing field of interdisciplinary research concerning the relevance of neurosciences to the law, especially criminal law. Clearly, psychiatry is closely related to both neuroscience and the law, and this is particularly true for forensic psychiatry. Neurolaw, therefore, is of specific relevance for forensic psychiatry. In this editorial I introduce the 3 main research areas in neurolaw, identify 3 significant opportunities for psychiatry as well as 2 major challenges related to psychiatry and neurolaw, and argue for the active participation of psychiatrists in neurolaw developments. |
| Bennett | 2016 | Neuroscience and Criminal Law: Have We Been Getting It Wrong for Centuries and Where Do We Go from Here? | Elizabeth Bennett | 85 Fordam L. Rev. 437 | Moral responsibility is the foundation of criminal law. Will the rapid developments in neuroscience and brain imaging crack that foundation—or, perhaps, shatter it completely? Although many scholars have opined on the subject, as far as I have discovered, few come from a front-line perspective. The concept of English (now Anglo-American) criminal law has evolved slowly but surely over the past one thousand years. It has responded, in part, to knowledge of the human condition and, in part, to power struggles between church and state. In the Anglo-Saxon period, society generally considered bad conduct as a tort—including conduct that society now considers as criminal, such as homicide. The remedy often was compensatory, although blood feuds between families or tribes also resulted. While the Roman tradition of the Law of the Twelve Tables certainly speaks to intent as opposed to negligence, it generally treats bad conduct as torts. As society matured, criminal conduct became more of a concern to society as a whole, as opposed to only private individuals. The King’s Courts developed, and by the twelfth century, in the time of Henry II, crimes of homicide, mayhem, robbery, arson, and rape were under their jurisdiction. The compensatory remedy for these crimes ended, and punishment emerged as a new remedy for criminal conduct. By the thirteenth century, society was considering the concept of “actus non facit reum, nisi mens sit rea” (meaning “an act does not make one guilty, without a guilty mind”) as a part of the criminal law in England. Henry de Bracton, a cleric and a jurist, authored a criminal law treatise, On the Laws and Customs of England, in which he discussed the concept of mens rea (a guilty mind) as evil motive, drawing from canon law. Over time, the notion of evil motive evolved into intent for a crime, regardless of motive and of the religious concept of evil. Lack of responsibility was, and still is, recognized by exculpating the young, the insane, and those who engaged in accidental conduct. Today, the law looks to knowledge, foresight of consequences, recklessness, willful blindness, and criminally negligent conduct. Defenses that excuse conduct, such as insanity, intoxication, duress, automatism, and color of right (i.e., an honest belief that conduct is legal) also respond to the requirement of a guilty mind. One thing is clear: the development of the criminal law is not static. It changes and fluctuates in accordance with the times, the sophistication of society, and what is known about the human condition. Indeed, in the past, animals were found culpable committing “crimes,” including homicide. The foregoing is a sampling of a broad sweep of changes that developed over centuries, brushing quickly over times of torture to obtain confessions, the Inquisitions, and the infamous “witch trials,” to name a few of the time periods characterized by horror. Despite the terrible acts that occurred during these periods, the punishment for criminal conduct was based on a form of evil intent defined by the times. In essence, for the past eight hundred years, criminal law has been based on a model of a criminal act (the actus reus) and a criminal mind (the mens rea). The concepts of proportionality and moral blameworthiness or intent apply as well to the punishment that will be imposed, again developing over centuries from lex talionis (the law of retaliation) or “an eye for an eye; a tooth for a tooth.” The concept is found in the ancient Babylonian Code of Hammurabi, which dates back to 1754 B.C. The retributivist theory of punishment is proportional punishment, or “just deserts.” The punishment imposed under this theory is based on what is deserved, measured by the moral responsibility of the offender for his or her conduct. This concept applies at the guilt-finding phase and the sentencing phase, both of which are discussed in more detail in this Article. In the modern day, the concept of proportionality differs significantly from person to person, place to place, and country to country. Perhaps nothing signifies this difference more than the imposition of the death penalty for homicide in certain parts of the world and for far lesser “crimes,” including drug trafficking and adultery, in other parts of the world. Indeed, several countires maintain the death penalty for same-sex sexual acts, which many countries celebrate rather than criminalize. |
| Shen | 2016 | The Overlooked History of Neurolaw | Francis X. Shen | 85 Fordham L. Rev. 667 | I often describe law and neuroscience as a “new” and “emerging” field. This gives neurolaw a shiny gloss and attracts headlines. The claim also is true, in the sense that we are examining the legal implications of new neuroscientific technology and novel findings. But there are many ways in which the intersection of neuroscience and law is not new. In this Article, I argue that our field should more readily acknowledge that there is a history to law and neuroscience. A central challenge is whether, and how, we will learn from this history. On the one hand, the history of law and neuroscience offers encouragement that law and policy can be improved through advances in brain science. On the other hand, however, this history offers caution about the limits of using brain science to address legal problems. I do not endeavor here to provide a comprehensive history of brain science and law but rather to highlight a series of four important, yet often overlooked, “moments.” These moments are (1) foundational medico-legal dialogue in the nineteenth and early twentieth centuries, (2) the introduction of electroencephalography evidence into the legal system in the mid- twentieth century, (3) the use of psychosurgery for violence prevention in the 1960s and 1970s, and, most recently, (4) the development of neurolaw in personal injury litigation in the late 1980s and 1990s. I review each of these moments in Parts I–IV, respectively, and then offer a discussion in Part V of what this history means for future inquiries into neurolaw. Before moving into the historical analysis, however, I start with a story and a scholarly mea culpa. Before I began my position as a law professor at the University of Minnesota, I completed a postdoctoral fellowship with the MacArthur Foundation Law and Neuroscience Project. One of the projects I was assigned to complete as a fellow was to construct a law and neuroscience bibliography. Today, the bibliography is hosted by the MacArthur Foundation Research Network on Law and Neuroscience, and users can search through thousands of entries. A graph of the number of entries in the bibliography, plotted by year, is presented in figure 1. Those who look at this graph most likely focus, as I did when I helped to create it, on the growth in the number of publications. Particularly noteworthy is the very rapid increase in publications since 2000. But focusing so intently on the right hand side of the figure has the unintended consequence of making one think that there is nothing to the left. Indeed, if the graph is to be believed, the earliest publication at the intersection of brain science and law came in 1984. The problem, and hence my mea culpa, is this: upon closer review, it turns out that there are in fact many publications well before the 1980s at the intersection of brain science and law. Figure 1, then, is deceptive. Figure 1 suggests that the field of neurolaw need not concern itself with anything older than a few decades. The scholarship on neurolaw typically reflects this as well, focusing on the first use of the term neurolaw in 1991 to mark the birth of the field. I will spend the rest of this Article, however, arguing that this start date for neuroscience and law interaction is misleading. Rather than starting in the 1990s, we should go back to the nineteenth century (and earlier). |
| Baskin-Sommers | 2016 | Correctional Change Through Neuroscience | Arielle R. Baskin-Sommers & Karelle Fonteneau | 85 Fordam L. Rev. 423 | Currently, the U.S. criminal justice system is under intense scrutiny. High- profile cases question the appropriateness of specific types of evidence, decision making in sentencing, and the treatment of convicted offenders. Clearly, these issues are not new. And, as has been historically the case, the justice system looks toward science for assistance in addressing and redressing problems with the delivery of justice. Much recent attention is focused on the applicability of neuroscience, both in terms of the utility of its techniques in “diagnosing” factors that might mitigate responsibility, as well as its ability to identify factors that should be taken into consideration when meting out punishments. In terms of the former, various techniques are used as evidence to support a defendant’s claim of abnormality in brain structure or functioning, mental illness, or both. In some cases, brain scans showing tumors, lesions, or abnormal activity are used to argue that a defendant was not responsible for his or her actions due to disruptions caused by these neural abnormalities. For example, in the 1992 case of Kenneth Parks, the defendant was acquitted after killing his mother- in-law and attacking his father-in-law because of abnormal electroencephalogram (EEG) activity. In terms of the latter, neuroscientific results also have been introduced in the sentencing phase, particularly in death penalty cases. In the 2014 case of John McCluskey, the defendant was convicted of carjacking and murder; however, brain scans showing substantial damage to his frontal lobe were admitted as evidence. Jurors viewed these brain abnormalities as mitigating factors and he avoided the death penalty. The use of neuroscience in both cases was problematic and speaks to the overall difficulty of using such methods during the judicial stage of the justice process. While a small number of studies have been able to identify possible neural correlates of criminal conduct, there is no discipline-wide consensus on those correlates and whether those correlates are specific to certain expressions of criminal conduct, such as violent versus nonviolent crimes, or whether they cut across a wider variety of antisocial behaviors, such as lying, cheating, and substance abuse. Even more fundamental is the acceptance among neuroscientists that criminal conduct is a complex phenomenon that cannot be reduced to neural circuits; it must be understood in combination with a wide range of other factors. These may include genetic and biological features; environmental influences, such as family, peers, neighborhoods; and other cultural and social factors. It is important to point out that neuroscience, as is the case across all scientific disciplines, rests on the notion of probability rather than determinism. Further, science aims at understanding phenomena in the aggregate. While neuroscientific findings may be valid for a given group in general, they may not apply to a particular individual within that group. Thus, neuroscientific techniques, such as scans or EEG, cannot show beyond a reasonable doubt that distinct brain structures or abnormalities affect the mental state of a particular individual at the time of the crime, that they will certainly engage in criminal conduct in the future, nor that it provides evidence of mitigation at the sentencing phase above and beyond other less expensive and more reliable tools (e.g., family history or exposure to violence). While some might argue that the conflict between the dictates of science and the requirements of the law are surmountable, the financial costs associated with neuroscience testing are not only prohibitive but may also further disparities in the justice system between the wealthy and the disadvantaged. A single brain scan can cost $2,600, a price out of the reach of most criminal defendants. However, lack of access to such scans can negatively impact a defendant in cases where jurors come to expect such forms of scientific evidence. This “CSI Effect” may further erode the delivery of justice, as jurors come to expect such information to be part of cases where the defendant’s mental state or intention is at issue. While there is much skepticism about the use of neuroscience in the courtroom, it does have the potential to affect meaningful change in the correctional system. This paper will demonstrate how findings from neuroscience can be applied to and improve correctional settings, specifically in terms of segregation, the ecology of confinement, and the provision of treatment. Such applications bypass the constraints and requirements of both science and the law without worsening the disparities that currently exist in the criminal justice process. |
| Garrett | 2016 | The Brain Adapts to Dishonesty | Neil Garrett, Stephanie C. Lazzaro, Dan Ariely & Tali Sharot | 19 Nature Neuroscience 1727 | Dishonesty is an integral part of our social world, influencing domains ranging from finance and politics to personal relationships. Anecdotally, digressions from a moral code are often described as a series of small breaches that grow over time. Here we provide empirical evidence for a gradual escalation of self-serving dishonesty and reveal a neural mechanism supporting it. Behaviorally, we show that the extent to which participants engage in self-serving dishonesty increases with repetition. Using functional MRI, we show that signal reduction in the amygdala is sensitive to the history of dishonest behavior, consistent with adaptation. Critically, the extent of reduced amygdala sensitivity to dishonesty on a present decision relative to the previous one predicts the magnitude of escalation of self-serving dishonesty on the next decision. The findings uncover a biological mechanism that supports a 'slippery slope': what begins as small acts of dishonesty can escalate into larger transgressions. |
| Patterson | 2016 | Philisophical Foundations of Law and Neuroscience | Dennis Patterson & Michael S. Pardo | (Dennis Patterson & Michael S. Pardo eds., 2016) | The intersection between law and neuroscience has been a focus of intense research for the past decade, as an unprecedented amount of attention has been triggered by the increased use of neuroscientific evidence in courts. While the majority of this attention is currently devoted to criminal law, including capital cases, the wide-ranging proposals for how neuroscience may inform issues of law and public policy extend to virtually every substantive area in law. Bringing together the latest work from leading scholars in the field, this volume examines the philosophical issues that inform this emerging and vibrant subfield of law. From discussions featuring the philosophy of the mind to neuroscience-based lie detection, each chapter addresses foundational questions that arise in the application of neuroscientific technology in the legal sphere. |
| Morse | 2016 | The Inevitable Mind in the Age of Neuroscience | Stephen J. Morse | in Philosophical Foundations of Law and Neuroscience 69-83 (Dennis Patterson & Michael Pardo, eds. 2016) | This chapter argues that free will is not a presupposition of criminal law, or any other area of law, and thus causal determinism about mental states and actions (whether illuminated by neuroscience or not) does not undermine legal responsibility. Hence, people who question whether there can be free will in a causal world are simply making a mistake. The chapter thus defends a ‘compatibilist’ position for law (in which free will and causal determinism can coexist). It argues that legal responsibility depends on the degree to which we are responsive to reasons. Because of this, the chapter concludes that neuroscience does not pose any global challenges to legal responsibility and is unlikely to undermine the law’s conceptions of mind, mental states, and action any time soon. |
| Schauer | 2016 | Lie-Detection, Neuroscience, and the Law of Evidence | Frederick Schauer | in Philosophical Foundations of Law and Neuroscience 69-83 (Dennis Patterson & Michael Pardo, eds. 2016) | This chapter focuses on neuroscience-based lie-detection from the perspective of the policies and epistemic norms underlying the law of evidence and legal proof. It makes the case that in some instances neuroscientific evidence is superior to forms of evidence (scientific and non-scientific) routinely admitted in legal proceedings. In analysing whether neuroscientific evidence should be admitted or excluded in legal proceedings, the chapter asks the important question: ‘compared to what’? Excluding neuroscientific evidence in order to base decisions on evidence that may be more epistemically problematic appears to run afoul of the law’s evidentiary principles and goals. The chapter also emphasizes the extent to which the epistemic norms and standards at issue involve fundamentally legal and not just scientific questions. |
| Stein | 2016 | Dualism and Doctrine | Alex Stein | in Philosophical Foundations of Law and Neuroscience 69-83 (Dennis Patterson & Michael Pardo, eds. 2016) | This chapter argues that remnants of substance dualism or the ‘Cartesian’ theory of mind remain entrenched in legal doctrine in torts, criminal law, and constitutional criminal procedure. It contends that neuroscience reveals that dualism is both conceptually bankrupt and empirically flawed. As other chapters in this book argue, advances in neuroscience are putting pressure (or worse) on existing legal doctrines in ways that will force much-needed change. This chapter provides an alternate account of human action, one that avoids the errors of dualism without compromising the law’s goals in these areas, and it suggests changes to correct the doctrine accordingly. The chapter then concludes by bringing the doctrinal and normative implications of this integrationist account full circle. |
| Yaffe | 2016 | Mind-Reading by Brain-Reading and Criminal Responsibility | Gideon Yaffe | in Philosophical Foundations of Law and Neuroscience 69-83 (Dennis Patterson & Michael Pardo, eds. 2016) | This chapter explores whether neuroscience can provide ‘mind-reading’ evidence that may be useful for legal proceedings. It argues that neuroscience may indeed provide a type of epistemically robust evidence of mental states that differs in kind from the usual behavioural, psychological, and cultural evidence used to infer mental states. Neuroscientists may discover how a mental state is ‘realized’ in the brain and, therefore, evidence of whether the ‘realizer’ is present or absent will provide evidence of whether a mental state is present. The chapter goes on to discuss several important limitations on such evidence, arguing that it could not be used to infer past mental states, future mental states, or capabilities regarding mental states. It then concludes by noting one area where such ‘mind-reading’ evidence could be particularly probative in law. |
| Sifferd | 2016 | Unconscious Mens Rea: Lapses, Negligence, and Criminal Responsibility | Katrina L. Sifferd | in Philosophical Foundations of Law and Neuroscience 69-83 (Dennis Patterson & Michael Pardo, eds. 2016) | This chapter considers arguments by Neil Levy for the proposition that direct conscious awareness is a prerequisite for responsibility. It argues that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the moral significance of an act is too strict. Furthermore, the chapter claims that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity for diachronic agency and self-control, not synchronic conscious control. This means that an agent may be responsible for harm related to lapses even if they at no point could have reasonably foreseen the possibility of causing criminal harm. |
| Moore | 2016 | The Neuroscience of Volitional Excuse | Michael S. Moore | in Philosophical Foundations of Law and Neuroscience 69-83 (Dennis Patterson & Michael Pardo, eds. 2016) | This chapter brings together major philosophical topics involving the mind, free will, action, morality, causation, and metaphysics in discussing the topic of the volitional excuse. Ranging across psychology, philosophy, and neuroscience, the chapter argues that the primary way to think about volitional excuses is in terms of counterfactual analyses. There is no simple move from neuroscience to a judgment about volitional excuse. Working through the possible counterfactuals in any given case cannot be avoided simply by focusing on neuroscientific data. The process is shot through with judgments about the degree to which the agent in question ‘could have done otherwise’. Scientific discoveries from neuroscience will not preclude the counterfactual inquiry and the difficult philosophical work it entails. The chapter of course sees a role for neuroscience in these proceedings, but finds it as yet underdeveloped for the purpose. |
| Deubert | 2016 | Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations | Chris Deubert, I. Glenn Cohen, & Holly Fernandez Lynch | Petrie-Flom Ctr. For Health L. Pol'y, Biotechnology, & Bioethics | This comprehensive report, published as part of the Football Players Health Study at Harvard University, more than two years in the making and 493 pages long, is an unprecedented step towards improving player health, concluding with several important recommendations. To date, there has been no analysis of the universe of stakeholders that may influence the health of NFL players, nor any systematic analysis of their existing or appropriate legal and/or ethical obligations. While clinical health care interventions are essential, player health also depends on understanding the wider context in which players work. The report examines 20 diverse stakeholders: NFL players, the NFL, the NFLPA, NFL club medical staff, second opinion, neutral and personal doctors, NFL clubs and personnel, NFL coaches, contract advisors, financial advisors, equipment managers and manufacturers, players’ family members, officials, the media, NFL business partners, and fans. In total, the report makes 76 recommendations. |
| Preston | 2016 | The Legal Implications of Detecting Alzheimer's Disease Earlier | Joshua Preston, Jaleh McTeigue, Caitlin Opperman, Jordan Dean Scott Krieg, Mikaela Brandt-Fontaine, Alina Yasis & Francis X. Shen | 18 AMA J. Ethics 1207 | Early detection of Alzheimer’s disease (AD) raises a number of challenging legal questions. In this essay, we explore some of those questions, such as: Is a neurological indicator of increased risk for AD a legally relevant brain state before there are any outward behavioral manifestations? How should courts address evidentiary challenges to the admissibility of AD-related neuroimaging? How should the government regulate the marketing of neuroimaging diagnostic tools? How should insurance coverage for the use of these new tools be optimized? We suggest that many voices and multidisciplinary perspectives are needed to answer these questions and ensure that legal responses are swift, efficient, and equitable. |
| The MacArthur Foundation Research Network on Law and Neuroscience | 2016 | fMRI and Lie Detection | The MacArthur Foundation Research Network on Law and Neuroscience | . | . |
| Kuersten | 2016 | When a Picture is Not Worth a Thousand Words | Andreas Kuersten | 84 George Washington L. R. Arguendo 178-91 | It is frequently put forth that the admission of neuroimaging evidence at criminal trials introduces the substantial risk of these sophisticated and visual presentations unduly influencing factfinders. As such, this Essay analyzes how brain image evidence might have this effect. Particularly, it focuses on the situation in which such evidence is proffered in support of mens rea and affirmative defense determinations, such as insanity. The Essay assesses the actual evidentiary value of neuroimaging evidence in these evaluations. It then presents relevant studies supporting and opposing the contention that this evidence unduly influences factfinders beyond its true explanatory power. Finally, given the current state of research into this issue, this Essay puts forth a prospective manner in which brain images might inordinately influence finders of fact and a path for further study. |
| Wax | 2016 | The Poverty of the Neuroscience of Poverty: Policy Payoff or False Promise? | Amy L. Wax | 57 Jurimetrics | Research in deprivation neuroscience has grown rapidly over the past 15 years. Studies in this field examine brain structure and function of individuals from disadvantaged backgrounds. Many attempt to link brain characteristics to behavioral and cognitive deficits found more commonly in deprived populations. The article assesses claims by neuroscientists and policy-oriented commentators that deprivation neuroscience can help generate more effective strategies for addressing poverty and deprivation. It concludes that research in this field has no unique practical payoff for reducing or alleviating poverty and its effects, over and above what is known or can be discovered from behavioral science and ordinary methods of social observation. First, research typically conducted in neuroscience does not, and generally cannot, identify innate versus environmental causes of particular brain characteristics. The work thus cannot determine whether or to what extent particular neurological and behavioral deficits can be avoided by alleviating social deprivation. Second, even apart from problems with disentangling causation, knowledge of brain mechanisms associated with deprivation yields no special insights over and above those from research in other fields, on how to prevent, attenuate, or cure the putative harms of social deprivation. Addressing poverty and its effects depends on changing real-world behaviors, and is limited by the constraints – ethical, practical, and political – on manipulating these. Improvements in individual functioning are the ultimate test of efficacy, and behavioral studies are thus an indispensable guide to policy. Because neuroscience does not teach us how to alleviate disadvantage and its supposed effects, scholars, scientists, and journalists should stop claiming otherwise. |
| Fordham Law Review | 2016 | Criminal Behavior and the Brain: When Law and Neuroscience Collide | Multiple Authors | 85 Fordham L. Rev. | . |
| Denno | 2016 | Criminal Behavior and the Brain: When Law and Neuroscience Collide Foreword | Deborah W. Denno | 85 Fordham L. Rev. 399 | This Foreword provides an overview of Criminal Behavior and the Brain: When Law and Neuroscience Collide, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Neuroscience and Law Center. While the field of neuroscience is vast-generally constituting "the branch of hte life sciences that studies the brain and nervous system"-this symposium focused on teh cutting-edge ties between neuroscience evidence and the different facets of criminal law. Such an intersection invited commentary from an expert group on a wide span of topics, ranging from the historical underpinnings between law and neuroscience to the treatment of young adults to the different roles of neuroscience in the context of sentencing, expert testimony, defenses, prediction, punishment, and rehabilitation, as well as the civil and criminal divide. These diverse subjects have an overarching theme in common: each pertains in some way to the criminal justice system's effort to punish or rehabilitate more fairly and effectively. |
| Moriarty | 2016 | Seeing Voices: Potential Neuroscience Contributions to a Reconstruction of Legal Insanity | Jane Campbell Moriarty | 85 Fordham L. Rev. 599 | . |
| Zivot | 2016 | Too Sick to Be Executed: Shocking Punishment and the Brain | Joel Zivot | 85 Fordham L. Rev. 697 | . |
| Poldrack | 2017 | The Risks of Reading the Brain | Russell Poldrack | 541 Nature 156 | Russell Poldrack assesses a primer on the implications of advances in brain imaging. |
| Schehr | 2016 | Mental Competency Law and Plea Bargaining: A Neurophenomenological Critique | Robert Schehr & Chelsea French | 79 Alb. L. Rev. 1091 | . |
| Denno | 2017 | Concocting Criminal Intent | Deborah W. Denno | 105 Georgetown L.J. 323 | My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim’s injury, the actual application of this neuroscience evidence extends far beyond the purpose for which it is admitted. Indeed, victim brain scans are introduced primarily by prosecutors, and nearly half of these cases are based on medical expert testimony that the victims suffer from shaken baby syndrome, a medical diagnosis with controversial scientific underpinnings and distorted legal ramifications. The diagnosis often successfully serves as the sole foundation for a prosecutor’s case, with no proof of the defendant’s act or intent beyond the victim’s brain scan and the accompanying medical expert testimony. Shaken baby syndrome cases thus portray a troubling phenomenon in which the key element of mens rea is either unclear or overlooked altogether and prosecutors are permitted to concoct intent out of brain scans that were admitted for the sole purpose of presenting the victim’s injury. My study further reveals that shaken baby syndrome cases are merely the more transparent examples of the criminal justice system’s failure to deal adequately with the surging influx of neuroscience evidence into the courtroom. Shaken baby cases thus represent a microcosm of prosecutorial misuse of victim neuroscience evidence more generally, particularly when the evidence is employed to determine a defendant’s mental state. |
| Morse | 2017 | Neuroethics: Neurolaw | Stephen J. Morse | Neuroethics: Neurolaw, in Oxford Handbooks Online (February 2017) | This chapter discusses whether the findings of the new neuroscience based largely on functional brain imaging raise new normative questions and entail normative conclusions for ethical and legal theory and practice. After reviewing the source of optimism about neuroscientific contributions and the current scientific status of neuroscience, it addresses a radical challenge neuroscience allegedly presents: whether neuroscience proves persons do not have agency. It then considers a series of discrete topics in neuroethics and neurolaw, including the “problem” of responsibility, enhancement of normal functioning, threats to civil liberty, competence, informed consent, end-of-life issues, neuroevidence in criminal cases, and the ethics of caution. It suggests that the ethical and legal resources to respond to the findings of neuroscience already exist and will do so for the foreseeable future. |
| Morse | 2017 | Neuroscience Evidence in Forensic Contexts: Ethical Concerns | Stephen J. Morse | Faculty Scholarship 1729 | This chapter uses the term “neuroscience” to refer to brain imaging in individual cases, especially using non-invasive techniques such as structural and functional magnetic resonance imaging (MRI and fMRI, respectively) and to reliance on studies about the relation between the brain and behavior that use non-invasive imaging. The issue is whether the use of these newer techniques and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse would occur if practitioners use neuroscience without the proper understanding. |
| Altimus | 2017 | Neuroscience Has the Power to Change the Criminal Justice System | Cara M. Altimus | eNeuro | As a neuroscientist working in the Department of Justice for the past year, I observed that many of the challenges of crime and justice have solutions rooted in our understanding of neuroscience. However, the neuroscience community seems absent from conversations regarding these solutions. |
| Casey | 2017 | How Should Justice Policy Treat Young Offenders? | BJ Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson & Anthony D. Wagner | Vanderbilt Law Research Paper No. 17-9 | At least since the early 1900s, the justice system in the United States has recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And if they are, how should justice policy take this into account? A growing body of research on adolescent development now con rms that teenagers are indeed inherently different from adults, not only in their behaviors, but also (and of course relatedly) in the ways their brains function. These ndings have in uenced a series of Supreme Court decisions relating to the treatment of adolescents, and have led legislators and other policymakers across the country to adopt a range of developmentally informed justice policies. Now research is beginning to identify differences in the brains of young adults, ages 18 to 21, suggesting that they too may be immature in ways that are relevant to justice policy. |
| Davis | 2017 | The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America's Courtrooms | Kevin Davis | Kevin Davis, The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America's Courtrooms (2017) | In 1991, the police were called to East 72nd St. in Manhattan, where a woman’s body had fallen from a twelfth-story window. The woman’s husband, Herbert Weinstein, soon confessed to having hit and strangled his wife after an argument, then dropping her body out of their apartment window to make it look like a suicide. The 65-year-old Weinstein, a quiet, unassuming retired advertising executive, had no criminal record, no history of violent behavior—not even a short temper. How, then, to explain this horrific act? Journalist Kevin Davis uses the perplexing story of the Weinstein murder to present a riveting, deeply researched exploration of the intersection of neuroscience and criminal justice. |
| Zettler | 2016 | What Lies Ahead for FDA Regulation of tDCS Products? | Patricia J. Zettler | J.L. & Biosciences 318 | In ‘A Pragmatic Analysis of the Regulation of Consumer tDCS Devices in the United States’, Anna Wexler examines how US laws apply to transcranial direct current stimu- lation (tDCS) products—products that provide a low level of electrical current to the brain.1 How to regulate tDCS products is an interesting question in part because they are marketed directly to consumers both for treating sick patients and for promoting wellness or enhancing mental function in healthy individuals (Wexler calls this la er group ‘consumer’ products). Contrary to others’ concerns that consumer tDCS prod- ucts fall into a ‘regulatory gap’, Wexler argues that there currently exists the potential for comprehensive US regulation if extant laws are enforced. |
| Davis | 2016 | The Regulation of Consumer tDCS: Engaging a Community of Creative Self-Experimenters | Nick J. Davis | J.L. & Biosciences 304 | Brain stimulation with electric currents is an important tool in the neuroscience lab and the neurology clinic. We can learn about the function of the brain with observa- tional techniques such as studying stroke victims, or with correlational techniques such as fMRI where the brain’s physiology is monitored. However, to have a truly complete understanding of the relationship between function and behavior, it is necessary to use an intervention such as brain stimulation to perturb the brain and to observe the e ects of that perturbation |
| Parmigiani | 2017 | Free Will, Neuroscience, and Choice: Towards a Decisional Capacity Model for Insanity Defense Evaluations | Giovanna Parmigiani, Gabriele Mandarelli, Gerben Meynen, Lorenzo Tarsitani, Massimo Biondi & Stefano Ferracuti | 52 Rivista di Psichiatria 9 | Free will has often been considered central to criminal responsibility. Yet, the concept of free will is also difficult to define and operationalize, and, moreover, it is intensely debated. In particular, the very existence of free will has been denied based on recent neuroscience findings. This debate has significant implications on those fields in which the link between free will and behaviour is the main focus of interest, such as forensic psychiatry. In fact, a tension is often experienced between the centrality of the notion of free will on the one hand, and its controversial status on the other. This tension needs to be addressed, especially in forensic psychiatry, since it is relevant for actual assessments of legal insanity. In the present paper we will try to operationalize “free will” using a fourpartite decision-making capacity model, which can be used in forensic assessment of insanity. We will describe its advantages and application to guide mental insanity assessments. Whereas free will is often considered problematic from a neuroscience perspective, this model, we argue, is compatible with neuroscience; moreover, evaluations using this model can also be informed and strengthened by neuroscientific findings, for example regarding inhibitory control. |
| Somers | 2015 | Neuroimaging Evidence: A Solution to the Problem of Proving Pain and Suffering? | Brady Somers | 39 Seattle Univ. L. Rev. 1391 | This Note discusses the pros, cons, and feasibility of a pain and suffering award system that incorporates neuroimaging evidence, where a floors and caps system would be largely unnecessary and plaintiffs would be able to collect the awards they deserve while still operating within a system based on narrowed jury discretion. This Note argues that, while holding promise for the near future, the current pain neuroimaging technology is not sufficiently reliable nor accepted in the scientific community to warrant widespread use in litigation to prove pain and suffering injuries, and at present, courts are likely to exclude pain scans because of their prejudicial nature. |
| Mammarella | 2016 | An Evidence-Based Objection to Retributive Justice | Brian T.M. Mammarella | 16 Yale J. Health Pol'y, L. & Ethics 289 | Advancements in neuroscience and related fields are beginning to show, with increasing clarity, that certain human behaviors stem from uncontrolled, mechanistic causes. These discoveries beg the question: If a given behavior results from some combination of biological predispositions, neurological circumstances, and environmental influences, is that action unwilled and therefore absolved of all attributions of credit, blame, and responsibility? A number of scholars in law and neuroscience who answer "yes" have considered how the absence of free will should impact criminal law's willingness to justify punishments on the basis of retribution, with some arguing that criminal law ought to dispense with retributive justice because the concept of blameworthiness is out of touch with scientific reality. This Note posits a more practical reason for reform by reviewing available empirics on the way people perceive human agency. The research suggests that as the science of human agency becomes increasingly vivid and reductionistic, laypeople will become proportionally less willing to attribute blame, and these shifting societal intuitions will ultimately diminish criminal law's moral credibility. The practical effects of low moral credibility might include diminished compliance, cooperation, and acquiescence with criminal laws, as well as increased general deviance. Importantly, this Note observes that these effects will likely manifest even if people retain a belief in free will. Further, ontological reality plays no part in this Note's argument; whether we in fact have free will is irrelevant. This Note instead contributes to the discourse by highlighting the implications of oncoming shifts in lay conceptions of both particular behaviors and the natural world writ large. |
| Austin | 2016 | Emotion Regulation for Lawyers: A Mind Is a Challenging Thing to Tame | Debra S. Austin & Rob Durr | 16 Wyoming L. Rev. 387 | Legal scholars have become increasingly concerned about the outlook of the profession in the last decade. Not only is it considered one of the unhappiest professions, but lately it has become more challenging than ever to find quality work for good pay. Given the current employment climate, coupled with the price tag for a legal education, fewer of the brightest young minds are interested in a legal career, leaving law schools and the legal profession acutely concerned about lawyer wellbeing and performance. These two key outcome measures for lawyers, wellbeing and performance, are intricately connected and are a growing focus of law schools and firms. The legal profession is evaluating training in Emotional Intelligence (EI) and Emotion Regulation (ER) strategies, as a framework for developing intra-personal and interpersonal-skills, to improve the wellbeing crisis and equip law students and lawyers with the necessary tools to manage their careers as savvy, sustainable professionals. The inclusion of EI in the law school curriculum is counter to the traditional legal culture where the focus has been on “thinking like” not “feeling like” a lawyer. A mention of emotion in most law circles will cause a deafening silence to befall the room. Yet several disciplines in the social and biological sciences are producing gold standard research outcomes showing the critical role emotions play in performance, health, and overall success. Research shows the potent role emotions and affective processes play in law school and the legal process. Modern psychological science teaches us that emotions help professionals to focus attention, make decisions, enhance memory, provide vital social cues, and embrace change. Law schools are decades behind business schools and years behind medical education in expanding the curriculum to include emotional and social competencies. Business schools have been assessing for EI in the admission process for years. Yale’s School of Management uses a measure in the application to screen for emotion management. Law schools have started to introduce mindfulness, mental health, EI, wellbeing, and/or leadership programs. Some law faculty are growing concerned about developing law student people skills, resilience, and interpersonal savvy in response to law firms who want to hire smart people with strong interpersonal skills. The message is clear that firms want client or practice ready graduates. Despite growing acceptance of the importance of managing emotions in legal study and work, and a robust body of literature highlighting the predictive validity of EI for several key law outcomes such as health and performance, an alarming deficit in focus on emotion in legal education and scholarship persists. The majority of articles and books on the topic for law have merely skimmed the surface and not gone deeper into assisting the profession to develop a sound understanding of how EI plays out in field. The purpose of this paper is to begin to fill that gap by going deeper into one of the essential skills of EI, Emotion Regulation (ER). In this paper we provide an overview of EI, summarize key research, define emotion and ER, describe the neurological underpinnings of ER, and then introduce empirically-supported strategies for ER, specifically mindfulness meditation. |
| Adams | 2016 | The Repercussions of Concussions in Youth Football Leagues: An Analysis of Texas's Concussion Law and Why Reform is Necessary | Taylor Adams | 18 Scholar: St. Mary's L. Rev. on Race and Soc. Justice 285 | Sports-related traumatic brain injuries (TBIs) have become widely recognized as a major public health issue. Amidst the growing concerns of mental health issues, the National Football League (NFL) has been pressured to fund research to study the medical risks and examine the role of head trauma as it relates to high-contact sports such as football. More and more NFL players are retiring at a younger age as statistics continue to show that many former players are being diagnosed with Chronic Traumatic Encephalopathy (CTE), a brain disease attributed to repetitive head-to-head contact. This has resulted in sizable lawsuit settlements against the NFL, and litigation involving the NCAA, high school districts, and youth football organizations. In addition, brain disease linked to football has become a hot topic of national debate. From NFL players and advocates in the NFL community, to news desks across the country, everyone is weighing in on the issue. The sentiment being echoed has become quite clear: football is more dangerous than once believed. This is especially true as studies continue to suggest that repetitive head trauma--caused by routine hits once thought to be just part of the game--such as concussions, are proving to be serious, complex injuries that significantly contribute to an individual's long-term cognitive impairment. This comment does not definitively assert that degenerative brain disease is casually linked to youth football because the scientific community has not yet produced research to qualify that claim. Rather it advocates for giving a voice to the voiceless because “it is our moral duty, as a society, as a civilized society, to protect the most vulnerable of us . . . .” “[K] nowing what we know now” it should not be a question of whether *292 or not coverage should be expanded to include youth athletes at every level of play. It is our duty to ensure that every child is afforded the same protection under the law. In Texas, this starts with amending the current concussion law to reflect a responsible, civilized society concerned with protecting the well-being of the most vulnerable of us. |
| Wastell | 2017 | Blinded by Science: The Social Implications of Epigenetics and Neuroscience | David Wastell & Susan White | David Wastell & Susan White, Blinded by Science: The Social Implications of Epigenetics and Neuroscience (2017) | There s no hotter area of science, at least as far as the general media and laypeople are concerned, than neuroscience every day we hear of dramatic, surprising discoveries that seem to have the potential to utterly change our understanding of how the mind works. This book offers the first thorough review of such claims and the new biological science behind them. It examines the actual and potential applications of neuroscience within social policy and the impact of neuroscientific discoveries on long-standing moral debates and professional practices throughout social work, mental health practice, and criminal justice. |
| Simmons | 2017 | Free Will and Law: Toward a Pragmatic Approach | Greg Simmons | 30 Can. J.L. & Jruisprudence 215 | I first examine here the implications of this philosophical problematic for the legal treatment of mental illness and criminal responsibility, before putting forward a naturalistic approach that is based on the work of P.F. Strawson--one I believe offers a pragmatic basis from which to address the contradictions and challenges present when folk wisdom, science, philosophy and the law intersect. Rather than undertake a detailed jurisprudential analysis, my engagement with legal doctrine is at a general level, using Canadian law as a reference, to the end of addressing how philosophical engagement with the problem of free will should inform legal and criminal justice policy. I compare and contrast my analysis with the work of prominent legal theoreticians, Stephen J. Morse and Michael S. Moore. Whereas these scholars each make a case that at the doctrinal level the criminal law can operate independently of the philosophical problematic of free will, I contend that empirically the issue is threaded through legal discourse (if much of the time only implicitly). I also aver that, more importantly, a pragmatic resolution of the problem is instructive in forging a legal and criminal justice system that is truly just. I also note at the outset that, in looking to the legal implications of philosophical inquiry, I do not follow the standard route of philosophical investigation: rather than unidirectionally deriving from the free will issue implications for responsibility and choice, I seek to move dialectically between attitudes to freedom as they currently exist and philosophical arguments as to what they should be. An iterative process is already to some degree evident in the ambivalent approach of the legal system to freedom and responsibility, and I will attempt to show how making it an explicit methodological tack affords the opportunity to develop a more rational and humane treatment by the legal and criminal justice system of both the mentally disordered and the broader population. |
| Shah | 2016 | What's in an Age? Consider the Neuroscience Dimension of Juvenile Law | Khushboo Shah | 26 S. Cal. Interdisc. L.J. 167 | Implementing an interdisciplinary approach of science and law, the Supreme Court abolished the death penalty sentence upon juvenile offenders in the seminal case, Roper v. Simmons. I seek to add to this conversation by delving into the growing scholarship in neuroscience and weaving this knowledge to propose changes in juvenile law. |
| Fins | 2016 | Whither the "Improvement Standard"? Coverage for Severe Brain Injury After Jimmo v. Sebelius | Joseph J. Fins, Megan S. Wright, Claudia Kraft, Alix Rogers, Marina B. Romani, Samantha Godwin & Michael R. Ulrich | 44 J.L. Med. & Ethics 182 | The settlement that resulted from the Jimmo case gives hope that coverage standards will be based on individualized assessment and the needs and conditions of specific patients. In this paper, we consider the diagnostic, therapeutic, and rehabilitative needs of MCS patients and explore the potential impact of the Jimmo case and settlement on Medicare policy and practice. Although the settlement seeks to bridge the gap between what is articulated in law and regulation with local coverage determinations to the benefit of these patients, many barriers to care remain. To realize the aspirations of the Jimmoplaintiffs for individuals with severe brain injury, we conclude with policy recommendations that we believe will bring more appropriate coverage to MCS patients in need of care. |
| McCullough | 2016 | The Possibilities and Perils of Neuroscience in Criminal Law | Austin McCullough | 53 Am. Crim. L. Rev. Online 47 | The brain plays an integral role in criminal law, whether it comes to determining what a defendant was thinking at the time of a crime or what behavior a convict is predisposed to commit in the future. Neuroscience provides a potential avenue to better understand these mental aspects of criminal trials. As the scientific field continues to grow and change, courts should be careful about the way in which they use neuroscienceevidence and what weight such evidence is given. |
| Brown | 2017 | Cognitive Control, Attention, and the Other Race Effect in Memory | Thackery I. Brown, Melina R. Uncapher, Tiffany E. Chow, Jennifer L. Eberhardt & Anthony D. Wagner | 12 PLOS ONE 1 | People are better at remembering faces from their own race than other races–a phenomenon with significant societal implications. This Other Race Effect (ORE) in memory could arise from different attentional allocation to, and cognitive control over, same- and other-race faces during encoding. Deeper or more differentiated processing of same-race faces could yield more robust representations of same- vs. other-race faces that could support better recognition memory. Conversely, to the extent that other-race faces may be characterized by lower perceptual expertise, attention and cognitive control may be more important for successful encoding of robust, distinct representations of these stimuli. We tested a mechanistic model in which successful encoding of same- and other-race faces, indexed by subsequent memory performance, is differentially predicted by (a) engagement of frontoparietal networks subserving top-down attention and cognitive control, and (b) interactions between frontoparietal networks and fusiform cortex face processing. European American (EA) and African American (AA) participants underwent fMRI while intentionally encoding EA and AA faces, and ~24 hrs later performed an “old/new” recognition memory task. Univariate analyses revealed greater engagement of frontoparietal top-down attention and cognitive control networks during encoding for same- vs. other-race faces, stemming particularly from a failure to engage the cognitive control network during processing of other-race faces that were subsequently forgotten. Psychophysiological interaction (PPI) analyses further revealed that OREs were characterized by greater functional interaction between medial intraparietal sulcus, a component of the top-down attention network, and fusiform cortex during same- than other-race face encoding. Together, these results suggest that group-based face memory biases at least partially stem from differential allocation of cognitive control and top-down attention during encoding, such that same-race memory benefits from elevated top-down attentional engagement with face processing regions; conversely, reduced recruitment of cognitive control circuitry appears more predictive of memory failure when encoding out-group faces. |
| Vilares | 2017 | Predicting the Knowledge-Recklessness Distinction in the Human Brain | Iris Vilares, Michael Wesley, Woo-Young Ahn, Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz & Read Montague | Vand. L. Res. Paper No. 17-15 | Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria. We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those risks possessed by the participants. Our results provide neural evidence of a detectable difference in the mental state of knowledge in contrast to recklessness and suggest, as a proof of principle, the possibility of inferring from brain data in which legally relevant category a person belongs. Some potential legal implications of this result are discussed. |
| Jones | 2017 | Keynote: Law and the Brain - Past, Present, and Future | Owen D. Jones | 48 Ariz. L.J. 917 | This article surveys the past, present, and likely futures of the brain sciences – including particularly cognitive neuroscience, evolutionary biology, and behavioral genetics – as they intersect with law. Based on a symposium keynote address, it discusses recent research findings in neurolaw (including those from the MacArthur Foundation Research Network on Law and Neuroscience) and the multiple ways in which brain sciences – despite some important limitations – can be useful to the development and progress of the legal system. |
| Bader | 2016 | The Psychology and Neurobiology of Mediation | Elizabeth E. Bader | 17 Cardozo J. Conflict Resolution 363 | . |
| Shen | 2016 | Law and Neuroscience 2.0 | Francis X. Shen | 48 Ariz. L.J. 1043 | In this Article, I sketch out a vision for "Law and Neuroscience 2.0." Neurolaw has built a solid foundation for a lasting intellectual and policy endeavor. But to realize the promise of neuroscience for law and policy, we need to do more to productively encompass the wide variety of ideas, research, and activity that are on-going and forthcoming at the neuroscience-law intersection. At the ten-year mark, neurolaw too often focuses only on criminal responsibility, too infrequently explores technologies beyond fMRI, and has yet to explore many of the ways in which brain science is already posing legal challenges. In short, there is much to do. |
| Stedham | 2016 | The Mindful Judge | Yvonne Stedham | Case in Point: The Brain Issue, The Magazine of the National Judicial College, 23-24 | In the public's view, the jduge is the "ruler" of the courtroom, the omnipotent, fair, and reliable decision-maker. The judge is expected to actively listen, remain unemotional, and render judgments that are based on facts. What the public is not aware of is the tremendous pressure a judge faces every day. If not handled effectively these pressures might result in challenges and work-related stress that become overwhelming and could inhibit the judge's performance. |
| Blitz | 2017 | The Fifth Amendment: Self-Incrimination and the Brain | Marc Jonathan Blitz | in Searching Minds by Scanning Brains | This Fifth Amendment’s self-incrimination clause has been at the center of constitutional discussions over neuroimaging’s future. That it is not because it clearly would apply to neuroimaging – but rather because neuroimaging raises a easily formulated (albeit difficult to answer) Fifth Amendment puzzle: It seems to count as both of what are supposed to be two mutually exclusive categories in Fifth Amendment law, because it is both like a witness statement (or “testimonial”) and like physical evidence such as blood flow or other physiological processes. This chapter explores various solutions scholars have proposed to this puzzle, rooted in distinctive theories of the self-incrimination clause – and the unanswered questions each of these theories raises. It also emphasizes another point that has received less attention in discussions of self-incrimination and neuroimaging: idea that Fifth Amendment protection for our thoughts and other mental process should perhaps sometimes cover the biology underlying that thinking even when government plausibly claims it wants access to it for reasons other than inferring our thoughts or beliefs. |
| Blitz | 2017 | Constitutional Puzzles and (Neuro) Technological Changes | Marc Jonathan Blitz | in Searching Minds by Scanning Brains | This chapter explains why neuroimaging raises constitutional puzzles, even where constitutional rules at first seem clear. The Fifth Amendment bars compelled self-incrimination and one might assume that would prevent police from circumventing this limit by obtaining evidence of mental states some other way. The Fourth Amendment would almost certain classify neuroimaging as a search, and thus subject it to constitutional limits. However, both of the implications of these provisions are unclear: They seem to leave police with plenty of room to gather physical evidence of various kinds – and there are certain respects in which neuroimaging evidence resembles such physical evidence (as the chapter illustrates with the help of a hypothetical crime investigation). The chapter points to a way ahead and also argues that while the First Amendment isn’t generally considered a kind of privacy protection, its freedom of thought protection may be a key part of solving these puzzles. |
| Blakey | 2017 | Communicating the Neuroscience of Psychopathy and Its Influence on Moral Behavior: Protocol of Two Experimental Studies | Robert Blakey, Adrian D. Askelund, Matilde Boccanera, Johanna Immonen, Nejc Plohl, Cassandra Popham, Clarissa Sorger & Julia Stuhlreyer | 8 Frontiers in Psychology 294 | Neuroscience has identified brain structures and functions that correlate with psychopathic tendencies. Since psychopathic traits can be traced back to physical neural attributes, it has been argued that psychopaths are not truly responsible for their actions and therefore should not be blamed for their psychopathic behaviors. This experimental research aims to evaluate what effect communicating this theory of psychopathy has on the moral behavior of lay people. If psychopathy is blamed on the brain, people may feel less morally responsible for their own psychopathic tendencies and therefore may be more likely to display those tendencies. An online study will provide participants with false feedback about their psychopathic traits supposedly based on their digital footprint (i.e., Facebook likes), thus classifying them as having either above-average or below-average psychopathic traits and describing psychopathy in cognitive or neurobiological terms. This particular study will assess the extent to which lay people are influenced by feedback regarding their psychopathic traits, and how this might affect their moral behavior in online tasks. Public recognition of these potential negative consequences of neuroscience communication will also be assessed. A field study using the lost letter technique will be conducted to examine lay people’s endorsement of neurobiological, as compared to cognitive, explanations of criminal behavior. This field and online experimental research could inform the future communication of neuroscience to the public in a way that is sensitive to the potential negative consequences of communicating such science. In particular, this research may have implications for the future means by which neurobiological predictors of offending can be safely communicated to offenders. |
| Cope | 2014 | Abnormal Brain Structure in youth Who Commit Homicide | LM Cope, E. Ermer, L.M. Gaudet, V.R. Steele, A.L. Eckhardt, M.R. Arbabshirani, M.F. Caldwell, V.D. Calhoun & K.A. Kiehl | 10 Neuroimage Clinical 800 | Violence that leads to homicide results in an extreme financial and emotional burden on society. Juveniles who commit homicide are often tried in adult court and typically spend the majority of their lives in prison. Despite the enormous costs associated with homicidal behavior, there have been no serious neuroscientific studies examining youth who commit homicide. Here we use neuroimaging and voxel-based morphometry to examine brain gray matter in incarcerated male adolescents who committed homicide (n = 20) compared with incarcerated offenders who did not commit homicide (n = 135). Two additional control groups were used to understand further the nature of gray matter differences: incarcerated offenders who did not commit homicide matched on important demographic and psychometric variables (n = 20) and healthy participants from the community (n = 21). Compared with incarcerated adolescents who did not commit homicide (n = 135), incarcerated homicide offenders had reduced gray matter volumes in the medial and lateral temporal lobes, including the hippocampus and posterior insula. Feature selection and support vector machine learning classified offenders into the homicide and non-homicide groups with 81% overall accuracy. Our results indicate that brain structural differences may help identify those at the highest risk for committing serious violent offenses. |
| Barnes | 2017 | Arrested Development: Rethinking the Contract Age of Majority for the Twenty-First Century Adolescent | Wayne R. Barnes | 76 Md. L. Rev. 405 | The contract age of majority is currently age eighteen. Contracts entered into by minors under this age are generally voidable at the minor's option. This contract doctrine of capacity is based on the policy of protecting minors from their own poor financial decisions and lack of adultlike judgment. Conversely, the age of eighteen is currently set as the arbitrary age at which one will be bound to her contract, since this is the current benchmark for becoming an “adult.” However, this Article questions the accuracy of age eighteen for this benchmark. Until comparatively recently, the age of contract majority had been twenty-one for centuries. The age was reduced to eighteen in the aftermath of protest over the military draft of eighteen-year-olds during the Vietnam War during the 1960s and 1970s, and the enactment of the Twenty-Sixth Amendment which lowered the voting age from twenty-one to eighteen. However, the appropriate age for the military draft bears little to no relation to the appropriate age for voting, or contracting. Moreover, other evidence points in the direction of age twenty-one as a more appropriate age of majority. First, scientific evidence of brain development has advanced to the point that we now know the brain does not stop developing until well into the twenties, which means the powers of cognition and decision-making are not fully developed until then. Second, sociological evidence suggests that most people do not perceive the full attributes of adulthood as having been reached until at least twenty-one, if not older. Third, other areas of the law have experiences in coming back to age twenty-one as an appropriate marker of adulthood--these include the age for purchasing alcohol, the age for obtaining a credit card, and soon (it appears) the age for purchasing cigarettes. This confluence of evidence suggests that the contract age of majority was *406 always appropriately set at age twenty-one, and a return to that age of capacity for contracts will correct a historical misstep in the law. |
| Cusick | 2017 | Mens Rea and Methamphetamine: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction | Meredith Cusick | 85 Fordham L. Rev. 2417 | In American criminal law, actus non facit reum, nisi mens sit rea, “an act does not make one guilty, without a guilty mind.” Both actus reus and mens rea are required to justify criminal liability. The Model Penal Code’s (MPC) section on culpability has been especially influential on mens rea analysis. An issue of increasing importance in this realm arises when an offensive act is committed while the actor is under the influence of drugs. Several legal doctrines address the effect of intoxication on mental state, including the MPC, limiting or eliminating its relevance to the mens rea analysis. Yet these doctrines do not differentiate between intoxication and addiction. Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication. |
| Requarth | 2017 | A California Court for Young Adults Calls on Science | Tim Requarth | N.Y. Times (Apr. 17, 2017) | . |
| Geneves | 2016 | Etat de l'art - Droit et neurosciences | Victor Geneves & Laura Pignatel | Recherche Realisee Avec Le Soutien de la Mission Droit et Justice, Paris, ref. 16.07 | . |
| Geneves | 2016 | Neurosciences et societe - Quelle regulation pour quel phenomene? | Victor Geneves | 21 Lex electronica 131 | . |
| Hoffman | 2017 | Drug Courts and the Myth of the Addict's Diseased Brain | Morris Hoffman | 29 Fed. Sentencing Rptr. 207 | . |
| Denno | 2017 | Andrea Yates: A Continuing Story about Insanity | Deborah W. Denno | in The Insanity Defense (Mark D. White, ed. 2017) | In 2001, Andrea Yates did the unthinkable: she drowned her five children one by one in a bathtub within the course of minutes. She immediately confessed and explained that she killed them because she under the influence of Satan did not want them to be “tortured by Satan” as she was. Despite the defense uncovering evidence of Yates’ history of postpartum depression and psychosis, the jury did not accept her insanity defense and convicted her of capital murder with a sentence of life in prison. Influential in this decision was the testimony of prosecution expert Dr. Park Dietz, who pushed the view that Yates had rationally planned the murders. Dietz’s testimony was troubling, not only because there was little, if any, empirical basis for his conclusions, but because the defense discovered that he had introduced false testimony during the trial. During cross-examination, Dietz explained that he was a consultant for Law & Order and that one episode aired prior to Yates’ crime involving a woman with postpartum depression who drowned her children in a bathtub and was found insane. Yet the defense discovered no such show existed. Even though a grand jury found Dietz innocent of perjury, the defense appealed Yates’ sentence. Given the degree of Dietz’s impact on the jury, the Texas Court of Appeals reversed the judgment and remanded the case. In this second trial in 2006, Yates was no longer eligible for the death penalty and much more information had been uncovered regarding Yates’ mental condition. The jury unanimously found Yates not guilty by reason of insanity. While the Yates case helped to inform the world of the pervasiveness of postpartum depression and psychosis, no substantive changes have been made in Texas insanity law. This chapter explains how the state’s definition of insanity influenced the first trial and both constrained and confused how the jury could view Yates’ actions. |
| Cabrera | 2017 | Can Brain Scans Spot Criminal Intent? | Laura Cabrera | Bioethics in the News | A crucial factor influencing prison sentences is connected to criminal intent: whether you carried out an action in a state of knowledge compared to a state of recklessness. Knowing actors are considered guilty to a greater degree and thus punished more harshly than reckless actors, yet for the most part we rely on human ability (jurors) to infer the real intentions behind a person’s actions or words. But are there more “objective” ways to distinguish between different criminal intentions? |
| Ryberg | 2017 | Neuroethics and Brain Privacy: Setting the Stage | Jesper Ryberg | 23 Res Publica 153 | . |
| Ryberg | 2017 | Neuroscience, Mind Reading and Mental Privacy | Jesper Ryberg | 23 Res Publica 197 | Many theorists have expressed the view that current or future applications of neurotechnology may prompt serious ethical problems in terms of privacy. This article concerns the question as to whether involuntary neurotechnological mind reading can plausibly be held to violate a person’s moral right to mental privacy. It is argued that it is difficult to specify what a violation of a right to mental privacy amounts to in a way that is consistent with the fact that we usually regard natural mind reading as morally unproblematic. |
| Blitz | 2017 | Lie Detection, Mind Reading, and Brain Reading | Marc Jonathan Blitz | in Searching Minds by Scanning Brains | This chapter briefly looks at the ways that those in the mid-to-late twentieth-century developed lie-detection techniques without neuroimaging – and how various neuroimaging techniques promise more sophisticated types of lie detection. It also very briefly explains how different neuroimaging technologies – such as EEF, fMRI, and fNIR – work, and how they might evolve into more sophisticated – and invasive – techniques in the future, and how law enforcement use of them may thus raise privacy concerns (and do so, even in cases that at first seem free of substantial privacy harms). |
| Blitz | 2017 | The Fourth (and First) Amendment: Searches with, and Scrutiny of, Neuroimaging | Marc Jonathan Blitz | in Searching Minds by Scanning Brains | The questions raised of Fourth Amendment law by neuroimaging at first seem to have simple answers: The Fourth Amendment covers neuroimaging because probing any part of the body’s interior is a “search.” The standard level of protection against such a search is the warrant requirement, imposing on government the responsibility of showing probable cause and specifying the place to be searched before conducting such a search. However, matters are not so simple. There is significant gray area in the Fourth Amendment that the court has used to give government flexibility in meeting vital security interests. This chapter shows that some of the answers to these Fourth Amendment problems may unexpectedly have First Amendment solutions. |
| Jones | 2014 | Brain Imaging for Judges: An Introduction to Law and Neuroscience | Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, & Rene Marois | 50 Court Rev. 44 | . |
| Faigman | 2014 | Evidentiary Incommensurability: A Preliminary Exploration of the Problem of Reasoning from General Scientific Data to Individualized Legal Decision-Making | David L. Faigman | 50 Court Rev. 52 | . |
| Rushing | 2014 | The Admissibility of Brain Scans in Criminal Trials: The Case of Positron Emission Tomography | Susan Rushing | 50 Court Rev. 62 | . |
| Steinberg | 2014 | Should the Science of Adolescent Brain Development Inform Public Policy? | Laurence Steinberg | 50 Court Rev. 70 | . |
| Capestany | 2017 | The Use of Neuroscience for Mitigation During Sentencing in Non-Capital Cases | Beatrice Helene Capestany | . | . |
| Bedard | 2017 | The Potential for Bioprediction in Criminal Law | Hannah L. Bedard | 18 Colum. Sci. & Tech. L. Rev. 268 | . |
| Posa | 2016 | Neurosciences in Criminology | Franco Posa & Gabriele A. Losa | 2 Fractal Geometry & Nonlinear Anal. In Med. & Biology 1 | Neuroscience applications to criminology have acquired increasing scienti c and legal value thanks to recent studies of the anatomy and metabolic activity of the brain. e customary clinical methods of investigation of cerebral metabolism are now applied to scienti c studies of brain activity, with the aim of objectively identifying the active areas in subjects with antisocial or criminal behavior. Modern criminal neurosciences seek to identify the relationship between the brain and the mind, searching for evidence of how the mind can emerge from its biological substrate. Tools such as fMRI or SPECT are currently used for: metabolic investigation of di erent brain areas involved in the genesis of some behavioral traits, and identi cation of the areas involved in the construction of lies, or in any particular psychiatric condition. |
| Shen | 2017 | The Limited Effect of Electroencephalography Memory Reocgnition Evidence on Assessments of Defendant Credibility | Francis X. Shen, Emily Twedell, Caitlin Opperman, Jordan Dean Scott Krieg, Mikaela Brandt-Fontaine, Joshua Preston, Jaleh McTeigue, Alina Yasis, & Morgan Carlson | J.L. & Biosciences | . |
| Gonzalez-Tapia | 2017 | A New Legal Treatment for Psychopaths? Perplexities for Legal Thinkers | Maria Isabel Gonzalez-Tapia, Ingrid Obsuth, & Rachel Heeds | International J.L. & Psychiatry | Public perception, fueled not only by popular and news media but also by expert claims that psychopaths are archetypes of evil: incorrigible, remorseless, cold-blooded criminals, whose crimes manifest in the most extreme levels of violence. But is there empirical evidence that psychopaths truly are what they are portrayed to be? If so, should the law respond, and adjust its treatment of psychopaths in court — permitting psychopathy to be admitted under an insanity defense and/or resulting in mitigation? In this paper, we demonstrate that fundamental questions from the law to science remain unanswered and must be addressed before any alternative treatment of psychopathy can be considered. As it stands, psychopaths cannot be reliably defined or diagnosed and, as we will demonstrate, even the presumed link with criminal dangerousness is problematic. We conclude that the current legal approach should not be modified, however, if preliminary findings regarding impairments in impulsivity/self-control are confirmed, some, but not all individuals who fall under one definition of psychopathy may merit different treatment in future. |
| Davies | 2017 | Neuroscience Changes More Than You Can Think | Paul S. Davies & Peter A. Alces | U. Ill. J.L. Tech. & Pol'y 141 | In this Essay, we consider the contribution of a startling new book, Law & Neuroscience (L&N), by Owen Jones, Jeffrey Schall, and Francis Shen. It is a law school course book (a genre not often the focus of a scholarly review essay) that supports fundamental inquiry into the relationship between emerging neuroscientific insights and doctrinal conceptions in the law. We believe that the book shifts the paradigm and so may profoundly affect the course of normative evaluation of law. In this Essay, we trace and evaluate the “argument” of the book and suggest ways in which its contribution to the normative analysis of law may impact students and legal scholars for years to come. We believe that L&N is that rare work that will, quite literally, change the way people think |
| LaDuke | 2017 | The Neuropsychological Assessment of Justice-Involved Men: Descriptive Analysis, Preliminary Data, and a Case for Group-Specific Norms | Casey LaDuke, David DeMatteo, Kirk Heilbrun, Jennifer Gallo, & Thomas Swirsky-Sacchetti | Arch Clin Neuropsychology 1 | Neuropsychological expertise has played an increasing role in legal decision-making in criminal contexts. Valid neuropsychological evidence in criminal forensic contexts requires normative data that are representative of justice-involved individuals. Unfortunately, existing normative data appear unlikely to represent justice-involved individuals due to significant demographic and clinical factors specific to this population. As a result, the interpretation of neuropsychological performance with justice-involved individuals using existing normative data may increase the risk of inaccurate description, invalid clinical conceptualization, misdiagnosis of impairment, and misattribution of deficits in functional-legal capacities. The current study aimed to examine the use of neuropsychological assessment with justice-involved men. |
| Martellozzo | 2017 | Cybercrime and Its Victims | Elena Martellozzo & Emma A. Jane | (Elena Martellozzo & Emma A. Jane, eds. 2017) | The last twenty years have seen an explosion in the development of information technology, to the point that people spend a major portion of waking life in online spaces. While there are enormous benefits associated with this technology, there are also risks that can affect the most vulnerable in our society but also the most confident. Cybercrime and its victims explores the social construction of violence and victimisation in online spaces and brings together scholars from many areas of inquiry, including criminology, sociology, and cultural, media, and gender studies. The book is organised thematically into five parts. Part one addresses some broad conceptual and theoretical issues. Part two is concerned with issues relating to sexual violence, abuse, and exploitation, as well as to sexual expression online. Part three addresses issues related to race and culture. Part four addresses concerns around cyberbullying and online suicide, grouped together as social violence . The final part argues that victims of cybercrime are, in general, neglected and not receiving the recognition and support they need and deserve. It concludes that in the volatile and complex world of cyberspace continued awareness-raising is essential for bringing attention to the plight of victims. It also argues that there needs to be more support of all kinds for victims, as well as an increase in the exposure and punishment of perpetrators. Drawing on a range of pressing contemporary issues such as online grooming, sexting, cyber-hate, cyber-bulling and online radicalization, this book examines how cyberspace makes us more vulnerable to crime and violence, how it gives rise to new forms of surveillance and social control and how cybercrime can be prevented. |
| Greely | 2017 | Happy 15th Birthday, Neuroethics! | Henry T. Greely | The Neuroethics Blog | . |
| Meynen | 2017 | Brain-Based Mind Reading in Forensic Psychiatry: Exploring Possibilities and Perils | Gerben Meynen | J.L. & Biosciences | One of the areas in which brain-based mind reading (BMR) may be applied is forensic psychiatry. The purpose of this paper is to identify opportunities and challenges for forensic psychiatry regarding BMR. In order to do so, a conceptual framework for BMR will be introduced, which distinguishes between three basic types of BMR, based on how they relate to the subject's knowledge. In addition, three features of BMR techniques will be articulated: first, whether they require passive cooperation; second, whether they require active cooperation; and third, whether they require that the subject is awake. Each of the types of BMR entails specific chances and risks for forensic psychiatry, involving, for example, confidentiality in the doctor–patient relationship and the possibility of coercive use of BMR techniques. It will be concluded that apart from legal considerations, such as tests of admissibility of evidence, professional ethics is highly relevant. |
| Austin | 2017 | Food for Thought: The Neuroscience of Nutrition to Fuel Cognitive Performance | Debra Austin | 95 Or. L. Rev. 425 | . |
| Jewel | 2017 | Neurorhetoric, Race, and the Law: Toxic Neural Pathways and Healing Alternatives | Lucy A. Jewel | 76 Md. L. Rev. 663 | . |
| Osborn | 2017 | Healing the Invisible: How the VA Fails to Adequately Compensate Veterans for Mild Traumatic Brain Injury | Megan Osborn | 26 Fed. Circuit B.J. 379 | . |
| Bair | 2017 | Dynamic Rationality | Stephanie Plamondon Bair | Ohio State L.J. (forthcoming) | In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published A Behavioral Approach to Law and Economics, one of the most important pieces of scholarship in decades. Their Article famously proposes a departure from the classical law and economics approach to legal analysis. Breaking from classical law and economics’ rational actor construct, the authors apply empirical insights about human behavior to introduce the concept of a boundedly rational actor limited by cognitive constraints. Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to legal analyses. Unfortunately, the current approach to behavioral law and economics is incomplete. Indeed, sometimes it even conflicts with empirical lessons about how the brain actually works. In particular, rationality is not exogenous to policy, but instead has a dynamic character that can be molded in long-lasting ways over time by specific laws and policies. By overlooking the dynamic nature of rationality, behavioral law and economics cannot reach its full potential, and in fact, may harm the very people it is intended to benefit. A policy enacted to preserve consumer autonomy, for instance, may actually undermine autonomous decision-making in the long term. In this Article, I take the first step in remedying this oversight. Drawing on the insights of neuroscience, I explain why rationality is endogenous and dynamic and what this means for behavioral law and economics. Working from examples in advertising and criminal law, I explain that dynamic rationality can and should be accounted for. Doing so will increase the prescriptive and normative power of behavioral law and economics and prevent policies from being introduced that undermine rather than advance social welfare. |
| Steinberg | 2017 | Adolescent Brain Science and Juvenile Justice Policymaking | Laurence Steinberg | Psychology, Pub. Pol'y, & L. | The American legal system’s thinking about the criminal culpability of juveniles has been radically transformed over the past 12 years, largely as a result of the introduction of developmental science into the United States Supreme Court’s deliberations about the appropriate sentencing of adolescents who have been convicted of the most serious crimes. The author examines the role that developmental science, and, especially, developmental neuroscience, has played in this policy transformation. After a brief overview of the Court’s rulings in 4 landmark cases decided between 2005 and 2016, he summarizes the relevant psychological and neurobiological evidence that likely guided the Court’s rulings. The author concludes with suggestions for future research and policy analysis, including (a) the study of developmental differences between adolescents and adults that have implications for their differential treatment under criminal law, with a particular focus on the neural underpinnings of these differences; (b) the study of the impact of variations in juvenile justice policy and practice on outcomes other than recidivism; and (c) the study of the financial costs and benefits of juvenile justice policy alternatives. |
| Hunter | 2017 | How Disorder Onset Controllability Moderates the Impact of Biological Arguments on Judgments of Criminal Responsibility | Shelby Hunter | Arizona St. Univ. | In recent years, the use of biologically based (neurological, neuropsychological, genetic) evidence in criminal trials as support for claims of mental impairments among offenders has increased in popularity. However, research on how exposure to those arguments affects jury decision-making remains unclear. Specifically, arguments rooted in biology sometimes mitigate and sometimes aggravate judgments of criminal responsibility for mentally ill offenders, and this discrepancy seems to stem from the specific conditions by which that disorder was acquired. The following study's aim was to uncover the precise mechanism(s) behind this elusive effect. Utilizing a 2x2 between subjects experimental design, participants were presented with a hypothetical crime summary involving an offender with either an onset controllable or uncontrollable mental disorder. Ratings of criminal responsibility and other variables hypothesized to function as mediators were obtained after presentation of a prime supporting either a biologically deterministic or free will argument for human behavior in general. Results indicated that when the defendant's disorder was the result of his own actions (onset controllable), a biological prime decreased judgments of criminal responsibility; however, when the disorder was caused by factors out of his control (onset uncontrollable), the prime increased judgments of criminal responsibility. An examination of several possible mechanisms finds the effect mediated by the perception fo control the defendant could have had over his own actions at the time of the crime. These results suggest that perceptions of behavioral control are an important contributor to jurors' formation of criminal responsibility judgments when an offender possesses a mental illness; and arguments advocating a biological basis for human behavior reliably affect blame attribution, suggesting that a societal shift in teh perception of free will as a result of increased exposure to biology in general may alter the framework of criminal responsibility judgments. |
| Fiser | 2017 | Getting Inside the Employee's Head: Neuroscience, Negligent Employment Liability, and the Push and Pull for New Technology | Havey L. Fiser & Patrick D. Hopkins | Boston Univ. J. Sci. & Tech. L. 1 | . |
| Glass | 2016 | Neural Signatures of Third-Party Punishment: Evidence from Penetrating Traumatic Brain Injury | Leila Glass, Lara Moody, Jordan Grafman, & Frank Krueger | 11 Soc. Cognitive Affective Neuroscience 253 | The ability to survive within a cooperative society depends on impartial third-party punishment (TPP) of social norm violations. Two cognitive mechanisms have been postulated as necessary for the successful completion of TPP: evaluation of legal responsibility and selection of a suitable punishment given the magnitude of the crime. Converging neuroimaging research suggests two supporting domain-general networks; a mentalizing network for evaluation of legal responsibility and a central-executive network for determination of punishment. A whole-brain voxel-based lesion-symptom mapping approach was used in conjunction with a rank-order TPP task to identify brain regions necessary for TPP in a large sample of patients with penetrating traumatic brain injury. Patients who demonstrated atypical TPP had specific lesions in core regions of the mentalizing (dorsomedial prefrontal cortex [PFC], ventromedial PFC) and central-executive (bilateral dorsolateral PFC, right intraparietal sulcus) networks. Altruism and executive functioning (concept formation skills) were significant predictors of TPP: altruism was uniquely associated with TPP in patients with lesions in right dorsolateral PFC and executive functioning was uniquely associated with TPP in individuals with lesions in left PFC. Our findings contribute to the extant literature to support underlying neural networks associated with TPP, with specific brain-behavior causal relationships confirming recent functional neuroimaging research. |
| Mahlmann | 2017 | Mind and Rights: Neuroscience, Philosophy and the Foundations of Legal Justice | Matthias Mahlmann | in Law, Reason and Emotion (M. Sellers, ed., 2017) | The main question explored is: What is actually the relationship between human thought, its structure and exercise, and the idea of human rights, which is surely among the most important products of human thinking? The first question will be: Why does the theory of mind matter for ethics and law? Second, the concept or idea of a human right as a subclass of moral and legal subjective rights used will be outlined and clarified to answer the question: What precisely are we talking about? Third, the question Where do rights come from? will occupy the attention just long enough to substantially understand why an answer to one of the two currently particularly interesting fundamental forms of human rights’ revisionism, the historical, genealogical attack on human rights, leads necessarily beyond the limits of human rights history in the deep waters of the epistemology and ontology of human rights and thus to those kinds of problems these remarks intend to explore. Fourth, the question Why are rights justified? will be considered. Fifth, after having sufficiently prepared the ground by the preceding remarks, the core issue of these reflections can be addressed: What is, after all, the importance of the theory of mind for the project of human rights? Here the second fundamental challenge to the idea of human rights will be discussed. This attack stems from the quarters of today’s neuroscientific neo-emotivism, which is interesting in itself and has the advantage that the critique of this form of human rights revisionism has considerable heuristic merits for a constructive account of the theory of mind and the foundations of human rights. How a theory of human rights could draw from the theory of mind, and more concretely from a mentalist account of ethics and law, to provide such a constructive account is the final perspective to be explored. |
| Muller | 2017 | Respect for Autonomy in Light of Neuropsychiatry | Sabine Muller | 31 Bioethics 360 | Bioethics needs an elaborated concept of autonomy based on empirical knowledge about the prerequisites of the capacity of autonomy. Whereas Beauchamp and Childress, and many other bioethicists have discussed social influences on the capacity of autonomy in depth, neurobiological influences have received less attention. A comprehensive concept of autonomy should consider both social and biological factors that can diminish the capacity of autonomy. This article focuses on neurobiological influences that can reduce the capacity of autonomy. The thesis of this article is that the integration of neuropsychiatric knowledge into the concept of autonomy is essential for (1) evaluating demands for harmful medical treatments which might be caused by a brain disease, and (2) deciding on involuntary treatments of patients who suffer from substantial lack of autonomy due to neuropsychiatric disorders. Diametrically opposed to such a comprehensive concept of the capacity of autonomy is the concept of ‘liberty of illness’. In Germany, this concept is supported not only by anti‐psychiatric groups but also by the Federal Constitutional Court. Several real cases demonstrate how the brain can be ‘hijacked’ by parasites, antibodies or technical devices. Applying the concept of ‘liberty of illness’ to persons whose decision‐making capacity is severely affected by neuropsychiatric disorders is cynical. These patients neither chose their disease nor would refuse effective treatment if their will was not disturbed by the disease. Respect for autonomy should be understood as the positive obligation to save, support or restore the biological prerequisites of the capacity for autonomous decision‐making. |
| Racine | 2017 | Can Neuroscience Contribute to Practical Ethics? A Critical Review and Discussion of the Methodological and Translational Challenges of the Neuroscience of Ethics | Eric Racine, Veljko Dubljević, Vernard Baertschi, Ralf J. Jox, Julia F. Christensen, Michele Farisco, Fabrice Jotterand, Guy Kahane, & Sabine Muller | 31 Bioethics 328 | Neuroethics is an interdisciplinary field that arose in response to novel ethical challenges posed by advances in neuroscience. Historically, neuroethics has provided an opportunity to synergize different disciplines, notably proposing a two‐way dialogue between an ‘ethics of neuroscience’ and a ‘neuroscience of ethics’. However, questions surface as to whether a ‘neuroscience of ethics’ is a useful and unified branch of research and whether it can actually inform or lead to theoretical insights and transferable practical knowledge to help resolve ethical questions. In this article, we examine why the neuroscience of ethics is a promising area of research and summarize what we have learned so far regarding its most promising goals and contributions. We then review some of the key methodological challenges which may have hindered the use of results generated thus far by the neuroscience of ethics. Strategies are suggested to address these challenges and improve the quality of research and increase neuroscience’s usefulness for applied ethics and society at large. Finally, we reflect on potential outcomes of a neuroscience of ethics and discuss the different strategies that could be used to support knowledge transfer to help different stakeholders integrate knowledge from the neuroscience of ethics. |
| Barnes | 2017 | Child Abuse - Nonaccidental Injury (NAI) and Abusive Head Trauma (AHT) - Medical Imaging: Issues and Controversies in the Era of Evidence-Based Medicine | Patrick Barnes | 50 U. Mich. J.L. Reform 679 | . |
| Oehme | 2016 | Trauma-Informed Co-Parenting: How a Shift in Compulsory Divorce Education to Reflect New Brain Development Research Can Promote Both Parents' and Children's Best Interests | Karen Oehme, Anthony J. Ferraro, Nat Stern, Lisa S. Panisch, & Mallory Lucier-Greer | 39 U. Haw. L. Rev. 37 | . |
| Sirgiovanni | 2017 | Criminal Heredity: The Influence of Cesare Lombroso's Concept of the Born Criminal on Contemporary Neurogenetics and its Forensic Applications | Elisabetta Sirgiovanni | 29 J. History Med. Bioethics | At the end of the nineteenth century the Italian physician and anthropologist Cesare Lombroso established the foundations of criminological sciences by introducing a biological theory of delinquency, which was later discredited and replaced by the sociological approach. The theory of the born criminal was poor in methods and analysis, and turned out to be controversial in its formulations, assumptions, and mostly in its predictions. However, recent research in behavioral genetics and neuroscience has brought back some version of the Lombrosian idea by providing evidence for the genetic and biological correlates of criminality. This research has been impacting legal proceedings worldwide. In this paper, I compare the Lombrosian and the contemporary scientific meanings of heredity and predisposition to aggressive and violent behavior, by highlighting theoretical similarities and differences in the two approaches. On the one hand, the paper is arguing against the idea that contemporary theories are radically deterministic, while on the other hand it aims at rehabilitating the intellectual image of Lombroso by showing that the denigration of his brilliant work by his successors was unjustified. |
| Sirico | 2017 | The Trial Lawyer and the Reptilian Brain: A Critique | Louis J. Sirico, Jr. | 65 Clev. St. L. Rev. 411 | This Article brings together neuroscience, cultural symbolism, and the strategies of practicing lawyers to critique the reptile strategy, now popular among trial lawyers. The strategy directs the lawyer to trigger the reptilian brains of jurors so that they react instinctively to threats to themselves and their communities. When humans feel threatened, the reptilian brain, teh most primitive part of the brain, takes charge and instinctively controls human conduct. Therefore, if a lawyer can make a juror feel threatened, the lawyer makes an appeal to the juror's reptilian brain and virtually assures a victory. Thus, a lawyer's argument should intensify the juror's fear that his or her physical survival is at stake as well as that of the juror's family and community. The reptile strategy seeks to make jurors act instinctively adn not reflectively. This Article challenge the validity and desireability of this strategy. |
| Hubbard | 2017 | A Whole Lot of Shakin' Going on: Movement Disorders Caused by Brain Trauma | Jack E. Hubbard & Samuel D. Hodge, Jr. | 65 Clev. St. L. Rev. 287 | There has been a lot of publicity directed to the consequence of brain trauma, such as headaches forgetfulness, irritability, and depression. That is only part of the sequelae. A little known but challenging result of brain trauma is the development of or aggravation of a movement disorder such as a tremor, dystonia, a tic, or Parkinson's Disease. A movement disorder is an all-encompassing term that refers to a constellation of neurological issues that cause involuntary or voluntary movements of the body. If an injury occurs to a part of the brain that affects movement, it can trigger mobility problems and change the established line of communications. This can result in a host of unwarranted issues from a simple tic to a progressive neurological disorder that can lead to signifcant motor impairment over the years. Very little has been written about the medical-legal aspects of movement disorders and brain trauma. This article attempts to fill that void. It will discuss the medical aspects of post-traumatic movement disorders with a focus on the physiology of the brain and how the resultant movement maladies develop. The second section will examine the legal cases where this neurological problem has become an issue. |
| Grisso | 2016 | Prospects for Developmental Evidence in Juvenile Sentencing Based on Miller v. Alabama | Thomas Grisso & Antoinette Kavanaugh | 22 Psychol., Pub. Pol'y, & L. 235 | Recent U.S. Supreme Court decisions barred mandatory life without parole for juvenile homicide (Miller v. Alabama, 2012) and applied Miller retroactively (Montgomery v. Louisiana, 2016). Miller identified several developmental factors to consider in mitigation, but left many questions unanswered about their application. The authors offer several sentencing contexts to frame the types of developmental and clinical evidence that may be relevant for Miller hearings under various circumstances. Within these contexts, they explore types and sources of relevant developmental evidence and raise questions about quality and limitations. Their analysis identifies areas in which appellate court clarification is needed to determine how developmental evidence will be used in Miller cases, and they alert developmental experts to prospects and cautions for providing relevant evidence, as well as areas in need of research. |
| Racine | 2017 | Debates About Neuroethics: Perspectives on Its Development, Focus, and Future | Eric Racine & John Aspler | (Eric Racine & John Aspler, eds., 2017) | After a decade of growth and development, neuroethics as a defined discipline is establishing domains of inquiry and action, a defined canon, and set(s) of practices. Neuroethical address and discourse msut engage the realities forged and fostered by brain science no matter where they emerge and deliberate upon neurotechnological applications on the international scale. The invention adn application of neurotechnologies are raising questions of ethics, to be sure. Neuroscientific innovations are also altering and challenging how we regard ourselves as moral beings worthy of ethical standing. Neuroethical investigations, at the empirical levels of experimental research and clinical application or the philosophical levels of exploring moral research and clinical application or the philosophical levels of exploring moral capacities or ethical issues, concern ideas of what it means to be human and ideals of humanity-wide importance. As a discipline and in practice, neuroethics msut heed the subjective realities of hte people who take part in neuroscientific research and therapy. No single method could do justice to understanding ourselves as persons, nor could any single country monopolize the meaning of self-identity and self-worth. Therefore, neuroethics must become "disciplined" to be realized as genuinely intercultural, as well as thoroughly interconnected. We find that these goals and tasks are already being achieved through multidisciplinary and multinational networked teams that conduct collaborative inquiries in specific areas of both local and global concern. These teams deserve attention adn appreciation as exemplars for future disciplinary progress in neuroethics. |
| Koi | 2017 | Self-Control in Responsibility Enhancement and Criminal Rehabilitation | Polaris Koi, Susanne Uusitalo, & Jarno Tuominen | Crim. L. & Phil. | Ethicists have for the past 20 years debated the possibility of using neurointerventions to improve intelligence and even moral capacities, and thereby create a safer society. Contributing to a recent debate concerning neurointerventions in criminal rehabilitation, Nicole Vincent and Elizabeth Shaw have separately discussed the possibility of responsibility enhancement. In their ethical analyses, enhancing a convict’s capacity responsibility may be permissible. Both Vincent and Shaw consider self-control to be one of the constituent mental capacities of capacity responsibility. In this paper, we critically examine the promise of improving convicts’ capacity responsibility by neuroenhancements of self-control to see whether the special characteristics of the inmate population make a difference in the analyses. As improving self-control by means of neurointerventions seems plausible, we then ask whether it is or could be a justified measure in court rulings. We conclude that, even if there are cases in which neurointerventions were warranted in the context of the stated goals of the criminal court, i.e., decreasing recidivism and rehabilitating the offenders to the society, due to the range of individual variability in the constitution of self-control, the prescription of specific neurointerventions of self-control falls outside the scope of legitimate court rulings. |
| Sommaggio | 2017 | Neuro-Civilization: A New Form of Social Enhancement | Paolo Sommaggio | . | t's well known that neurosciences are those disciplines characterized by the study of the relations between the structure of the brain (and the nervous system) and the human behaviour. In this paper, I will analyse how the knowledge of the neurological structures tends towards the control of socially undesired behaviours, thus ending up with an authentic 'neuro-civilization'. Furthermore, I will show the role neuroscientists claim for themselves in the Courts of Justice and in cultural debates; moreover, I will analyse the so-called reductive neurolaw, which is the gradual replacement of traditional sources of law with new neuro-scientific standards. Finally, I will present the elaboration of the concept of 'normality' as used in order to eliminate deviance and to directly intervene in the brain, with resulting critical issues for human autonomy and personal freedom. New techniques (on human brain investigation) open opportunities in regard to the capability to understand, and control, the behaviour of persons considered deviant, transforming them into socially accepted ones. As we will see, in order to achieve this result, neuroscientists try to structure a range of scenarios in strategic terms. It may be a risk if a certain idea of neuro-normality imposes itself for current practises, and not for theoretical reasons. |
| Berryessa | 2017 | Jury-Eligible Public Attitudes Toward Biological Risk Factors for the Development of Criminal Behavior and Implications for Capital Sentencing | Colleen M. Berryessa | 44 Crim. Just. & Behav. | This experiment, utilizing a sample of death-qualified jury-eligible public, examines if and how evidence on biological risk factors for criminality might affect views on the death penalty in four contexts: death penalty support, mitigation, future dangerousness, and cruel and unusual punishment. Results suggest that the presentation of evidence on biological risk factors generally, regardless of the specific risk factor, may not affect views on whether or not the use of the death penalty is appropriate. The presentation of biological risk factor evidence does not appear to be viewed by as strongly mitigating, but biological risk factors generally do have a small, yet statistically significant, impact on perceptions of moral responsibility. The presentation of evidence on certain biological risk factors also may aggravate views of future dangerousness, which could potentially increase the likelihood that the death penalty is supported. Implications of these attitudes for the criminal justice system are discussed. |
| Shen | 2017 | Minority Mens Rea: Racial Bias and Criminal Mental States | Francis X. Shen | 68 Hastings L.J. 1007 | The American criminal justice system relies upon jurors to regularly decode the mental states of criminal defendants. These determinations are often of black and Hispanic defendants, making “minority mens rea” a centerpiece of the justice process. This Article presents an empirical investigation of how jury eligible subjects decode minority mens rea. In a study involving over 1200 subjects, the Article explores whether subjects assign fictional protagonists named Jamal and Lakisha more culpable mental states than they assign to protagonists named John and Emily. The results show that, at least on this particular experimental task, racial bias does not affect the assessment of minority mens rea. An implication is that some decisionmaking contexts and tasks may dampen the effects of racial biases. The Article thus argues that we should continue to examine distinct legal decisionmaking tasks in order to better understand how biases do (and do not) affect outcomes in the criminal justice system. |
| Hardcastle | 2017 | My Brain Made Me Do It? Neuroscience and Criminal Responsibility | Valerie Gray Hardcastle | in The Routledge Handbook of Neuroethics (L. Syd M. Johnson & Karen S. Rommelfanger, eds., 2017) | What is the relationship between deficiencies in the brain and criminal responsibility? This is a question that has received considerable scholarly attention over the past few years, and it is the question that occupies this chapter. |
| Lilienfeld | 2017 | Neurohype: A Field Guide to Exaggerated Brain-Based Claims | Scott O. Lilienfeld, Elizabeth Aslinger, Julia Marshall, & Sally Satel | in The Routledge Handbook of Neuroethics (L. Syd M. Johnson & Karen S. Rommelfanger, eds., 2017) | In this chapter, we turn a much needed critical eye to neurohype. To do so, we (a) canvass its prevalence and manifestations, (b) describe its principal sources, (c) examine its dangers, (d) delineate widespread logical pitfalls that contribute to it, along with concrete examples of these pitfalls from media and academic outlets, and (e) present user-friendly tips for evaluating neuroimaging findings reported in the popular media. |
| Page | 2017 | The Criminal Mind: Neuroscientific Evidence as a Mitigating Factor in Sentencing in New South Wales Australia | Ellie A. Page | 26 Pac. Rim L. & Pol'y 659 | "Neurolaw" is the emerging field of Law and Neuroscience that has the potential to lend insight into an offender's mental state and influence criminal responsibility. In New South Wales, Australia, courts allow neuroscientific evidence of an offender's cognitive impairment as a consideration in sentencing proceedings. In this comment, I discuss the discretionary nature of New South Wales' sentencing regime and the limitations of how neuroscience may be utilized within that regime. Although neuroscientists can address the association of an offender's cognitive impairment with the commission of a crime, they cannot identify, with certainty, a causal relationship. I analyze an original compilation of six case studies from New South Wales to illustrate that sentencing judges resist mitigating offenders' sentences based on evidence of a cognitive impairment unless there are other factors favorable to the offender, such as a guilty plea or a lack of criminal history. Judges' resistance to using evidence of a cognitive impairment alone to significantly mitigate an offender's sentence indicates that judges regard evidence of cognitive dysfunction as simply one factor in the holistic framework at their discretion in sentencing, likely due to hte lack of certainty surrounding the nature of the relationship between an offender's impairment and the commission of the crime. Judges' reluctance to use neuroscience as a signficant mitigating factor also maintains implications for the sustained retributivist nature of the criminal justice system in New South Wales and raises the issue of whether the judiciary is the appropriate body to apply neuroscience to the law. |
| Moyer | 2017 | Free Will's Enormous Cost: Why Retribution, Grounded in Free Will, is an Invalid and Impractical Penal Goal | Matthew D. Moyer | 92 Notre Dame L. Rev. 2231 | . |
| Perlin | 2017 | My Brain Is So Wired': Neuroimaging's Role in Competency Cases Involving Persons with Mental Disabilities | Michael L. Perlin & Alison J. Lynch | . | In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas. There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a handful of reported cases consider this question, and it is “under the radar” for most relevant scholarship as well, notwithstanding that (1) this inquiry is, numerically, the most important “disability law” question relevant to criminal law, (2) the costs of these hearings are staggering, and (3) the incompetency status in no way admits or presumes factual guilt. It is imperative that the ways in which neuroimaging may influence competency determination be studied and understood. We review legal standards for competency in the context of mental disabilities, then examine what neuroimaging may be able to add to these determinations. We examine this in the context of therapeutic jurisprudence, discussing whether the introduction of scientifically-based evidence of incompetency will lead to a therapeutic outcome for the defendant, no matter what its usefulness to the court. We also consider the important, related questions of (1) defense counsel’s competency to provide effective representation in this important area of law-and-science, and (2) an indigent defendant’s access to such testimony. Again, there is virtually no legal scholarship on this important topic. We hope that this paper encourages others – judges, scholars, policymakers, forensic mental health professionals – to think carefully about the questions we seek to address and our proposed solutions. |
| Faigman | 2016 | G2i Knowledge Brief: A Knowledge Brief of the MacArthur Foundation Research Network on Law and Neuroscience | David L. Faigman, Richard J. Bonnie, BJ Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson, Anthony D. Wagner, & Gideon Yaffe | . | Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”). Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert opinion. In other cases, in contrast, courts hold that expert evidence must be provided on both the group-data issue (i.e., that the phenomenon exists) and what is called the “diagnostic” issue (i.e., that this case is an instance of that phenomenon). Consequently, the MacArthur Foundation Research Network on Law and Neuroscience has prepared this knowledge brief to help courts manage the G2i divide. Specifically, we recommend that courts first determine whether proffered expert testimony concerns only the existence of the general phenomenon or instead concerns both that and the diagnosis that a particular case represents an instance of that phenomenon. Only after making that determination should the court make its admissibility decision (guided, for instance, by the Daubert factors for admitting scientific evidence). |
| Lloyd | 2016 | Cognitive Emotion and the Law | Harold Anthony Lloyd | 41 Law & Psychol. Rev. 53 | . |
| Brown | 2016 | Impunity for the Incorrigible Psychopathy?: Neurobiological Abnormalities Do Not Exempt Psychopaths from Criminal Repsonsibility | Shaneé Brown | 7 Charlotte L. Rev. 239 | . |
| Holmen | 2017 | Direct Brain Interventions, Changing Values and the Argument from Objectification - a Reply to Elizabeth Shaw | Sebastian Holmen | Neuroethics 1 | This paper critically discusses the argument from objectification – as recently presented by Elizabeth Shaw – against mandatory direct brain interventions (DBIs) targeting criminal offenders’ values as part of rehabilitative or reformative schemes. Shaw contends that such DBIs would objectify offenders because a DBI “excludes offenders by portraying them as a group to whom we need not listen” and “implies that offenders are radically defective with regard to one of the most fundamental aspects of their agency” (Shaw Criminal Law and Philosophy 8:1–20, 1). To ensure that offenders are not objectified, Shaw first maintains that we should restrict rehabilitative/reformative schemes to attempts at rational dialogue because such an approach respects the offender’s personhood. Second, Shaw claims that we should not portray offenders as radically defective because such treatment would only negatively impact offenders’ already tenuous relationship with society. Third, Shaw contends that we should not confer the state the power to change an offender’s values because the state lacks insight into what constitutes the right values. I contend that none of these arguments should prevent the use of value-targeting DBIs. First, I show that the dialogue requirement for rehabilitative schemes is insufficient ground from which to oppose the use of these DBIs. Second, I show that it is doubtful that the use of DBIs as proposed would damage the relationship between offenders and society. Finally, although the state may often lack insight into what constitutes the correct values, this lack of insight should not by itself prevent value-targeting DBIs from being employed on certain groups of offenders. |
| Isard | 2017 | Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity | Jeremy Isard | 105 Calif. L. Rev. 1223 | In California, there are thirty-two thousand prisoners serving indeterminate life sentences with the possibility of parole. Sentences for such inmates take the form of a range, for example, from fifteen years to life. Often called "lifers," these inmates are eligible for parole as soon as they reach the lower threshold of their sentence. To be paroled, inmates must go before the Board of Parole Hearings (BPH) for a suitability hearing. BPH operates under the auspices of the California Department of Corrections and Rehabilitation (CDCR), a state administrative agency. The central inquiry in the suitability hearing is whether the inmate poses an "unreasonable risk of danger to society." If they do, an inmate "shall be found unsuitable" for parole. If the panel of parole commissioners recommends parole, the prisoner's ultimate release is then subject to review by the full Board of Commissioners and the Governor. If parole is denied, the Board will issue a three-, five-, seven-, ten-, or fifteen-year denial. Lifers have a substantially lower recidivism rate than other California prisoners. Over the last twenty years, less than 1 percent of paroled lifers have been arrested or convicted of new felonies. There is a statutory presumption that parole will be granted at a lifer's first suitability hearing. But in reality, less than 1 percent of lifers are granted parole at the first suitability hearing. |
| Davis | 2017 | Brain Imaging Tests for Chronic Pain: Medical, Legal and Ethical Issues and Recommendations | Karen D. Davis, Herta Flor, Henry T. Greely, Gian Domenico Iannetti, Sean Mackey, Markus Ploner, Amanda Pustilnik, Irene Tracey, Rolf-Detlef Treede, & Tor D. Wager | 13 Nature Rev. Neurology 624 | Chronic pain is the greatest source of disability globally and claims related to chronic pain feature in many insurance and medico-legal cases. Brain imaging (for example, functional MRI, PET, EEG and magnetoencephalography) is widely considered to have potential for diagnosis, prognostication, and prediction of treatment outcome in patients with chronic pain. In this Consensus Statement, a presidential task force of the International Association for the Study of Pain examines the capabilities of brain imaging in the diagnosis of chronic pain, and the ethical and legal implications of its use in this way. The task force emphasizes that the use of brain imaging in this context is in a discovery phase, but has the potential to increase our understanding of the neural underpinnings of chronic pain, inform the development of therapeutic agents, and predict treatment outcomes for use in personalized pain management. The task force proposes standards of evidence that must be satisfied before any brain imaging measure can be considered suitable for clinical or legal purposes. The admissibility of such evidence in legal cases also strongly depends on laws that vary between jurisdictions. For these reasons, the task force concludes that the use of brain imaging findings to support or dispute a claim of chronic pain — effectively as a pain lie detector — is not warranted, but that imaging should be used to further our understanding of the mechanisms underlying pain. |
| Jones | 2017 | Lies, Brains and Courtrooms | Owen D. Jones & Morris Hoffman | 85 U.S. L. Week 904 | Polygraph results are generally inadmissible because they’re unreliable. But what about lie detection by brain-scanning? Members of the MacArthur Foundation’s Research Net- work on Law and Neuroscience say that lie detection by neuroimaging is still not ready for prime time, if it ever will be. But because neuroscience has advanced very rapidly over the last 30 years, they consider some of the legal and policy issues we may be facing if neuro lie detection ever comes to our courtrooms. |
| Pizzetti | 2017 | Bioethics & Legislation - A Proposal for a: "Universal Declaration on Neuroscience and Human Rights" | Federico Gustavo Pizzetti | Bioethical Voices (Center for Biomedical Ethics, National Taiwan University, Taiwan), June 2017, at 3. | . |
| Specker | 2017 | Forensic Practitioners' Expectations and Moral Views Regarding Neurobiological Interventions in Offenders with Mental Disorders | Jona Specker, Farah Focquaert, Sigrid Sterckx, & Maartj H. N. Schermer | BioSocieties 1 | Neurobiological and behavioural genetic research gives rise to speculations about potential biomedical interventions to prevent, contain, or treat violent and antisocial behaviour. These developments have stirred considerable ethical debate on the prospects, threats, and limitations of integrating neurobiological and behavioural genetic interventions in forensic psychiatric practices, yet little is known about how forensic practitioners perceive these potential interventions. We conducted a qualitative study to examine (i) the extent to which forensic practitioners expect that effective biomedical interventions will be developed and integrated in their daily work practice and (ii) their normative views concerning those potential biomedically informed interventions. We focused on potential biomedical possibilities to lower aggression, the possible usage of neuroimaging in assessing legal responsibility, and the potential use of biomarkers in assessing risk for future violent and antisocial behaviour. Forensic practitioners expect novel biomedical interventions to be developed and display a general openness towards them. At the same time, they express concern that the integration of neurobiological and behavioural genetic elements in explanatory models of violence and antisocial behaviour may lead to misinterpretations, especially when implemented in the forensic field. |
| Otgaar | 2018 | Finding the Truth in the Courtroom: Dealing with Deception, Lies, and Memories | Henry Otgaar & Mark L. Howe | (Henry Otgaar & Mark L. Howe, eds., 2018) | In many criminal trials, forensic technical evidence is lacking and triers of fact must rely on the reliability of eyewitness statements, identifications, and testimony; however, such reports can be riddled with deceptive statements or erroneous recollections. Based on such considerations, the question arises as to how one should weigh such eyewitness accounts given the theoretical and empirical knowledge in this field. Finding the Truth in the Courtroom focuses on how legal professionals, legal/forensic psychologists, and memory researchers can decide when statements or identifications are based on truthful or fabricated experiences and whether one can distinguish between lies, deception, and false memories. The contributors, key experts in the field, assemble recent experimental work and case studies in which deception or false memory plays a dominant role. Topics discussed relate to the susceptibility to suggestive pressure (e.g., "Under which circumstances are children or adults the most vulnerable to suggestion?"), the fabrication of symptoms (e.g., "How to detect whether PTSD symptoms are malingered?"), and the detection of deceit (e.g., "Which paradigms are promising in deception detection?"), among others. By using this approach, this volume unites diverse streams of research (i.e., deception, malingering, false memory) that are involved in the reliability of eyewitness statements. |
| McGorrery | 2017 | A Further Critique of Brain Fingerprinting: The Possibility of Propranolol Usage by Offenders | Paul McGorrery | Alternative L.J. 1 | Brain fingerprinting technology is designed to read subconscious signals in the brain and detect deception. The technology has been subjected to a number of criticisms already: it has the potential to violate three distinct rights, and researchers have shown that it can be deceived through intentional suppression of memories. This article suggests a further reason to doubt the utility of the technology for criminal justice officials; specifically, the potential for defendants to pharmaceutically erase their own memories using beta-blockers such as propranolol, such that there would no longer be a memory of the crime for brain fingerprinting technology to detect. |
| Kneer | 2017 | Mens Rea Ascription, Expertise and Outcome Effects: Professional Judges Surveyed | M. Kneer & S. Bourgeois-Gironde | 169 Cognition 139 | A coherent practice of mens rea ('guilty mind') ascription in criminal law presupposes a concept of mens rea which is insensitive to the moral valence of an action's outcome. For instance, an assessment of whether an agent harmed another person intentionally should be unaffected by the severity of harm done. Ascriptions of intentionality made by laypeople, however, are subject to a strong outcome bias. As demonstrated by the Knobe effect, a knowingly incurred negative side effect is standardly judged intentional, whereas a positive side effect is not. We report the first empirical investigation into intentionality ascriptions made by professional judges, which finds (i) that professionals are sensitive to the moral valence of outcome type, and (ii) that the worse the outcome, the higher the propensity to ascribe intentionality. The data shows the intentionality ascriptions of professional judges to be inconsistent with the concept of mens rea supposedly at the foundation of criminal law. |
| Choi | 2017 | What Neuroscience Can and Cannot Answer | Octavio S. Choi | 45 J. Amer. Acad. Psychiatry & L. 278 | We truly live in the golden age of neuroscience. Advances in technology over the past 20 years have given modern neuro-researchers tools of unprecedented power to probe the workings of the most complex machine in the universe (as far as we know). Neuroscience as a field is driven by our natural fascination with understanding how a physical organ, weighing three pounds and running on 20 watts of power, can give rise to the mind, and with it, our thoughts, feelings, soul, and identity. Brain activity is presumably the source of all these things, but how, exactly? Culturally, neuroscience is a currency that enjoys very high capital, and public fascination with neuroscience is evident in the news and popular culture. Neuroscience is cool: prestigious, high-tech, complex, philosophically rich, and beautiful. |
| Graham | 2017 | Emerging Adults in the Federal System: A Case for Implementing the Federal Youth Corrections Act | Emily Graham | 11 Harv. L. & Pol'y Rev. 619 | Over the past two decades, the Supreme Court has, in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, embraced neuroscience as an important source of evidence when determining appropriate sentencing for juveniles in the criminal justice system. Alongside the development of the Court's juvenile justice jurisprudence, there is a growing bipartisan consensus that current federal sentencing policy is unnecessarily punitive and in need of reform. The Federal Youth Corrections Act (YCA), an important element of federal sentencing law from 1950 to 1984, is an existing model through which to take both the Court's findings and Congressional will seriously. The Act allowed adult defendants aged eighteen through twenty-five to be sentenced to probation services instead of prison, serve lower sentences than older adults, and have aspects of their criminal history sealed. The Act was repealed in 1984 by the same omnibus crime control bill that abolished parole in the federal system and established the federal sentencing commission. Today, emerging adults aged eighteen through twenty-five are subject to the same mandatory minimum sentences as are adults in the criminal justice system. All jurisdictions in the United States treat individuals charged as juveniles and those charged as adults differently at every step of criminal justice involvement, including sentencing, with no gradations to account for age once a defendant is in the adult system. In the vast majority of states and in the federal system, this distinction is between those under and over the age of eighteen. The Supreme Court has recognized, however, that the choice of eighteen as the age to draw this categorical distinction is largely arbitrary, and current research indicates it is misaligned with the most effective treatment of young offenders aged eighteen through twentyfive. Treating this class of young people indistinguishably from adults fails to consider the neurological and developmental status of emerging adults. Emerging adults are developmentally distinct from both juveniles and adults, and they merit a distinct sentencing scheme. On average, the group is less culpable and has significant capacity for rehabilitation. Based on the reasoning in Graham and Miller, criminal sentencing schemes should reflect these conclusions drawn from the research. Congress, in reviewing and redrafting its federal sentencing scheme, should view neuroscience as a tool to help devise a structure that is more just and more effective. |
| Pustilnik | 2017 | Legal Evidence of Subjective States: A Brain-Based Model of Chronic Pain Increases Accuracy and Fairness in Law | Amanda C. Pustilnik | 25 Harv. Rev. of Psychiatry 279 | Abstract: Advances in structural and functional neuroimaging offer new ways to conceptualize chronic pain disorders and to prevent, diagnose, and treat chronic pain. Advances in pain science, though, do not entail changes in the concepts of chronic pain in law and culture. Authoritative legal and cultural conceptions of chronic pain continue to promote abstruse theories, characterizing these disorders as arising out of everything from a person’s unmet need for love to resistance to “patriarchy.” These constructs have consequences, impeding treatment and affecting whether individuals with chronic pain can obtain legal redress. Legal systems themselves are disadvantaged, as adjudicators struggle to make sense of regulations and presumptions at odds with the medical evidence that they must evaluate. Law’s pain schema is so misdescriptive that, paradoxically, it can reward fraudulent claims and disadvantage legitimate ones. This review discusses advances in neuroimaging and related sciences that are contributing to an emerging neurological model of chronic pain. It then describes doctrines and cases in the United States and United Kingdom, demonstrating how law’s pre-neurological model of pain complicates the legal process for all participants. It concludes with suggestions for doctrinal revisions, which may have broader effects on law’s long-standing dualistic conception of body versus mind. |
| Heyman | 2017 | Brief of Amici Curiae of 11 Addiction Experts in Support of Appellee | Gene M. Heyman, Scott O. Lilienfeld, Stephen Morse, Sally Satel | U. Penn. L. Sch., Pub. L. Res. Paper No. 17-44 | This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to contingencies. We then present an overview of data demonstrating that addiction is a set of behaviors whose course can be altered by foreseeable consequences. The same cannot be said of conventional brain diseases such as Alzheimer’s or multiple sclerosis. The best scientific and clinical data we have do not support the view that addicts are unable to refrain from using substances by choice. By “choice” we mean the product of the capacity to respond to incentive and reasons, which obviously varies among addicts but which are virtually never entirely lost. Data amply show that addicts retain that capacity. Finally, we demonstrate how a decision in favor of the probationer could have significant implications for the future of treatment-based approaches to criminal justice, as well as for criminal responsibility more generally. We conclude that the probationer’s claim should be denied because it rests on refuted scientific premises and will have negative consequences if it is accepted. |
| Vaughn | 2017 | Book Review - (Of Susanna L. Blumenthal, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016)) | Lea B. Vaughn | 67 J. Legal Educ. | In a masterful book titled Law and the Modern Mind, Susanna Blumenthal simultaneously describes the battles among scientists, doctors, and jurists in the period following the Revolutionary War and up through the Gilded Age, and takes on traditional scholarship in legal history as to who this person or “mind” is. Her study not only provides an alternative account of the formation of American character, but also provides a series of detailed portraits of the various turning points in the formation of that character, and the legal determination of capable, accountable personhood. This review essay initially discusses Blumenthal’s approach to legal history and the challenge she presents to traditional scholarship. The second section provides an overview of Blumenthal’s methodology, which draws on a breathtaking base of source materials; she weaves hundreds of cases, treatises, and biographical notes into her observations. Finally, this review considers what is one of the most powerful and important contributions of her book—an in-depth analysis of the intersection of law and medicine in the period under study. The review points out ways in which Blumenthal’s insights can be brought to bear on modern conversations involving law, genetics, and neuroscience. |
| Tremblay | 2016 | Provocation, colère et contrôle de soi: la "personne ordinaire" est-elle soluble dans les neurosciences? | Ugo Gilbert Tremblay | 50 Revue Juridique Thémis 273 | This article concerns the principles of penal accountability, and, more gener- ally, the connection – real or illusory – that links them to the philosophical problem of free will. Many authors have argued that the classical concept of crim- inal responsibility falls into abeyance given that its premises are incompatible with the new conception of men derived from recent advances in neuroscience. This article wants to ascertain the validity of such an assertion and try to evaluate if the juridical meaning of the notion of re- sponsibility is adequately conceived by these authors. Following a brief sum- mary of the neurobiological mechanisms involved in anger and self-control, it will assess their consequences for the tradi- tional requirements of provocation de- fense. This speci c defence will serve as a magnifying glass to expose the strong normative grounds of the criminal law. It will also be used to emphasize the fact that neuroscience remains widely power- less in undermining the fundamental purposes of this pivotal social institution. |
| Bradley | 2017 | Cognitive Competence in Executive-Branch Decision Making | Anna Spain Bradley | 49 Connecticut L. Rev. | The decisions Presidents and those operating under their authority take determine the course of our nation and the trajectory of our lives. Consequently, understanding who has the power and authority to decide has captured both the attention of legal scholars across a variety of fields for many years and the immediate worry of the public since the 2016 Presidential election. Prevailing interventions look for ways that law can offer procedural and institutional reforms that aim to maintain separation of powers and avoid an authoritarian regime. Yet, these views commonly overlook a fundamental factor and a more human one: the individuals empowered to make choices on behalf of the nation. In governance, sometimes the problem is legal or institutional. But sometimes a person is the problem. Taking up this view, this Article investigates how legal scholarship can expand its understanding of executive-branch decision making by adapting insights from neuroscience about how human cognition works. Individuals matter because every instance of executive-branch overreach can be located in a particular decision taken by a specific person. Attending to cognitive functions associated with individual judgment and choice offers a new way of understanding governmental decision making by broadening understanding of the government’s decision makers. The key to promoting effective governance, this Article argues, requires renovating how the law understands individual choice and determines who should have the legal authority to make decisions that affect the nation. Adopting a neuroscientifically informed perspective on decision making both produces a more accurate, descriptive understanding of how executive-branch decisions are made and destabilizes existing presumptions that a person is qualified to make decisions of national importance solely because she or he is legally authorized (appointed or otherwise selected) to do so. Who decides matters because, in the end, the difference between good and bad governance often comes down to the choices made by the people who are in charge. |
| Edersheim | 2017 | Introduction | Judith G. Edersheim & Rebecca W. Brendel | 25 Harv. Rev. of Psychiatry 259 | Our goal with this Special Issue of the Harvard Review of Psychiatry is to educate and inform mental health researchers and clinicians about the increasing use of their work in judicial contexts, and to prepare them for the ethical and practical issues that will arise when their work enters the legal arena. |
| Morse | 2017 | The Science of Addiction and Criminal Law | Stephen J. Morse | 25 Harv. Rev. of Psychiatry 261 | Although there is debate in the scientific and clinical literature about how much choice addicts have concerning the use of drugs and related activities, this article demonstrates that Anglo-American criminal law is most consistent with the position that addicts have substantial choice about engaging in crimes involving their addiction. It suggests that the criminal law’s approach is consistent with plausible and reasonable current scientific and clinical understanding of addiction and is therefore defensible, but it also suggests that the law is unduly harsh and far from optimum. |
| Darby | 2017 | Dementia, Decision Making, and Capacity | Ryan R. Darby & Bradford C. Dickerson | 25 Harv. Rev. of Psychiatry 270 | Medical and legal professionals face the challenge of assessing capacity and competency to make medical, legal, and financial decisions in dementia patients with impaired decision making. While such assessments have classically focused on the capacity for complex reasoning and executive functions, research in decision making has revealed that motivational and metacognitive processes are also important. We first briefly review the neuropsychological literature on decision making and on the medical and legal assessment of capacity. Next, we discuss the limitations of integrating findings from decision-making research into capacity assessments, including the group-to-individual inference problem, the unclear role of neuroimaging in capacity assessments, and the lack of capacity measures that integrate important facets of decision making. Finally, we present several case examples where we attempt to demonstrate the potential benefits and important limitations of using decision-making research to aid in capacity determinations. |
| Darby | 2017 | Lesion Network Localization of Criminal Behavior | Ryan R. Darby, Andreas Horn, Fiery Cushman, Michael D. Fox | PNAS Early Edition 1 | Following brain lesions, previously normal patients sometimes exhibit criminal behavior. Although rare, these cases can lend unique insight into the neurobiological substrate of criminality. Here we present a systematic mapping of lesions with known temporal association to criminal behavior, identifying 17 lesion cases. The lesion sites were spatially heterogeneous, including the medial prefrontal cortex, orbitofrontal cortex, and different locations within the bilateral temporal lobes. No single brain region was damaged in all cases. Because lesion-induced symptoms can come from sites connected to the lesion location and not just the lesion location itself, we also identified brain regions functionally connected to each lesion location. This technique, termed lesion network mapping, has recently identified regions involved in symptom generation across a variety of lesion-induced disorders. All lesions were functionally connected to the same network of brain regions. This criminality-associated connectivity pattern was unique compared with lesions causing four other neuropsychiatric syndromes. This network includes regions involved in morality, value-based decision making, and theory of mind, but not regions involved in cognitive control or empathy. Finally, we replicated our results in a separate cohort of 23 cases in which a temporal relationship between brain lesions and criminal behavior was implied but not definitive. Our results suggest that lesions in criminals occur in different brain locations but localize to a unique resting state network, providing insight into the neurobiology of criminal behavior. |
| Sabatello | 2017 | Behavioral Genetics in Criminal and Civil Courts | Maya Sabatello & Paul S. Appelbaum | 25 Harv. Rev. of Psychiatry 289 | Although emerging findings in psychiatric and behavioral genetics create hope for improved prevention, diagnosis, and treatment of disorders, the introduction of such data as evidence in criminal and civil proceedings raises a host of ethical, legal, and social issues. Should behavioral and psychiatric genetic data be admissible in judicial proceedings? If so, what are the various means for obtaining such evidence, and for what purposes should its admission be sought and permitted? How could—and should—such evidence affect judicial outcomes in criminal and civil proceedings? And what are the potential implications of using behavioral and psychiatric genetic evidence for individuals and communities, and for societal values of equality and justice? This article provides an overview of the historical and current developments in behavioral genetics. We then explore the extent to which behavioral genetic evidence has—and should—affect determinations of criminal responsibility and sentencing, as well as the possible ramifications of introducing such evidence in civil courts, with a focus on tort litigation and child custody disputes. We also consider two ways in which behavioral genetic evidence may come to court in the future—through genetic theft or the subpoena of a litigant’s biospecimen data that was previously obtained for clinical or research purposes—and the concerns that these possibilities raise. Finally, we highlight the need for caution and for approaches to prevent the misuse of behavioral genetic evidence in courts. |
| Ward | . | The Contribution of Neuroscience to Forensic Explanation | Tony Ward, Crolyn Wilshire, & Lucy Jackson | . | In light of the growing research and practice interest in forensic neuroscience, a pressing question concerns whether or not neuroscience theories and findings can make a useful contribution to the explanation and management of crime. We argue that in order to respond to this query, it is necessary to be clear about (a) What constitutes a forensic explanation; (b) What the explanatory targets of forensic explanations should be; (c) What types of explanatory strategies are likely to be fruitful in the area; and (d) The specific challenges that face theorists seeking to integrate neuroscience findings in their explanations of crime. In this paper we address these issues. |
| Walton | 2017 | New Directions: Integrating a Biopsychosocial Approach in the Design and Delivery of Programs for High Risk Service Users in Her Majesty's Prison and Probation Service | Dr. Jaime S. Walton, Laura Ramsay, Cara Cunningham, & Sarah Henfrey | 3 Advancing Corrections: J. I'ntl Corrections & Prison Assoc. 21 | Recently, Mann and Carter (2012) have proposed a biopsychosocial model of change building on the Good Lives Model and principles of Risk-Need-Responsivity. The first stage of the model provides a biopsychosocial explanation of dynamic risk factors predictive of sexual recidivism. The second stage articulates a set of compatible organizing principles for program design. In this article we expand the model by providing a preliminary account of the biological, psychological and social basis of dynamic risk factors associated with different offence typologies. Subsequently, details are provided of two widely accessible high intensity programs which implement the organizing principles of the model. |
| Scarpazza | 2017 | The Role of Neuroscience in the Evaluation of Mental Insanity: On the Controversies in Italy | Cristina Scarpazza, Silvia Pellegrini, Pietro Pietrini, & Giuseppe Sartori | Neuroethics 1 | In the present manuscript, we comment upon a paper that strongly criticized an expert report written by the consultants of the defense (two of the authors of the present paper, PP and GS) in a case of pedophilia, in which clinical and neuro-scientific data were used to establish the causal link between brain alterations and onset of criminal behavior. These critiques appear to be based mainly on wrong pieces of information and on a misinterpretation of the logical reasoning adopted by defense consultants. Here we provide a point-by-point reply to the issues raised in the above paper and also discuss the potential role that neuroscience may contribute in the forensic context. Did the forensic neuroscience defense consultants claim the existence of a deterministic relationship between brain structure or function and behavior? How did the neuroscientific logic work in this specific case? How may the classic psychiatric/neurologic examination and neuroscientific evidence work side by side? Does the rarity of a disease impact on the causal relationship between the disease and the crime? Do neuroscientific data need to be interpreted? We address the above questions and conclude that neuroscience may strengthen the results of psychiatric evaluations, thus reducing uncertainty in the forensic settings. |
| Curtis | 2017 | Litigating Sports Concussions: What You Need to Know about the Science and the Law | Kathleen Curtis, Kyle Willems, & Tom Strand | 74 Bench & B. Minn. 28 | Advances in medicine, combined with a flurry of headlines about professional sports litigation, have raised awareness of the problem of concussions. But although rapid advancements in medicine and the evolution fo the law are making these claims easier to pursue, litigating such claims remains difficult. Attorneys asserting claims on behalf of concussed athletes need to be careful and do their homework. |
| Rozenblatt | 2017 | Legal Insanity: Towards an Understanding of Free Will Through Feeling in Modern Europe | Daphne Rozenblatt | 25 Rechtsgeschichte Legal History 263 | The degree to which insanity or mental infir- mity can be instrumentalized in legal debate is shaped by understandings of what insanity is, the currency of a specific diagnosis, as well as o cial and uno cial symptomatologies, all of which render the law, as a system of knowledge and social practices, porous and permeable in regards to what might be abstractly called »the human mind and heart«. This article explores the changing role of emotions in explaining, demonstrating, and adju- dicating insanity during the nineteenth and early twentieth centuries. Over the course of the nine- teenth century, the insanity plea became a matter of heated debate in relation to specific trials of capital o enses, which not only brought crime but also the subject of criminal insanity into the public eye. At the same time, the rise of expert scientific testimony and the modern medical sciences – specifically medical psychology and the advent of psychiatry – created di erent definitions and understandings of mental illness that challenged legal definitions of insanity. This led to interdisci- plinary discussion and debate, as physicians sought to provide a serviceable system to the lawyers, and lawyers sought new ways to discover and prove cases. The medicalization and pathologization of emotions not only led to the introduction and interpretation of new kinds of emotional evidence in the courtroom, it also gave emotions a range of di erent potential meanings, challenging the psy- chological premises and assumptions of the law as well as the principles and purposes of criminal justice. |
| Shook | 2017 | Moral Bioenhancement for Social Welfare: Are Civic Institutions Ready? | John R. Shook & James J. Giordano | 2 Front. Sociol. 1 | Positive assessments of moral enhancement too often isolate intuitive notions about its benefits apart from the relevance of surrounding society or civic institutions. If moral bioenhancement should benefit both oneself and others, it cannot be conducted apart from the enhancement of local social conditions, or the preparedness of civic institutions. Neither of those considerations has been adequately incorporated into typical neuroethical assessments of ambitious plans for moral bioenhancement. Enhancing a person to be far less aggressive and violent than an average person, what we label as “civil enhancement,” seems to be quite moral, yet its real-world social consequences are hardly predictable. A hypothetical case about how the criminal justice system would treat an offender who already received civil enhancement serves to illustrate how civic institutions are unprepared for moral enhancement. |
| Schreiber | 2017 | Neuropolitics: Twenty years later | Darren Schreiber | 36 Pol. & Life Sci. 114 | Neuropolitics is the intersection of neuroscience and political science, and it has the interdisciplinary goal of transforming both disciplines. This article reviews the past 20 years of work in the field, identifying its roots, some overarching themes—reactions to political attitudinal questions and candidates faces, identification of political ideology based on brain structure or reactivity to nonpolitical stimuli, and racial attitudes—and obstacles to its progress. I then explore the methodological and analytical advances that point the way forward for the future of neuropolitics. Although the field has been slow to develop compared with neurolaw and neuroeconomics, innovations look ripe for dramatically improving our ability to model political behaviors and attitudes in individuals and predict political choices in mass publics. The coming advancements, however, pose risks to our current norms of democratic deliberation, and academics need to anticipate and mitigate these risks. |
| Avery | 2017 | Neuroethics in Neurolaw: Exploring notions of duality and the implications for evidence and ethics | Joseph J. Avery | International Neuroethics Society Academic Essay Winner | In this paper, I argue that the dualist landscape has been poorly surveyed and the significance of neuroscientific advances for legal decision making mischaracterized. My claim is that, while brain scans have much epistemic power, they do not collapse all forms of mind-body dualism. Specifically, we do not have the potential for brain scans that yield proof but rather brain scans that yield new forms of evidence. As a result, the gains from neuroscience are less robust than what has been widely proclaimed, and the privacy concerns attendant to neuroscientific technology are less dire than what has been widely declaimed. |
| Lavazza | 2017 | Neurolaw and Punishment: a Naturalistic and Humanitarian View, and its Overlooked Perils | Andrea Lavazza | 37 Ethics Law & Cognitive Sci. 81 | Neurolaw is the approach that attempts to apply recent progress in neuroscience to the classical conceptions of law, often with the aim of pushing legal institutions (especially in criminal law) to be more in line with scientific knowledge. It is essentially a process of naturalization of the law, which also applies to punishment, its aims, its methods of implementation and its justification. A relevant line of naturalization of criminal law relies on developments in neuroscience so as to try to prove that (if not always, at least most times) our actions are not free according to the classic definition of freedom – where the agent is capable of knowingly, voluntarily and consciously undertaking a course of action by choosing between alternatives. According to the proponents of this view, one cannot but follow the logical sequence deriving from the experimental data, which leads to the unavoidable pragmatic conclusion of choosing a consequentialistic kind of law and punishment. Consequentialist punishment is deemed to be more humane because it is not afflictive and is only targeted to protect society. But the fact that the charged person is regarded as more mad than bad, so to speak, turns her into a sort of “broken machine”, with the risk of legitimizing preventive treatments or ones of indefinite duration. The objections to this approach are therefore related to the gaps of knowledge we still have, to the risks of “political” abuse, and to the Strawsonian line of thought for which we cannot treat our fellow human beings as broken machines to be repaired, depriving them of their nature of free and rational agents (except in exceptional and rare cases). I suggest a more nuanced assessment of these possible developments and defend a moderate form of retributivism. |
| Cassady | 2017 | The Juvenile Ultimatum: Reframing Blended Sentencing Laws To Ensure Juveniles Receive a Genuine 'One Last Chance at Success’ | Anabel Cassady | 102 Minn. L. Rev. 391 | This Note argues that Minnesota's blended sentencing scheme, while flawed, can be amended to resolve these problems. Part I gives a history and overview of juvenile transfer laws. It includes a discussion of the ideological differences between juvenile and adult court jurisdictions and the evolution of blended sentencing schemes--including the passage of Minnesota's EJJ law. Part II analyzes the shortfalls of Minnesota's EJJ statute, including its disproportionate impact on racial minorities and younger, less criminally sophisticated offenders. Additionally, Part II evaluates the efficacy of juvenile probation and identifies a disconnect between the State (that is, judges, probation officers, prosecutors and other law enforcement personnel) and its youth. It argues that revoking a juvenile's stay of execution for mere probation violations not only deepens the “net-widening” effect of the EJJ statute, but also demonstrates a misunderstanding of how criminal justice involvement affects youth and impacts their future.25 It also ignores critical implications of adolescent brain development.26 Part III argues that revoking EJJ adjudications and imposing adult sentences for probation violations should be prohibited in the absence of a new offense--especially given the ease A1:T315 which probation can be revoked and a stayed adult sentence executed. |
| Brokloff | 2017 | Looks Can Kill: The Dark Side of Indoor Tanning and What States Need To Do To Help Protect Young Adults from This Deadly ‘Glow’ | Courtney M. Brokloff | 103 Iowa L. Rev. 271 | This Note addresses tanning bed regulations. There is mounting evidence regarding the severe consequences indoor tanning can have on an individual's health, some of which are fatal. This Note argues that in order to combat these negative health consequences, states need to step in by implementing more aggressive tanning bed regulations. This Note proposes a ban on individuals under the age of 21 from using tanning beds due to the unique circumstances surrounding this age group. Although banning minors under the age of 18 is sufficient for some activities, it is not sufficient for tanning beds. This is due in part to the cumulative deleterious effect of tanning, the social pressures that occur particularly during this age range, and the fact that the brain is not yet fully developed to understand the long-term risks of tanning, which are especially severe given that some of these risks are increased when first exposure occurs at a young age. |
| Main | 2012 | Simply Irresistible: Neuromarketing and the Commercial Speech Doctrine | Marisa E. Main | 50 Duq. L. Rev. 605 | In this article, I analyze the current state of the commercial speech doctrine and the constitutionality of potential government regulations of neuromarketing. I discuss the potential constitutionality of a complete ban of neuromarketing. I also consider the constitutionality of a regulation requiring advertisers to include a warning that alerts consumers when advertisements have been created using neuromarketing techniques. Last, I review an application of the commercial speech doctrine to a potential government regulation of neuromarketing that promotes harmful products, considering a revival of the "greater-power-includes thelesser-power" principle in this context. |
| Wortzel | 2011 | Disrobing associated with epileptic seizures and forensic implications. | Hal S. Wortzel, Laurea A. Strom, Alan C. Anderson, Edward H. Maa, & Mark Spitz | 57 J. Forensic Sci. 1 | Little is known about the clinical aspects and medico-legal consequences of disrobing in the context of epileptic seizures. Seizure-related disrobing may occur either as an ictal automatism or during the postictal period. Some patients may experience a seizure while already in the unclothed state, engage in ictal wandering, and thereby appear in public in the nude. Two cases involving disrobing associated with seizures captured via video-monitored electroencephalography are offered. An additional case reveals the legal consequences endured by one patient who experienced a nocturnal seizure and began wandering in an unclothed state. Collectively, these cases illustrate the medical reality of seizure-related disrobing and the related adverse effects on patients’ quality of life. Disrobing associated with epileptic seizures carries the potential for serious legal consequences if not properly identified as an ictal phenomenon. |
| Wortzel | 2010 | Combat Veterans and the Death Penalty: A Forensic Neuropsychiatric Perspective | Hal S. Wortzel & David B. Arciniegas | 38 J. Am. Acad. Psych. L. 407 | With our nation's present conflicts, a new generation of veterans are returning home, many of whom have substantial psychopathology and are encountering significant barriers in accessing care. Headlines from around the nation reflect that some of these wounded warriors go on to commit offenses that are potentially punishable by death. Existing circumstances speak to the urgency with which the subject of combat veterans with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), or both facing capital crimes ought to be addressed. This publicity has led to a recent call for a legislatively or judicially enacted, narrow, categorical exclusion for combat veterans who were affected by either PTSD or TBI at the time of their capital offenses. In the present article, we illustrate the reality that combat veterans who commit capital offenses may face execution, summarize legal arguments offered in favor of a categorical exclusion, and provide a neuropsychiatric perspective on PTSD, TBI, and aggression, to help inform further dialogue on this weighty subject. In a law review article, Giardino1 argues, from the legal perspective, that combat veterans with post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) at the time of their offenses should not be subject to capital punishment. The argument offered is an interesting one that addresses an important topic and warrants further consideration. For a veteran with genuine combat sequelae of PTSD and perhaps TBI, capital punishment for crimes that may be legitimately connected to service-related injuries clearly represents a deplorable outcome. Given that as a nation we have the ability to prevent such an outcome, it is incumbent on us to give the matter of capital punishment for combat veterans serious consideration. However, in considering Giardino's position, including the call for a categorical exclusion for combat veterans who have either PTSD or TBI at the time of their capital offenses, a more precise examination predicated on the behavioral neuroscience of PTSD, TBI, and aggressive behavior becomes essential. In the present article, we illustrate the reality that some combat veterans are facing execution, summarize the legal arguments offered by Giardino,1 and provide a neuropsychiatric perspective on PTSD, TBI, and aggression to help inform further dialogue. |
| Focquaert | 2018 | Neurobiology and crime: A neuro-ethical perspective | Farah Focquaert | 54 J. of Crim. Just. 1 | Current neurobiological research in the field of criminology focuses on the neurobiological characteristics associated with antisocial behavior, the prediction of antisocial behavior later in life based on neurobiological risk factors, and the ways in which neurobiological factors interact with psychological and environmental risk factors. Although the use of neurobiological knowledge has the potential to make several criminal justice practices more objective and humane, it may involve practices that are challenging with respect to stigma, neuro-determinism, autonomy and mental liberty. Four main areas of interest can be identified where neurobiology plays or could play a role: (1) criminological research focused on understanding criminal behavior, (2) the (early) detection/prediction of and intervention in deviant behavior, (3) criminal proceedings: to assess responsibility and inform sentencing, and (4) forensic rehabilitation and treatment settings. In this paper, I discuss the main ethical dilemmas that arise when considering the use of recent neurobiological advances in these areas. |
| Beech | 2018 | Neuroscience in Forensic Settings: Origins and Recent Developments | Anthony R. Beech & Dawn Fisher | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) | The aim of this chapter is to give both an overview and history of the burgeoning field of neuroscience. In this chapter, it is noted that the interest in understanding why individuals commit crim, from a neurobiological perspective, dates as far back as the 19th century with Franz Joseph Gall's phrenology and the work of Italian criminology Cesare Lombroso. |
| Palmer | 2018 | Time to Take Brain-Fingerprinting Seriously? | Robin Palmer | Te Wharenga - New Zealand Crim. L. Rev. 330 | Any investigation into the potential legal application of a new scientific technology to legal contexts is invariably met with diverse perceptions and reactions, covering the range from adamant support, disguised bias, open-minded enquiry, cautious scepticism, outright scepticism, polite dismissal, to vehement rejection. These reactions are amplified when the relevant technology is related to the human brain, due to well-documented differences among many credible researchers about brain functioning and the reliability of inferences that can be drawn from brain-related experiments. |
| Sinnott-Armstrong | 2008 | 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. We argue 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. We also propose experiments that will directly assess how jurors are influenced by brain images. |
| Bogdanov | 2017 | Learning about learning: Mining human brain sub-network biomarkers from fMRI data | Petko Bogdanov, Nazli Dereli, Xuan-Hong Dang, Danielle S. Bassett, Nicholas F. Wymbs, Scott T. Grafton, Ambuj K. Singh | 12 PLoS ONE e0184344 | Modeling the brain as a functional network can reveal the relationship between distributed neurophysiological processes and functional interactions between brain structures. Existing literature on functional brain networks focuses mainly on a battery of network properties in “resting state” employing, for example, modularity, clustering, or path length among regions. In contrast, we seek to uncover functionally connected subnetworks that predict or correlate with cohort differences and are conserved within the subjects within a cohort. We focus on differences in both the rate of learning as well as overall performance in a sensorimotor task across subjects and develop a principled approach for the discovery of discriminative subgraphs of functional connectivity based on imaging acquired during practice. We discover two statistically significant subgraph regions: one involving multiple regions in the visual cortex and another involving the parietal operculum and planum temporale. High functional coherence in the former characterizes sessions in which subjects take longer to perform the task, while high coherence in the latter is associated with high learning rate (performance improvement across trials). Our proposed methodology is general, in that it can be applied to other cognitive tasks, to study learning or to differentiate between healthy patients and patients with neurological disorders, by revealing the salient interactions among brain regions associated with the observed global state. The discovery of such significant discriminative subgraphs promises a better data-driven understanding of the dynamic brain processes associated with high-level cognitive functions. |
| Karthikeyan | 2012 | Intra-class multi-output regression based subspace analysis | S. Karthikeyan, Swapna Joshi, B.S. Manjunath, & Scott Grafton | Image Processing (ICIP), 2012 19th IEEE International Conference on | A common challenge when dealing with heterogenous tasks such as face expression analysis, face and object recognition is high dimensionality and extreme appearance variations within each class. To handle such scenarios, we formulate a supervised Non-negative Matrix Factorization (NMF) based subspace learning technique that simultaneously preserves the intra-class regression information (local) and enhances inter-class discrimination (global) in the low di- mensional embedding. Our method leverages the multi-dimensional image labels that quantify the within class regression to learn the subspaces for recognition. In addition, our formulation includes a novel multi-output regression based NMF algorithm. |
| Kraft | 2017 | Integrating Brain Science and Law: Neuroscientific Evidence and Legal Perspectives on Protecting Individual Liberties | Calvin J. Kraft & James Giordano | 11 Frontiers in Neuroscience 1 | Advances in neuroscientific techniques have found increasingly broader applications, including in legal neuroscience (or “neurolaw”), where experts in the brain sciences are called to testify in the courtroom. But does the incursion of neuroscience into the legal sphere constitute a threat to individual liberties? And what legal protections are there against such threats? In this paper, we outline individual rights as they interact with neuroscientific methods. We then proceed to examine the current uses of neuroscientific evidence, and ultimately determine whether the rights of the individual are endangered by such approaches. Based on our analysis, we conclude that while federal evidence rules constitute a substantial hurdle for the use of neuroscientific evidence, more ethical safeguards are needed to protect against future violations of fundamental rights. Finally, we assert that it will be increasingly imperative for the legal and neuroscientific communities to work together to better define the limits, capabilities, and intended direction of neuroscientific methods applicable for use in law. |
| Slobogin | 2017 | Neuroscience nuance: dissecting the relevance of neuroscience in adjudicating criminal culpability | Christopher Slobogin | 4 J. Law & Biosciences 577 | This article explores more precisely the types of neuroscience evidence that might be presented and when that evidence is material under accepted legal doctrine. It concludes that, even on the assumption that the data presented are accurate, some commonly proffered neuroscientific evidence is immaterial or only weakly material, not only at trial but also at sentencing. At the same time, it recognizes that certain types of neuroscience evidence can be very useful in criminal adjudication, especially at sentencing. The article begins in Part I, like many articles in this vein do, by describing the criminal law doctrines that are most likely to trigger use of neuroscience. The description of this familiar territory is brief, meant only to emphasize that, at present, these doctrines are narrowly defined. At trial, they tend to minimize the relevance of, and sometimes preclude, neuroscience evidence. At sentencing, the scope of inquiry is broader and thus neuroscience is more likely to be useful. At the same time, however, if the risk of reoffending is a legitimate sentencing consideration, as is the case in many jurisdictions, such evidence is also often relevant to the prosecution's case. Part II identifies five types of neuroscience evidence and describes how they relate to the law defining criminal liability and criminal punishment described in Part I. |
| Claydon | 2017 | Brain-based mind reading for lawyers: reflecting on possibilities and perils | Lisa Claydon | 4 J. Law & Biosciences 594 | Gerben Meynen's article provides, from a legal perspective, a useful starting point to distinguish between the different types of technologies which offer the possibility of ‘brain-based mind reading’. It is timely because, as he points out, the first profession that is likely to use these technologies, when they become more accurate, are forensic psychiatrists. As forensic psychiatric assessments are widely used in the criminal court room by judges and in adversarial justice systems by prosecution and defense, then what he has to say is of interest to the law. Moreover, there is no doubt that the use of these technologies raises questions that need to be addressed by lawyers. |
| Poldrack | 2017 | Predicting violent behavior: What can neuroscience add? | Russell Poldrack; John Monahan, Peter B. Imrey, Valerie Reyna, Marcus E. Raichle, David Faigman, & Joshua W. Buckholtz | 22 Trends in Cognitive Sciences 111 | The ability to accurately predict violence and other forms of serious antisocial behavior would provide important societal benefits, and there is substantial enthusiasm for the potential predictive accuracy of neuroimaging techniques. Here, we review the current status of violence prediction using actuarial and clinical methods, and assess the current state of neuroprediction. We then outline several questions that need to be addressed by future studies of neuroprediction if neuroimaging and other neuroscientific markers are to be successfully translated into public policy. |
| Ginther | 2018 | Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt | Matthew Ginther, Francis Shen, Richard Bonnie, Morris Hoffman, Owen Jones, & Ken Simons | 71 Vand. L. Rev. 241 | A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of criminal justice, there has been very little research investigating how people go about making these decisions, and how these decisions relate to their intuitions about culpability. Understanding the cognitive mechanisms that govern this task is important for the law, not only to explore the possibility of systemic biases and errors in attributions of culpability but also to probe the intuitions that underlie them. In a set of six exploratory studies reported here, we examine the way in which individuals infer others’ legally relevant mental states about elemental facts, using the framework established over fifty years ago by the Model Penal Code (“MPC”). The widely adopted MPC framework delineates and defines the four now-familiar culpable mental states: purpose, knowledge, recklessness, and negligence. Our studies reveal that with little to no training, jury-eligible Americans can apply the MPC framework in a manner that is largely congruent with the basic assumptions of the MPC’s mental state hierarchy. However, our results also indicate that subjects’ intuitions about the level of culpability warranting criminal punishment diverge significantly from prevailing legal practice; subjects tend to regard recklessness as a sufficient basis for punishment under circumstances where the legislatures and courts tend to require knowledge. |
| Gibbons | 2018 | A Neurorhetoric of Incongruity | Michelle Gibbons | 13 Poroi 1 | As a conceptual resource for rhetoric, contemporary neuroscience has considerable potential. Yet how exactly rhetoricians should deploy it as such requires careful consideration. While some engage neuroscience in a foundationalist fashion, using it to ground rhetoric in empirically tested claims, I make the case for a non-foundationalist approach, arguing that neuroscience can serve as a resource for rhetoric on the basis of epistemologies that value the speculative, indeterminate, and contingent. That is, we can use neuroscience to achieve perspective rather than proof and continued conversation rather than resolution. More specifically, I suggest placing neuroscience in incongruous contact with rhetoric, using it to achieve Burkean perspective by incongruity. I then do so in an extended example that puts Antonio Damasio’s somatic marker hypothesis in incongruous contact with ancient accounts of eikos, thereby offering a fresh angle from which to view enduring discussions anew. |
| Ienca | 2018 | From Healthcare to Warfare and Reverse: How Should We Regulate Dual-Use Neurotechnology? | Marcello Ienca, Fabrice Jotterand, & Bernice S. Elger | 97 Neuron 269 | Recent advances in military-funded neurotechnology and novel opportunities for misusing neurodevices show that the problem of dual use is inherent to neuroscience. This paper discusses how the neuroscience community should respond to these dilemmas and delineates a neuroscience-specific biosecurity framework. This neurosecurity framework involves calibrated regulation, (neuro)ethical guidelines, and awareness-raising activities within the scientific community. |
| Reiter | 2018 | BEST PRACTICES IN BIRTH INJURY LITIGATION Timing Hypoxic-Ischemic Fetal Brain Injury | Jesse M. Reiter, Rebecca S. Walsh, & Emily G. Thomas | 97 Mich. B.J. 42 | Birth injuries are among the most complex cases in personal injury litigation, requiring significant medical knowledge in addition to knowing the law. Hypoxic-ischemic encephalopathy (HIE) is a lack of oxygen or blood flow to the brain at or around the time of birth that can result in brain injury. In determining the proximate cause of a baby's HIE diagnosis and injury, experts in neuroradiology typically offer opinions as to when the baby's brain injury from oxygen deprivation occurred; it is also necessary for these experts to rule out other causes for abnormal brain function after birth other than HIE, such as infection, trauma, inborn errors of metabolism, and other genetic disorders. Medical malpractice defense attorneys often rely on publications by the American College of Obstetricians and Gynecologists (ACOG) to assert that an infant's injuries from HIE occurred outside of labor and delivery. However, this position has become shakier in recent years with the advancement of literature showing that most brain injuries from oxygen deprivation occur during labor and delivery and are preceded by recognized warning signs. |
| Feld | 2017 | Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts | Barry C. Feld | 102 Minn. L. Rev 473 | I divide this Article into two parts: delinquents in juvenile courts and youths tried in criminal courts. I analyze the contexts within which questions of adolescents' competence and culpability arise. Part I.A examines substantive decisions that affect delinquents' custody status: (1) pretrial detention; and (2) delinquency sanctions--and the increased punitiveness and racial disparities associated with each decision. Part I.B examines procedural issues associated with delinquency adjudications: (1) youths' ability to exercise Miranda rights; (2) competence to stand trial; (3) waivers of counsel; and (4) right to a jury trial. Juvenile courts' increased punitiveness, procedural deficiencies, and assembly-line process compound youths' developmental limitations, heighten risks of excessive and discriminatory interventions, and raise the specter of wrongful convictions. Part II examines transfer of youths to criminal court, and their sentencing as adults. Part II.A describes: (1) state laws' shift from a focus on offenders to offenses; (2) the increased role of prosecutors to make adulthood determinations; (3) transfer laws' failure to achieve their legislative intent; and (4) their racially disparate impacts. Part II.B examines Supreme Court decisions--Roper, Graham, and Miller-- that: (1) somewhat mitigated the harshest sentencing policies; (2) reaffirmed that children are different; and (3) used developmental psychology and neuroscience research to bolster its conclusions about youths' diminished responsibility. The Article concludes with proposals for substantive and procedural reforms to address juvenile and criminal courts' failure to provide developmentally appropriate justice for children. |
| Johnson | 2018 | Separate But (Un)equal: Why Institutionalized Anti-Racism Is the Answer To the Never-ending Cycle of Plessy v. Ferguson | Maureen Johnson | 52 U. Rich. L. Rev. 327 | This article tackles the lingering effects of the Plessy decision on racism. The final act is now in play. People of color still face institutionalized racism, which only has worsened following the 2016 presidential election. The turning point may have begun with the events in Charlottesville, Virginia, in August 2017. The brash hate spewed by unmasked white supremacists as they marched across the University of Virginia campus carrying Tikitorches made clear they believed the nation was open to their message. Less than a fortnight later, President Trump pardoned Sherriff Joe Arpaio, who was convicted of failing to obey a court order to stop racial profiling. And a mere ten days after that, the Trump Administration again threw down the gauntlet by announcing the phasing out of the popular Deferred Action for Childhood Arrivals (“DACA”) program. The following day, the White House issued talking points telling 700,000 affected individuals--almost all Latinos--to prepare for deportation. |
| Crane | 2017 | Childhood Trauma's Lurking Presence in the Juvenile Interrogation Room and the Need for a Trauma-Informed Voluntariness Test for Juvenile Confessions | Megan Glynn Crane | 62 S.D. L. Rev. 626 | This article begins with an explanation of the genesis of this writing, followed by an overview of the pervasive problem of trauma among our country's youth. It then examines the current social science regarding trauma as a risk factor for false and coerced confessions, and the current neuroscientific research on the effects of childhood trauma on the a developing brain. Next, an explanation of police interrogation tactics and youths' inherent vulnerability in the interrogation room sets the stage for the argument that a prior history of childhood trauma will increase a juvenile suspect's risk of coerced and false confession. Finally, this article surveys the current case law addressing childhood trauma as it relates to interrogations and confessions. This article concludes with an argument for courts to include a history of childhood trauma as a factor in the totality of the circumstances analysis used to evaluate confessions by juvenile criminal defendants. |
| Breiner | 2018 | Combined Effects of Peer Presence, Social Cues, and Rewards on Cognitive Control in Adolescents | Kaitlyn Breiner, Anfei Li, Alexandra O. Cohen, Laurence Steinberg, Richard J. Bonnie, Elizabeth S. Scott, Kim Taylor-Thompson, Marc D. Rudolph, Jason Chein, Jennifer A. Richeson, Danielle V. Dellarco, Damien A. Fair, B. J. Casey, & Adriana Galvan | Developmental Psychobiology 1 | Developmental scientists have examined the independent effects of peer presence, social cues, and rewards on adolescent decision-making and cognitive control. Yet, these contextual factors often co-occur in real world social situations. The current study examined the combined effects of all three factors on cognitive control, and its underlying neural circuitry, using a task to better capture adolescents' real world social interactions. A sample of 176 participants ages 13-25, was scanned while performing an adapted go/no-go task alone or in the presence of a virtual peer. The task included brief positive social cues and sustained periods of positive arousal. Adolescents showed diminished cognitive control to positive social cues when anticipating a reward in the presence of peers relative to when alone, a pattern not observed in older participants. This behavioral pattern was paralleled by enhanced orbitofrontal activation. The results demonstrate the synergistic impact of social and reward influences on cognitive control in adolescents. |
| Bernztein | 2016 | Perspectives on the Admissibility of Neuroscientific Evidence in the Argentine Criminal Law | Amanda Bernztein | 6 Revista de Derecho Penal y Criminología de La Ley 1 | The incorporation of neuroscientific evidence in criminal trials is usual in countries like the United States, Singapore, Israel and India, while its admissibility is being discussed in countries like Australia, Germany, Greece, Italy, Holland and England. In comparative criminal law, advances in neuroscience generate changes, contributions and risks, which could begin to be the subject of discussion within the Argentine courts. A bibliography review showed the different types of brain images that could be used as evidence at trial. However, the limitations of these studies could generate misconceptions about their conclusions and conduct to erroneous legal decisions. I conclude that neuroscience has not yet developed enough to detect diagnoses which could define in legal terms the mental abilities of a person. |
| Wagner | 2012 | Distributed Representations in Memory: Insights from functional brain imaging | Jesse Rissman & Anthony D. Wagner | 63 Annu. Rev. Psychol. 101 | Forging new memories for facts and events, holding critical details in mind on a moment-to-moment basis, and retrieving knowledge in the service of current goals all depend on a complex interplay between neural ensembles throughout the brain. Over the past decade, researchers have increasingly leveraged powerful analytical tools (e.g., multi-voxel pattern analysis) to decode the information represented within distributed fMRI activity patterns. In this review, we discuss how these methods can sensitively index neural representations of perceptual and semantic content, and how leverage on the engagement of distributed representations provides unique insights into distinct aspects of memory-guided behavior. We emphasize that, in addition to characterizing the contents of memories, analyses of distributed patterns shed light on the processes that influence how information is encoded, maintained, or retrieved, and thus inform memory theory. We conclude by highlighting open questions about memory that can be addressed through distributed pattern analyses. |
| Gagnon | 2016 | Acute stress and episodic memory retrieval: neurobiological mechanisms and behavioral consequences | Stephanie A. Gagnon & Anthony D. Wagner | Ann. N.Y. Acad. Sci. | Episodic retrieval allows people to access memories from the past to guide current thoughts and decisions. In many real-world situations, retrieval occurs under conditions of acute stress, either elicited by the retrieval task or driven by other, unrelated concerns. Memory under such conditions may be hindered, as acute stress initiates a cascade of neuromodulatory changes that can impair episodic retrieval. Here, we review emerging evidence showing that dissociable stress systems interact over time, influencing neural function. In addition to the adverse effects of stress on hippocampal-dependent retrieval, we consider how stress biases attention and prefrontal cortical function, which could further affect controlled retrieval processes. Finally, we consider recent data indicating that stress at retrieval increases activity in a network of brain regions that enable reflexive, rapid responding to upcoming threats, while transiently taking offline regions supporting flexible, goal-directed thinking. Given the ubiquity of episodic memory retrieval in everyday life, it is critical to understand the theoretical and applied implications of acute stress. The present review highlights the progress that has been made, along with important open questions. |
| Sartori | 2016 | An Unusual Case of Acquired Pedophilic Behavior Following Compression of Orbitofrontal Cortex and Hypothalamus by a Clivus Chordoma | Giuseppe Sartori, Cristina Scarpazza, Sara Codognotto, & Pietro Pietrini | 263 J. Neurol. 1454 | Structural brain alterations rarely lead to changes in sexual orientation. Acquired pedophilia has been reported following lesions in the frontal and temporal lobes in males. Here we report a case in which onset of paedophilia was the striking symptom of a Clivus Chordoma, a rare, slow-growing neoplasm originating from the bone in the skull base, that compressed the hypothalamus and the orbitofrontal cortex (OFC). |
| Morse | 2018 | The Neuroscientific Non-Challenge to Meaning, Morals, and Purpose | Stephen J. Morse | in Neuroexistentialism: Meaning, Morals, and Purpose in the Age of Neuroscience 333–57 (Gregg D. Caruso & Owen Flanagan eds., 2018) | As millennia of philosophizing attest, there are challenging questions about the existence, source, and content of meaning, morals, and purpose in human life, but present and foreseeable neuroscience will neither obliterate nor resolve them. Neuroscience, for all its astonishing recent discoveries, raises no new challenge in these domains. It poses no unique threat to our ife hopes or to our ability to decide how to live and how to live together. The supposed challenges were best summed up by an editorial warning in The Economist: "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 Economist 2002). |
| Rosenfeld | 2018 | Detecting Concealed Information and Deception: Recent Developments | J. Peter Rosenfeld | Detecting Concealed Information and Deception: Recent Developments assembles contributions from the world’s leading experts on all aspects of concealed information detection. This reference examines an array of different methods—behavioral, verbal interview and physiological—of detecting concealed information. Chapters from leading legal authorities address how to make use of detected information for present and future legal purposes. With a theoretical and empirical foundation, the book also covers new human interviewing techniques, including the highly influential Implicit Association Test among others. | |
| Jun | 2018 | Three Research Strategies of Neuroscience and the Future of Legal Imaging Evidence | Jinkwon Jun & Soyoung Yoo | 12 Fron. Neurosci. 1 | Neuroscientific imaging evidence (NIE) has become an integral part of the criminal justice system in the United States. However, in most legal cases, NIE is submitted and used only to mitigate penalties because the court does not recognize it as substantial evidence, considering its lack of reliability. Nevertheless, we here discuss how neuroscience is expected to improve the use of NIE in the legal system. For this purpose, we classified the efforts of neuroscientists into three research strategies: cognitive subtraction, the data-driven approach, and the brain-manipulation approach. Cognitive subtraction is outdated and problematic; consequently, the court deemed it to be an inadequate approach in terms of legal evidence in 2012. In contrast, the data-driven and brain manipulation approaches, which are state-of-the-art approaches, have overcome the limitations of cognitive subtraction. The data-driven approach brings data science into the field and is benefiting immensely from the development of research platforms that allow automatized collection, analysis, and sharing of data. This broadens the scale of imaging evidence. The brain-manipulation approach uses high-functioning tools that facilitate noninvasive and precise human brain manipulation. These two approaches are expected to have synergistic effects. Neuroscience has strived to improve the evidential reliability of NIE, with considerable success. With the support of cutting-edge technologies, and the progress of these approaches, the evidential status of NIE will be improved and NIE will become an increasingly important part of legal practice. |
| Dowell | 2018 | Fundamental Protections for Non-Biological Intelligences or: How We Learn to Stop Worrying and Love Our Robot Brethren | Ryan Dowell | 19 Minn. J.L. Sci. & Tech. 305 | In the future, it is possible that humans will create machines that are thinking entities with faculties on par with humans. Computers are already more capable than humans at some tasks, but are not regarded as truly intelligent or able to think. Yet since the early days of computing, humans have contemplated the possibility of intelligent machines-those which reach some level of sentience. Intelligent machines could result from highly active and rapidly advancing fields of research, such as attempts to emulate the human brain, or to develop generalized artificial intelligence (AGI). If intelligent machines are created, it is uncertain whether intelligence would emerge through gradual development or a spontaneous emergence. Throughout this Note, such intelligent machines will be referred to as non-biological intelligences (NBIs), with emphasis on machines with human-analogous intelligence. Protection of NBIs, equivalent to protection of human research subjects, should be preemptively implemented to prevent injustice and potential grave harm to them. |
| Stallen | 2018 | Neurobiological Mechanisms of Responding to Injustice | Mirre Stallen, Filippo Rossi, Amber Heijne, Ale Smidts, Carsten K.W. De Dreu, & Alan G. Sanfey | 17 J. Neurosci. 1242 | People are particularly sensitive to injustice. Accordingly, deeper knowledge regarding the processes that underlie the perception of injustice, and the subsequent decisions to either punish transgressors or compensate victims, is of important social value. By combining a novel decision-making paradigm with functional neuroimaging, we identified specific brain networks that are involved with both the perception of, and response to, social injustice, with reward-related regions preferentially involved in punishment compared to compensation. Developing a computational model of punishment allowed for disentangling the neural mechanisms and psychological motives underlying decisions of whether to punish and, subsequently, of how severely to punish. Results show that the neural mechanisms underlying punishment differ depending on whether one is directly affected by the injustice, or whether one is a third-party observer of a violation occurring to another. Specifically, the anterior insula was involved in decisions to punish following harm, while, in third-party scenarios, we found amygdala activity associated with punishment severity. Additionally, we employed a pharmacological intervention using oxytocin, and found that oxytocin influenced participants' fairness expectations, and in particular enhanced the frequency of low punishments. Together, these results not only provide more insight into the fundamental brain mechanisms underlying punishment and compensation, but also illustrate the importance of taking an explorative, multi-method approach when unraveling the complex components of everyday decision-making. |
| Kulakova | 2017 | I could have done otherwise: Availability of counterfactual comparisons informs the sense of agency | Eugenia Kulakova, Nima Khalighinejad, & Patrick Haggard | 49 Conscious Cogn. 237 | Personal control and agency are closely associated with the counterfactual notion that a person could have done otherwise (CDO). In both philosophy and law, this counterfactual evaluation determines responsibility and punishment, yet little is known about its influence on agents' experience during action. We used a risky decision-making task to study how counterfactual evaluations influenced participants' sense of agency. Two factors were manipulated independently: the presence/absence of counterfactual comparisons between actions and the presence/absence of counterfactual comparisons between outcomes of these actions. Perceived agency was highest when both counterfactual comparisons were available. Interestingly, this pattern persisted even when counterfactual information was only revealed after action, suggesting a purely reconstructive evaluation effect. These findings allow a more precise phrasing of the CDO element of personal agency: a person feels most control when she could have performed another action, thereby obtaining another outcome. |
| Grootens-Wiegers | 2017 | Medical decision-making in children and adolescents: developmental and neuroscientific aspects | Petronella Grootens-Wiegers, Irma M. Hein, Jos M. van den Broek, & Martine C. de Vries | 17 BMC Pediatrics 120 | Various international laws and guidelines stress the importance of respecting the developing autonomy of children and involving minors in decision-making regarding treatment and research participation. However, no universal agreement exists as to at what age minors should be deemed decision-making competent. Minors of the same age may show different levels of maturity. In addition, patients deemed rational conversation-partners as a child can suddenly become noncompliant as an adolescent. Age, context and development all play a role in decision-making competence. In this article we adopt a perspective on competence that specifically focuses on the impact of brain development on the child’s decision-making process. |
| Yaffe | 2018 | The Age of Culpability: Children and the Nature of Criminal Responsibility | Gideon Yaffe | Oxford University Press, 239 pp. | Why be lenient towards children who commit crimes? Reflection on the grounds for such leniency is the entry point into the development, in this book, of a theory of the nature of criminal responsibility and desert of punishment for crime. Gideon Yaffe argues that child criminals are owed lesser punishments than adults thanks not to their psychological, behavioural, or neural immaturity but, instead, because they are denied the vote. This conclusion is reached through accounts of the nature of criminal culpability, desert for wrongdoing, strength of legal reasons, and what it is to have a say over the law. The centrepiece of this discussion is the theory of criminal culpability. To be criminally culpable is for one's criminal act to manifest a failure to grant sufficient weight to the legal reasons to refrain. The stronger the legal reasons, then, the greater the criminal culpability. Those who lack a say over the law, it is argued, have weaker legal reasons to refrain from crime than those who have a say. They are therefore reduced in criminal culpability and deserve lesser punishment for their crimes. Children are owed leniency, then, because of the political meaning of age rather than because of its psychological meaning. This position has implications for criminal justice policy, with respect to, among other things, the interrogation of children suspected of crimes and the enfranchisement of adult felons. |
| Steinberg | 2018 | Why We Should Lower the Voting Age to 16 | Laurence Steinberg | NY Times | The young people who have come forward to call for gun control in the wake of the mass shooting at their high school in Parkland, Fla., are challenging the tiresome stereotype of American kids as indolent narcissists whose brains have been addled by smartphones. They offer an inspiring example of thoughtful, eloquent protest. Unfortunately, when it comes to electing lawmakers whose decisions about gun control and other issues affect their lives, these high schoolers lack any real power. This needs to change: The federal voting age in the United States should be lowered from 18 to 16. |
| Robbins | 2018 | Crime, Punishment, and Causation: The Effect of Etiological Information on the Perception of Moral Agency | Philip Robbins & Paul Litton | 24 Psychol. Pub. Pol'y & L. 118 | Moral judgments about a situation are profoundly shaped by the perception of individuals in that situation as either moral agents or moral patients (Gray & Wegner, 2009; Gray, Young, & Waytz, 2012), Specifically, the more we see someone as a moral agent, the less we see them as a moral patient, and vice versa. As a result, casting the perpetrator of a transgression as a victim tends to have the effect of making them seem less blameworthy (Gray & Wegner, 2011). Based on this theoretical framework, we predicted that criminal offenders with a mental disorder that predisposes them to antisocial behavior would be judged more negatively when the disorder is described as having a genetic origin than when it is described as environmentally caused, as in the case of childhood abuse or accident. Further, we predicted that some environmental explanations would mitigate attributions of blame more than others, namely, that offenders whose disorder was caused by childhood abuse (intentional harm) would be seen as less blameworthy than offenders whose disorder is caused by an unfortunate accident (unintentional harm). Results from two vignette-based studies designed to test these predictions, conducted with participants recruited from Amazon Mechanical Turk (N = 244 and N = 387, respectively), confirmed the first prediction but not the second. Implications of this research for three areas--the psychology of moral judgment, philosophical debates about moral responsibility and determinism, and the practice of the law--are discussed in the sequel. |
| Van Ryzin | 2018 | The Promise of Prevention Science for Addressing Intergenerational Poverty | Mark J. Van Ryzin, Diana Fishbein, & Anthony Biglan | 24 Psychol. Pub. Pol'y & L. 128 | This article reviews research suggesting that the prevention of intergenerational poverty will be enhanced if we add evidence-based family and school prevention programs to address the adverse social environments that often accompany poverty. Government policies such as the Earned Income Tax Credit can reduce family poverty, but simply improving the economic stability of the family will not necessarily prevent the development of child and adolescent problems such as academic failure, antisocial behavior, drug abuse, and depression, all of which can undermine future economic wellbeing. The authors briefly review the evidence linking family poverty to adverse social environments, which can have deleterious effects on children's behavioral, emotional, cognitive, and neurophysiological development. They then document the value of evidence-based family- and school-based prevention programs in effectively addressing these behavioral, emotional, cognitive, and neurophysiological factors that can put children at risk for continued poverty in adulthood. They also describe 3 family-based prevention programs that have been found to have a direct effect on families' future economic wellbeing. The evidence indicates that widely disseminating effective and efficient family-and school-based prevention programs can help to address both poverty itself and the effects of adverse social environments, making future poverty less likely. The authors conclude with specific recommendations for federal and state policymakers, researchers, and practitioners. |
| Radice | 2018 | The Juvenile Record Myth | Joy Radice | 106 Geo. L.J. 365 | The proliferation of adult criminal records and their harmful impact on people with convictions has received growing attention from scholars, the media, and legislators from both sides of the political aisle. Much less attention has been given to the far-reaching impact of juvenile delinquency records, partly because many people believe that juvenile records are not public, especially after a juvenile turns eighteen. That common notion is a myth.This Article addresses that myth and adds to both the juvenile justice and collateral consequences literature in four ways. First, The Juvenile Record Myth illuminates the variety of ways states treat juvenile records--revealing that state confidentiality, sealing, and expungement provisions often provide far less protection than those terms suggest. Although juvenile delinquency records are not as publicly accessible as adult records, their impact is felt well beyond a juvenile's eighteenth birthday. No state completely seals juvenile delinquency records from public view or expunges them. Some states even publish juvenile records online, and almost all permit some degree of public access. Second, this Article provides the first comprehensive analysis of the crucial role of nondisclosure provisions in eliminating the stigma of a juvenile record. Now that colleges, employers, state licensing agencies, and even landlords are increasingly asking about juvenile delinquency charges and adjudications, the confidentiality, sealing, and expungement protections that do exist will be significantly undermined unless states allow juveniles with records not to disclose them. Third, using recent literature on juvenile brain development and the recidivism research of criminologists, The Juvenile Record Myth presents new arguments for why juvenile delinquency records should not follow a juvenile into adulthood--and why the state's obligation to help rehabilitate juveniles (an obligation typically recognized in a state's juvenile code) should extend to restricting access to juvenile records. Finally, it argues for a comprehensive and uniform approach to removing the stigma of a juvenile record through a combination of robust confidentiality, expungement, sealing, and nondisclosure statutes to facilitate a juvenile's reintegration. |
| Schmitt | 2018 | Invisible Injuries: Concussive Effects and International Humanitarian Law | Michael N. Schmitt & Chad E. Highfill | 9 Harv. Nat'l Sec. J. 72 | The concussive effects of weapons used on the modern battlefield can cause Traumatic Brain Injury (TBI). Indeed, TBI has been termed the “signature wound” of the ongoing conflicts in Iraq and Afghanistan. To date, the injury has not been taken into account by armed forces in their application of international humanitarian law norms regarding attacks that affect civilians. Of particular note in this regard are the rule of proportionality and the requirement to take precautions in attack. This article opens the discussion about this recently discovered consequence of warfare for the civilian population. It examines the state of the science regarding TBI and queries whether the understanding of such injuries has reached the point at which commanders in the field are obligated to begin considering, as a matter of humanitarian law, the risk of causing TBI to civilians when they attack enemy forces. It concludes with a practical assessment of how they might do so. |
| Troutman | 2018 | A More Just System of Juvenile Justice: Creating a New Standard of Accountability for Juveniles in Illinois | Brooke Troutman | 108 J. Crim. L. & Criminology 197 | For over a century, America's legal system has made substantial reforms to change its treatment of adolescents. Every day, we see that our legal system treats adolescents differently from their adult counterparts. With regards to driving privileges, voting rights, and the ability to drink, our laws recognize that adults and adolescents are different and therefore require a different set of standards. America extended this treatment to the realm of juvenile justice in 1899, when Cook County, Illinois, created the country's first juvenile court. Originating in this court was the overarching purpose of America's juvenile justice system--rehabilitation of juvenile offenders. Though over a century has passed since the creation of America's first juvenile court, only recently has the law begun to treat juveniles differently from their adult counterparts. In the past decade, landmark Supreme Court decisions Roper v. Simmons, Graham v. Florida, J.D.B. v. North Carolina, and Miller v. Alabama have implemented constitutional shields for juveniles against the death penalty, life without parole, and improper Miranda waivers. In implementing these safeguards, the Supreme Court has employed new scientific understandings of juveniles, as well as common sense, to conclude that juveniles are different from adults and should be treated differently by the law. Though the Supreme Court created safeguards for juveniles in death penalty and life without parole circumstances, situations still exist that *198 threaten the lives of juvenile offenders. Illinois accountability theory is one such situation. In Illinois, accountability theory is the mechanism by which the State can convict an offender of a crime which they did not actually commit. In Illinois, an individual who exhibited more than “mere presence” at the scene of the crime can be convicted of the same crime and sentenced in the same manner as the individual who committed the crime. Given the recent landmark Supreme Court cases, new scientific findings relating to the psychological understanding of juveniles, as well as simple common sense, accountability theory should not be used to prosecute juvenile offenders in Illinois. |
| Kiser | 2017 | Brandright | Jessica M. Kiser | 70 Ark. L. Rev. 489 | The need for--and inevitability of--consumer engagement with brands clashes with the uncertainties of trademark law. That disconnect necessitates the recognition of the brandright as a new intellectual property right. Part I of this article discusses the benefits, boundaries, and limitations of the proposed brandright. Part II then explains why the brandright is necessary to provide a clear distinction between violations of brands and trademarks, and to allow the continued development of brands. This section of the article will highlight the importance of brand development to companies and to the free expression of consumers. It will also explain how brand expansion and brand communities can be accommodated within a brandright regime. Part III responds to potential criticism of the proposed recognition of brandrights apart from trademark rights, which necessitates a discussion of the current legal disconnect between trademarks and brands, and how brandrights may help to resolve that conflict. |
| Calnan | 2017 | Beyond Jurisprudence | Alan Calnan | 27 S. Cal. Interdisc. L.J. 1 | With these disclaimers in mind, the article's narrative will unfold in a consilient arc. Having exposed the competitive dualism of modern jurisprudence, Part II explores some natural modes of unification and reconciliation-- including the systemic notions of consilience, complementarity, complexity, and coordination dynamics. The next two Parts weave these insights up through the Tree of Knowledge, with Part III linking the natural sciences of evolutionary biology and neuroscience, and Part IV connecting these branches to the social sciences of moral and developmental psychology, sociology, and anthropology. Though just a rough sketch, this survey of “juriscience” depicts humans as inherently competitive beings with an incessant need and evolved capacity to resolve their inner conflicts, just as they settle their external conflicts with other people and groups. Part V extends the investigation from juriscience to jurisilience, where it examines our chief conflict control mechanism: law. Completing our systemic profile, this closing discussion shows how a coordinative approach can help explain the etiology of law and legal systems, clarify crucial aspects of their structure and content, and illuminate and reconcile our conflicting theories of jurisprudence. The article concludes by considering the potential impact and future direction of this exciting new theory. |
| Maron | 2018 | "My Brain Made Me Do It" Is Becoming a More Common Criminal Defense | Dina Fine Maron | Scientific American (Mar. 5, 2018) | Criminal defense strategies are increasingly relying on neurological evidence—psychological evaluations, behavioral tests or brain scans—to potentially mitigate punishment. Defendants may cite earlier head traumas or brain disorders as underlying reasons for their behavior, hoping this will be factored into a court’s decisions. Such defenses have been employed for decades, mostly in death penalty cases. But as science has evolved in recent years, the practice has become more common in criminal cases ranging from drug offenses to robberies. |
| Steinberg | 2018 | When can you buy a gun, vote or be sentenced to death? Science suggests US should revise legal age limits | Laurence Steinberg | The Conversation (Mar. 5, 2018 | Vietnam War protests led to a lower voting age. The Parkland shooting could push similar reevaluations. Societies have long grappled with where to draw the chronological age boundary between adolescence and adulthood. The United States stands apart from most of the world in that it uses different ages for different rights and responsibilities. |
| Pardo | 2018 | Lying, Deception, and fMRI: A Critical Update | Michael S. Pardo | Neurolaw and Responsibility for Action (Bebhinn Donnelly-Lazarov ed., 2018 | This chapter discusses recent studies on fMRI-based lie detection. In Minds, Brains, and Law, Dennis Patterson and I examined the scholarly literature and judicial opinions on the topic, and we discussed several empirical and conceptual issues affecting the use of such evidence in legal settings. In this chapter, I focus on two conceptual issues and examine several studies that have been published since the publication of our book. The conceptual issues concern: (1) the distinction between deception and lying, and (2) the concept of lying itself (or the criteria for what constitutes a lie). As with the array of studies that we examined previously, the more-recent studies also face serious limitations because of these issues. |
| Donnelly-Lazarov | 2018 | Neurolaw and Responsibility for Action: Concepts, Crimes, and Courts | Bebhinn Donnelly-Lazarov (ed.) | (Bebhinn Donnelly-Lazarov ed., 2018) | Law regulates human behaviour, a phenomenon about which neuroscience has much to say. Neuroscience can tell us whether a defendant suffers from a brain abnormality, or injury and it can correlate these neural deficits with criminal offending. Using fMRI and other technologies it might indicate whether a witness is telling lies or the truth. It can further propose neuro-interventions to 'change' the brains of offenders and so to reduce their propensity to offend. And, it can make suggestions about whether a defendant knows or merely suspects a prohibited state of affairs; so, drawing distinctions among the mental states that are central to legal responsibility. Each of these matters has philosophical import; is a neurological 'deficit' inculpatory or exculpatory; what is the proper role for law if the mind is no more than the brain; is lying really a brain state and can neuroscience really 'read' the brain? In this edited collection, leading contributors to the field provide new insights on these matters, bringing to light the great challenges that arise when disciplinary boundaries merge. |
| Mourao | 2018 | Neuroscience: A New Model for Anticorruption Policies? | Licurgo Mourao | Available at SSRN | Since the collapse of the narratives on corruption in the modern social sciences, and from the discrediting experienced by anti-corruption policies based on the Agency Theory, new perspectives on corruption have emerged. Most of them support a culturalist or anthropological view, based in social practices, routines and in collective action. However, a smaller part of the studies bases its explanation on the revival of classic approaches to crime in biology. These studies, driven by the advances in the neurosciences, allowed diagnoses – through brain scanning techniques – of disorders and brain injuries that could be related to corrupt behavior. This article provides an overview of a neuroscientific approach to corruption and its implications in the field of public administration, especially in the creation of anticorruption policies. Could it, in fact, help reformulate old policies? Or, on the contrary, is this approach merely a repetition of old formulas? To what extent can public policies based on neuroscience stimulate more effective interventions and good governance programs? The article is divided into three parts: in the first section, we present the context in which the neuroscientific approach is developed, quickly comparing it to other approaches also related to governance in the public sector. In the following section, we describe the main characteristics of neuroscience studies that make them attractive to management professionals and policy makers. In the last section, we analyze their ability to identify possible corrupt behaviors and also their limitations, considering a field research carried out in 2015. |
| Coppola | 2018 | Mapping the Brain to Predict Antisocial Behaviour: New Frontiers in Neurocriminology, 'New' Challenges for Criminal Justice | Federica Coppola | 1 UCL J. L. Juris. 103 | Neuroscientific research on the relationship between neurobiology and antisocial behaviour has grown exponentially over the last two decades. One of the most intriguing challenges that has started occupying the minds of scientists and legal scholars is the potential use of neuroscience-based methodology to predict future antisocial behaviour in forensic and justice contexts. While neuroprediction holds the promise of adding predictive value to existing risk assessment tools, its hypothetical use for forensic and justice purposes touches on some specific ethical and legal issues, in particular the threat it poses to offenders’ individual rights and civil liberties under the pretext of enhancing public safety. This article provides some arguments for overcoming these concerns. More importantly, it argues that neuroprediction should be viewed as an instrument to help criminal justice integrate current punitive policies and measures with socio-rehabilitative strategies, which could improve the treatment of offenders at risk without threatening their individual rights. |
| Segundo | 2015 | Contributions from Neuroscience and Biology to the Philosophy of Law | Hugo de Brito Machado Segundo | 1 UNIO EU L. J. 40 | This article discusses the possibility of dealing, from a scientific point of view, with ethical standards from which one can critically evaluate positive law. For a long time it was considered that such standards would be subjective, emotional, and that they would vary according to time and place. That is why it was considered impossible, especially from a positivist point of view, to examine them using a scientific approach, due to a lack of the necessary objectivity. The findings of contemporary biology and neuroscience, however, may cast new light on this debate. Although they would not resolve the debate, these findings significantly challenge the idea that moral sentiments cannot be able to be scientifically studied. |
| Fondacaro | 2018 | Rethinking the Voluntary Act Requirement: Implications from Neuroscience and Behavioral Science Research | Mark R. Fondacaro | Behav. Sci. L. (Forthcoming) | Criminal responsibility in the American legal system requires the presence of an actus reus — a harmful act that was committed voluntarily — and a mens rea, or guilty mind. Courts frequently consider questions surrounding mens rea but rarely question whether an act was committed voluntarily. Thus, courts presume that acts have been committed voluntarily and with an ill will; retribution, which serves the primary basis for punishment in the United States, relies on this presumption. Research in neuroscience and the behavioral sciences, however, suggests this presumption is flawed and not sufficiently robust to justify punishment that is grounded in retribution. In this paper we discuss the presumption of voluntariness and free will inherent in the law, provide examples of how the courts have conflated actus reus and mens rea and the consequences of doing so, and the implications of neuroscience and behavioral science research for actus reus (also known as the voluntary act requirement). Finally, we propose re-conceptualizing punishment within a consequentialist, empirically-based framework that does not rely on folk psychological notions about human behavior and reinvigorates the actus reus as the foundational requirement for legal responsibility. |
| Maron | 2018 | "My Brain Made Me Do It" Is Becoming a More Common Criminal Defense | Dina Fine Maron | Scientific American (Mar. 5, 2018) | Criminal defense strategies are increasingly relying on neurological evidence—psychological evaluations, behavioral tests or brain scans—to potentially mitigate punishment. Defendants may cite earlier head traumas or brain disorders as underlying reasons for their behavior, hoping this will be factored into a court’s decisions. Such defenses have been employed for decades, mostly in death penalty cases. But as science has evolved in recent years, the practice has become more common in criminal cases ranging from drug offenses to robberies. |
| Gordon | 2018 | Nature, nurture, and capital punishment: How evidence of a genetic–environment interaction, future dangerousness, and deliberation affect sentencing decisions | Natalie Gordon & Edie Greene | 36 Behav. Sci. L. 65 | Research has shown that the low‐activity MAOA genotype in conjunction with a history of childhood maltreatment increases the likelihood of violent behaviors. This genetic–environment (G × E) interaction has been introduced as mitigation during the sentencing phase of capital trials, yet there is scant data on its effectiveness. This study addressed that issue. In a factorial design that varied mitigating evidence offered by the defense [environmental (i.e., childhood maltreatment), genetic, G × E, or none] and the likelihood of the defendant's future dangerousness (low or high), 600 mock jurors read sentencing phase evidence in a capital murder trial, rendered individual verdicts, and half deliberated as members of a jury to decide a sentence of death or life imprisonment. The G × E evidence had little mitigating effect on sentencing preferences: participants who received the G × E evidence were no less likely to sentence the defendant to death than those who received evidence of childhood maltreatment or a control group that received neither genetic nor maltreatment evidence. Participants with evidence of a G × E interaction were more likely to sentence the defendant to death when there was a high risk of future dangerousness than when there was a low risk. Sentencing preferences were more lenient after deliberation than before. We discuss limitations and future directions. |
| Bioethics Commission | 2015 | Gray Matters: Topics at the Intersection of Neuroscience, Ethics, and Society | Presidential Commission for the Study of Bioethical Issues | Vol. 2. | In 2013, President Obama announced the federal Brain Research through Advancing Innovative Neurotechnologies (BRAIN) Initiative, and charged the Presidential Commission for the Study of Bioethical Issues (Bioethics Commission) to examine ethical considerations related to both the conduct of neuroscience research and the application of neuroscience research findings. e Bioethics Commission addressed the President’s charge in two parts. In its rst volume on neuroscience and ethics, Gray Matters: Integrative Approaches for Neuroscience, Ethics, and Society, the Bioethics Commission emphasized the importance of integrating ethics and neuroscience throughout the research endeavor.1 This second volume, Gray Matters: Topics at the Intersection of Neuroscience, Ethics, and Society, takes an in-depth look at three topics at the intersection of neuroscience and society that have captured the public’s attention. |
| Titolo | 2008 | Evidentiary Issues in Traumatic Brain Injury Cases––Daubert Motions | Timothy R. Titolo | Am. Assoc. Just. | This article will address motions in cases of traumatic brain injury (TBI) seeking to suppress neuropsychological testing and testimony, and Positron Emission Tomography (PET) testing and testimony. It will also examine how to use Daubert to attack defense experts in TBI cases. |
| Bunikowski | 2015 | How to Enhance Responsibility? What About the Effects of Cognitive Enhancement on Moral and Legal Responsibility? | Dawid Bunikowski | Available at SSRN | This short paper concerns a legal-philosophical and legal-theoretical (but in fact, more interdisciplinary) problem of so called cognitive enhancement and of what to do with (possible) influence of neuroscience on legal and moral responsibility. The problem of responsibility in the law is treated as one of the most important themes in jurisprudence. We say that some people are responsible for behaviour (e.g. the competent, adults). But we must seek the limits of the idea that responsibility “tracks” mental capacity. According to the paper assumptions, we should consider two fundamental questions. Firstly, have some professionals such as surgeons, soldiers, pilots a responsibility (duty) to cognitively enhance themselves (by e.g. drugs)? Secondly, if so, after the enhancement should they be acquired by greater responsibilities (greater standard of care)? I see some dangers for morality, freedom, human rights in the case of two positive answers for these questions. I analyse some projects of recommendation of the law change. I strictly highlight really potential axiological problems, too. |
| Hardcastle | 2015 | Would a neuroscience of violence aid in understanding legal culpability? | Valerie Gray Hardcastle | 34–35 Cognitive Systems Research 44–53 | In a widely read essay, “For the Law, Neuroscience Changes Nothing and Everything,” Joshua Greene and Jonathan Cohen argue that the advance of neuroscience will eventually result in the widespread rejection of free will, and with it – of retributivism. They go on to propose that consequentialist reforms are in order, and they predict such reforms will take place. We agree that retributivism should be rejected, and we too are optimistic that rejected it will be. But we don’t think that such a development will have much to do with neuroscience – it won’t, because neuroscience is unlikely to show that we have no free will. We have two main aims in this paper. The first is to rebut various aspects of the case against free will. The second is to examine the case for consequentialist reforms. We take Greene and Cohen’s essay as a hobbyhorse, but our criticisms are applicable to neurodeterministic anti-free-willism in general. We first suggest that Greene and Cohen take proponents of free will to be committed to an untenable homuncular account of agency. But proponents of free will can dispense with such a commitment. In fact, we argue, it is Greene and Cohen who work with an overly simple account of free will. We sketch a more nuanced conception. We then turn to the proposal for consequentialist reforms. We argue that retributivism will fall out of favor not as a consequence of neuroscience-driven rejection of free will, but rather, as a result of a familiar feature of moral progress – the expanding circle of concern. In short, retributivism can and must die, but neuroscience will not kill it – humanity will. |
| Fileva | 2015 | Will retributivism die and will neuroscience kill it? | Iskra Fileva &athan Tresan | 34–35 Cognitive Systems Research 54–70 | In a widely read essay, “For the Law, Neuroscience Changes Nothing and Everything,” Joshua Greene and Jonathan Cohen argue that the advance of neuroscience will eventually result in the widespread rejection of free will, and with it – of retributivism. They go on to propose that consequentialist reforms are in order, and they predict such reforms will take place. We agree that retributivism should be rejected, and we too are optimistic that rejected it will be. But we don’t think that such a development will have much to do with neuroscience – it won’t, because neuroscience is unlikely to show that we have no free will. We have two main aims in this paper. The first is to rebut various aspects of the case against free will. The second is to examine the case for consequentialist reforms. We take Greene and Cohen’s essay as a hobbyhorse, but our criticisms are applicable to neurodeterministic anti-free-willism in general. We first suggest that Greene and Cohen take proponents of free will to be committed to an untenable homuncular account of agency. But proponents of free will can dispense with such a commitment. In fact, we argue, it is Greene and Cohen who work with an overly simple account of free will. We sketch a more nuanced conception. We then turn to the proposal for consequentialist reforms. We argue that retributivism will fall out of favor not as a consequence of neuroscience-driven rejection of free will, but rather, as a result of a familiar feature of moral progress – the expanding circle of concern. In short, retributivism can and must die, but neuroscience will not kill it – humanity will. |
| Hoffman | 2018 | Nine Neurolaw Predictions | Morris B. Hoffman | 21 New Crim. L. Rev. 212–246 | A sitting trial judge, and member of the MacArthur Foundation’s Research Network on Law and Neuroscience, makes short-term, long-term and “never happening” predictions about the impacts neuroscience will have on law. |
| Patterson | forthcoming | Neuromania | Dennis Patterson | J. L. &sciences | A review of Peter A. Alces, The Moral Conflict of Law and Neuroscience, University of Chicago Press, 2018, pp. 377 |
| Shen | 2018 | Are Youth Sports Concussion Statutes Working? | Francis X. Shen | 56 Duq. L. Rev. 7 | In this Essay--prepared as part of the Duquesne University School of Law Symposium Athletes, Veterans, and Neuroscience: A Symposium on Traumatic Brain Injury and Law--I review what we currently know about the implementation of state youth sports concussion laws. I then look ahead, and discuss the work that I am leading in Minnesota to fill gaps in our knowledge about the effects of youth sports concussion policy. The Article proceeds as follows. Part II briefly summarizes key features of state concussion laws, and discusses common critiques of the statutes. Part III reviews the current knowledge base on the implementation and effects of these state laws. In Part IV, I propose a set of principles to guide further research and policymaking in this area. Part V concludes. |
| Brown | 2018 | Differential Medial Temporal Lobe and Parietal Cortical Contributions to Real-world Autobiographical Episodic and Autobiographical Semantic Memory | Thackery I. Brown, Jesse Rissman, Tiffany E. Chow, Melina R. Uncapher, & Anthony D. Wagner | 8 Sci. Reports 1 | Autobiographical remembering can depend on two forms of memory: episodic (event) memory and autobiographical semantic memory (remembering personally relevant semantic knowledge, independent of recalling a specific experience). There is debate about the degree to which the neural signals that support episodic recollection relate to or build upon autobiographical semantic remembering. Pooling data from two fMRI studies of memory for real-world personal events, we investigated whether medial temporal lobe (MTL) and parietal subregions contribute to autobiographical episodic and semantic remembering. During scanning, participants made memory judgments about photograph sequences depicting past events from their life or from others’ lives, and indicated whether memory was based on episodic or semantic knowledge. Results revealed several distinct functional patterns: activity in most MTL subregions was selectively associated with autobiographical episodic memory; the hippocampal tail, superior parietal lobule, and intraparietal sulcus were similarly engaged when memory was based on retrieval of an autobiographical episode or autobiographical semantic knowledge; and angular gyrus demonstrated a graded pattern, with activity declining from autobiographical recollection to autobiographical semantic remembering to correct rejections of novel events. Collectively, our data offer insights into MTL and parietal cortex functional organization, and elucidate circuitry that supports different forms of real-world autobiographical memory. |
| Nestor | 2018 | In defense of free will: Neuroscience and criminal responsibility | Paul G. Nestor | 57 Int'l J. Law & Psychiatry | Is neuroscience the death of free will and if so, does this mean the imminent demise of the psycho-legal practices related to insanity and criminal responsibility? For many scholars of neuro-jurisprudence, recent advances in brain sciences suggesting that the perception of free will is merely illusory, an epiphenomenon of unconscious brain activity, do indeed undermine our traditional understandings of moral and legal responsibility. In this paper, however, we reject this radical claim and argue that neuroscientific evidence can indeed reveal how free will actually works and how its underlying neural and perceptual machinery gives rise to our sense of responsibility for our actions. First, the experience of free will is recast in terms of neuroscientific studies of agency and willed action. Second, evidence is presented of a neural network model linking agency to widely-distributed brain areas encompassing frontal motor and parietal monitoring sites. We then apply these findings to criminal responsibility practices by demonstrating (a) how the experience of intentionality and agency is generated by specific interactions of this discrete frontal-parietal network, (b) how mental disease/defect may compromise this network, and (c) how such pathologies may lead to disturbances in the sense of agency that often are central to the phenomenological experience of psychosis. The paper concludes by examining criminal responsibility practices through the lens of cultural evolution of fairness and cooperation. |
| Hardcastle | 2018 | The Impact of Neuroscience Data in Criminal Cases: Female Defendants and the Double-Edged Sword | Valerie Gray Hardcastle, M. K. Kitzmiller, & Shelby Lahey | 21 New Crim. L. Rev. 291–315 | Data regarding gender disparities in sentencing are contradictory. We argue that one reason for the mixed results is that female defendants who commit similar crimes are treated differently depending upon whether the defense portrays them as someone with serious mental deficiencies or as a normal person who got caught up in abnormal circumstances. We suggest that judges and juries use neuroscience data to support their preconceived notions of what “bad” women are like, even as defense counsel presents these data to support claims that their clients are less culpable. Using a case study approach, we do a pair-wise comparison of four appellate decisions in which female defendants were accused of committing similar crimes under similar circumstances, but for whom data regarding brain impairments differed substantially to determine what difference the neuroscience data might make in case outcomes. This analysis provides preliminary data suggesting that neuroscience data can act to promote a defendant’s blameworthiness even as it is used to mitigate the findings. |
| Finkel | 2018 | The NFL as a Workplace: The Prospect of Applying Occupational Health and Safety Law to Protect NFL Workers | Adam M. Finkel, Chris Deubert, Orly Lobel, I. Glenn Cohen, & Holly Fernandex Lynch | 60 Arizona L. Rev. 291 | The athletes who participate in professional football call themselves (and the public calls them) football “players,” not football “workers,” reflecting the reality that as exhausting and high-pressure as their efforts are, they are ultimately playing a sport. Nevertheless, we should not forget that these athletes indeed are workers; they have trained extensively to perform their roles, they do intense physical labor as part of their jobs, they are salaried employees of National Football League (“NFL”) clubs, and they are represented by a labor union, the National Football League Players Association (“NFLPA”). This Article is the first to explore in depth what might happen if our society treated professional football like a workplace, subject to government regulation, public–private cooperation or other “soft law” mechanisms, or required information disclosure to facilitate more informed understanding of the variety of safety and health risks these workers face to provide fans with entertainment. Specifically, it examines how recognizing the NFL as a workplace, governed by the U.S. Occupational Safety and Health Administration (“OSHA”) and the law surrounding occupational health and safety, can transform our understanding of the NFL and player safety. This topic has gained considerable and growing public attention, particularly regarding the recent and controversial concerns over the possible long-term risks of neurological damage in these workers. The Article explains that OSHA clearly has the authority to regulate the NFL. Nevertheless, there is little to no precedent or guidance for OSHA to insert itself into the on-the-field aspects of professional sports. We discuss in detail the small body of case law that bears on OSHA’s authority in entertainment and sports, which opens some doors for OSHA to issue standards but also sets limits on its ability to alter the nature of the entertainment or sport. But more importantly, there are a host of political and practical reasons we discuss, which make it very unlikely that OSHA will attempt to regulate the NFL. Nevertheless, there are a wide variety of ways for OSHA to intervene or involve itself without regulating, as discussed at length in the Article. Adding a public institution like OSHA as a party to existing labor-management discussions concerning health and safety may be the best natural evolution of the issue. Many in the public seem to believe that football must become safer to thrive and hope that it will. Regulations or “soft law” approaches have sometimes worked well even in complicated, uncertain, and fraught issues. OSHA understands evidence from a public health lens, and it is the institution empowered by Congress and the courts to help balance the competing goals of worker protection versus cost and liberty in an open setting. So we place the onus on OSHA in this Article: the agency should be more willing to step up to this challenge and less conflicted about offering to participate in an issue where it has expertise complementary to that which the NFL and NFLPA bring, as well as a unique opportunity to help bring about constructive change. |
| Meynen | 2018 | Forensic psychiatry and neurolaw: Description, developments, and debates | Gerben Meynen | 57 Int'l J. Law & Psychiatry | Neuroscience produces a wealth of data on the relationship between brain and behavior, including criminal behavior. The research field studying the possible and actual impact of neuroscience on the law and legal practices, is called neurolaw. It is a new and rapidly developing domain of interdisciplinary research. Since forensic psychiatryhas to do with both neuroscience and the law, neurolaw is of specific relevance for this psychiatric specialty. In this contribution, I will discuss three main research areas in neurolaw – revision, assessment, and intervention – and explore their relevance for forensic psychiatry. I will identify some valuable opportunities as well as some notable challenges – both technical and ethical – for forensic psychiatry regarding neurolaw developments. |
| Salmanowitz | 2018 | The impact of virtual reality on implicit racial bias and mock legal decisions. | Natalie Salmanowitz | 5 J. Law & Biosci. 174 | Implicit racial biases are one of the most vexing problems facing current society. These split-second judgments are not only widely prevalent, but also are notoriously difficult to overcome. Perhaps most concerning, implicit racial biases can have consequential impacts on decisions in the courtroom, where scholars have been unable to provide a viable mitigation strategy. This article examines the influence of a short virtual reality paradigm on implicit racial biases and evaluations of legal scenarios. After embodying a black avatar in the virtual world, participants produced significantly lower implicit racial bias scores than those who experienced a sham version of the virtual reality paradigm. Additionally, these participants more conservatively evaluated an ambiguous legal case, rating vague evidence as less indicative of guilt and rendering more Not Guilty verdicts. As the first experiment of its kind, this study demonstrates the potential of virtual reality to address implicit racial bias in the courtroom setting. |
| Moriarty | 2018 | Foreward to Athletes Veterans and Neuroscience: A Symposium on Traumatic Brain Injury and Law | Jane Campbell Moriarty | 56 Duq. L. Rev. 1 | The last several years have educated us about the multiple causes and effects of traumatic brain injury (TBI). We have learned about concussions and brain injuries that many athletes suffer and the possibility of long term damage that such injuries may cause. The public is now sadly aware that many veterans are returning from Afghanistan and Iraq with combat-related brain injuries. And many citizens have learned first-hand that serious accidents can cause concussions and other forms of serious brain injuries. |
| Litton | 2018 | Traumatic Brain Injury and a Divergence Between Moral and Criminal Responsibility | Paul Litton | 56 Duq. L. Rev. 35 | In this contribution to a symposium on the important topic of traumatic brain injury and law, I focus on the following question: What is the relationship between traumatic brain injury and responsibility? How does, or how might, a traumatic brain injury affect one's status as a responsible agent? One aim of this essay is to examine the plausibility of each interpretation of his attorney's claim. In doing so, this essay will discuss the ways in which a traumatic brain injury may be relevant to assessing a person's responsibility status. In this discussion, I will emphasize a point previously made: The fact that a brain injury caused an agent to commit a criminal or immoral act that he would not have otherwise committed is not, by itself, relevant to criminal responsibility. A corollary to that claim is that neuroscientific findings are irrelevant to responsibility insofar as they are offered to show that one's brain caused his wrongful act. Traumatic brain injury may be relevant to criminal responsibility depending on the rationality impairments it causes. Rationality impairments, if serious enough, undermine or diminish criminal responsibility. |
| Meynen | 2018 | Author's Response to Peer Commentaries: Brain-based mind reading: conceptual clarifications and legal applications | Gerben Meynen | 5 J. Law & Biosci. 212 | Glannon and Claydon have written thoughtful peer commentaries on my article about possibilities and perils regarding brain-based mind reading in forensic psychiatry.1 Based on their comments, I will provide two conceptual clarifications concerning brain-based mind reading, followed by some further thoughts on legal applications. |
| Meixner Jr. | 2018 | The difficulty of discerning the effect of neuroscience: a peer commentary of Shen et al. 2018 | John B. Meixner Jr. | 5 J. Law & Biosci. 208 | In a recent issue of The Journal of Law and the Biosciences, Francis Shen and his coauthors offer a new dataset examining this issue. It is among the first, to my knowledge, in the context of neuroscience-based memory recognition detection—a relatively new field in which an examiner attempts to detect whether an individual possesses knowledge that allows an inference as to that person's role in a prior event (such as a crime), and which has been regularly referenced for its potential application in court. In this brief commentary, I seek to critically examine what we can learn from that dataset, and provide some framework for future research in this area. |
| Pope | 2017 | Brain Death Forsaken: Growing Conflict and New Legal Challenges | Thaddeus Mason Pope | 37 J. Legal Med. 265 | "The purpose of this article is to get the brain death dragon further out of his cave by summarizing and analyzing three legal attacks on brain death. Section I establishes the legal status of brain death. As codified in the Uniform Determination of Death Act (UDDA), brain death is legal death everywhere in the United States. Moreover, the implications of this status are clear. Clinicians have no treatment duties after brain death, except for (1) a religious opt-out in New Jersey and (2) temporary duties to accommodate objecting families in three other states. While the law is settled, family resistance is growing. Section II describes the leading reasons for family-clinician conflict. The rest of the article describes three new court challenges to the legal status of brain death. Section III describes a challenge that contends that prevailing medical criteria do not measure what the law requires. Laws in *269 every state provide that an individual is dead if that individual has sustained “irreversible” cessation of “all” functions of the “entire” brain, including the brain stem.8 But the diagnostic tests that clinicians now normally use are not designed to, and cannot, evaluate or ascertain the satisfaction of these rather categorical and absolute standards. Section IV describes a challenge that contends that clinicians need surrogate consent to administer the apnea test. The apnea test is a key component of brain death assessment. Though families have almost no rights to demand treatment after death, they have effectively used their rights before death. Families that have successfully objected to the apnea test have been able to prevent clinicians from determining brain death. Consequently, they have successfully prevented clinicians from declaring the patient dead and withdrawing organ-sustaining treatment. Section V describes a challenge that contends that clinicians must indefinitely accommodate religious objections to brain death. The general rule is that clinicians have no duty to continue physiological support after brain death. But this presents a profound problem for patients with religious objections. For these individuals, the denial of physiological support violates fundamental values. Only New Jersey has legislatively granted a complete religious exemption. Some lawsuits contend that exemption is required by constitutional principles. In sum, U.S. society is grappling with three types of court challenges to brain death. Moreover, these challenges are new, so we do not yet have much definitive guidance. Because medical treatment conflicts surrounding brain death increasingly escalate to the courts, we need answers. I reach three conclusions. First, state legislatures should amend brain death laws to align with medical practice. Second, families should be able to refuse consent to the apnea test, only temporarily, pending transfer. Third, it is premature to expand religious exemptions." |
| Baicker-McKee | 2017 | The Excited Utterance Paradox | Steven Baicker-McKee | 41 Seattle U. L. Rev. 111 | Based on nothing more than John Henry Wigmore's personal belief that a witness under the throes of excitement is unable to fabricate an untruthful statement, the excited utterance exception allows parties to present out-of-court statements to the jury or judge without any of the safeguards the judicial system uses to promote honest and accurate testimony. This Article collects and examines much of the scientific evidence bearing on Wigmore's premise and identifies two paradoxical conclusions that undermine the exception. First, the premise itself is unfounded; science absolutely does not support the notion that a witness is incapable of lying while emotionally agitated. But, there is a second phenomenon at work that counteracts the premise (were it valid); witnesses under extreme emotional stress are unreliable observers and reporters of the events causing the stress. Thus, in the unlikely event that an occurrence was sufficiently stressful to impede the ability to lie, the stress would also interfere with the ability to perceive and describe the occurrence reliably. Based on this paradox, this Article concludes that the excited utterance exception is both broken and irreparable, and therefore recommends abandoning the excited utterance exception altogether. |
| Bennett | 2018 | Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, and Criminal Justice | Mark W. Bennett & Victoria C. Plaut | 51 U.C. Davis. L. Rev. 745 | Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness, and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women. We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery. We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor. We then look beyond the Black-White race dichotomy to *746 explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences. We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the United States criminal justice system. |
| Quattlebaum | 2018 | Let's Get Real: Behavioral Realism, Implict Bias, and the Reasonable Police Officer | Megan Quattlebaum | 14 Stan. J. Civ. Rts. & Civ. Liberties 1 | Constitutional law is not particularly sophisticated about bias, and so it is not very good at protecting people from it. This is nowhere more evident than in the Supreme Court's jurisprudence around racial profiling. The Supreme Court has conceptualized racial profiling as something only bad police officers do; it has equated bad stops with bad cops. But in recent years, social psychologists have amassed significant evidence showing that most people possess implicit biases and that these biases can affect our behavior, particularly when certain conditions are present. This means that many instances of racial profiling are likely to be unintentional. Supreme Court jurisprudence makes the Fourteenth Amendment the constitutional vehicle for remedying racial profiling, but the Court has limited that Amendment's ability to respond to unintentional racial profiling by requiring that plaintiffs show intent to discriminate. I contend that the Fourth Amendment can fill this gap, serving as a powerful tool for addressing contemporary forms of bias. But if the Fourth Amendment is to fill this role, courts must eschew post hoc evaluations of the moral character of the searching and seizing officers in favor of forward-looking, probabilistic assessments of the contexts that are most likely to lead to reasonable outcomes given what we know about human behavior. Rules that constrain officer discretion, encourage restraint rather than action in the face of ambiguity, and hold officers accountable for their choices will lead to more reasonable searches and seizures, because implicit biases will be less likely to be activated with such rules in place. |
| Chandler | 2018 | Neurolaw today – A systematic review of the recent law and neuroscience literature | Jennifer A. Chandler, Neil Harrel, & Tijana Potkonjak | Int'l J. L. & Psychiatry (In Press) | Jennifer A. Chandler, Neil Harrel, & Tijana Potkonjak |
| Strle | 2018 | Neurolaw today – A systematic review of the recent law and neuroscience literature | Toma Strle & Olga Markic | Balkan J. Philosophy 17–26 | In the following article we first present the growing trend of incorporating neuroscience into the law, and the growing acceptance of and trust in neuroscience’s mechanistic and reductionistic explanations of the human mind. We then present and discuss some studies that show how nudging peoples’ beliefs about matters related to human agency (such as free will, decision-making, or self-control) towards a more deterministic, mechanistic and/or reductionistic conception, exerts an influence on their very actions, mentality, and brain processes. We suggest that the neuroscientific view of the human mind exerts an influence on the very cognitive phenomena neuroscience falsely believes to be studying objectively. This holds especially when we consider the systematic integration of neuroscience into the public domain, such as the law. For, such an integration acts as a reinforcement of the public’s and legal decision-makers’ endorsement of and trust in neuroscience’s view of human nature that further changes how people think and act. Such looping effects of neurolaw are probably inevitable. Accordingly, we should be aware of the scope of neuroscientific explanations and be careful not to overstate neuroscientific evidence and findings in legal contexts. |
| Hardcastle | 2018 | Valerie Gray Hardcastle & Edward Lamb | Valerie Gray Hardcastle & Edward Lamb | J. Eval. Clin. Pract. (Forthcoming) | One of the early concerns regarding the use of neuroscience data in criminal trials is that even if the brain images are ambiguous or inconclusive, they still might influence a jury in virtue of the fact that they appear easy to understand. By appearing visually simple, even though they are really statistically constructed maps with a host of assumptions built into them, a lay jury or a judge might take brain scans to be more reliable or relevant than they actually are. Should courts exclude brain scans for being more prejudicial than probative? Herein, we rehearse a brief history of brain scans admitted into criminal trials in the United States, then describe the results of a recent analysis of appellate court decisions that referenced 1 or more brain scans in the judicial decision. In particular, we aim to explain how courts use neuroscience imaging data: Do they interpret the data correctly? Does it seem that scans play an oversized role in judicial decision‐making? And have they changed how criminal defendants are judged? It is our hope that in answering these questions, clinicians and defence attorneys will be able to make better informed decisions regarding about how to manage those incarcerated. |
| Leonetti | 2018 | Editor's Introduction | Carrie Leonetti | 21 New Crim. L. Rev. 209 | The theme of this issue of the Review is neurolaw: the relevance of neuroscience, mental illness, and mental states to the criminal law. Neuroscience has already begun to have profound impacts on criminal law, the legal academy, and the study of law. The tricky question for the criminal law is how to embrace neuroscience developments that can inform and enlighten criminal practice without misusing neuroscience evidence in a way that distorts it or overstates its relevance. |
| Walsh | 2018 | Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective | Anthony Walsh & Virginia L. Hatch | 21 New Crim. L. Rev. 267 | This article explores the emotions behind the retributive urge as it applies to the death penalty in the United States. It is argued that the retributive urge is so strong because it engages the most primitive of our emotions, and that these emotions served adaptive purposes over the course of human evolution. Many scholars offended by the retributive instinct insist that we must put emotions aside when discussing the death penalty, even as jurors in death penalty cases, and rely on our rationality. To ask this is to ask what almost all normal people find impossible because the emotions evoked in capital cases (disgust, anger, sympathy for the victim, desire for justice) evolved for the purpose of maintaining group stability and survival by punishing freeloaders. Modern neuroscience has destroyed the traditional notion that rationality and emotion are antagonists. Brain imaging techniques show that they are fully integrated in our brain wiring, and both are engaged in decision making but when reason and emotion yield conflicting judgments, the latter almost always triumphs. The *268 evolutionary rationales for why emotions conducive to punitive responses for wrongdoers exist are examined. |
| Lynch | 2018 | Veterans on Death Row | Alison J. Lynch | 32 Crim. Just. 4 | This article is based on a panel discussion held at the New York City Bar Association in conjunction with the Capital Punishment Committee. It features information presented by three panelists: Dr. Jerid M. Fisher, a forensic neuropsychologist; Irina Komarovskaya, PhD, the clinic director at the Steven A. Cohen Military Family Clinic at the NYU Langone Medical Center; and Art Cody, the deputy director of the New York State Defenders Association's Veterans Defense Program and a retired United States Navy captain. In 2009, the Supreme Court decided a landmark case for capital defendants. In Porter v. McCollum, 558 U.S. 30 (2009), the Court held that an attorney's failure to investigate a defendant's military background could be sufficient foundation for a claim under the Sixth Amendment for ineffective assistance of counsel. That decision shows that the Court rightly believes that a defendant's prior military experience can have real probative value during capital sentencing. Today, there are approximately 300 veterans on death row; this accounts for 10 percent of all individuals currently sentenced to death. Many unique factors may be at play for this population that are not present in other death penalty cases--factors that should be investigated before sentencing in order to allow counsel to paint a complete picture of the history and background of the defendant and present an effective mitigation case. Military history and service, in particular, are critical issues for counsel to examine, because with a history of service comes potential mitigating factors relevant for sentencing, such as traumatic brain injury or posttraumatic stress disorder (PTSD). This article will more closely examine several of the factors that the Supreme Court, in McCollum, believed to be relevant and crucial to investigate for individuals in this population who are facing a death sentence. |
| Tabashneck | 2018 | "Raise the Age" Legislation: Developmentally Tailored Justice | Stephanie Tabashneck | 32 Crim. Just. 13 | This article will explore developmentally tailored justice and raise the age legislative initiatives. The article will begin with a brief overview of juvenile crime and a discussion of the implications of placing youth in adult criminal justice systems. Next, a review of scholarly advances in adolescent brain development and relevant Supreme Court decisions will be discussed. Lastly, raise the age legislative successes in Massachusetts, Connecticut, Illinois, and North Carolina will be explored, followed by legislative “flops” in Texas, Michigan, Georgia, Missouri, and Wisconsin. |
| Cauffman | 2018 | How Developmental Science Influences Juvenile Justice Reform | Elizabeth Cauffman, Adam Fine, Alisa Mahler, & Cortney Simmons | 8 UC Irvine L. Rev. 21 | Youth who commit crimes challenge society to think deeply about the nature of both adolescent development and justice. On the one hand, behavioral and *22 neurological evidence show that youth are still developing their ability to regulate their behavior, to consider the consequences of their actions, and to resist peer pressure. From this developmental perspective, it is unsurprising that adolescence is a time of heightened risk taking and that the vast majority of youth simply age--or more precisely, psychosocially mature-- out of these types of behaviors. On the other hand, a central tenant of our justice system is the belief that individuals who break the law deserve to be punished. To put it simply, if you did the crime, you should do the time. The question thus becomes, what should we do with adolescents who commit crimes? Are adolescents different from adults in ways that require different treatment under the law? If so, what developmental factors should be considered? |
| Beecher-Monas | 2018 | Actus Reus, Mens Rea, and Brain Science: What Do Volition and Intent Really Mean? | Erica Beecher-Monas & Edgar Garcia-Rill | 106 Ky. L.J. 265 | The foundational elements of criminal law, actus reus and mens rea, are vague, imprecise, and indeterminate categories that are based on outdated notions about human behavior. These confused categories affect not only what legally constitutes choice, volition, and intent, but also the defendant's ability to present evidence (since the categories define the evidence that will be admissible), and ultimately, criminal liability. In this Article we explain how neuroscience allows us to reconsider these legal concepts and conceive a more informed view of human behavior (and therefore criminal liability). The Article explains how distortions in brain function affect the way people perceive reality and how that distortion affects their choices, volition, and intent. It proposes that a more expansive category, encompassing both foundational elements but with a more expanded definition of choice, volition, and intent, would enable judges to permit the mentally ill accused to present scientifically valid expert testimony about how their illness affects behavior so that the jury will be able to reach an informed decision. |
| Scarpazza | 2018 | Mental Insanity Assessment of Pedophilia: The Importance of the Trans-Disciplinary Approach. Reflections on Two Cases | Cristina Scarpazza, Ambrogio Pennati, & Giuseppe Sartori | 12 Front. Neurosci. 1 | A 60 plus-year-old male was charged with pedophilia for forcing a child to touch him inappropriately near a primary school fence. In another case, a 70 plus-year-old male was charged with pedophilia for intimately touching a boy in a cinema. What led them to manifest this socially-inappropriate and legally-relevant behavior? Is there an explanation for the sexually-related behavioral changes emerging late in life of these two men? Indeed, a common point exists between the two men: both were found to suffer from highly-disabling neurological conditions, known to have a potential effect on social behavior. Specifically, a large right frontoparietal meningioma was found to have important influence on the first man's cognition and control inhibition, whereas frontotemporal dementia prevented the second man from understanding the moral disvalue of his sexually-inappropriate behavior and controlling his sexual impulses. In the current presentation, particular emphasis is placed on the logical reasoning supporting the conclusions that both the pedophiles should be considered not guilty by reason of insanity. Furthermore, experimental methods have been used to explore both cases, which rely on the existence of cognitive models for the phenomena under study, the integration of insights offered by different disciplines and the application of a variety of tools and approaches that follow the “convergence of evidence” principle, which could be safely used in court to support a mental insanity claim. Here, we describe how the use of the experimental method could become useful to reduce the uncertainty in mental insanity assessments. The use of a transdisciplinary, scientifically-grounded approach can help to change the way legal phenomena are interpreted. For instance, when assessing mental insanity, consultants should not only investigate the eventual existence of a diagnosis, but should assess the cognitive/affective abilities that are necessary to understand our own behavior and emotions as well as those of others. The criteria for responsibility should be symptoms-based and not diagnosis-based. Since pedophilia is among the most hideous behaviors condemned by society, a more comprehensive and transdisciplinary approach is recommended in court. |
| McMullen | 2018 | Invisible Stripes: The Problem of Youth Criminal Records | Judith G. McMullen | 27 S. Cal. Rev. L. & Soc. Just. 1 | It is common knowledge that persons with criminal records will have a more difficult path to obtaining legitimate employment. Similarly, conventional wisdom acknowledges the unfortunate fact that young people, on average, are more prone to engage in risky, impulsive, and other ill-advised behavior that might result in brushes with law enforcement. This article addresses the difficult situation faced by people who obtained a disabling criminal record before reaching the age of twenty-one. Not only do such individuals face stigma and possible discrimination from potential employers, the efforts of today's young people to “go straight” are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction. This article examines the broad scope and troubling effects of the intersection between policies attempting to “reform” youthful offenders, and policies giving any curious citizen access to records about a person's youthful indiscretions, no matter how minor. The article concludes that current practices are inconsistent with 1) what we know about the development of young people; 2) developing U.S. Supreme Court jurisdiction; and 3) the social goal of rehabilitating youthful offenders. I conclude by suggesting more restricted access to and use of information about contact between young people and the criminal justice system. |
| Stovanov | 2018 | Psychiatry and neurolaw | Drozdstoy St Stoyanov | 10 Balkan J. Philosophy 27-36 | The aim of this paper is to highlight the rationale behind the use of data from neuroscience, particularly neuroimaging, in psychiatric legal expert procedures and their interference with the mind-brain problem.The critical argument is that the employment of mental health evaluation of the defendants and/or witnesses as collected with clinical assessment methods in court proceedings should not be considered irrespective to the data from neuroscience. Essentially, neuroscience methods belong to the domain of nomothetic knowledge, whereas clinical evaluation methods in psychiatry belong to the domain of intra- and inter-subjective narratives. There exists an explanatory gap between those two groups of disciplines which concerns the ability to translate and integrate data across diverse methodological and terminological systems. Furthermore, it depends largely on the implicit positions in the mind-brain debate and the brain-to-behavior connections, which reflect on the professional and legal reasoning in terms of prioritizing certain solutions or approaches over another in the expert judgements. There are described those tacit positions adopted in the mind-brain debate by different traditions in psychiatry, with special emphasis on reductive and non-reductive forms of physicalism.In conclusion, a cognitive pluralist stance is adopted which sets priority for the supervenience theory of mind. |
| Papillon | 2018 | The Neuroscience and Epigenetics of Sexual Harassment: Brain Reactions, Gene Expressions, and the Hostile Work Environment Cause of Action | Kimberly Papillon | 7 Tenn. J. Race, Gender, & Soc. Just. 1 | Sexual harassment has emerged as a devastating reality in the American workplace. Courts have reviewed cases while lamenting about the imprecision in the law and its application to the facts. When jurisprudence joins neuroscience and analysis joins epigenetics a new approach to sexual harassment will emerge. The Article uses neuroscience and epigenetics to add precision to judging sexual harassment claims. The Article shows how the science of epigenetics can be used to accurately assess the victim’s injury and damages. Macro and micro-aggressions in a hostile work environment can have lasting effects on gene expression. Telomere length can degrade causing increased inflammation throughout the body. These epigenetic effects can be passed from generation to generation, infusing the injury of the victim throughout the family line. The Article also provides an introduction to three types of sexism, each related to a different set of neurophysiologic reactions: hostile, benevolent, and ambivalent. When hostile sexists view some women they have brain reactions that are directly linked to dehumanization and objectification. The Article also explores the brain reactions of the onlookers—the judge, jurors, witnesses, and employers, all of whom assess the harassment at different points in the process. The neurophysiologic reactions of these groups to a sexist joke can reveal the norms in the workplace that encourage or discourage harassment. Practitioners and finders of fact have accepted the imprecision surrounding judgements in sexual harassment cases for far too long. |
| Haushalter | 2018 | Neuronal Testimonial: Brain-Computer Interfaces and the Law | Jessica L. Haushalter | 71 Vand. L. Rev. 1365 | Scientific researchers have developed a method of using brain-scanning technology to determine if patients in a coma-like condition, known as a “vegetative state,” are conscious despite their inability to communicate verbally or via motor actions. While in a brain scanner, patients “answer” yes-or-no questions by envisioning specific scenarios that activate different parts of the brain. A researcher interprets a brain scan image as a yes-or-no response based on which areas of the brain demonstrated activation. Exciting as this technology may be, there are difficulties in terms of the ability to use it within the legal system. This Note considers those difficulties as they pertain to three contexts: (1) allowing conscious vegetative-state patients to “testify,” (2) providing police with an investigative tool for “questioning” conscious vegetative-state patients, and (3) assessing conscious vegetative-state patients’ healthcare wishes. It concludes that use of this technology as a way to allow patients to testify in court is unlikely under the current legal framework. However, there is a better chance of employing this technology for police investigations and healthcare decisionmaking. |
| Slater | 2018 | Note, Is Powell Still Valid? The Supreme Court's Changing Stance on Cruel and Unusual Punishment | Maria Slater | 104 Va. L. Rev. 547 | In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court's modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court's framework for analyzing the penalization of chronic alcoholism and, given the Court's changing stance, call into question the constitutionality of Virginia's habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court's Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court's shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court's proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia's habitual drunkard statute under the Court's changing jurisprudence. |
| Frank | 2018 | How Neuro-science Can Help Us Transform Conflict into Collaboration | Mari J. Frank | 60 May Orange Cty. L. 48 | Have you ever considered that each of us is governed by a complex brain that acts as the CEO of all activities in our entire body? This amazing brain directs how we interact with others, for better or worse. As attorneys, we can use our knowledge of brain function to transform conflict into problem solving and peacemaking to focus our clients on settlement instead of war. Understanding how our brain functions enables us to discern what is conscious, so we can make choices such as how to respond; and what is unconscious, which is automatic and takes control when we feel threatened. We can self-manage and empower our clients to be emotionally intelligent to settle their disputes without a protracted, expensive litigation battle. |
| Malih | 2018 | Note, Noncompliant Insanity: Does It Fit Within Insanity? | George Maliha | 21 New Crim. L. Rev. 209 | This Note seeks to explore the question of insanity caused by an omission, namely failure to take medication. Part I will briefly describe the problem of noncompliance and lack of insight14 in psychiatric illness, focusing on schizophrenia. Part II will look at the limited judicial interaction with this problem, starting with the recent case of Commonwealth v. Shin.15 Although there are few cases that attempt to grapple with the problem head-on, the rising awareness of mental illness16 and its potential effects on blameworthiness may soon change that. In any event, the issue lies under the surface in many cases.17 Part III will consider how far back the inquiry into insanity should extend. This Part will conclude that the mental processes surrounding noncompliance require further elucidation. Part IV, however, will try to solve--or at least re-channel--this empirical question by exploring potential analogies from other areas of criminal law. A conclusion will follow that argues that courts should maintain the status quo for now--and confine the insanity inquiry to the events directly surrounding the *650 crime. But, as the neuroscience around treatment compliance develops, courts may need to reexamine their approach.18 |
| Kambam | 2009 | The development of decision‐making capacities in children and adolescents: Psychological and neurological perspectives and their implications for juvenile defendants | Praveen Kambam & Christopher Thompson | 27 Behav. Sci. & L. 73 | The development of decision‐making capacities in children and adolescents has been a topic of interest for hundreds, if not thousands, of years. Questions regarding the development of decision‐making capacities (and moral reasoning) of youth frequently arise in juvenile justice settings, other forensic settings, and sometimes in treatment settings. This article attempts to review the latest and most relevant research on the development of decision‐making capacities likely to be relevant in children and adolescents who are defendants. We distinguish cognition versus judgment in decision‐making and briefly review adolescent decision‐making in laboratory and real world conditions. We review a theoretical framework of two different systems, a cognitive‐control system and socio‐emotional system, and potentially correlated neurobiological and psychological findings. Implications for selected aspects of the juvenile adjudicative process are discussed. |
| Northrop | 2017 | Kids Will Be Kids: Time for a "Reasonable Child" Standard for the Proof of Objective Mens Rea Elements | Christopher Northtrop & Kristina Rothley Rozan | 69 Me. L. Rev. 109 | Based on the goals of the juvenile system, significant advances in adolescent development research and recent Supreme Court holdings on juvenile culpability, we argue here that the juvenile code should be amended to explicitly refer to a reasonable child standard for any mens rea element that relies on a reasonable person as the measure for criminal culpability. In Part II, we provide an overview of mens *113 rea, including why it is an element in crimes, how it is used and defined, what the courts have said about who the reasonable person is or can be, who the fact-finders think the reasonable person is, and how reasonableness is proven or disproven. We also briefly summarize recent scientific research about the juvenile brain and how can we use this information to construct a “reasonable child” standard. In Part III, we discuss the Supreme Court's holdings on juvenile culpability and argue why they should also apply to proof of the elements for the case in chief. In Part IV, we explain why a reasonable child standard supports of the goals of the juvenile justice system. In Part V, we consider options as to how to change the reasonable person standard to a reasonable child standard. In Part VI, we conclude that, from this point forward, a reasonable child standard should always be used as the reference for proof of objective mens rea elements for juveniles, and that legislative amendments to current criminal and juvenile statutes are the best way to achieve this. |
| NeMoyer | 2018 | Kent Revisited: Aligning Judicial Waiver Criteria With More Than Fifty Years of Sociel Science Research | Amanda NeMoyer | 42 Vt. L. Rev. 441 | Although some form of transfer--allowing certain youths' cases to be tried in criminal court rather than in juvenile court--has existed since the early years of separated juvenile systems,1 the Supreme Court did not establish mandatory procedural protections for youth facing a transfer decision until 1966. In Kent v. United States, the Court held that judicial waiver of juvenile court jurisdiction decisions are “critically important,” and, therefore, youth facing such transfer determinations must receive an adversarial hearing, effective assistance of counsel, and a statement of reasons for the judge's final decision.2 The Court declined to prescribe substantive considerations for juvenile court judges to consider when making waiver decisions; however, it did include, as an appendix to the decision, a list of eight factors in use by the Juvenile Court of the District of Columbia at the time of Morris Kent's transfer decision.3 In the years following the Kent decision, many states adopted some or all of these criteria, often referred to as the “Kent factors,” as part of their judicial waiver statutes.4 However, given Kent's recent 50-year anniversary, these criteria should be re-evaluated in light of more than 50 years' worth of social science research--often cited and endorsed by the Supreme Court5-- *443 examining adolescents, their capabilities as defendants in the juvenile and criminal justice systems, and their relevant differences from adults.6 |
| Kiehl | 2018 | Age of gray matters: Neuroprediction of recidivism | Kent A. Kiehl, Nathaniel E. Anderson, Eyal Aharoni, J.Michael Maurer, Keith A. Harenski, Vikram Rao, Eric D. Claus, Carla Harenski, Mike Koenigs, Jean Decety, David Kosson, Tor D. Wager, Vince D. Calhoun, & Vaughn R. Steele | 18 NeuroImage: Clinical 813 | Age is one of the best predictors of antisocial behavior. Risk models of recidivism often combine chronological age with demographic, social and psychological features to aid in judicial decision-making. Here we use independent component analyses (ICA) and machine learning techniques to demonstrate the utility of using brain-based measures of cerebral aging to predict recidivism. First, we developed a brain-age model that predicts chronological age based on structural MRI data from incarcerated males (n = 1332). We then test the model's ability to predict recidivism in a new sample of offenders with longitudinal outcome data (n = 93). Consistent with hypotheses, inclusion of brain-age measures of the inferior frontal cortex and anterior-medial temporal lobes (i.e., amygdala) improved prediction models when compared with models using chronological age; and models that combined psychological, behavioral, and neuroimaging measures provided the most robust prediction of recidivism. These results verify the utility of brain measures in predicting future behavior, and suggest that brain-based data may more precisely account for important variation when compared with traditional proxy measures such as chronological age. This work also identifies new brain systems that contribute to recidivism which has clinical implications for treatment development. |
| Gkotsi | 2018 | Neuroimaging in criminal trials and the role of psychiatrists expert witnesses: A case study | Georgia M. Gkotsi, Jacques Gasser, & Valerie Moulin | 58 Int'l J. Law & Psychiatry | Various neuroscientific techniques are increasingly being used in criminal courts causing a vivid debate on the way that this kind of techniques will and should be used as scientific evidence. The role of experts in this context is important, since it is them that analyse, present, interpret and communicate the results of these techniques to the judges and the jury. In an attempt to contribute to the discussion about the role of the experts in criminal cases where neuroimaging evidence was introduced, we examined twenty seven cases from the US and Europe. Focusing on the role of experts and their presentation of neuroscientific evidence, we aimed to examine the extent to which neuroimaging data can contribute to the construction of a solid and more objective, “scientifically - based” case. We found that neurobiological information introduced through experts' testimony is generally used in order to demonstrate some physical, organic base of a psychiatric condition, or/and in order to make visible some brain lesion, (structural or functional), susceptible to have affected the capacity to reason and to control one's impulses. While neuroimaging evidence is often presented by the defence as a scientific method able to offer a precise diagnosis of the pathology in question, our case analysis shows that the very same neurobiological evidence can be interpreted in different - sometimes diametrically opposed - ways by defence and State experts. Conflicting testimony about the same empirical evidence goes against the hypothesis of neuroscientific techniques constituting “objective and hard evidence”, able to reach solid, scientific and objective conclusions. Frequent conflicts between neuroimaging experts require the courts to deal with the resulting uncertainty. As the law changes with technology, it is necessary for legal professionals to train and be prepared for the new issues they may encounter in light of new developments in neuroscience, so that they become more vigilant as to the interpretation of neuroscientific data. |
| Kittilstad | 2018 | Reduced Culpability without Reduced Punishment: A Case for Why Lead Poisoning Should Be Considered a Mitigating Factor in Criminal Sentencing | Eleanor Kittilstad | 108 J. Crim. L. & Criminology 569 | The water crisis in Flint, Michigan, where residents discovered dangerous levels of lead in their water supply in 2015, has continued to unfold over the past three years and has brought the damaging effects of lead exposure to national attention. When developing children are exposed to even low levels of lead, they are at risk of developing cognitive impairments--disorders that cause aggressive behavior and diminished intellectual functioning. This Comment seeks to bring criminal law into the conversation about lead exposure and its damaging effects. Researchers have found that children exposed to lead have a higher risk of engaging in criminal behavior. But the neurological impact of lead exposure in children suggests these children may not possess the culpability that traditionally justifies criminal punishment. This Comment proposes that, in accordance with the utilitarian and retributive goals of criminal law, evidence of lead exposure and resulting brain damage be considered mitigating factors in sentencing. |
| Baker | 2018 | The Biology of Guilt: Neuroscience in the Courts | Beth Baker | 68 Bioscience 628 | Neuroscience, especially brain imaging, is here to stay in the US legal system. That is the verdict of experts in the emerging field of neuroscience and the law. Tests such as PET (positron emission tomography) scans and MRI (magnetic resonance imaging) are being used to help assess a defendant's competency to stand trial, determine the extent of brain damage in disability cases, prove insanity defenses, and reduce sentencing, among many other purposes. |
| Schultz | 2018 | Cognitive Impact of Fatigue in Forensic Neuropsychology Context | Izabela Z. Schultz, Amir A. Sepehry, & Sarah C. Greer | 11 Psycho. Injury & L. 108 | Physical and mental fatigue are common factors affecting function and recovery in litigated injuries and illnesses. Despite the high prevalence of fatigue-related symptoms and anticipated impact on cognitive functioning, forensic neuropsychological assessments are often challenged by the following approaches to the evaluation of fatigue: (1) confusing physical and mental fatigue; (2) referencing fatigue as a factor in existence but disregarding its specific cognitive impact; (3) over-attribution of all identified problems to fatigue; and (4) neglecting the impact of fatigue on effort in testing. In the context of a wide range of idiosyncratic approaches applied by neuropsychologists with respect to the significance of fatigue factors and the role of the assessor in accounting for them, there is a risk of confusion. Yet, impairments caused by fatigue can be disabling and resistant to treatment, and even more so when the treatment is based on incorrect diagnostic, causality, and prognostic assumptions. The current review will focus on integrating the available empirical evidence from neuroscience and neuropsychology regarding our current understanding of the cognitive impact of fatigue. Our critical review will emphasize the implications of the accumulating new evidence for forensic assessment determinations regarding causality, diagnosis, and impact on function, as well as prognosis and treatment. To this end, electronic search engines including PubMed, PsycINFO, and Google Scholar (up to January 2018) have been screened and reviewed both for the neuroscience and neuropsychological literature related to mental fatigue. |
| Choy | 2018 | Stimulation of the Prefrontal Cortex Reduces Intentions to Commit Aggression: A Randomized, Double-Blind, Placebo-Controlled, Stratified, Parallel-Group Trial | Olivia Choy, Adrian Raine, & Roy H. Hamilton | 17 J. Neurosci. 3317 | Although prefrontal brain impairments are one of the best-replicated brain imaging findings in relation to aggression, little is known about the causal role of this brain region. This study tests whether stimulating the dorsolateral prefrontal cortex (DLPFC) using transcranial direct current stimulation (tDCS) reduces the likelihood of engaging in aggressive acts, and the mechanism underlying this relationship. In a double-blind, stratified, placebo-controlled, randomized trial, 81 human adults (36 males, 45 females) were randomly assigned to an active (N = 39) or placebo (N = 42) condition, and followed up one day after the experiment session. Intentions to commit aggressive acts and behavioral aggression were assessed using hypothetical vignettes and a behavioral task, respectively. The secondary outcome was the perception of the moral wrongfulness of the aggressive acts. Participants who received anodal stimulation reported being less likely to commit physical and sexual assault, and judged aggressive acts as more morally wrongful compared to the sham controls. 31% of the total effect of tDCS on intentions to commit aggression was accounted for by perceptions of greater moral wrongfulness regarding the aggressive acts. Results provide experimental evidence that increasing activity in the prefrontal cortex can reduce intentions to commit aggression and enhance perceptions of moral judgment. Findings shed light on the biological underpinnings of aggression and theoretically have the potential to inform future interventions for aggression and violence. |
| Bair | 2018 | Malleable Rationality | Stephanie Plamondon Bair | 79 Ohio. St. L.J. 17 | In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published A Behavioral Approach to Law and Economics, one of the most important pieces of scholarship in decades. Their article famously proposes a departure from the neoclassical law and economics approach to legal analysis. Breaking from neoclassical law and economics' rational actor construct, the authors apply empirical insights about human behavior to introduce the concept of a boundedly rational actor limited by cognitive constraints. Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to legal analyses. Unfortunately, the current approach to behavioral law and economics is incomplete. Indeed, sometimes it even conflicts with empirical lessons about how the brain actually works. In particular, rationality is not independent of policy but instead has a malleable character that can be molded in long-lasting ways over time by specific laws and policies. By overlooking the malleable nature of rationality, behavioral law and economics cannot reach its full potential, and in fact, may harm the very people it is intended to benefit. A policy enacted to preserve consumer autonomy, for instance, may actually undermine autonomous decision-making in the long term. In this Article, I take the first step in remedying this oversight. Drawing on the insights of neuroscience, I explain why rationality is not independent of policy and what this means for behavioral law and economics. Working from examples in advertising and criminal law, I explain that malleable rationality can and should be accounted for. Doing so will increase the prescriptive and normative power of behavioral law and economics, and prevent policies from being introduced that undermine rather than advance social welfare. |
| Cominelli | 2018 | Cognition of the Law: Toward a Cognitive Sociology of Law and Behavior | Luigi Cominelli | Law: Toward a Cognitive Sociology of Law and Behavior | With the demise of nineteenth-century behavioral mechanicism came the need to chart a new course in the effort to work toward a modern theory of behavior, and so also of law-oriented behavior, and it was the whole set of mentalist and behaviorist conceptions that pointed the way forward. Ever since the Humean intuition that the passions dominate over rationality and propel the will, the idea emerged that pure subjectivity could explain much more than just its own capture of reason, but this idea couldn’t be fully developed until the analysis of mental functions found at its disposal the full arsenal of the contemporary neurosciences (Oliverio 2012) and cognitive science (Williams 2001). Neuroscience and the cognitive sciences (Anolli and Mantovani 2012, p. 84) changed the paradigm in the social sciences, too, because they showed how it was possible to bridge the gap between biology and culture, matter and mind (Pinker 2002, pp. 34, 51). |
| Aggarwal | 2018 | Debates over Magnetic Resonance Imaging in Mental Health Evaluations at Guantánamo | Neil Krishan Aggarwal | Neuroethics | Ethical debates over the use of mental health knowledge and practice at the Guantánamo Bay detention facility have mostly revolved around military clinicians sharing detainee medical information with interrogators, falsifying death certificates in interrogations, and disagreements over whether the Central Intelligence Agency’s (CIA) “enhanced interrogation techniques” violated bioethical principles to do no harm. However, debates over the use of magnetic resonance imaging (MRI) in the mental health evaluations of detainees have received little attention. This paper provides the first known analysis of such debates over MRI use in the case of Abd al-Rahim al- Nashiri. Through a close reading of open-source legal documents such as defense motions, prosecution motions, judge rulings, and al-Nashiri’s mental health evaluation, debates over MRI use become interpretive contests over the very meanings of mental illness and the extent to which MRI results can verify whether he was tortured in CIA custody. Such work can revitalize interest in the neuroethics of national security. |
| n.a. | 2018 | Neuroforensics: Exploring the Legal Implications of Emerging Neurotechnologies: Proceedings of a Workshop | National Academies of Sciences, Engineering, and Medicine | Washington, DC: The National Academies Press | Discussions around the intersection between neuroscience and the law began decades ago. Originally used mostly in death penalty cases, the role of neuroscience has extended to cases involving drugs, assault, burglary, child abuse, rape, fraud, theft, and kidnapping. Neuroscience has also begun to play an increasingly important role in making policy, particularly where the law is unclear or ambiguous. In March 2018, the National Academies of Science, Engineering and Medicine organized a workshop in order to explore the current uses of neuroscience and bring stakeholders from neuroscience and legal societies together in both the United Kingdom and the United States. Participants worked together to advance an understanding of neurotechnologies that could impact the legal system and the state of readiness to consider these technologies and where appropriate, to integrate them into the legal system. This publication summarizes the presentations and discussions from the workshop. |
| Avery | 2018 | Picking and Choosing: Inconsistent Use of Neuroscientific Legal Evidence | Joseph J. Avery | 81 Alb. L. Rev. 941 | The scientific study of the structure and function of the nervous system and brain, what today is called neuroscience, is an ancient undertaking. Yet, over the past few decades, advances in neuroscientific technology likely have been more significant than those from the previous millennia combined. As a result, the field has waxed in salience and in impact. Or rather, it has grown in potential impact, as scientists are just beginning to unpack the findings these new technologies are yielding and to apply them to various fields, including medicine and law. It is on this latter nexus that this article focuses: how is neuroscientific evidence impinging or threatening to impinge the U.S. legal system, and how are courts addressing this? The answer to this question can be construed as dyadic. On the one hand, neuroscientific evidence is, quite plainly, scientific and technical evidence; accordingly, it is subject to the same vetting to which all such evidence is subject, with attention paid to relevancy, reliability, validity, false positives, and the standards promulgated in Daubert, Frye, and Federal Rules of Evidence 403 and 702, among others. Neuroscientific evidence also involves machine testimony, which raises difficult legal questions and of which jurisprudence remains unsettled. On the other hand, recent neuroscience unsettles seemingly settled philosophical issues undergirding the foundation of much U.S. law, including notions of free will, but also including matters such as what it means to self-incriminate, and whether a line can be drawn between physical and mental suffering. |
| Meixner Jr. | 2018 | Neuroscience and Mental Competency: Current Uses and Future Potential | John B. Meixner Jr. | 81 Alb. L. Rev. 995 | Scholarship in the law and neuroscience arena has exploded in the past ten years.4Surprisingly, however, relatively little scholarship has been written addressing the potential for neuroscience to aid in competency evaluations. We do not have clear data as to how often neuroscience is used in competency evaluations by experts or in hearings conducted by courts. There is virtually no literature discussing how neuroscience data, at our current level of understanding, might be able to aid in determining competency. This article aims to begin to fill that gap. The article proceeds in three Parts. In Part I, I outline the U.S. law governing competency in criminal cases and describe the most common way that experts providing opinions to the court on that subject carry out competency evaluations. In Part II, I review recent empirical studies examining the use of neuroscience in courts of various jurisdictions, and focus particularly on those studies' descriptions of the use of neuroscience in competency proceedings. I also conduct an anecdotal survey of recent cases involving neuroscience in competency decisions. In Part III, I examine several areas in which neuroscience has the potential to make a greater contribution to competency determinations. A brief conclusion follows. |
| Farah | 2018 | Socioeconomic status and the brain: prospects for neuroscience-informed policy. | Martha J. Farah | 19 Nature Rev. Neurosci. 428 | Socioeconomic status (SES) is associated with health (physical and mental) and cognitive ability. Understanding and ameliorating the problems of low SES have long been goals of economics and sociology; in recent years, these have also become goals of neuroscience. However, opinion varies widely on the relevance of neuroscience to SES-related policy. The present article addresses the question of whether and how neuroscience can contribute to the development of social policy concerning poverty and the social and ethical risks inherent in trying. I argue that the neuroscience approach to SES-related policy has been both prematurely celebrated and peremptorily dismissed and that some of its possible social impacts have been viewed with excessive alarm. Neuroscience has already made modest contributions to SES-related policy, and its potential to have a more effective and beneficial influence can be expected to grow over the coming years. |
| Bublitz | 2018 | The Soul is the Prison of the Body' – Mandatory Moral Enhancement, Punishment & Rights Against Neuro-Rehabilitation | Christoph Bublitz | in Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice (David Birks & Thomas Douglas, eds. Forthcoming 2018) | The promise of neurobiological interventions that afford improving pro-social behavior is particularly interesting for criminal justice systems. After all, rehabilitation of offenders is one of their central objectives. This raises the question whether states can deploy such means to rehabilitate offenders against the latters’ will, as part of – or instead of – punishment. Some advocates of compulsory treatments of offenders consider them more humane (and effective) than current forms of hard treatment such as incarceration. This chapter critically engages with suggestions to treat legally competent offenders for rehabilitative purposes against their will by emphasizing two aspects: First, strong human rights of offenders – summarily the right to mental self-determination – oppose mandatory interventions into criminogenic psychological states or processes. These human rights are not (yet) recognized in every jurisdiction, but emerge from general liberal and democratic principles most western jurisdictions endorse. Secondly, the case for mandatory rehabilitation is weaker than it may appear at first glance because it is anything but clear that and why the penological aim of rehabilitation justifies severe interferences of offenders’ rights. In any case, it seems that states could attain their legitimate forward-looking aims – preventing recidivism – by less restrictive means such incapacitation. Thus, compulsory rehabilitation may only be justified in exceptional cases. Rather, offenders should be offered a choice between neuro-rehabilitation and detention. |
| Craigie | 2018 | Problems of control: Alcohol dependence, anorexia nervosa, and the flexible interpretation of mental incapacity tests | Jillian Craigie & Ailsa Davies | Med. L. Rev. | This article investigates the ability of mental incapacity tests to account for problems of control, through a study of the approach to alcohol dependence and a comparison with the approach to anorexia nervosa, in England and Wales. The focus is on two areas of law where questions of legal and mental capacity arise for people who are alcohol dependent: decisions about treatment for alcohol dependence and diminished responsibility for a killing. The mental incapacity tests used in these legal contexts are importantly different—one involves a ‘cognitive’ test, while the other includes an explicit impaired-control limb—and the comparison provides insight into a longstanding debate about the virtues of one type of test over the other. It is shown that both kinds of test can take control problems into account, but also that both can be interpreted in narrow and wide ways that significantly influence the outcome of the assessment. It is therefore argued that to a large extent, it is not the kind of mental incapacity test that matters, but how the test is interpreted. It is further proposed that value judgements are playing an unrecognised and inappropriate role in shaping this interpretation. This raises concerns about the current approach to assessing the impact of alcohol dependency on the capacity to make decisions about alcohol use or treatment, as well as broader concerns about flexibility within incapacity tests. |
| Sifferd | 2012 | Neuroethics | Katrina Sifferd | Encyclopedia of Human Behavior (2nd ed. 2012) | Neuroethics is the body of work exploring the ethical, legal, and social implications of neuroscience. This work can be separated into two rough categories. The neuroscience of ethics concerns a neuroscientific understanding of the brain processes that underpin moral judgment and behavior. The ethics of neuroscience, on the other hand, includes the potential impact advances in neuroscience may have on social, moral and philosophical ideas and institutions, as well as the ethical principles that should guide brain research, treatment of brain disease, and cognitive enhancement. Central to the questions posed in neuroethics is the way in which neuroscience might impact our sense of self and personal responsibility, and our understanding the structure of moral judgments. |
| Bumann | 2011 | Intuitions of Blameworthiness as a Heuristic That Evaluates the Probability of the Offender Committing Future Antisocial Acts | Benjamin Bumann & David M. Eagleman | 36 Thurgood Marshall Law Journal 129 | In an economic model of crime, the costs and benefits that are associated with committing a crime can be partitioned into a series of factors, such as social costs, material gain from the act, fear of retribution, state punishment, and several others. An understanding of the values that an offender places on the underlying variables would tell a great deal about how likely an offender is to recidivate. However, because these variables are private, they can only be estimated by inference. We argue that people have evolved behavioral heuristics to roughly estimate the utility functions of norm-violators in our societies and that the output of the heuristic is our sense of blameworthiness. In other words, the degree of blameworthiness serves as an unconscious estimate of another actor's assumed utility function; those with a high likelihood to recidivate induce feelings of higher blameworthiness. In this way, blameworthiness has served a crude but effective evolutionary role in directing punitive action towards offenders in proportion to their recidivistic potential. In this article, we present evidence from the behavioral sciences and from analysis of the American legal system that support this model. Additionally, an alternative to our theory is put forth, but is shown to fail at explaining people's intuitions of blameworthiness. |
| Yaffe | 2013 | Are Addicts Akratic?: Interpreting the Neuroscience of Reward | Gideon Yaffe | Addiction and Self-Control (Oxford University Press, Neil Levy, ed. 2013) | Working with the view that akratic action is action that conflicts with what the agent values at the time of action, the paper asks whether addicts act akratically. The paper offers an interpretation of the neuroscience of reward, particularly the role of the dopamine signal, supporting the view that addicts do not act akratically but, instead, act in line with what they value at the time of action. In the development of this interpretation, Richard Holton’s view of the experiments of Berridge and Robinson, and Timothy Schroeder’s understanding of desire and the dopamine system’s role in action are discussed and criticized. |
| Morse | 2012 | Legal Regulation of Addictive Substances and Addiction | Stephen J. Morse | Addiction Neuroethics: The Ethics of Addiction Neuroscience Research and Treatment 261–276 (Adrian Carter, Wayne Hall, Judy Illes, eds., Elsevier) | The law regulates addiction in two primary ways: by limiting access to controlled substances and by criminal and civil law doctrines pertaining to addicts. This chapter first addresses the basic definitional and conceptual issues concerning addiction. Then it turns to the justification of substance regulation in the USA and public policy issues. It suggests that the right to use substances recreationally, even at the risk of negative consequences such as addiction, is weighty and that regulation of substances and addiction-related behavior by criminal law is problematic. Next, it considers whether addiction should be a mitigating or excusing condition for crime and whether addicts can be involuntarily civilly committed. It describes the current state of the law and proposes that, in most cases, addiction should not excuse criminal offending and addicts should not be civilly committed. A final section considers social and criminal justice policies that could alleviate the costs of addiction. |
| Lederman | 2011 | From Lab Bench to Court Bench: Using Science to Inform Decisions in Juvenile Court | Cindy S. Lederman | Cerebrum (2011) | Juvenile court judges are asked to determine what is in the best interest of the child in every case they hear. As Judge Cindy S. Lederman writes, making these decisions without an awareness of the science of child development can be detrimental to the mental and physical well-being of the child. Yet until about a decade ago, court decisions were routinely made without taking into consideration the needs of toddlers and infants. The Miami Child Well-Being Court™ (MCWBC) program, a partnership of clinicians and judges, has brought science into the courtroom, making it integral to the decision-making process and working to ensure that the needs of the child are met. |
| Levick | 2012 | The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment Through the Lens of Childhood and Adolescence | Marsha Levick, Jessica Feierman, Sharon Messenheimer Kelley, Naomi E. S. Goldstein, Kacey Mordecai | 15 U. Pa. J. L. & Soc. Change 285 | Recent decisions by the United States Supreme Court striking the imposing of certain adult sentences on juveniles suggest a shift in the Court‟s traditional Eighth Amendment analysis of sentencing practices involving juveniles in the criminal justice system. Relying on settled research outlining the developmental differences between children and adults, the Court has modified its longstanding Eighth Amendment jurisprudence from one that hinged primarily on the nature of the sentence to a doctrinal approach that places greater emphasis on the age and characteristics of the offender upon whom the sentence is imposed. As the Court increasingly relies upon the principle that youth are different to inform its decisions involving children‟s constitutional rights, we suggest that the sentencing of juveniles as adults, as well as the conditions under which juvenile offenders are incarcerated, will face greater scrutiny. While adult crime may indeed warrant adult time, the punishment of juvenile crime—whether in the juvenile or adult justice systems—must yield to a different set of constitutional principles. In the Article that follows, we propose a distinct juvenile definition of cruel and unusual punishment that will produce divergent outcomes depending upon whether the litigant challenging the sentence or other aspects of his punishment is a juvenile or an adult. We start with a historical overview of the American juvenile justice system, showing how the system has been transformed over time by both internal and external influences, and how the current wave of constitutional reform fits within that historical context. We then summarize the developmental and neuroscientific research establishing that youth are different in constitutionally relevant ways, to underscore how these differences and the underlying research are driving contemporary constitutional analysis. This review is followed by a discussion of Supreme Court case law involving challenges to sentencing practices and conditions of confinement under the Eighth Amendment. Finally, we summarize applicable international and human rights principles, as the Supreme Court has increasingly demonstrated its willingness to consider international law to inform its own independent judgment regarding the country‟s evolving, contemporary moral standards. |
| Langleben | 2012 | Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide | Daniel D. Langleben, Jane Campbell Moriarty | 19(2) Psychol., Pub. Pol'y, & L. 222 | Progress in the use of functional magnetic resonance imaging (fMRI) of the brain to differentiate lying from truth-telling has created an expectation of a breakthrough in the search for objective methods of lie detection. In the last few years, litigants have attempted to introduce fMRI-based lie detection evidence in courts. Both the science and its possible use as courtroom evidence have spawned much scholarly discussion. This article contributes to the interdisciplinary debate by identifying the missing pieces of the scientific puzzle that need to be completed if fMRI-based lie detection is to meet the standards of either legal reliability or general acceptance. The article provides a balanced analysis of the current science and the cases in which litigants have sought to introduce fMRI-based lie detection. Identifying the key limitations of the science as expert evidence, the article explores the problems that arise from using scientific evidence before it is proven valid and reliable. We conclude that the Daubert’s “known error rate” is the key concept linking the legal and scientific standards. We suggest that properly controlled clinical trials are the most convincing means to confirm or disprove the relevance of this promising laboratory research. Given the controversial nature and potential societal impact of this technology, collaboration of several government agencies may be required to sponsor impartial and comprehensive clinical trials that will guide the development of forensic fMRI technology. |
| Erickson-Davis | 2012 | Ethical Concerns Regarding Commercialization of Deep Brain Stimulation for Obsessive Compulsive Disorder | Cordelia Erickson-Davis | 26(8) Bioethics 440 (2012) | The United States Food and Drug Administration's recent approval of the commercial use of Deep Brain Stimulation (DBS) as a treatment for Obsessive Compulsive Disorder (OCD) will be discussed within the context of the existing USA regulatory framework. The purpose will be to illustrate the current lack of regulation and oversight of the DBS market, which has resulted in the violation of basic ethical norms. The discussion will focus on: 1) the lack of available evidence on procedural safety and efficacy, 2) the numerous conflicts of interest held by research investigators, and 3) the ambiguity of both aforementioned categories due to an inherent lack of transparency in the research. It is argued that in order to address these issues, ethical analyses of DBS for psychiatric disorders must include the role of the industry forces that have become the primary impetus for this research. As such, DBS for OCD serves as an important case example in studies of neurotechnology and innovative surgery. |
| Aharoni | 2013 | Neuroprediction of Future Rearrest | Eyal Aharoni, Gina M. Vincent, Carla L. Harenski, Vince D. Calhoun, Walter Sinnott-Armstrong, Michael S. Gazzaniga, Kent A. Kiehl | 110(15) PNAS 6223 | Identification of factors that predict recurrent antisocial behavior is integral to the social sciences, criminal justice procedures, and the effective treatment of high-risk individuals. Here we show that error-related brain activity elicited during performance of an inhibitory task prospectively predicted subsequent rearrest among adult offenders within 4 y of release (N = 96). The odds that an offender with relatively low anterior cingulate activity would be rearrested were approximately double that of an offender with high activity in this region, holding constant other observed risk factors. These results suggest a potential neurocognitive biomarker for persistent antisocial behavior. |
| Rapp | 2012 | Suicide, Concussions, and the NFL | Geoffrey Christopher Rapp | 8 FIU L. Rev. 123 (2012) | This contribution to a FIU Law Review symposium on concussions in the NFL explores the state of the science and the possibility that the family of a former NFL player could recover from the NFL in the event that the former player committed suicide. While the link between brain injury, depression and suicide is both logical and supported by some emerging science, the paper suggests that significant legal obstacles would confront any such claim. |
| Zara | 2013 | Neurocriminologia e giustizia penale [Neurocriminology and criminal justice] | Georgia Zara | 1125-856X Cassazione Penale 822 (2013) | Neurocriminology is the discipline that studies the application of neuroscientific, biological, genetic and psychological research to the criminological field. There is continuity between brain and behavior: the brain contributes to the planning and organization of the actions and choices of each of us. Neurocriminology offers evidence on the causes of criminal behavior and on the processes linked to the capacity for self-control.Criminal responsibility is an active concept; it is not only addressed to the past in terms of crime as a discrete fact, but considers the person and how this could respond in the light of the sentence and the treatment in which it will be involved. The critical point is not in recognizing the scientific dignity of this research, but in understanding if the legal system is ready, today. |
| Zara | 2013 | La validità incrementale della psico-criminologia e delle neuroscienze in ambito giuridico [Incremental validity of psychological criminology and neuroscience in the forensic setting] | Georgia Zara | 2 Sistemi Intelligenti 335 | The aim of this article is to analyze the results of scientific research on criminal and violent behavior and to see to what extent psycho-criminological, clinical and psychopathological advances, aligning with the results of neuropsychology, biology, and genetics behavioral, they can start to constitute a body of evidence-based knowledge relevant for forensic, treatment and preventive purposes. |
| Levy | 2013 | Addiction and Self-Control | Neil Levy | Oxford University Press (Neil Levy ed., 2013) | This book brings together a set of papers, many which grow out of presentations at a conference in Oxford in 2009 on addiction and self-control, by a set of thinkers who are united in believing that understanding agency and failures of agency requires engagement with the best science. The papers it collects attempts to illuminate the mechanisms involved in addiction and thereby to understand to what degree and in what ways actions driven by addiction are controlled by the agent, express his or her will or values, and the extent to which addicts are responsible for what they do. Some of the papers focus on the neuropsychological mechanisms involved, especially on the role of the midbrain dopamine system. Others focus on features of the behavior and the extent to which we can infer psychological mechanisms from behavior. The authors debate the best interpretation of the scientific evidence and how the scientific evidence bears upon, or can only be understand in the light of, philosophical theorizing about agency, control and responsibility. |
| Ouss | 2015 | When Punishment Doesn't Pay: 'Cold Glow' and Decisions to Punish | Aurelie Ouss & Alexander Peysakhovich | 58 J.L. & Econ. 625 | Economic theories of punishment focus on determining the levels that provide maximal social material payoffs. In other words, these theories treat punishment as a public good. Several parameters are key to calculating optimal levels of punishment: total social costs, total social benefits, and the probability that offenders are apprehended. However, levels of punishment are often determined by aggregating individual decisions. Research in behavioral economics, psychology, and neuroscience shows that individuals appear to treat punishment as a private good (cold glow). This means that individual choices may not respond appropriately to the social parameters. We present a simple theory and show in a series of experiments that individually chosen punishment levels can be predictably too high or too low relative to those that maximize social material welfare. Our findings highlight the importance of the psychology of punishment for under-standing social outcomes and for designing social institutions. |
| cummings | 2013 | Junior Seau, Head Trauma, and the NFL's Concussion Problem | andré douglas pond cummings | 2 Mississippi Sports L. Rev. 45 | By all accounts, Tiaina “Junior” Seau was an extraordinary professional athlete. Seau’s career in the National Football League (“NFL”) spanned two decades as he battled furiously as a linebacker for the San Diego Chargers, Miami Dolphins, and the New England Patriots. His performance on the field of play was exceptional; he was selected to the Pro Bowl twelve times and will most certainly be voted into the NFL Hall of Fame when he becomes eligible in 2015. Despite Seau’s unparalleled career, athletic accomplishments, and financial rewards, he committed suicide on May 2, 2012, at the age of 43, just two years after his retirement from professional football. While newspaper accounts in the immediate aftermath of Seau’s suicide recounted an impulsive man who became disconnected, volatile, and erratic following his retirement from the NFL, his family speculated that this erratic behavior and disconnectedness were uncharacteristic of the man that befriended thousands, and was unfailingly committed to representing the Seau name with honor. Upon his suicide, some speculated that repeated concussive head trauma and brain disease led to Seau’s devolving behavioral changes and ultimate suicide. During Seau’s twenty-year NFL career, he was never diagnosed with a concussion, nor did he miss a game because of concussion-like symptoms. This single fact alone is stunning because following Seau’s suicide, the National Institute of Health (NIH) conducted neutral/blind examinations of his brain tissue and found widespread evidence of “chronic traumatic encephalopathy [(“C.T.E.”)], a degenerative brain disease widely connected to athletes who have absorbed frequent blows to the head.” According to reports, Seau had privately complained that in the final five or six years of his life, he endured a headache that never relented. Indeed, at age forty three, Junior Seau’s brain was found to contain “abnormal, small clusters called neurofibrillary tangles of protein known as tau” which are found “in the brains of those with Alzheimer’s disease and other progressive neurological disorders.” Junior Seau was afflicted with late-stage chronic brain disease when he committed suicide. Emerging medical evidence confirms that Seau is not alone. Recent studies conducted by teams of researchers led by both Dr. Julian Bailes at West Virginia University and Dr. Ann McKee at Boston University have uncovered jarring evidence that an overwhelming percentage of former NFL players, those who have allowed their brains to be autopsied and studied, are afflicted with C.T.E. The issue of brain disease and traumatic head injury has become so clamorous, that President Barack Obama recently speculated that if he had a son, he would most likely not let that son play tackle football. To that end, the NFL and the sport of American football seem to be quickly approaching a crossroads. A strong probability exists that many of the athletes that have played tackle football, at all levels, but particularly those that played for many years, are at some level of risk of serious brain disease. Questions abound. This article seeks to answer a few of those questions. Will American football continue its meteoric rise in popularity as a cultural phenomenon in the United States as more is learned about the damage that its athletes are enduring? Did the NFL incur liability by ignoring and actively discounting the seriousness of head trauma to thousands of athletes that played in the league, as alleged by a class of former players currently suing the NFL for damages (including the Seau family)? Will a player of Junior Seau’s magnitude bring the kind of attention to traumatic head injuries in football that will require determined action by pee-wee, middle school, high school, college and professional football organizations to protect its players? Can American football continue in its trajectory of rising popularity or will it eventually decline in relevance and become a relative afterthought, much like boxing or horseracing, because of its insidious dangers. |
| Jones | 2013 | Seven Ways Neuroscience Aids Law | Owen D. Jones | Neurosciences and the Human Person: New Perspectives on Human Activities (A. Battro, S. Dehaene & W. Singer, eds.) Scripta Varia 121, Pontifical Academy of Sciences, Vatican City | Rapid advances in neuroscience have raised hopes in law, perhaps inevitably, that new techniques for revealing brain function may help to answer perennial questions about the sources, limits, and implications of human behavior, mental states, and psychology. As a consequence, lawyers have sharply increased proffers of neuroscientific evidence in both civil and criminal litigation, and have also invoked neuroscience as relevant to many doctrinal and policy reforms. These new developments make it essential for just legal systems to evaluate and separate legitimate from illegitimate uses of neuroscience. As part of that effort, this forthcoming essay identifies and illustrates seven distinct contexts in which neuroscience – skeptically evaluated but also carefully understood – can be useful to law. The essay is based on a talk delivered at The Vatican, Pontifical Academy of Sciences, November 2012. |
| Walton | 2013 | Varieties of Valuation in the Normal and Addicted Brain: Legal and Policy Implications from a Neuroscience Perspective | Mark Walton & Nicholas Nasrallah | Addiction and Self-Control (Oxford University Press, Neil Levy, ed). | It is increasingly believed that neuropsychiatric disorders such as addiction may be examples of pathological value-guided decision making. There is substantial overlap between the neural mechanisms normally required to evaluate the costs and benefits of a course of action and those altered in addiction. However, there are several dissociable neural systems for constructing “value”, and dysfunction in any single component may cause a diverse range of behavioral impairments. Here, we will consider how advances in our understanding of the separate processes for valuation, self-control, and decision making in the brain may provide a window into the causes of addictive behavior and help shape law and policy in this area. |
| Morse | 2013 | Compatibilist Criminal Law | Stephen J. Morse | in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. | The thesis of this chapter is simple and straightforward. The criminal law is a thoroughly folk psychological enterprise that is completely consistent with the truth of determinism or universal causation. My goal is to demonstrate that it provides an accurate positive account of criminal law and that compatibilist criminal law is normatively desirable. The chapter begins with a brief account of desert–disease jurisprudence that explains under what conditions the state may constrain a person's liberty. The purpose is to situate in legal context the place of criminal justice as a means of social control. Next, the chapter offers an introduction to the criminal law's implicit psychology and view of the person that underpins desert–disease jurisprudence. Following that, the chapter offers a nutshell summary of foundational assumptions of criminal law and of criminal law doctrine. The next section demonstrates that the doctrines and practices we have are fully consistent with the truth of determinism. Then, the chapter turns to the external challenges to compatibilist criminal law and demonstrates why they do not succeed and would lead to normatively undesirable doctrines and practices. The final section addresses the normative desirability of compatibilist criminal law. |
| Pardo | 2013 | Neuroscience, Normativity, and Retributivism | Michael S. Pardo, Dennis Patterson | in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. | Advocates for the increased use of neuroscience in law have made bold and provocative claims about the power of neuroscientific discoveries to transform the criminal law in ways large and small. Perhaps the boldest and most provocative of these claims are made in an influential article by Joshua Greene and Jonathan Cohen. They claim that neuroscience will reveal that criminal defendants are not morally responsible for their actions and that this revelation will thereby undermine retributivist justifications for criminal punishment. In the process of resolving previously intractable debates between consequentialism and retributivism, neuroscience will also, they contend, resolve age-old debates about free will. In this essay, we discuss several serious problems with their argument. We maintain that no neuroscientific discoveries will lead to the sorts of changes predicted by Greene and Cohen and, even if they did, those changes would not be the product of neuroscientific insight but result from unwarranted and problematic inferences which ought to be resisted. |
| Mele | 2013 | Free Will, Science, and Punishment | Alfred Mele | in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. | Scientific arguments for the nonexistence of free will use data to support empirical propositions that are then conjoined with a proposition about the meaning of “free will” to yield the conclusion that free will is an illusion. In Effective Intentions, I argued that various empirical propositions put forward for this purpose are not warranted by the evidence offered to support them. It might be replied that the only empirical proposition needed in this connection is that substance dualism is false, because free will depends on the existence of immaterial minds or souls. This theoretical proposition about free will seems to have more adherents among present-day neuroscientists and biologists than among present-day philosophers. But the fact that one is a neuroscientist or biologist (or both) does not give one any special insight into what the expression “free will” means. Some may say that the same is true when one is a philosopher—or, more specifically, a philosopher who has written a lot about free will. So, using techniques of experimental philosophy, I look for evidence about whether mainstream use of “free will” makes substance dualism a necessary condition for having it. |
| Krueger | 2013 | An fMRI Investigation of the Effects of Belief in Free Will on Third-Party Punishment | Frank Krueger, Morris Hoffman, Henrik Walter, & Jordan Grafman | 9(8) Soc Cogn Affect Neurosci 1143 | The relationship between belief in free will (BFW) and third-party punishment (TPP) of criminal norm violations have been the subject of great debates among philosophers, criminologists, and neuroscientists. We combined a TPP task with functional MRI (fMRI) to investigate how lay people's BFW might affect their punishment of hypothetical criminal offenses varying in affective content. Our results revealed that people with strong BFW only punished more harshly than people with weak BFW in low affective cases likely driven by a more robust commitment to moral responsibility. This effect was mirrored by a stronger activation in the right temporo-parietal junction, a region presumably involved in attentional selection to salient stimuli and attribution of temporary intentions and beliefs of others. But for high affective cases, the BFW-based behavioral and neural differences disappeared. Both groups similarly punished high affective cases and showed higher activation in the right insula. The right insula is typically activated during aversive interoceptive-emotional processing for extreme norm violations. In conclusion, our results demonstrated that the impact of BFW on TPP is context-dependent, suggesting why the philosophical debate between free will and determinism is so stubbornly persistent. |
| Bennion | 2013 | A Right to Remain Psychotic? A New Standard for Involuntary Treatment in Light of Current Science | Elizabeth Bennion | 47 Loy. L.A. L. Rev. 251 (2013) | Mass shootings, such as the killing of school children and staff in Newtown, Connecticut, have provided brutal reminders of inadequacies in our nation’s mental health system. In the wake of these shootings, President Obama asserted that “[w]e are going to need to work on making access to mental health care as easy as access to a gun.” But what should society do when the person needing mental health treatment refuses care — when the problem is not rooted in access but in free will? When is involuntary treatment justified? In deciding whether to forcibly medicate, multiple interests come into play, including patient autonomy, public safety, and the patient’s medical welfare. As a society, we have overemphasized patient autonomy and underemphasized patient welfare to the detriment not only of the patient’s well being but also of public safety — and even to the detriment of patient autonomy itself. This Article briefly examines the history of the involuntary treatment debate and how society arrived at the present imbalance. It then considers the implications of current scientific research on the brain and the nature of severe mental illness, using schizophrenia as an illustrative example. The Article explains how current involuntary treatment standards could be revised to reflect this scientific understanding and continue protecting a patient’s civil rights without making undue sacrifices of the patient’s long-term health and well-being. It also defends the proposed new standard against potential constitutional challenges. The new standard would allow involuntary treatment for a limited number of years after onset of severe psychotic symptoms under specified conditions. It would also provide for more access to medical information by patients’ immediate family members and primary caretakers. The standard reflects (1) research showing the vital importance of early treatment for long-term prognosis and prevention of irreversible injury to the brain; (2) statistics suggesting the particular vulnerability of a maturing brain; (3) a respect for autonomy and the patient’s ultimate agency to reject treatment if no satisfactory treatment option can be found; (4) consideration of factors that uniquely affect autonomy concerns when patients are severely psychotic; and (5) research demonstrating that family involvement can greatly benefit treatment outcomes. Because brain science is currently an area of explosive growth and discovery, this Article recognizes that any involuntary treatment standard will need to be continually re-examined and revised in light of scientific progress. |
| Haupt | 2014 | Active Symbols | Claudia E. Haupt | 55 B.C.L. Rev. 821 (2014) | Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive.” This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form. Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement — the dominant competing approaches to symbolic messages in Establishment Clause theory — as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns. |
| Kolber | 2016 | Free Will as a Matter of Law | Adam J. Kolber | in Philosophical Foundations of Law and Neuroscience, Michael Pardo & Dennis Patterson eds. | Philosophers have long debated questions about free will, but their analyses obviously do not have the force of law. Whatever you think about free will, the law has its own perspective. Since cases and statutes say little directly on point, we turn, as we often must, to the intentions of those with authority to create law. The law’s crafters likely believed that we have souls that make choices unconstrained by the laws of physics. Such “soul-based libertarianism” conflicts with the modern scientific view that billions of particles have interacted since the beginning of time to make us take the precise actions we do in the precise circumstances we find ourselves. Since the law’s crafters aimed to punish evil-doing souls, they may never have intended to punish mechanisms like ourselves. Scholars such as Stephen Morse and Paul Litton, by contrast, have defended compatibilist interpretations of criminal law. They believe both moral and legal responsibility are consistent with mechanistic decision-making. But their interpretations of the law are largely grounded in controversial philosophical claims and should be distinguished from interpretations grounded in legal authority. Unless compatibilists can settle the philosophical debate to widespread satisfaction — an unlikely prospect given its centuries-long history — the law’s admittedly faint libertarian signals hold special weight. I argue that, from a legal perspective, the view that the criminal law was never intended to apply to mechanistic humans like ourselves is more plausible than the view that the law was intended to punish in a compatibilist fashion. Hence, if we focus on traditionally-recognized sources of legal authority, a plausible case can be made that our punishment policies are inconsistent with modern science and require updating. |
| Grey | 2015 | Biomarkers, Concussions, and the Duty of Care | Betsy J. Grey & Gary E. Marchant | 2015 Mich. St. L. Rev. 1911 | The United States is currently facing a “concussion epidemic.” Concussions, also known as mild traumatic brain injuries, have increased in numerous settings, including transportation accidents, military combat, workplace injuries, domestic abuse, falls, and sports. The epidemic imposes huge costs on society. At the same time, our understanding of the injury remains limited. Currently, no proven way exists to physiologically detect concussion risk or damage. Determining whether a concussion has occurred and been resolved remains largely a clinical diagnosis, relying mostly on self-reported symptoms. Our knowledge of long term implications of repetitive concussions is also limited. Science is racing to develop objective measures, or biomarkers, of concussive injury that will tell us who is more likely than not to be susceptible to harm and the extent of harm they may have already suffered. The availability of biomarkers will lead to a deeper understanding of changes to the brain that occur in a concussion and enable us to trace back earlier into what we think of as a diseased state. |
| Morse | 2016 | Addiction, Choice and Criminal Law | Stephen J. Morse | , in Addiction and Choice (Nick Heather and Gabriel Segal, eds.) | This chapter is a contribution to a volume, Addiction and Choice, edited by Nick Heather and Gabriel Segal that is forthcoming from Oxford University Press. Some claim that addiction is a chronic and relapsing brain disease; others claim that it is a product of choice; yet others think that addictions have both disease and choice aspects. Which of these views holds sway in a particular domain enormously influences how that domain treats addictions. With limited exceptions, Anglo-American criminal law has implicitly adopted the choice model and a corresponding approach to responsibility. Addiction is irrelevant to the criteria for the prima facie case of crime, it is not an excusing or mitigating condition per se, and it does not contribute relevant evidence to existing excusing conditions, such as legal insanity. This chapter evaluates the criminal law’s model of responsibility using scientific and clinical evidence and dominant criminal law theories. It concludes that although the law’s approach is generally justifiable, current doctrine and practice are probably too unforgiving and harsh. Recommendations for reform conclude the chapter. |
| Kolber | 2016 | Two Views of First Amendment Thought Privacy | Adam J. Kolber | 18 U. Pa. J. Const. L. 1381 | For centuries, our thought privacy has been reasonably well protected by the difficulty of deciphering other people’s thoughts. This natural protection is in jeopardy, however, as emerging technologies improve our ability to, loosely speaking, read minds. When these methods get cheaper and more accurate, the state may seek to monitor and regulate thought in ways previously impossible. The First Amendment undoubtedly protects thought privacy, but current law leaves open two very different levels of protection: On one view, thought is only protected when intertwined with expression. If so, we have rather limited First Amendment freedom of thought, since thought often goes unexpressed. Alternatively, thought may be protected independent of expression. If so, we have more expansive First Amendment freedom of thought. I explore these views by considering blackjack players who “count cards.” Card counters perform mental calculations on publicly available information — the cards dealt in plain sight — in order to turn the odds in their favor. Even though card counting does not obviously implicate expression, I argue that the First Amendment plausibly gives us the right to count cards in our own minds. More controversially, I argue that the Amendment may even protect the right to count cards when combined with an overt action, such as betting in a casino. A criminal prohibition on betting while counting cards might constitute impermissible thought-content discrimination by permitting bettors to make the basic calculations required to play blackjack but not the more accurate calculations used to count cards. It is difficult, however, to predict whether courts would recognize thought-content discrimination and, if they would, how they would cabin its scope. |
| Roth | 2017 | Philosophical Foundations of Neurolaw | Martin Roth | Lexington Books | As neuroscience continues to reveal the biological basis of human thought and behavior, what impact will this have on legal theory and practice? The emerging field of neurolaw seeks to address this question, but doing so adequately requires confronting difficult philosophical issues surrounding the nature of mind, free will, rationality, and responsibility. In The Philosophical Foundations of Neurolaw, Martin Roth claims that the central philosophical issue facing neurolaw is whether we can reconcile the conception of ourselves as free, rational, and responsible agents with the conception of ourselves as complex bio-chemical machines. Roth argues that we can reconcile these conceptions. To show this, Roth develops and defends an account of free will that identifies free will with the capacity to respond to rational demands, and he argues that this capacity is at the foundation of our thinking about responsibility. Roth also shows how the mind sciences can explain this capacity, thus revealing that a purely physical system can have the kind of free will that is relevant to responsible agency. Along the way, Roth critiques a number of arguments that purport to show that the kind of reconciliation provided is not possible. Roth concludes that though we should rethink our legal system in important ways, both in light of his account of free will and what neuroscience is poised to reveal, neuroscience does not threaten the law’s core commitment to responsible agency. |
| Alces | 2018 | The Moral Conflict of Law and Neuroscience | Peter A. Alces | Peter A. Alces, The Moral Conflict of Law and Neuroscience (2018) | Law relies on a conception of human agency, the idea that humans are capable of making their own choices and are morally responsible for the consequences. But what if that is not the case? Over the past half century, the story of the law has been one of increased acuity concerning the human condition, especially the workings of the brain. The law already considers select cognitive realities in evaluating questions of agency and responsibility, such as age, sanity, and emotional distress. As new neuroscientific research comprehensively calls into question the very idea of free will, how should the law respond to this revised understanding? Peter A. Alces considers where and how the law currently fails to appreciate the neuroscientific revelation that humans may in key ways lack normative free will—and therefore moral responsibility. The most accessible setting in which to consider the potential impact of neuroscience is criminal law, as certain aspects of criminal law already reveal the naiveté of most normative reasoning, such as the inconsistent treatment of people with equally disadvantageous cognitive deficits, whether congenital or acquired. But tort and contract law also assume a flawed conception of human agency and responsibility. Alces reveals the internal contradictions of extant legal doctrine and concludes by considering what would be involved in constructing novel legal regimes based on emerging neuroscientific insights. |
| Baron | 2018 | Judging Mechanistic Neuroscience: A preliminary conceptual-analytic framework for evaluating scientific evidence in the courtroom | Emily Baron & Jacqueline Sullivan | 24(3) Psychol. Crime & Law 334 (2018) | The use of neuroscientific evidence in criminal trials has been steadily increasing. Despite progress made in recent decades in understanding the mechanisms of psychological and behavioral functioning, neuroscience is still in an early stage of development and its potential for influencing legal decision-making is highly contentious. Scholars disagree about whether or how neuroscientific evidence might impact prescriptions of criminal culpability, particularly in instances in which evidence of an accused’s history of mental illness or brain abnormality is offered to support a plea of not criminally responsible. In the context of these debates, philosophers and legal scholars have identified numerous problems with admitting neuroscientific evidence in legal contexts. To date, however, less has been said about the challenges of evaluating the evidence upon which integrative mechanistic explanations that bring together evidence from different areas of neuroscience are based. As we explain, current criteria for evaluating such evidence to determine its admissibility in legal contexts are inadequate. Appealing to literature in the philosophy of scientific experimentation and theoretical work in the social, cognitive and behavioral sciences, we lay the groundwork for reforming these criteria and identify some of the implications of modifying them. |
| Mecacci | 2017 | Identifying Criteria for the Evaluation of the Implications of Brain Reading for Mental Privacy. | Giulio Mecacci & Pim Haselager | Sci. & Eng. Ethics | Contemporary brain reading technologies promise to provide the possibility to decode and interpret mental states and processes. Brain reading could have numerous societally relevant implications. In particular, the private character of mind might be affected, generating ethical and legal concerns. This paper aims at equipping ethicists and policy makers with conceptual tools to support an evaluation of the potential applicability and the implications of current and near future brain reading technology. We start with clarifying the concepts of mind reading and brain reading, and the different kinds of mental states that could in principle be read. Subsequently, we devise an evaluative framework that is composed of five criteria-accuracy, reliability, informativity, concealability and enforceability-aimed at enabling a clearer estimation of the degree to which brain reading might be realistically deployed in contexts where mental privacy could be at stake. While accuracy and reliability capture how well a certain method can access mental content, informativity indicates the relevance the obtainable data have for practical purposes. Concealability and enforceability are particularly important for the evaluation of concerns about potential violations of mental privacy and civil rights. The former concerns the degree with which a brain reading method can be concealed from an individual's perception or awareness. The latter regards the extent to which a method can be used against somebody's will. With the help of these criteria, stakeholders can orient themselves in the rapidly developing field of brain reading. |
| Bartholomew | 2018 | Neuromarks | Mark Bartholomew | 103 Minn. L. Rev. 521 | This Article predicts trademark law’s impending neural turn. A growing legal literature debates the proper role of neuroscientific evidence. Yet outside of criminal law, analysis of neuroscientific evidence in the courtroom has been lacking. This is a mistake given that most of the applied research into brain function focuses on building better brands, not studies of criminals’ grey matter. Judges have long searched for a way to measure advertising’s psychological hold over consumers. Advertisers already use brain imaging to analyze a trademark’s ability to stimulate consumer attention, emotion, and memory. In the near future, businesses will offer a neural map unique to each well-known brand — a “neuromark” — into evidence. With the neuromark at their disposal, courts could potentially abandon the crude proxies for consumer perception that guide modern trademark doctrine. The current tests for trademark distinctiveness, likelihood of confusion, and dilution will all change, but will these changes be good for trademark law? By itself, measurement of consumer perception does not reveal how courts in trademark disputes should account for that measurement. New insights into the functioning of the consuming mind make a searching interrogation of the rationales behind trademark law more imperative than ever. |
| Feld | 2018 | Punishing Kids in Juvenile and Criminal Courts | Barry C. Feld | 47(1) Crime & Just. 417 (2018) | During the 1980s and 1990s, state lawmakers shifted juvenile justice policies from a nominally offender-oriented rehabilitative approach toward a more punitive and criminalized one. Pretrial detention and delinquency dispositions had disproportionate adverse effects on minority youths. Despite juvenile courts’ convergence with criminal courts, states provided fewer and less adequate procedural safeguards to delinquents than to adults. Developmental psychologists and policy analysts contend that adolescents’ compromised ability to exercise rights requires greater procedural safeguards. States’ transfer laws sent more and younger youths to criminal courts for prosecution as adults, emphasized offense seriousness over offender characteristics, and shifted discretion from judges conducting waiver hearings to prosecutors making charging decisions. Judges in criminal courts sentence youths similarly to adult offenders. The Supreme Court, relying on developmental psychology and neuroscience research, in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, emphasized adolescents’ diminished responsibility and limited the harshest sentences. However, the court provided states limited guidance on how to implement its decisions. Judicial and legislative responses inadequately acknowledge that “children are different.” |
| Holoyda | 2018 | Trouble at teens' fingertips: Youth sexting and the law | Brian Holoyda, Jacqueline Landess, Renee Sorrentino, & Susan Hatters Friedman | 36(2) Behav. Sci. L. 170 (2018) | The last decade has seen a rapid increase in the use of smartphones among young children and adolescents. One consequence of this phenomenon is sexting. Although researchers of sexting have yet to arrive at a single, cohesive definition for the behavior, it generally involves the transmission of text, pictures, or videos containing sexual material. Different definitions of the behavior have led to widely varying estimates of its prevalence, although some studies have documented relatively high rates of sexting among teenagers. As adolescence is the time period in people's lives where the psychological tasks of identity consolidation and the development of intimate relationships become primary, it is not surprising that many teens utilize sexting as one way of practicing skills associated with successful completion of these tasks. The criminal prosecution of sexting cases, then, raises many legal and ethical questions. Offenders may be prosecuted under state or federal child pornography laws or state-specific sexting laws. Sexting laws, particularly in instances of consensual sext exchange, call into question who they are meant to protect and from what. In this article we review the research on teen sexting, its prevalence, and its association with mental health problems; summarize legal responses to the behavior in the United States; and identify considerations for prosecutors and legal decision-makers facing sexting cases. |
| Grey | 2018 | Aging in the 21st Century: Using Neuroscience to Assess Competency in Guardianships | Betsy Grey | 2018 Wis. L. Rev. 735 (2018) | Whether to remove a person’s decision making authority in a guardianship proceeding is one of society’s most weighty determinations. As much as we value individual autonomy, we will strip that autonomy when a person is deemed legally “incompetent.” This competency determination has traditionally relied, almost exclusively, on clinical assessments of cognitive and functional abilities, based mainly on observed behavior. But developments in neuroscience — and particularly the advent of physiological biomarkers of Alzheimer’s disease — require us to think about a broader approach to competency determinations. Coupled with behavioral data, information from diagnostic biomarkers can add significant value to the competency determination. This article discusses the potential benefits and risks of use of this evidence in the competency determination, concluding that we need to anticipate its introduction into the equation, but with care to avoid overvaluing the evidence. |
| Salles | 2018 | Neuroethics and Philosophy in Responsible Research and Innovation: The Case of the Human Brain Project | Arleen Salles, Kathinka Evers, & Michele Farisco | Neuroethics | Responsible Research and Innovation (RRI) is an important ethical, legal, and political theme for the European Commission. Although variously defined, it is generally understood as an interactive process that engages social actors, researchers, and innovators who must be mutually responsive and work towards the ethical permissibility of the relevant research and its products. The framework of RRI calls for contextually addressing not just research and innovation impact but also the background research process, specially the societal visions underlying it and the norms and priorities that shape scientific agendas. This requires the integration of anticipatory, inclusive, and responsive dimensions, and the nurturing of a certain type of reflexivity among a variety of stakeholders, from scientists to funders. In this paper, we do not address potential limitations but focus on the potential contribution of philosophical reflection to RRI in the context of the Ethics and Society subproject of the Human Brain Project (HBP). We show how the type of conceptual analysis provided by philosophically oriented approaches theoretically and ethically broadens research and innovation within the HBP. We further suggest that overt inclusion of philosophical reflection can promote the aims and objectives of RRI. |
| Freedman | 2018 | The developing significance of context and function: Neuroscience and law | David Freedman & George W. Woods | 36(4) Behav. Sci. L. 411 (2018) | Neuroscience has already changed the understanding of how intent forms and is acted upon, how an individual's cognitive processes shape behavior, and how bio-psychosocial history and neurodevelopmental approaches provide information that has been largely missing from the assessment of intent. In this paper, we first review the state of forensic assessment of mental condition and intent, focused primarily on the weaknesses of the current approach. In Section 2, we discuss neurobehavioral forensic assessment, which is a neuroscience-based approach. Section 3 focuses on the changing understanding of mental illness and how neuroscience is pushing law towards a functional capacity-and-ability model and away from a diagnostic cut-off model. Finally, in Sections 4 and 5, we turn to the role of social and environmental context in shaping behavior and propose a model of behavioral intent in line with the scientific evidence. |
| Birks | 2018 | Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice | David Birks & Thomas Douglas (eds.) | Oxford University Press (2018) | Preventing recidivism is one of the aims of criminal justice, yet existing means of pursuing this aim are often poorly effective, highly restrictive of basic freedoms, and significantly harmful. Incarceration, for example, tends to be disruptive of personal relationships and careers, detrimental to physical and mental health, restrictive of freedom of movement, and rarely more than modestly effective at preventing recidivism. Crime-preventing neurointerventions (CPNs) are increasingly being advocated, and there is a growing use of testosterone-lowering agents to prevent recidivism in sexual offenders, and strong political and scientific interest in developing pharmaceutical treatments for psychopathy and anti-social behaviour. Future neuroscientific advances could yield further CPNs; we could ultimately have at our disposal a range of drugs capable of suppressing violent aggression and it is not difficult to imagine possible applications of such drugs in crime prevention. Neurointerventions hold out the promise of preventing recidivism in ways that are both more effective, and more humane. But should neurointerventions be used in crime prevention? And may the state ever permissibly impose CPNs as part of the criminal justice process, either unconditionally, or as a condition of parole or early release? The use of CPNs raises several ethical concerns, as they could be highly intrusive and may threaten fundamental human values, such as bodily integrity and freedom of thought. In the first book-length treatment of this topic, Treatment for Crime, brings together original contributions from internationally renowned moral and political philosophers to address these questions and consider the possible issues, recognizing how humanity has a track record of misguided, harmful and unwarrantedly coercive use of neurotechnological 'solutions' to criminality. |
| Moriarty | 2018 | Who Speaks for Neuroscience? Neuroimaging Evidence and Courtroom Expertise | Jane C. Moriarty & Daniel Langleben | 68 Case W. Res. L. Rev. 783 (2018) | This article explores the issue of proper qualifications necessary for expert witnesses who testify about structural and functional neuroimaging evidence. It outlines the nature of the problem; explains some of the complexity of the question of expertise as a matter of medicine, science, and law, using criminal cases involving mental health as a helpful template to discuss the issues; provides some thoughts about better regulating neuroimaging evidence by focusing on the qualifications of experts; and offers modest policy suggestions to address the question of expert competence. |
| Morse | 2019 | Neurohype and the Law: A Cautionary Tale | Stephen J. Morse | Casting Light on the Dark Side of Imaging 31–35 (Amir Raz & Robert Thibault eds., 2019) | This chapter suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood. |
| Poldrack | 2018 | The New Mind Readers: What Neuroimaging Can and Cannot Reveal about Our Thoughts | Russell A. Poldrack | Princeton University Press (2018) | The ability to read minds has long been a fascination of science fiction, but revolutionary new brain-imaging methods are bringing it closer to scientific reality. The New Mind Readersprovides a compelling look at the origins, development, and future of these extraordinary tools, revealing how they are increasingly being used to decode our thoughts and experiences—and how this raises sometimes troubling questions about their application in domains such as marketing, politics, and the law. |
| Uhl | 2019 | The neurobiology of addiction | George R. Uhl, George F. Koob & Jennifer Cable | Annals N.Y. Acad. Sci. (Forthcoming) | Substance and alcohol use disorders impose large health and economic burdens on individuals, families, communities, and society. Neither prevention nor treatment efforts are effective in all individuals. Results are often modest. Advances in neuroscience and addiction research have helped to describe the neurobiological changes that occur when a person transitions from recreational substance use to a substance use disorder or addiction. Understanding both the drivers and consequences of substance use in vulnerable populations, including those whose brains are still maturing, has revealed behavioral and biological characteristics that can increase risks of addiction. These findings are particularly timely, as law‐ and policymakers are tasked to reverse the ongoing opioid epidemic, as more states legalize marijuana, as new products including electronic cigarettes and newly designed abused substances enter the legal and illegal markets, and as “deaths of despair” from alcohol and drug misuse continue. |
| Ben-Shahar | 2016 | Personalizing Negligence Law | Omri Ben-Shahar & Ariel Porat | 91 NYU L. Rev. 627 | The most fundamental feature of negligence law is the "reasonable person" standard. This feature bases negligence law on a strictly objective foundation: it requires people to behave in the prudent way that, as Holmes explained, the ordinary, typical member of their community observes. In this Article we argue that with the increasing availability of information about actors’ characteristics, negligence law should give up much of its objectivity by allowing courts to “subjectify” the standard of care—that is, to tailor it to the specific injurer’s tendency to create risks and her abilities to reduce them. We discuss the effects of this personalization of the standard of care on injurers' and victims' incentives to take care, injurers' activity levels and the injurers' ex ante investments in improving their skills. We also discuss justice considerations as well as the feasibility of personalization with the aid of Big Data. |
| Bair | 2017 | Rational Faith: The Utility of Fairness in Copyright | Stephanie Plamondon Bair | 97 Boston U. L. Rev. 1487 | The biggest debate in copyright law is also the most fundamental: for what purpose does copyright exist? There are two schools of thought about the appropriate answer to this key question. The first, dominant school focuses on economic efficiency, while the second emphasizes fairness and other moral concerns. As evidenced by scholarly response to the Blurred Lines litigation and Mark Lemley’s recent piece, Faith-Based Intellectual Property, proponents of each school are often at odds with each other. There is little middle ground. This either/or view of efficiency and moral rights is detrimental to a productive scholarly debate about the value of copyright. More importantly, it is wrong. Scholars like Jeanne Fromer, Christopher Buccafusco, and David Fagundes have recently pointed out that moral concerns are not necessarily inconsistent with, and could in some circumstances even promote utilitarian ends. Here, I reframe the debate by suggesting that the dichotomy between moral rights and utility should be abolished altogether. Drawing on insights from neuroscience, psychology, and organizational behavior, I demonstrate that when it comes to creation, fairness — a moral rights concern — often is utility in a very real sense. The evidence suggests that treating creators fairly acts as a powerful motivator for creative work, results in objectively more creative output, and aligns well with public and legal decision-makers’ moral intuitions. In other words, the most efficient copyright system is a fair one. This conclusion has implications for both copyright scholarship and policy. On the scholarship side, it builds a tangible bridge between utilitarian and moral rights camps. Moral rights advocates previously accused of a blind faith in the value of fairly administered rights can now respond that their faith is rational. On the policy side, I explain how novel fairness-enhancing mechanisms like individualized permissive use and an increased focus on distributive concerns in applying the fair use doctrine can increase the overall efficiency of the copyright system — a proposition that should appeal to scholars on both sides of the debate. |
| Pereboom | 2018 | Hard-Incompatibilist Existentialism: Neuroscience, Punishment, and Meaning in Life | Derk Pereboom & Gregg D. Caruso | in Neuroexistentialism: Meaning, Morals, and Purpose in the Age of Neuroscience | As philosophical and scientific arguments for free will skepticism continue to gain traction, we are likely to see a fundamental shift in the way people think about free will and moral responsibility. Such shifts raise important practical and existential concerns: What if we came to disbelieve in free will? What would this mean for our interpersonal relationships, society, morality, meaning, and the law? What would it do to our standing as human beings? Would it cause nihilism and despair as some maintain or would it rather have a humanizing effect on our practices and policies, freeing us from the negative effects of belief in free will? In this chapter we consider the practical implications of free will skepticism and argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe. We argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for example, would not be threatened. On treatment of criminals, we argue that although retributivism and severe punishment, such as the death penalty, would be ruled out, preventive detention and rehabilitation programs would still be justified. While we will touch on all these issues below, our focus will be primarily on this last issue. We begin in section I by considering two different routes to free will skepticism. The first denies the causal efficacy of the types of willing required for free will and receives its contemporary impetus from pioneering work in neuroscience by Benjamin Libet, Daniel Wegner, and John-Dylan Haynes. The second, which is more common in the philosophical literature, does not deny the causal efficacy of the will but instead claims that whether this causal efficacy is deterministic or indeterministic, it does not achieve the level of control to count as free will by the standards of the historical debate. We argue that while there are compelling objections to the first route - e.g., Al Mele (2009), Eddy Nahmias (2002, 2011), and Neil Levy (2005) - the second route to free will skepticism remains intact. In section II we argue that free will skepticism allows for a workable morality, and, rather than negatively impacting our personal relationships and meaning in life, may well improve our well-being and our relationships to others since it would tend to eradicate an often destructive form of moral anger. In section III we argue that free will skepticism allows for adequate ways of responding to criminal behavior - in particular, incapacitation, rehabilitation, and alternation of relevant social conditions - and that these methods are both morally justified and sufficient for good social policy. We present and defend our own preferred model for dealing with dangerous criminals, an incapacitation account built on the right to self-protection analogous to the justification for quarantine (see Pereboom 2001, 2013, 2014a; Caruso 2016a), and we respond to recent objections to it by Michael Corrado and John Lemos. |
| Morse | 2016 | Law, Responsibility, and the Sciences of the Brain/Mind | Stephen Morse | , in Oxford Handbook on Law and the Regulation of Technology (Roger Brownsword, Eloise Scotford, and Karen Yeung eds., 2016) | This chapter is a submission to the Oxford Handbook of Law and the Regulation of Technology edited by Roger Brownsword. It considers whether the new sciences of the brain/mind, especially neuroscience and behavioral genetics, are likely to transform the law’s traditional concepts of the person, agency and responsibility. The chapter begins with a brief speculation about why so many people think these sciences will transform the law. After reviewing the law’s concepts, misguided challenges to them, and the achievements of the new sciences, the chapter confronts the claim that these sciences prove that we are really not agents and that no one is responsible. It argues that this claim cannot be supported empirically or conceptually and no revolution in legal thinking is foreseeable. The chapter concludes by suggesting that the new sciences have little to offer the law at present, but in the future they may contribute modestly to reforming doctrine, policy and practice. |
| Morão | 2016 | Neuroethics and Criminal Responsibility - A Criminal Law Comment on Neil Levy's Consciousness and Moral Responsibility | Helena Morão | 3 J. L. & Crime Sciences (2016) | This comment focuses on the implications of mind sciences research and of neuroethical thought for a desert-based theory of penal liability, particularly in the criminal law’s voluntary act requirement. Based on an analysis of Neil Levy’s Consciousness and Moral Responsibility, and taking into account the example of sleepwalking, we argue a criminal (ir)responsibility solution for the problem case of somnambulist behaviour in line with the normative constitutional principles of equality, proportionality, guilt and harm. |
| Sahakian | 2017 | Sex, Lies, & Brain Scans | Barbara J. Sahakian & Julia Gottwald | (Oxford University Press, 2017) | This book describes how fMRI allows us to see inside the living brain, giving us the ability to attempt to read minds, guess purchasing choices in advance, and check whether people are lying or biased. It also considers the possibilities opening up for understanding the brain, motivation, thoughts, and behaviour. Furhtermore, it looks at the ethical issues raised by teh use of fMRI, such as uncovering racial bias, or false memories. Finally it explains what recent neuroimaging studies have revealed. |
| Rudolph | 2017 | At Risk of Being Risky: The Relationship Between "Brain Age" Under Emotional States and Risk Preference | Marc D. Rudoph, Oscar Miranda-Domínguez, Alexandra O.Cohen, Kaitlyn Breiner, Laurence Steinberg, Richard J. Bonnie, Elizabeth S. Scott, KimTaylor-Thompson, Jason Chein, Karla C. Fettich, Jennifer A. Richeson, Danielle V.Dellarco, Adriana Galvánc, B.J. Casey & Damien A. Faira | 24 Developmental Cognitive Neuroscience 93 (2017) | Developmental differences regarding decision making are often reported in the absence of emotional stimuli and without context, failing to explain why some individuals are more likely to have a greater inclination toward risk. The current study (N = 212; 10-25y) examined the influence of emotional context on underlying functional brain connectivity over development and its impact on risk preference. Using functional imaging data in a neutral brain-state we first identify the “brain age” of a given individual then validate it with an independent measure of cortical thickness. We then show, on average, that “brain age” across the group during the teen years has the propensity to look younger in emotional contexts. Further, we show this phenotype (i.e. a younger brain age in emotional contexts) relates to a group mean difference in risk perception − a pattern exemplified greatest in young-adults (ages 18-21). The results are suggestive of a specified functional brain phenotype that relates to being at “risk to be risky.” |
| Carroll | 2017 | The Problem with Inference for Juvenile Defendants | Jenny E. Carroll | 45 F.S.U. L. Rev. 1 (2017) | Much of criminal law relies on proof by inference. In criminal law, fact finders untangle not only what happened, but why it happened. It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts – the world in which they occurred but also the fact finder’s own world. Recent developments in neuroscience suggest that in the context of juvenile defendants, this moment of interpretation is fraught with particular risks. The emergence of fMRI technology has provided significant insights into adolescent brain development and its effect on adolescent thought processes. As a result, scientists (and courts) recognize that adolescent actors are more likely to engage in risky behavior, fail to properly comprehend long term consequences and over value reward. In short, science has proven what most long suspected: kids think and react differently than do adults. Although criminal law has long accounted for this difference procedurally – most evidently in the creation of an independent juvenile justice system – there has been little exploration of its significance in the realm of substantive criminal law. This Article argues that what is known of adolescent brain development suggests that adult fact finders are poorly positioned to accurately assess a juvenile defendant’s state of mind, because adults lack the perspective of those whose actions and words they seek to interpret – juvenile defendants. Rather than asking fact finders to perform the impossible task of placing themselves in the adolescent’s mind, substantive criminal law should instead acknowledge the difference in perspective and permit evidentiary presentation and jury instructions akin to defenses that rely on the defendant’s actual, as opposed to imagined, perspective. |
| Kellemeyer | 2017 | Ethical and Legal Implications of the Methodological Crisis in Neuroimaging | Phillipp Kellmeyer | 26(4) Cambridge Q. Healthcare Ethics 530 (2017) | Currently, many scientific fields such as psychology or biomedicine face a methodological crisis concerning the reproducibility, replicability, and validity of their research. In neuroimaging, similar methodological concerns have taken hold of the field, and researchers are working frantically toward finding solutions for the methodological problems specific to neuroimaging. This article examines some ethical and legal implications of this methodological crisis in neuroimaging. With respect to ethical challenges, the article discusses the impact of flawed methods in neuroimaging research in cognitive and clinical neuroscience, particularly with respect to faulty brain-based models of human cognition, behavior, and personality. Specifically examined is whether such faulty models, when they are applied to neurological or psychiatric diseases, could put patients at risk, and whether this places special obligations on researchers using neuroimaging. In the legal domain, the actual use of neuroimaging as evidence in United States courtrooms is surveyed, followed by an examination of ways that the methodological problems may create challenges for the criminal justice system. Finally, the article reviews and promotes some promising ideas and initiatives from within the neuroimaging community for addressing the methodological problems. |
| Bloche | 2017 | Toward a Science of Torture? | M. Gregg Bloche | 95 Tex. L. Rev. 1329 (2017) | Does torture “work?” Proponents, including President Trump and the architects of CIA “Enhanced Interrogation” say it does, by breaking terrorists’ resistance to revealing information that saves lives. Torture’s foes typically dismiss this claim as false to the point of fraud—fortuitous coincidence with torture’s unlawfulness. Neither view, I argue herein, rests firmly on evidence. Rival anecdotes, not data, have, so far, driven this debate. And a scientific answer is beyond our reach, since: (1) rigorous comparison between interrogation methods that do and don’t involve torture isn’t possible, and (2) studies of this sort would be transparently unethical. This hasn’t stopped the CIA from pursuing a research-based answer. Recently released documents, reviewed here for the first time, reveal that the Agency looked to science for a resolution and raise the explosive possibility that the CIA conducted a clandestine program of human-subjects research on the risks and efficacy of torture. What can be said, based on the available science, is that there’s no evidence that torture is more effective than lawful interrogation and some reason to suspect that interviewing strategies grounded in state-of-the-art understandings of persuasion and cognition work best of all. What can also be said is that: (1) America’s post-9/11 torture program wrecked lives, and (2) torture has wide appeal, as symbolic riposte to the powerlessness many feel in the face of vertiginous economic and cultural change. |
| Francken | 2018 | Neuroscience and Everyday Life: Facing the Translation Problem | Jolien C. Francken & Marc Slors | 120 Brain & Cognition 67 (2018) | To enable the impact of neuroscientific insights on our daily lives, careful translation of research findings is required. However, neuroscientific terminology and common-sense concepts are often hard to square. For ex- ample, when neuroscientists study lying to allow the use of brain scans for lie-detection purposes, the concept of lying in the scientific case differs considerably from the concept in court. Furthermore, lying and other cognitive concepts are used unsystematically and have an indirect and divergent mapping onto brain activity. Therefore, scientific findings cannot inform our practical concerns in a straightforward way. How then can neuroscience ultimately help determine if a defendant is legally responsible, or help someone understand their addiction better? Since the above-mentioned problems provide serious obstacles to move from science to common-sense, we call this the 'translation problem'. Here, we describe three promising approaches for neuroscience to face this translation problem. First, neuroscience could propose new 'folk-neuroscience' concepts, beyond the traditional folk-psychological array, which might inform and alter our phenomenology. Second, neuroscience can modify our current array of common-sense concepts by refining and validating scientific concepts. Third, neuroscience can change our views on the application criteria of concepts such as responsibility and consciousness. We believe that these strategies to deal with the translation problem should guide the practice of neuroscientific research to be able to contribute to our day-to-day life more effectively. |
| Cornet | 2014 | Neurobiological Factors as Predictors of Cognitive-Behavioral Therapty Outcome in Individuals With Antisocial Behavior: A Review of the Literature | Liza J. M. Cornet, Catharina H. de Kogel, Henk L. I. Nijman, Adrian Raine, & Pater H. van der Laan | 58(11) Int'l J. Offender Therapy & Comparative Criminology 1279 (2014) | This review focuses on the predictive value of neurobiological factors in relation to cognitive-behavioral therapy outcome among individuals with antisocial behavior. Ten relevant studies were found. Although the literature on this topic is scarce and diverse, it appears that specific neurobiological characteristics, such as physiological arousal levels, can predict treatment outcome. The predictive value of neurobiological factors is important as it could give more insight into the causes of variability in treatment outcome among individuals with antisocial behavior. Furthermore, results can contribute to improvement in current treatment selection procedures and to the development of alternative treatment options. |
| Aggarwal | 2013 | The Neuroethics and Neurolaw of Brain Injury | Neil K. Aggarwal & Elizabeth Ford | 31(6) Behav Sci. L. 789 (2013) | Neuroethics and neurolaw are fields of study that involve the interface of neuroscience with clinical and legal decision-making. The past two decades have seen increasing attention being paid to both fields, in large part because of the advances in neuroimaging techniques and improved ability to visualize and measure brain structure and function. Traumatic brain injury (TBI), along with its acute and chronic sequelae, has emerged as a focus of neuroethical issues, such as informed consent for treatment and research, diagnostic and prognostic uncertainties, and the subjectivity of interpretation of data. The law has also more frequently considered TBI in criminal settings for exculpation, mitigation and sentencing purposes and in tort and administrative law for personal injury, disability and worker's compensation cases. This article provides an overview of these topics with an emphasis on the current challenges that the neuroscience of TBI faces in the medicolegal arena. |
| Catanesi | 2014 | Evolution of Criminology | Roberto Catanesi & Giovanna Punzi | Organized Crime, Corruption and Crime Prevention 315 | Scientific research about the biological basis of aggressive and criminal behaviors performed in the last few decades could change modern criminology. Functional and structural neuroimaging overall suggests that decreased prefrontal activity and increased subcortical activity may predispose individuals to violence. At a molecular level, dopamine and serotonin signaling seem to be mostly involved in contributing to this phenotype, which has also revealed a significant heritability. In the present article, the Authors will try to explore the issues related to the coupling of imaging and genetic data with criminology, starting from the first case which made this kind of evidence gain admittance to a US criminal courtroom. |
| Moriarty | 2013 | Brain Trauma, PET Scans and Forensic Complexity | Jane Campbell Moriarty, Daniel D. Langleben, & James Provenzale | 31(6) Behav. Sci. L. 702 (2013) | Positron Emission Tomography (PET) is a medical imaging technique that can be used to show brain function. Courts have admitted PET scan evidence in cases involving brain damage, injury, toxic exposure, or illness ("brain trauma") and to support claims of diminished cognitive abilities and impulse control. Despite the limited data on the relationships between PET, brain trauma and behavior, many courts admit PET scan evidence without much critical analysis. This article examines the use of PET as proof of functional impairment and justification of abnormal behavior by explaining its diagnostic use and limitations, the limited support for claims of its relationship to behavior, and evidentiary considerations that should govern its admission into court as evidence. The authors urge courts to consider PET evidence, claims of experts, and the scope of the proposed testimony with greater deference to the clinical scope of PET, as outlined by the American College of Radiology's appropriateness criteria and the Working Group Report of the American Psychiatric Association. |
| Collett | 2014 | Previability Abortion and the Pain of the Unborn | Teresa Stanton Collett | 71 Wash. & Lee L. Rev. 1211 (2014) | One of the most basic and widely accepted principles of political governance is that that the State is justified in promulgating laws to protect individuals from harm by others. The state’s power to legislate and protect against a variety of harms, including the harm of being made to suffer physical pain, has been recognized in both domestic and international law. “The Government of course has an obligation to protect its citizens from harm.” The exercise of this power is up to the prudential judgment of state and our national legislatures, however, and not a constant constitutional imperative. This power of protection encompasses all living creatures, as well as developing fetal human life. Thirteen states and the United States House of Representatives have passed legislation that strictly limits abortions during the second half of the pregnancy, generally after nineteen weeks gestation, to protect the developing human person from pain. These laws, known as Pain-Capable Child Protection Acts, strictly limit abortion after the point of gestation when the unborn child has developed the capacity to feel pain during the process of an abortion. Proponents argue that protecting an unborn child from such pain is a natural extension of the long tradition in American law prohibiting acts that inflict unwarranted suffering on human beings and other sentient creatures. Opponents argue that such laws are based on scientific speculation and inflammatory rhetoric. Given the large number of states adopting Pain-Capable Child Protection Acts it is no surprise that these arguments are now before federal courts. This article explores the arguments supporting the existence of fetal pain and the constitutionality of abortion limits at twenty weeks gestation. |
| Blumenthal | 2016 | Law and the Modern Mind: Consciousness and Responsibility in American Legal Thought | Susanna Blumenthal | (Harvard Univ. Press, 2016) | In postrevolutionary America, the autonomous individual was both the linchpin of a young nation and a threat to the founders’ vision of ordered liberty. Conceiving of self-government as a psychological as well as a political project, jurists built a republic of laws upon the Enlightenment science of the mind with the aim of producing a responsible citizenry. Susanna Blumenthal probes the assumptions and consequences of this undertaking, revealing how ideas about consciousness, agency, and accountability have shaped American jurisprudence. Focusing on everyday adjudication, Blumenthal shows that mental soundness was routinely disputed in civil as well as criminal cases. Litigants presented conflicting religious, philosophical, and medical understandings of the self, intensifying fears of a populace maddened by too much liberty. Judges struggled to reconcile common sense notions of rationality with novel scientific concepts that suggested deviant behavior might result from disease rather than conscious choice. Determining the threshold of competence was especially vexing in litigation among family members that raised profound questions about the interconnections between love and consent. This body of law coalesced into a jurisprudence of insanity, which also illuminates the position of those to whom the insane were compared, particularly children, married women, and slaves. Over time, the liberties of the eccentric expanded as jurists came to recognize the diversity of beliefs held by otherwise reasonable persons. In calling attention to the problematic relationship between consciousness and liability, Law and the Modern Mind casts new light on the meanings of freedom in the formative era of American law. |
| Shariff | 2014 | Free Will and Punishment: A Mechanistic View of Human Nature Reduces Retribution | Azim F. Shariff, Joshua D. Greene, Johan C. Karremans, Jamie Luguri, Cory Clark, Jonathan W. Schooler, Roy F. Baumeister, & Kathleen D. Vohs | 25(8) Pysch. Sci. 1563 (2014) | If free will beliefs support attributions of moral responsibility, then reducing these beliefs should make people less retributive in their attitudes about punishment. Four studies using both measured and manipulated free will beliefs found that people with weaker beliefs reported less retributive, but not consequentialist, punishment towards criminals (Study 1). Subsequent studies showed that exposing people to research about the neural bases of human behavior, either through lab-based manipulations or by virtue of having taken an undergraduate neuroscience class, reduced retributive punishment (studes 2-4). These results illustrate the consequences that exposure to debates about free will and scientific research on the neural basis of behavior may have on attributions of moral responsibility. |
| Shaw | 2014 | Of Mitochondria and Men: Why Brain Death is Not the Death of the Human 'Organism as a Whole' | Jacquelyn Shaw | 7 McGill J. L. & Health 235 (2014) | Death is a phenomenon that resists simple explanation. While the cardiopulmonary criterion of death has been used for centuries, in most nations (including the US and Canada) brain death has also been accepted since 1968 as a second legal criterion, held to be biologically equivalent to bodily death. This equivalence has been argued to derive either from the brain’s control over body functions or from the brain’s work against entropy, with a dead brain thereby producing a dead body. Subsequently, some have found these claims wanting. An alternative body-centered view, based on the functioning of the body’s mitochondria, is that in brain death, only the brain is dead, while the body may not necessarily be. Mitochondria are cellular organelles descended from ancient bacteria, symbiotically providing energy for entropy-resistance and sharing control over life processes. All of death’s features – its universality, oxygen-dependence, inevitability, link with aging, irreversibility, and association with disintegration and decay – may be explained as logical side-effects of mitochondrial failure. Yet the role of mitochondria in human life and death has been overlooked for over four decades in the legal and bioethical literature, which has focused instead on processes at the whole-organism level. Challenges remain however: if brain death and bodily death are not biologically equivalent, this may prove problematic for organ donation’s “dead donor rule,” which requires organs to be transplanted only from the bodies of dead consenting donors, not from those who are still dying. Nevertheless, brain death could be retained as a legal fiction satisfying the dead donor rule, which would allow its societal benefits to persist. Of fundamental importance is the principle that future patients be adequately informed regarding brain death, in order to ensure legally valid, informed consent for organ donation. |
| Fisher | 2015 | Toward a Jurisprudence of Psychiatric Evidence: Examining the Challenges of Reasoning from Group Data in Psychiatry to Individual Decisions in the Law | Carl E. Fisher, David L. Faigman, & Paul S. Appelbaum | 69 U. Miami L. Rev. 685 (2015) | Psychiatry is an applied science. It thus shares the characteristic of all applied science in that it is ultimately applied at two levels – general and specific. Scientific research inevitably focuses on aggregate data and seeks to generalize findings across persons, places or things. However, in the courtroom, as is true in other applied settings, the focus is usually on an individual case. Thus, psychiatry presents the challenge inherent in all scientific evidence of reasoning from group data to an individual case, which is termed the “G2i problem.” But psychiatry, unlike many scientific fields that come to court, also confronts the G2i problem in its daily practice, since mental health professionals routinely diagnose and treat individuals based on aggregate data. Yet approaches to the G2i problem in clinical psychiatry do not necessarily fully align, or fit, the uses to which it is put in the courtroom. In this Article, we employ the G2i lens to examine the admissibility of psychiatric expert testimony, both as regards general research findings – or “framework evidence” – and the application of those general findings to specific cases – or “diagnostic evidence.” Although the rules of evidence that apply to G and to i are the same, the scientific and professional considerations that must be evaluated in regard to each are fundamentally different. G2i inference provides a useful lens by which the interactions of psychiatry and law can be better understood and managed. |
| Freeland | 2014 | Law & Science: Toward a Unified Field | Deborah M. Hussey Freeland | 47 Conn. L. Rev. 529 (2014) | To be relevant to the real world and to have a reasonable chance of producing fair outcomes, legal and political decisionmaking must take science into account. Scholars have been aware of this for over fifty years. The need for law to be informed by rigorous science is compelling, as we must make collective decisions that impact our sustainability and our humanity on a global scale. However, the field of Law & Science remains as fragmented now as it was a half-century ago. We have yet to find a reliable way to establish coherent interdisciplinary interaction that enables science to inform legal decisionmaking across a variety of disciplinary fields and cultural contexts. Approaching the problems of interdisciplinary interaction that vex Law & Science as instances of cross-cultural communication, this paper proposes that while the lawyer and the scientist need not be fully conversant in each other's languages to work together, lawyers can do much to ensure that science is properly used to inform the law by understanding what scientists think they are doing, and who they think they are. As expert negotiators, lawyers can develop genuine respect for scientists' values, methods and goals, promoting effective interdisciplinary collaboration and producing well informed decisions that merit public trust. |
| Goldberg | 2015 | Emotional Duties | Erica Rachel Goldberg | 47 Conn. L. Rev. 809 (2015) | The distinction between physical and emotional harm is fundamental. Legal disciplines from torts to constitutional law rely on the hierarchy that places bodily integrity over emotional tranquility. This hierarchy is now under attack by modern scientists and scholars. Neuroscientists have undermined the view that emotional harm is more subjective; social scientists have refuted the position that emotional harm is less impactful; and feminist scholars have undercut the view that these categories are gender neutral. Courts are taking notice, especially in tort law. Each new Restatement of Torts provides more avenues for plaintiffs to collect damages for emotional injuries. This Article defends the relevance of the distinction between physical and emotional harm, especially in tort law, by offering theoretical justifications that are responsive to the modern criticisms. A new conception of the distinction should be based on a duty to reasonably regulate one’s own emotional health. This duty fits well within tort theories including law and economics, corrective justice, and civil recourse theory, and harmonizes with criminal law and First Amendment doctrines. Further, neuroscience, social science, and even feminist theory support this duty. A duty to maintain one’s own emotional well being can benefit both potential tort plaintiffs and defendants by incorporating normative ideals about identity, consent, autonomy, social justice, and social welfare. In advancing this emotional duty, this Article also provides sustainable definitions for physical and emotional harm that can survive changing technology and discusses the implications of a new understanding of the physical/emotional hierarchy for tort law. |
| Mohnke | 2014 | Brain Alterations in Paedophilia: A Critical Review | Sebastian Mohnke, Sabine Muller, Till Amelung, Tillmann H.C. Kruger, Jorge Ponseti, Boris Schiffer, Martin Walter, Klaus M. Beier, Henrik Walter | 122 Prog. Neurobiol. 1 (2014) | Psychosocial and biological factors have been implicated in paedophilia, such as alterations in brain structure and function. The purpose of this paper is to review the expanding body of literature on this topic including brain abnormality case reports, as well as structural and functional neuroimaging studies. Case studies of men who have committed sexual offences against children implicate frontal and temporal abnormalities that may be associated with impaired impulse inhibition. Structural neuroimaging investigations show volume reductions in paedophilic men. Although the findings have been heterogeneous, smaller amygdala volume has been replicated repeatedly. Functional neuroimaging investigations demonstrate an overlap between paedophiles and teleiophiles during sexual arousal processing. While it is controversial among studies regarding group differences, reliable discrimination between paedophilic and teleiophilic men may be achieved using functional activation patterns. Nevertheless, the heterogeneous findings published so far suggest further research is necessary to disentangle the neurobiological mechanisms of paedophilic preference. A number of methodological confounds have been identified, which may account for the inconsistent results that could prove to be beneficial for future investigations. |
| Hamilton | 2015 | The Reliability of Assault Victims’ Immediate Accounts: Evidence from Trauma Studies | Melissa Hamilton | 26 Stanford L. & Pol'y Rev. 269 (2015) | The admission of hearsay qualifying as excited utterances, present sense impressions, and statements about mental and bodily conditions are exceptions to the general rule of inadmissibility for hearsay statements. Evidence scholars explain them as being presumably reliable statements as they are generally contemporaneous with an event at issue such that faults with memory and time to lie are remedied. These three exceptions have been particularly depended upon in cases of interpersonal violence in which victims are considered to honestly complain during the occurrence of the assault and in its immediate aftermath. Nonetheless, much recent research in interdisciplinary circles highlights that the impact of trauma has varied consequences upon subjects’ abilities to accurately and fully articulate what just transpired to them. Concurrent neurophysiological reactions to traumatic stress can mediate, alter, or entirely thwart one’s capacity to conceptualize internally, and to clearly verbalize externally, the violent attack. Thus, unlike the hearsay exceptions’ presumption of accuracy, a surfeit of scientific knowledge now shows that violence victims may — or may not — issue in the near term holistic and reliable reports. On the other hand, empirical studies reject the notion that it takes more than a blink of an eye to fabricate a story. Evidence law is often intransigent in its reliance upon folk psychological assumptions about human behavior. Yet with legal scholars and practitioners increasingly embracing the benefits that scientific knowledge can bring to the law, the time may be ripe to reconsider these three hearsay exceptions. In light of recent studies drawing from neurology, physiology, and psychology principles and research designs in trauma studies, the goal of evidence law in terms of preventing unreliable testimony can only benefit thereby. |
| Jones | 2018 | Why Behavioral Economics Isn't Better, and How it Could Be | Owen D. Jones | Research Handbook on Behavioral Law and Economics 476 (J. Teitelbaum & K. Zeiler eds. 2018) | What’s holding Behavioral Economics back? And what can be done about it? The fields of Behavioral Economics and Behavioral Law and Economics have each supplied important and useful insights. But the state of knowledge has changed rapidly across the decades since Tversky and Kahneman first highlighted how people sometimes systematically depart from predictions of the standard expected utility model in neoclassical economics. Those changes now render it uncomfortably obvious that Behavioral Economics, and those who rely on it, are falling behind with respect to new developments in other disciplines that also bear directly on the very same mysteries of human decision-making. This chapter identifies four problems for Behavioral Economics. It explores their causes. It then suggests and illustrates ways around them, including a path for integrating multi-disciplinary insights. It provides concrete recommendations that can help to move these important schools of thought forward, in light of developments in other fields. |
| Plitt | 2015 | Are Corporations People Too? The Neural Correlates of Moral Judgments about Companies and Individuals | Mark Plitt, Ricky R. Savjani & David M. Eagleman | 10(2) Soc. Neurosci. 113 (2015) | To investigate whether the legal concept of "corporate personhood" mirrors an inherent similarity in the neural processing of the actions of corporations and people, we measured brain responses to vignettes about corporations and people while participants underwent functional magnetic resonance imaging. We found that anti-social actions of corporations elicited more intense negative emotions and that pro-social actions of people elicited more intense positive emotions. However, the networks underlying the moral decisions about corporations and people are strikingly similar, including regions of the canonical theory of mind network. In analyzing the activity in these networks, we found differences in the emotional processing of these two types of vignettes: neutral actions of corporations showed neural correlates that more closely resembled negative actions than positive actions. Collectively, these findings indicate that our brains understand and analyze the actions of corporations and people very similarly, with a small emotional bias against corporations. |
| Gkotsi | 2014 | Neuroscience in the Courtroom: From Responsibility to Dangerousness, Ethical Issues Raised by the New French Law | Georgia-Martha Gkotsi, V. Moulin, & J. Gasser | 41(5) L'Encéphale 385 (2014) | In the past few years, spectacular progress in neuroscience has led to the emergence of a new interdisciplinary field, the so-called “neurolaw” whose goal is to explore the effects of neuroscientific discoveries on legal proceedings and legal rules and standards. In the United States, a number of neuroscientific researches are designed specifically to explore legally relevant topics and a case-law has already been developed. In Europe, neuroscientific evidence is increasingly being used in criminal courtrooms, as part of psychiatric testimony, nourishing the debate about the legal implications of brain research in psychiatric-legal settings. Though largely debated, up to now the use of neuroscience in legal contexts had not specifically been regulated by any legislation. In 2011, with the new bioethics law, France has become the first country to admit by law the use of brain imaging in judicial expertise. According to the new law, brain imaging techniques can be used only for medical purposes, or scientific research, or in the context of judicial expertise. This study aims to give an overview of the current state of the neurolaw in the US and Europe, and to investigate the ethical issues raised by this new law and its potential impact on the rights and civil liberties of the offenders. |
| Vallabhajosula | 2015 | Murder in the Courtroom: The Cognitive Neuroscience of Violence | Brigitte Vallabhajosula | (Oxford University Press 2015) | Murder in the Courtroom presents a comprehensive and detailed analysis of issues most relevant to answering questions regarding the link between cognitive functioning and violence. It is the first book to focus exclusively on the etiology and assessment of cognitive impairment in the context of violent behavior and the challenges courts face in determining the reliability of neuroscience evidence; provide objective discussions of currently available neuropsychological tests and neuroimaging techniques, and their strengths and limitations; provide a methodology for the assessment of cognitive dysfunction in the context of violent behavior that is likely to withstand a Daubert challenge; and include detailed discussions of criminal cases to illustrate important points. Clinical and forensic psychologists and psychiatrists, cognitive neuroscientists, and legal professionals will be able to use this book to further their understanding of the relationship between brain function and extreme violence. |
| Austin | 2015 | Drink Like a Lawyer: The Neuroscience of Substance Use and Its Impact on Cognitive Wellness | Debra S. Austin | 15 Nevada L. J. 826 (2015) | Lawyers have a powerful voice in the American legal system, government, and news and entertainment businesses. But do they make their contributions to society while impaired? Lawyers suffer from higher levels of anxiety and depression than the rest of the population, but most do not start law school with these mental health issues. Lawyers rank fourth in professions with the most suicides, which may be linked to stress, anxiety, depression, and/or substance abuse. Law students, lawyers, and judges are vulnerable to substance abuse because drugs of abuse can make a lawyer feel less stressed. Disciplinary actions against attorneys involve substance abuse 50-75 percent of the time. These problems may start in law school where school events may teach students to “drink like lawyers.” Legal educators need a better understanding of what aspects or characteristics of legal education contribute to the decline in mental health of law students, lawyers, and judges, and neuroscience developments may provide this insight. Law students, lawyers, judges, and law professors will benefit from the knowledge of how stress and substance use effect the lawyer brain. This article describes the neurobiology of learning; explains the brain’s reward system; examines the neural impact of stress; details the transformational conditions of neuroplasticity, neurogenesis, and epigenetics; discusses lawyer addiction; and illustrates how medications such as antidepressants, and substances such as alcohol, nicotine, marijuana, caffeine, cocaine, study drugs, and opiates impact brain function. The article concludes with neuroscience-based recommendations for law students, lawyers, judges, law schools, and law firms to optimize brain health and lawyer wellness. |
| Keller | 2015 | Beyond Homo Economicus: The Prosocial Brain & The Charitable Tax Deduction | Ryan S. Keller | 34 Va. Tax Rev. 357 (2015) | Charitable tax policy is at an impasse. Historically, citizens have overwhelmingly supported the charitable tax deduction as a means of fostering diversity, encouraging donations and supporting the nonprofit sector. Yet various policymakers and academics have increasingly disputed the deduction’s cogency and justifiability. In response, legal scholars and economists have offered various defenses and assessments of the deduction, but these have not convinced skeptics or placed the deduction on sufficiently solid theoretical and policy footing. The article adopts a novel approach by instead employing recent research in the neuroscience and psychology of prosocial behavior and charitable giving. Specifically, it identifies structural advantages specific to the deduction, rather than to charity or nonprofits more broadly. It then delineates key neural mechanisms and psychological functions that provide evidence linking dimensions of the deduction to distinct, previously neglected positive externalities. Amidst growing skepticism, developing a more capacious understanding of the deduction’s worth to society is essential. Indeed, failure to consider more robust, innovative analyses of the deduction compels authorities to craft policy without adequate information, and leaves the deduction and thus many philanthropic endeavors needlessly vulnerable. |
| Drobac | 2015 | Exposing the Myth of Consent | Jennifer Ann Drobac & Oliver R. Goodenough | 12 Indiana Health L. Rev. 471 (2015) | Consent, a critical concept for law, often rests upon the ability of people to create binding changes of legal status, rights, and obligations. The law typically presumes complete and un-buffered adult capacity for binding legal consent. However, the realities of flawed information, inexperience, a lack of attention, and evidence of human limitation frequently refute notions of complete capacity. This Article posits that the law should reserve the presumption of complete and unfettered adult capacity for special cases. A more nuanced view of our actual capacities rests, in part, on the understanding that neuroscience and psychosocial evidence provides. This perspective suggests that jurists should match rules and jurisprudential approaches to the variable capacities that people exhibit in different contexts and stages of life. The strategic recognition and use of neurojuridical tools identifies at-risk parties and circumstances and sheds light on the problematic nature of consent offered on some occasions. Such a view helps jurists to develop and deploy effective enhancers and buffers around consent that reflect a more realistic treatment of capacity. This Article examines the myth of consent to add some of the tools and insights of cognitive neuroscience and social psychology to the traditional staples of psychology, economics, politics, and philosophy. It proffers innovative approaches, such as the framework of legal assent, explored in prior work and summarized in this Article. Legal reforms prompted by new defaults will facilitate optimum consensual relations and ultimately foster the Pareto enhancing goals, now mistakenly linked to a more radical vision of consent. |
| Avraham | 2015 | Does the Theory of Insurance Support Awarding Pain and Suffering Damages in Torts? | Ronen Avraham | Research Handbook on the Economics of Insurance Law (Schwarcz & Siegelman, eds. 2015) | This chapter asks whether THE THEORY OF INSURANCE SUPPORTS AWARDING PAIN AND SUFFERING DAMAGES IN TORTS. The answer is an unequivocal “Yes.” Many commentators have argued that individuals do not (and should not) demand insurance for losses that do not lower their marginal utility of wealth. From this perspective, tort laws that provide victims with compensation for pain and suffering harms effectively force them to purchase insurance that they don’t value. This chapter disputes this logic on several levels. First, it suggests that so-called “pure non-monetary losses” are exceedingly rare in practice, and are difficult to define even in theory. Moreover, non-monetary losses are likely to be correlated with monetary losses, and this correlation generates a demand for insurance covering both types of losses under the traditional model used by law and economics scholars. Coverage of non-monetary losses can also be demanded under many plausible alternatives to expected utility theory. The chapter also takes issue with the empirical evidence that some have interpreted as suggesting a lack of demand for coverage of non-monetary losses. Finally, the chapter suggest that future advances in neuroscience may make it possible to accurately measure mental states associated with pain and suffering, obviating the need for the subjective testimony that introduces so much noise into the assessment of these damages. |
| Pallarés-Dominguez | 2015 | The Ethical Implications of Considering Neurolaw as a New Power | Daniel Pallarés-Dominguez & Elsa González Esteban | 26 Ethics & Behav. 252 (2015) | Caution is one of the orienting principles of neuroscience’s advance in different social spheres. This article shows the importance of maintaining caution in the area of neurolaw because of the risk of it becoming a new power that is free from ethical discussion. The article’s objective is to note the principal ethical implications and limitations of neurolaw in light of six cases in which neuroscientific evidence was used in distinct ways. This study seeks to examine the precautions that should be taken in regard to the advance of neurolaw so as not to lose sight of its emancipatory interest. |
| Umbach | 2015 | Brain Imaging Research on Psychopathy: Implications for Punishment, Prediction, and Treatment in Youth and Adults | Rebecca Umbach, Colleen M. Berryessa, & Adrian Raine | 43 J. Crim. Just. 295 (2015) | Purpose: While there has been an exponential increase in brain imaging research on psychopathy in the past two decades, knowledge on the brain basis to child and adolescent psychopathic-like behavior is relatively new. This adult and child research has potential future implications for the development of newinterventions, prediction of future offending, and punishment. Method: This review examines both adult and child literatures on the neural basis of psychopathy, together with implications for the criminal justice system. Results: The adult imaging literature provides growing evidence for amygdala impairments in psychopaths, and more variable evidence for prefrontal deficits. The emerging adolescent imaging literature with notable exceptions broadly parallels these adult findings and may help explain the development of fearlessness, disinhibition, and lack of empathy. Conclusion: This knowledge places policy makers at a crossroads. Should new biological interventions be developed to remediate these brain abnormalities? Would imaging be used in the future to predict offending? Could imaging findings help excuse psychopathic behavior or alternatively argue for longer sentences for public protection? This review attempts to address these issues at the child and adult levels and provides directions for future research that include the incorporation of biological measures into treatment programs. |
| Carroll | 2016 | Brain Science and the Theory of Juvenile Mens Rea | Jenny E. Carroll | 94 N.C. L. Rev. 539 (2016) | The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders. In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts. Children are different than adults. In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment. The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders. As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole. To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law. Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea. In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt. |
| Pardo | 2016 | Symposium on Minds, Brains, and Law: A Reply | Michael S. Pardo & Dennis Patterson | 7 Jurisprudence 181 (2016) | This essay, forthcoming in a symposium issue of Jurisprudence, replies to reviews of our book, Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience (Oxford University Press, 2013), by Stephen Morse, Teneille Brown, and David Faigman. Morse and Brown are largely in agreement with many aspects of our arguments. But they each raise challenges with respect to some of the details. We first discuss the extensions, amendments, and objections they each have raised. Faigman takes a more critical stance. Accordingly, we devote the bulk of our reply to correcting several misunderstanding and misinterpretations that underlie his critique. |
| Grey | 2015 | The Future of Emotional Harm | Betsy Grey | 83 Fordham Law Review 2605 (2015) | Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims — like evidence of physical harm — should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims. |
| Condlin | 2016 | The 'Nature' of Legal Dispute Bargaining | Robert Condlin | 17 Cardozo J. Conflict Resol. 393 (2016) | The longstanding debate over the relative merits of adversarial and communitarian theories of legal dispute bargaining has been in somewhat of a holding pattern for several years, but recent research in the field of cognitive neuroscience may break the logjam. Laboratory experiments and case studies in that field have shown how dispositions and capacities for social cooperation inherited from natural selection and evolution predispose humans to configure disputing as a mixture of argument over factual reality, disagreement over the interpretation of normative standards, and a search for impartial resolutions that protect the interests of everyone involved equally. This neurobiological inheritance can be difficult to appreciate, resist, and control, but it is something all dispute bargaining theory, adversarial and communitarian alike, must take into account. Theories that ignore it are limited to telling only part of the dispute bargaining story. |
| Young | 2015 | Causality in Criminal Forensic and in Civil Disability Cases: Legal and Psychological Comparison | Gerald Young | 42 Int'l J. L. & Psych. 114 (2015) | Causality (or causation) is central to every legal case, yet its underlying philosophical, legal, and psychological definitions and conceptions vary. In the criminal context, it refers to establishing the responsibility of the perpetrator of the criminal act at issue in terms of the person's mental state (mens rea), and whether the insanity defense applies. In the forensic disability and related context, it refers to whether the index event is a material or contributing cause in the multifactorial array that led to the psychological condition at issue. In both the criminal and tort contexts, the legal test is a counterfactual one. For the former, it refers to whether the outcome involved would have resulted absent the act (e.g., in cases of simultaneous criminal lethal action, which one is the but-for responsible one). For the latter, it concerns whether the claimed psychological condition would be present only because of the incident at issue. The latter event at issue is distinguished from the criminal one by its negligence compared to the voluntary intent in the criminal case. The psychological state of the perpetrator of criminal conduct can be analyzed from a biopsychosocial perspective as much as the civil one. In this regard, in the civil case, such as in forensic disability and related assessments, pre-existing, precipitating, and perpetuating factors need to be considered causally, with personal and social resilience and protective factors added, as well. In the criminal context, the same biopsychosocial model applies, but with mental competence and voluntariness added as a critical factor. The advent of neurolaw has led to use of neuroscience in court, but it risks reducing the complexity of criminal cases to unifactorial, biological models. |
| Scott | 2018 | Brain Development, Social Context and Justice Policy | E. Scott, N. Duell, L. Steinberg | 57 Wash. U. J. L. & Pol.’y 13 (2018). | This article examines the role played by biological and psychological factors associated with adolescent criminal activity in the context of justice policy reform and its critics. Scott, Duell, and Steinberg assert that risk-taking behavior in adolescence is not solely associated with biological and psychological immaturity, but rather exists as a dynamic interaction between those factors and the individual social context. This interactive model of juvenile offending supports the trend of treating juveniles differently than adults in the criminal justice system and clarifies how correctional programs are crucial in either undermining or promoting healthy development in adolescents. |
| Rasmussen | 2018 | How Dangerous are Youth Sports for the Brain? A Review of the Evidence | Carly Rasmussen, Sydney Diekmann, Christine Egan, Tyler Johnson, & Francis X. Shen | 7 Berkley J. Ent. & Sports L. 67 | In this Article, we review over 100 studies to answer the question: How likely is it that a youth athlete will sustain a concussion? On the basis ofthis review, we argue that both ends of the current concussion debate are problematic. On one hand, the data clearly suggest that the vast majority of youth athletes will not sustain a concussion. Moreover, a significant proportion of those who do experience a concussion will see their post-concussion symptoms dissipate within three weeks. On the other hand, the data also clearly shows that there are serious, non-zero risks of brain injury from playing contact sports before and during high school. These risks are elevated in collision sports, and current data collection methods likely underestimate actual incidence rates. Problematically, we find that while over 100 studies have been conducted and give us credible estimates for concussion incidence, this incidence data is absent from current educational materials delivered to athletes and parents. We argue, based on this data, that concussion risk can be better communicated to athletes and parents. The data on incidence rates remains incomplete, but it is still informative. We should not hide it from youth athletes. |
| McCubbins | 2018 | Building a New Rationality from the New Cognitive Neuroscience | Colin H. McCubbins, Mathew D. McCubbins, & Mark B. Turner | in Handbook on Bounded Rationality (Riccardo Viale & Konstantinos Katsikopoulos, eds. 2018) | Game theory is explicitly a theory of how human minds operate. Game theory, however, fails comprehensively as a predictor of human behavior. The failure of game theory is attributable to its mistaken theory of mind. This theory of mind was derived from notions and models of cognitive neuroscience that have since been abandoned and replaced. To build a new theory of choice, we propose a new theory of mind, one drawn from modern cognitive neuroscience. We then outline an alternative notion of rationality, based on this new theory of mind. |
| Beech | 2018 | The Wiley Blackwell Handbook of Forensic Neuroscience | Anthony R. Beech, Adam J. Carter, Ruth E. Mann, & Pia Rotshtein | (Beech, Carter, Mann & Rotshtein eds., 2018) | This book communicates knowledge and research findings in the neurobiological field to those who work with offenders and those who design policy for offender rehabilitation and criminal justice systems, so that practice and policy can be neurobiologically informed, and research can be enhanced. Starting with an introduction to the subject of neuroscience and forensic settings, The Wiley Blackwell Handbook of Forensic Neuroscience then offers in-depth and enlightening coverage of the neurobiology of sex and sexual attraction, aggressive behavior, and emotion regulation; the neurobiological bases to risk factors for offending such as genetics, developmental, alcohol and drugs, and mental disorders; and the neurobiology of offending, including psychopathy, antisocial personality disorders, and violent and sexual offending. The book also covers rehabilitation techniques such as brain scanning, brain-based therapy for adolescents, and compassion-focused therapy. |
| Concannon | 2018 | Neurocriminology: Forensic and Legal Applications, Public Policy Implications | Diana Concannon | (CRC Press, 2018) | Neurocriminology: Forensic and Legal Applications, Public Policy Implications explores the dramatic impact of advances in neuroscience research and practice to our present understanding of criminality and crime control. Contemporary, cutting-edge research in neuroscience is cited and explained. Studies and cases are clearly and concisely outlined with potential uses for practical applications detailed. This will be framed in the context of criminological foundations, theory, and the notion of the nature of crime itself. This comprehensive and engaging book also delves into recent developments in modern neurology, and connections between neuroscience and its criminal, legal, and forensic implications and ramifications. The book poses various questions about what insight neurology can provide to human cognition, to motivation and—in particular—criminal motivation. From biological observations is there a pattern, or are there similarities, in what the brainscan of a criminal looks like? What are the treatment implications and are their valid assessments or treatments that can be used in a corrections environment to curb, or even modify, behavior definitively? And, ultimately, what are the moral, legal and social implications of all? Coverage throughout incorporates leading research that links neurological and biological factors to heightened risk for criminality. This includes coverage of suboptimal arousal (low heart rate), testosterone, neurotransmitters, and variations in MAOA—the so-called "warrior gene"—and more. Neurocriminology will offer a thought-provoking analysis of the broad-reaching implications of this science to better inform the prevention, investigation, monitoring, and control of crime. This includes the remarkable potential for neuroscience to serve as a resource and potential tool to criminology and penology researchers, psychologists, forensic psychologists, forensic scientists, legal professionals, and investigators of crime and criminal behavior. |
| Sifferd | 2018 | Responsible Brains: Neuroscience, Law, and Human Culpability | William Hirstein, Katrina L. Sifferd & Tyler Fagan | MIT Press (Forthcoming Dec. 2, 2018) | When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? What mental illnesses would justify legal pleas of insanity? In Responsible Brains, philosophers William Hirstein, Katrina Sifferd, and Tyler Fagan examine recent developments in neuroscience that point to neural mechanisms of responsibility. Drawing on this research, they argue that evidence from neuroscience and cognitive science can illuminate and inform the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility. |
| Morse | 2019 | Neurohype and the Law: A Cautionary Tale | Stephen J. Morse | , in Casting Light on the Dark Side of Imaging 31–35 (Amir Raz & Robert Thibault eds., 2019) | This chapter suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood. |
| Fins | 2018 | Pragmatic Convergence and the Epistemology of an Adolescent Neuroethics | Joseph J. Fins & Judy Illes | Symposium: Competing Identities of Neuroethics, 27 Cambridge Quarterly of Healthcare Ethics 554–57 | Last year neuroethics celebrated its 15th birthday. Although the details of the eld’s conception are the subject of some debate,1 the birth is most frequently ascribed to a landmark meeting called “Neuroethics: Mapping the Field” that was held in San Francisco in 2002. Attended by luminaries such as William Sa re and Albert Jonsen, this conference became central to a collective birth myth about ori- gins. Indeed the birth certi cate that attests to the arrival of neuroethics is the rich anthology of essays published by the Dana Foundation.2 This volume has become a touchstone for our young eld. |
| Chandler | 2018 | Neurolaw and Neuroethics | Jennifer A. Chandler | 27 Clinical Neuroethics 590–98 (2018) | This short article proposes a conceptual structure for “neurolaw,” modeled loosely on the bipartite division of the sister field of neuroethics by Adina Roskies into the “ethics of neuroscience” and the “neuroscience of ethics.” As normative fields addressing the implications of scientific discoveries and expanding technological capacities affecting the brain, “neurolaw” and neuroethics have followed parallel paths. Similar foundational questions arise for both about the validity and utility of recognizing them as distinct subfields of law and ethics, respectively. In both, a useful distinction can be drawn between a self-reflexive inquiry (the neuroscience of ethics and law) and an inquiry into the development and use of brain science and technologies (the ethics and law of neuroscience). In both fields, these two forms of inquiry interact in interesting ways. In addition to a proposed conceptual structure for neurolaw, the article also addresses the neurolegal versions of the critiques made against neuroethics, including charges of reductionism, fact/value confusion, and biological essentialism. |
| Fallin | 2018 | Criminalizing the brain: Neurocriminology and the production of strategic ignorance | Mallory Fallin, Owen Whooley, Kristin Kay Barker | BioSocieties 1–25 (2018) | With the increasing use of imaging technologies like fMRI in prison sentencing and penal policy, sociologists must comprehend the consequences of these trends and the scientific assumptions upon which they stand. This article uses insights from the sociology of knowledge to interrogate the epistemological and ontological assumptions of neurocriminology, an interdisciplinary field that studies the neural basis of crime. Through a discourse analysis of research articles that embrace what we term the “neurocriminological vision,” we demonstrate how features of the research design eschew the consideration of social factors underlying crime and antisocial behavior. Focusing on the section of control variables, the ‘thinness’ of experimental tasks, and the management of inconvenient facts, we demonstrate how neurocriminological research transforms complex, socially situated behaviors into problems of neurocircuitry. We link these practices to the field-specific dynamics in which neurocriminology is situated, specifically as an interdisciplinary field which derives authority from neuroscience but is met with skepticism within criminology. In response to these dynamics, neurocriminologists produce not only knowledge, but also ignorance that is strategically useful given their professional goals. Beyond the particular case at hand, we emphasize the relationship between internal dynamics within scientific fields and their effects on the co-production of knowledge and ignorance. |
| Lobel | 2018 | Law & Neuroscience: The Case of Solitary Confinement | Jules Lobel & Huda Akil | 147 Daedalus 61-75 | This essay discusses the interface between neuroscience and the law. It underscores the poten- tial for neuroscience to break down the division that currently exists in law between physiological and psy- chological harm and between physical and mental injury. To show how scienti c knowledge can illumi- nate a complex legal issue, we analyze the recent use of neuroscience in evaluating the harm caused by pro- longed solitary con nement. |
| Santostefano | 2018 | Juvenile Justice Reform in New York: Prosecuting the Adolescent Brain | Cecilia M. Santostefano | 34 Syracuse J. Sci. & Tech. L. 122 (2018) | This Note follows New York's movement for juvenile justice reform, as more research on the adolescent brain emerges. The concept that the adolescent brain differs from the adult brain is relatively new in the legal framework. Juveniles used to be viewed as “miniature adults” and thereby prosecuted as such. Now, due to advances in brain science, research shows juveniles are not as capable of performing many tasks that adults can because of their developmental stage. These tasks include future planning, making complex decisions, and refusing to take part in risky activities if they will gain immediate thrill. For a state with a reputation for being progressive, New York still implements an arguably archaic practice of prosecuting sixteen- to seventeen-year-olds as adults, despite what the science shows. With a current governor who zealously supports raising the age of adulthood, a debate that has been happening for decades, this Note examines whether the science supports this initiative. This Note concludes with the application of the developments in brain science to changes in the state's approach to punishment, from a punitive to a rehabilitative system. |
| Last | 2018 | Childhood socioeconomic status and executive function in childhood and beyond | Briana S. Last, Gwen M. Lawson, Kaitlyn Breiner, Laurence Steinberg & Martha J. Farah | 18 PLoS ONE e0202964 (2018) | Socioeconomic status (SES) predicts health, wellbeing, and cognitive ability, including executive function (EF). A body of recent work has shown that childhood SES is positively related to EF, but it is not known whether this disparity grows, diminishes or holds steady over development, from childhood through adulthood. We examined the association between childhood SES and EF in a sample ranging from 9–25 years of age, with six canonical EF tasks. Analyzing all of the tasks together and in functionally defined groups, we found positive relations between SES and EF, and the relations did not vary by age. Analyzing the tasks separately, SES was positively associated with performance in some but not all EF measures, depending on the covariates used, again without varying by age. These results add to a growing body of evidence that childhood SES is associated with EF abilities, and contribute novel evidence concerning the persistence of this association into early adulthood. |
| Bradley | 2018 | The Disruptive Neuroscience of Judicial Choice | Anna Spain Bradley | 9 U.C. Irvine L. Rev. 1 (2018) | Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy — all central to human decision-making — are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, empathy and other aspects of our cognition can be implicit, thereby shaping our behavior in ways that we are unaware. This challenges the longstanding assumption that a judge can simply put feelings aside when making judicial decisions. Third, there is no basis in neuroscience to support the idea that judges are exempt from these aspects of human cognition. These findings disrupt widespread faith in the unassailable rationality and impartiality of judges, and demonstrate how such views are increasingly at odds with evidence about how our brains work. By offering an original descriptive account of judicial behavior that is rooted in neuroscience, this Article provides a novel exposition of why bias, emotion and empathy have the capacity to influence the choices judges make. Doing so asks us to view judges as the humans they are. |
| Morse | 2018 | The Promise of Neuroscience for Law: Hope or Hype? | Stephen J. Morse | in Palgrave Handbook of Philosophy and Public Policy 77–96 (David Boonin ed., 2018) | This chapter addresses the potential contributions of neuroscience to legal policy in general and criminal justice in particular. The central question is whether neuroscience is relevant to legal policy. The chapter begins with speculation about the source of claims for the positive influence of neuroscience. It then turns to the scientific status of behavioral neuroscience. The next section considers the two radical challenges to current policies that neuroscience allegedly poses: determinism and the death of agency. The penultimate section addresses the question of the specific relevance of neuroscience to legal doctrine, practice, and institutions. The final section points to some areas warranting modest optimism. The general conclusion, however, is that neuroscience is scarcely useful at present but may become more relevant as the science progresses. |
| Hardcastle | 2018 | Why Brain Images (Probably) Should Not Be Used in US Criminal Trials | Valerie Gray Hardcastle | in Palgrave Handbook of Philosophy and Public Policy 25–37 (David Boonin ed., 2018) | The data discussed strongly suggest that neural imaging does not unduly sway judges and jurors; in fact, it is often counterproductive. The percentage of appellate cases in which the decision was favorable to defendants with brain scan data mirrored those of decisions without such proffered evidence. Moreover, fully two-thirds of the scans admitted were either inconclusive or showed normal brain structures. In decisions referencing brain scans, judges mentioned defendant behavior significantly more often than they referred to the defendant’s brain. Finally, in the actual decisions themselves, judges often ignored relevant imaging data in favor of case precedent or misinterpreted the data so that they would fit with the judges’ initial reactions and opinions. |
| Matravers | 2018 | The Importance of Context in Thinking About Crime-Preventing Neurointerventions | Matt Matravers | in Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice 71–93 (David Birks & Thomas Douglas, eds. Forthcoming 2018) | This chapter is concerned with the ways in which we ought to think about neurointerventions in the criminal justice system. One of the claims made is that the context in which such neurointerventions take place matters a great deal to how we ought to think about them. For that reason, before discussing neurointerventions themselves, it is worth saying something about the criminal justice context that frames much of the discussion. |
| Magyar | 2018 | The Use of Neuroscientific Discoveries in Criminal and Civil Evidence Law | Denis Magyar | 11 Med. L. & Soc'y 121–36 (2018) | The problem of objectification in criminal and civil evidence law is the basis of present work. Neuroscientific discoveries should be taken into account in evidentiary procedures when objectifying subjective facts. The first neuroscientific steps in objectifying pain and other subjective facts have already been made. The author outpoints certain limitations in the field of incorporation of neuroscientific discoveries into judicial procedures. He argues that some neuroscientific discoveries are already suitable for evidentiary purposes and their number will gradually increase. Neuroscience is looking forward to a gradual improvement of neuroimaging technologies that will increase the number of (reliable) discoveries applicable in evidence law. Neuroscientific discoveries are going to become an important part in objectification of subjective facts in criminal and civil procedures. |
| Luhmkuhl | 2018 | Diffusion Tensor Imaging: Failing Daubert and Fed. R. Evid. 702 in Traumatic Brain Injury Litigation | Andrew Lehmkuhl | 87 U. Cin. L. Rev. 279 (2018) | This article will first introduce TBI before providing an overview of DTI and how it works. Next, this article will summarize the primary standards of admissibility of scientific evidence that govern the admissibility of DTI as evidence and lay out why DTI does not meet these evidentiary standards. Finally, using a case study, this article will explore the trend of admitting DTI evidence despite not meeting these standards. |
| Appleton | 2018 | Introduction, The Developing Brain: New Directions in Science, Policy, and Law | Susan Frelich Appleton, Deanna M. Barch & Annelisse M. Schaefer | 57 Wash. U. J. L. & Pol'y 1 (2018) | This symposium and the underlying conference exemplify a new initiative at Washington University, Neuroscience and Society, that is designed to promote interdisciplinary conversations on early brain development. Taking advantage of particular strengths in neuroscience, social work, and law at our institution, this new initiative aims to 1) build meaningful bridges across disciplines to enable better-informed clinical and research programs; and 2) catalyze the flow of information to those who enact and implement policy in healthcare, education, housing, and other areas that directly affect children. These represent the first steps, bringing together such experts from Washington University with those from other institutions for wide-ranging consideration of children, families, and brain development to consider possible responses—as well as challenges—from law and public policy. We hope that, ultimately, this new initiative will lead to policy that best serves the goals of child and community health and welfare. |
| Scarpazza | 2018 | The charm of structural neuroimaging in insanity evaluations: guidelines to avoid misinterpretation of the findings | Cristina Scarpazza, Stefano Ferracuti, Alessio Miolla & Giuseppe Sartori | 8 Translational Psychiatry 227 (2018) | Despite the popularity of structural neuroimaging techniques in twenty-first-century research, its results have had limited translational impact in real-world settings, where inferences need to be made at the individual level. Structural neuroimaging methods are now introduced frequently to aid in assessing defendants for insanity in criminal forensic evaluations, with the aim of providing “convergence” of evidence on the mens rea of the defendant. This approach may provide pivotal support for judges’ decisions. Although neuroimaging aims to reduce uncertainty and controversies in legal settings and to increase the objectivity of criminal rulings, the application of structural neuroimaging in forensic settings is hampered by cognitive biases in the evaluation of evidence that lead to misinterpretation of the imaging results. It is thus increasingly important to have clear guidelines on the correct ways to apply and interpret neuroimaging evidence. In the current paper, we review the literature concerning structural neuroimaging in court settings with the aim of identifying rules for its correct application and interpretation. These rules, which aim to decrease the risk of biases, focus on the importance of (i) descriptive diagnoses, (ii) anatomo-clinical correlation, (iii) brain plasticity and (iv) avoiding logical fallacies, such as reverse inference. In addition, through the analysis of real forensic cases, we describe errors frequently observed due to incorrect interpretations of imaging. Clear guidelines for both the correct circumstances for introducing neuroimaging and its eventual interpretation are defined |
| Shenton | 2018 | Mild traumatic brain injury: Is DTI ready for the courtroom? | Martha E. Shenton, Bruce H. Price, Laura Levin & Judith G. Edersheim | Int'l J. L. & Psychiatry (In Press) | Important advances in neuroscience and neuroimaging have revolutionized our understanding of the human brain. Many of these advances provide new evidence regarding compensable injuries that have been used to support changes in legal policy. For example, we now know that regions of the brain involved in decision making continue to develop into the mid-20s, and this information weighs heavily in determining that execution or automatic sentence of life without the possibility of parole for someone younger than 18 years old, at the time of the crime, violates the 8th Amendment prohibition against “cruel and unusual punishment.” The probative value of other testimony regarding neuroimaging, however, is less clear, particularly for mild traumatic brain injury (mTBI), also known as concussion. There is nonetheless some evidence that new imaging technologies, most notably diffusion tensor imaging (DTI), may be useful in detecting mTBI. More specifically, DTI is sensitive to detecting diffuse axonal brain injuries in white matter, the most common brain injury in mTBI. DTI is, in fact, the most promising technique available today for such injuries and it is beginning to be used clinically, although it remains largely within the purview of research. Its probative value is also not clear as it may be both prejudicial and misleading given that standardization is not yet established for use in either the clinic or the courtroom, and thus it may be premature for use in either. There are also concerns with the methods and analyses that have been used to provide quantitative evidence in legal cases. It is within this context that we provide a commentary on the use of neuroimaging in the courtroom, most particularly DTI, and the admissibility of evidence, as well as the definition and role of expert testimony. While there is a great deal of evidence demonstrating cognitive impairments in attention, processing speed, memory, and concentration from neuropsychological testing following mTBI, we focus here on the more recent introduction of DTI imaging in the courtroom. We also review definitions of mTBI followed by admissibility standards for scientific evidence in the courtroom, including Daubert criteria and two subsequent cases that comprise the so-called Daubert trilogy rulings on the admissibility of expert testimony. This is followed by a brief review of neuroimaging techniques available today, the latter with an emphasis on DTI and its application to mTBI. We then review some of the court rulings on the use of DTI. We end by highlighting the importance of neuroimaging in providing a new window on the brain, while cautioning against the premature use of new advances in imaging in the courtroom before standards are established in the clinical arena, which are informed by research. We also discuss further what is needed to reach a tipping point where such advances will provide important and meaningful data with respect to their probative value. |
| Bradley | 2019 | Advancing Neuroscience in International Law | Anna Spain Bradley | in International Law as Behavior (Harlan Cohen & Timothy Meyer, eds.) (forthcoming 2019) | |
| Mazzocca | From Neuroscientific Standards to Legal Rules | Marco Mazzocca & Paolo Sommaggio | Frontiers in Sociology (Forthcoming) | ||
| Moulin | 2018 | Judges’ perceptions of expert reports: The effect of neuroscience evidence | Valerie Moulin, Caroline Mouchet, Tessa Pillonel, G-M Gkotsi, Bernard Baertschi, Jacques Gasser & Benoit Teste | 61 Int'l J. . & Psychiatry (2018) | This article explores the impact of neuroscience evidence on how expert reports are perceived and their effects on the decisions made by trial judges. Experimental psychology has demonstrated a number of cognitive effects arising from exposure to neuroimaging data which may bias judgments and lead to (mis)interpretations that can affect decisions. We conducted a study on a sample of 62 Swiss and French judges in order to determine whether their perceptions of the credibility, quality and scientific basis of a psychiatric evaluation of a criminal defendant vary according to whether or not the evaluation includes neuroscientific data. Quantitative analyses were conducted in order to evaluate significant differences between the two conditions (one-way analyses of variance) and moderation and conditional analyses to examine whether the participants' sex and length of professional experiencemoderated the effect of the conditions. Terminological and thematic analyses were carried out on open questions. Quantitative and qualitative results suggest that the presence of neuroscience data in an expert report affects judges' perceptions of the quality, credibility, and scientificity (reliability, objectivity, scientific basis) of the report, and the persuasiveness of the evidence it provided. Moreover, this phenomenon was stronger in more experienced judges than in less experienced judges. |
| Alimardani | 2018 | Neuroscience, criminal responsibility and sentencing in an islamic country: Iran | Armin Alimardani | J. L. & Biosciences 1-19 | The implications of neuroscience in the legal context have been considered in many countries; however, there has been very little (if any) research on the use of neuroscience in criminal law in Iran. Furthermore, because Iran's legal system incorporates Islamic rules, the legal implications of neuroscience might be fundamentally different from those of other countries. Accordingly, this paper will discuss the potential use of neuroscientific evidence in the evaluation of criminal responsibility and the assessment of sentencing within the Islamic legal system of Iran. The study will conclude that while there are a number of issues that may prevent the use of neuroscience in Iran's criminal justice system, there is a potential for the neuroscience to be used for purposes such as establishing the insanity defense and mitigating the punishment. |
| Czapanskiy | 2019 | Preschool and Lead Exposed Kids: The IDEA Just Isn’t Good Enough | Karen Czapanskiy | 35 Tuoro L. Rev. 171 (2019) | The Flint Water Crisis exposed thousands of fetuses, infants and young children to lead, a neurotoxin that is unsafe for humans at any level of exposure. Each child is likely to experience some level of cognitive, behavioral or emotional harm. With access to high level preschool, however, the child may experience less long-term harm and arrive in kindergarten better prepared to learn. Universal preschool should be a no-brainer in Flint and in the hundreds of other places where lead exposure is chronic. The case for preschool is so strong that special funding was provided for Flint’s children, but only for a limited period of time. As this article explains, the Individuals with Disabilities Education Act (IDEA), with its reliance on individualized evaluations and remedies, provides no guarantee that each lead-exposed child will be provided with preschool. This group instead needs systemic changes in early education so that each of them is identified early, using only the simplest diagnostic filters, and offered high quality preschool for at least a year. |
| Alimardani | 2018 | Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings | Armin Alimardani & Jason Chin | Neuroethics (Forthcoming) | Recent research has detailed the use of neuroscience in several jurisdictions, but Australia remains a notable omission. To fill this substantial void we performed a systematic review of neuroscience in Australian criminal cases. The first section of this article reports the results of our review by detailing the purposes for which neuroscience is admitted into Australian criminal courts. We found that neuroscience is being admitted pre-trial (as evidence of fitness to stand trial), at trial (to support the defence of insanity and substantial impairment of the mind), and during sentencing. In the second section, we evaluate these applications. We generally found that courts admit neuroscience cautiously, and to supplement more well-established forms of evidence. Still, we found some instances in which the court seemed to misunderstand the neuroscience. These cases ranged from interpreting neuroscience as “objective” evidence to admitting neuroscience when the same non-neuroscientific psychiatric evidence would be inadmissible for being common sense. Furthermore, in some cases, neuroscientific evidence presents a double-edged sword; it may serve to either aggravate or mitigate a sentence. Thus, the decision about whether or not to tender this evidence is risky. |
| Lollini | 2018 | Brain Equality: Legal Implications of Neurodiversity in a Comparative Perspective | Andrea Lollini | 51 N.Y.U. J. Int'l L. & Pol. 69 (2018) | This article inquires into some of the implications of the concept of neurodiversity. First, it analyzes the definition of neurodiversity and its legal dimension. Then, it explores the claim made by part of the neurodiversity movement that people with different neurodevelopment profiles should be considered a new minority. Finally, this article discusses how neurodiversity might require a new interpretation of the idea of constitutional equality. In order to discuss these issues, this article comparatively analyzes neurodiversity-related jurisprudence of the highest North American and European courts over the last fifteen years. Examining these decisions helps determine the current relationship between neurodiverse individuals and legal systems, highlighting that the principle of equality is under intense pressure when the context implicates neurological diversities. |
| Chow | 2018 | Multi-voxel pattern classification differentiates personally experienced event memories from secondhand event knowledge | Tiffany E. Chow, Andrew J. Westphal & Jesse Rissman | 176 NeuroImage 110 (2018) | Studies of autobiographical memory retrieval often use photographs to probe participants' memories for past events. Recent neuroimaging work has shown that viewing photographs depicting events from one's own life evokes a characteristic pattern of brain activity across a network of frontal, parietal, and medial temporal lobe regions that can be readily distinguished from brain activity associated with viewing photographs from someone else's life (Rissman, Chow, Reggente, and Wagner, 2016). However, it is unclear whether the neural signatures associated with remembering a personally experienced event are distinct from those associated with recognizing previously encountered photographs of an event. The present experiment used a novel functional magnetic resonance imaging (fMRI) paradigm to investigate putative differences in brain activity patterns associated with these distinct expressions of memory retrieval. Eighteen participants wore necklace-mounted digital cameras to capture events from their everyday lives over the course of three weeks. One week later, participants underwent fMRI scanning, where on each trial they viewed a sequence of photographs depicting either an event from their own life or from another participant's life and judged their memory for this event. Importantly, half of the trials featured photographic sequences that had been shown to participants during a laboratory session administered the previous day. Multi-voxel pattern analyses assessed the sensitivity of two brain networks of interest—as identified by a meta-analysis of prior autobiographical and laboratory-based memory retrieval studies—to the original source of the photographs (own life or other's life) and their experiential history as stimuli (previewed or non-previewed). The classification analyses revealed a striking dissociation: activity patterns within the autobiographical memory network were significantly more diagnostic than those within the laboratory-based network as to whether photographs depicted one's own personal experience (regardless of whether they had been previously seen), whereas activity patterns within the laboratory-based memory network were significantly more diagnostic than those within the autobiographical memory network as to whether photographs had been previewed (regardless of whether they were from the participant's own life). These results, also apparent in whole-brain searchlight classifications, provide evidence for dissociable patterns of activation across two putative memory networks as a function of whether real-world photographs trigger the retrieval of firsthand experiences or secondhand event knowledge. |
| McCay | 2018 | Issues pertaining to expert evidence and the reasoning about punishment in a neuroscience-based sentencing appeal | Allan McCay & Christopher James Ryan | 62 Int'l J. L. & Psychiatry (2019) | In this paper, we focus on, a significant Australian sentencingappeal in which, after hearing expert evidence pertaining to cognitive function, brain scans, and neuropsychological testing, the Court imposed a less severe sentence than that originally imposed. Our aim is to produce an interdisciplinary critical analysis of the decision, and we approach this by analysing the judicial comments on the evidence pertaining to the offender's mental condition, and the reasoning about punishment. We conclude that the Court's inferences about frontal lobe damage and likely dementia are contestable, and the reasoning about mitigation of punishment based on these questionable inferences could have been improved by a focus on sentencing's retributive aim. |
| Mora | 2018 | How Law and Neuroscience became a new field of study | Maribel Narvaez Mora | Bioethics Update (In Press) | This paper is structured into five sections. Section 1 provides an overview of the nature of the field of law and neuroscience (L&N). Section 2 explains how the field of cognitive neuroscience is more relevant to L&N debates than other neuroscientific domains, a point which, as shown in Section 3, was pivotal to the early work of neuro-lawyers. A short presentation of the set of technologies used to obtain images from the brain and which sustain L&N literature follows in Section 4. In Section 5, a few examples of the impact of neuroscientific outcomes on legal concepts and practices are presented. Some of the arguments advanced by those authors who assert the revolutionary impact of neuroscience on law and by those who predict its irrelevance—or even its dangers—will also be outlined throughout the presentation. |
| Jones | 2019 | Law and Neuroscience: Progress, Promise, and Pitfalls | Owen D. Jones & Anthony D. Wagner | , in The Cognitive Neurosciences (Gazzaniga, Mangun, and Poeppel, eds., 6th ed. Forthcoming 2019) | "This chapter provides an overview of new developments at the interface of law and neuroscience. It describes what is happening, explains the promise and potential influences of neuroscientific evidence, and explores the contexts in which neuroscience can be useful to law. Along the way, it considers some of the legal problems on which neuroscientific data are thought, at least by some, to provide potential answers and it highlights some illustrative cases. It also surveys emerging research that documents how interdisciplinary teams of legal scholars, judges, and neuroscientists are yielding progress and identifying potential pitfalls." |
| Allen | 2019 | Reconciling the opposing effects of neurobiological evidence on criminal sentencing judgments | Corey H. Allen, Karina Vold, Gidon Felsen, Jennifer S. Blumenthal-Barby & Eyal Aharoni | 14(1) PLoS ONE e0210584 | Legal theorists have characterized physical evidence of brain dysfunction as a double-edged sword, wherein the very quality that reduces the defendant’s responsibility for his transgression could simultaneously increase motivations to punish him by virtue of his apparently increased dangerousness. However, empirical evidence of this pattern has been elusive, perhaps owing to a heavy reliance on singular measures that fail to distinguish between plural, often competing internal motivations for punishment. The present study employed a test of the theorized double-edge pattern using a novel approach designed to separate such motivations. We asked a large sample of participants (N = 330) to render criminal sentencing judgments under varying conditions of the defendant’s mental health status (Healthy, Neurobiological Disorder, Psychological Disorder) and the disorder’s treatability (Treatable, Untreatable). As predicted, neurobiological evidence simultaneously elicited shorter prison sentences (i.e., mitigating) and longer terms of involuntary hospitalization (i.e., aggravating) than equivalent psychological evidence. However, these effects were not well explained by motivations to restore treatable defendants to health or to protect society from dangerous persons but instead by deontological motivations pertaining to the defendant’s level of deservingness and possible obligation to provide medical care. This is the first study of its kind to quantitatively demonstrate the paradoxical effect of neuroscientific trial evidence and raises implications for how such evidence is presented and evaluated. |
| Spivak | 2018 | Not Guilty by Reason of CTE: The Imminent Rise of Football/s Foil as a Criminal Defense | Russell Spivak | 54(6) Crim. L. Bulletin | Upon his suicide, former NFL player and convicted murderer Aaron Hernandez was found to have Chronic Traumatic Encephalopathy (CTE). Some were prompted to ask whether his actions were caused by his disease, creating an argument that Hernandez was not guilty by reason of insanity. This article explains CTE in greater depth as well as the current criminal insanity defense frameworks and tests. Thereafter, it theorizes the applicable of CTE to said tests to determine whether CTE could ever provide the foundation to an insanity defense. |
| McCay | 2019 | Neuroscience and Punishment: From Theory to Practice | Allan McCay & Jeanette Kennett | Neuroethics 1-12 | In a 2004 paper, Greene and Cohen predicted that neuroscience would revolutionise criminal justice by presenting a mechanistic view of human agency that would change people’s intuitions about retributive punishment. According to their theory, this change in intuitions would in turn lead to the demise of retributivism within criminal justice systems. Their influential paper has been challenged, most notably by Morse, who has argued that it is unlikely that there will be major changes to criminal justice systems in response to neuroscience. In this paper we commence a tentative empirical enquiry into the claims of these theorists, focusing on Australian criminal justice. Our analysis of Australian cases is not supportive of claims about the demise of retributive justice, and instead suggests the possibility that neuroscience may be used by the courts to calibrate retributive desert. It is thus more consistent with the predictive claims of Morse than of Greene and Cohen. We also consider evidence derived from interviews with judges, and this leads us to consider the possibility of a backlash against evidence of brain impairment. Finally we note that change in penal aims may be occurring that is unrelated to developments in neuroscience. |
| Scurich | 2018 | What do experimental simulations tell us about the effect of neuro/genetic evidence on jurors? | Nicholas Scurich | 5(1) J. L. Biosci. 204 (2018) | One day I received a phone call from Joseph Wu, MD, a colleague in the Psychiatry department at my institution. He had just read an article I published finding no consistent effect of neuroimagining or genetic evidence on reducing jurors’ judgments of criminal culpability.1 He was perplexed by the findings. It turns out Professor Wu regularly conducts neuroimagining as part of his evaluation of capital defendants and testifies regarding neuropsychiatric abnormalities during the sentencing phase, which is when jurors must decide whether to impose a death sentence or life in prison without parole. According to Professor Wu, his testimony is often successful, in contrast to the findings reported in my article. |
| Segal | 2016 | Inherited proclivity: When should neurogenetics mitigate moral culpability for purposes of sentencing? | J. Bradley Segal | 3(1) J. L. Biosci. 227 (2016) | Certain genes and neurobiology (‘neurogenetics’) may predispose some people to violent behavior. Increasingly, defendants introduce neurogenetic evidence as a mitigating factor during criminal sentencing. Identifying the cause of a criminal act, biological or otherwise, does not necessarily preclude moral or legal liability. However, valid scientific evidence of an inherited proclivity sometimes should be considered when evaluating whether a defendant is less morally culpable for a crime and perhaps less deserving of punishment. This Note proposes a two-pronged test to understand whether and when neurogenetic evidence should be considered to potentially mitigate an individual's culpability for criminal behavior. The first prong normatively assesses whether a defendant meets a threshold of having meaningfully managed his risk of harming others based on what he knew, or should have known, about his own proclivities to violence. The second prong considers the admissibility of the evidence based on whether the specific neurogenetic proclivity claimed by the defendant is relevant and adequately supported by science so as to be reliable. This proposed two-pronged test, beginning with an ethical threshold and followed by a scientific hurdle, can help judges and juries establish when to accept arguments for neurogenetic mitigation at sentencing, and when to reject them. |
| Hoffman | 2019 | A Judge on the Injustice of America’s Extreme Prison Sentences | Morris Hoffman | Wall Street J. (Feb. 7, 2019) | In 1995, I sentenced a teenage armed robber to 146 years in prison. Believe it or not, that was just a little over the mandatory minimum sentence. With good time and “early” release on parole, he could be out as soon as 2065, having served a little less than 70 years. He’ll be almost 90. |
| Helm | 2018 | Limitations on the ability to negotiate justice: attorney perspectives on guilt, innocence, and legal advice in the current plea system | Rebecca K. Helm, Valerie F. Reyna, Allison A. Franz, Rachel Z. Novick, Sarah Dincin & Amanda E. Cort | 24(9) Psychol., Crime & L. 915 (2018) | In the American criminal justice system the vast majority of criminal convictions occur as the result of guilty pleas, often made as a result of plea bargains, rather than jury trials. The incentives offered in exchange for guilty pleas mean that both innocent and guilty defendants plead guilty. We investigate the role of attorneys in this context, through interviews with criminal defense attorneys. We examine defense attorney perspectives on the extent to which innocent defendants are (and should be) pleading guilty in the current legal framework and investigate their views of their own role in this complex system. We also use a hypothetical case to probe the ways in which defense attorneys consider guilt or innocence when providing advice on pleas. Results indicate that attorney advice is influenced by guilt or innocence, but also that attorneys are limited in the extent to which they can negotiate justice for their clients in a system in which uncertainty and large discrepancies between outcomes of guilty pleas and conviction at trial can make it a sensible option to plead guilty even when innocent. Results also suggest conflicting opinions over the role of the attorney in the plea-bargaining process. |
| Yoder | 2018 | The neuroscience of morality and social decision-making | Keith J. Yoder & Jean Decety | 24(3) Pyschol., Crime & L. 279 (2018) | Across cultures humans care deeply about morality and create institutions, such as criminal courts, to enforce social norms. In such contexts, judges and juries engage in complex social decision-making to ascertain a defendant’s capacity, blameworthiness, and culpability. Cognitive neuroscience investigations have begun to reveal the distributed neural networks which interact to implement moral judgment and social decision-making, including systems for reward learning, valuation, mental state understanding, and salience processing. These processes are fundamental to morality, and their underlying neural mechanisms are influenced by individual differences in empathy, caring and justice sensitivity. This new knowledge has important implication in legal settings for understanding how triers of fact reason. Moreover, recent work demonstrates how disruptions within the social decision-making network facilitate immoral behavior, as in the case of psychopathy. Incorporating neuroscientific methods with psychology and clinical neuroscience has the potential to improve predictions of recidivism, future dangerousness, and responsivity to particular forms of rehabilitation. |
| Gupta-Kagan | 2018 | The Intersection Between Young Adult Sentencing and Mass Incarceration | Josh Gupta-Kagan | 2018 Wis. L. Rev. 669 (2018) | This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system less severely than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in-depth connections between the two. Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults commit a disproportionate number of crimes. Because so many offenders are young adults, treating young adults less severely could have significant impacts on the number of individuals incarcerated. Second, focusing on young adults responds to retributive arguments in defense of existing sentencing policies, especially for violent offenses. The mass incarceration literature shows that sentences for violent offenses explain much, if not most, of recent decades' prison growth. Young adult violent offenders deserve punishment, but their youth mitigates their culpability and thus offers a response to retributive calls for long sentences. Third, considering mass incarceration can add both urgency and new ideas to the growing debate about reforming sentencing of young adults. Such reforms have thus far been tentative, following well-grounded desires to test different alternative interventions for young adults. The mass incarceration literature adds an important consideration--the status quo demands prompt and far-reaching reform--and new ideas, such as prosecutorial charging guidelines that encompass defendants' age. |
| Simpson-Wood | 2018 | When Popular Culture and the NFL Collide: Fan Responsibility in Ending the Concussion Crisis | Taylor Simpson-Wood & Robert H. Wood | 29 Marq. Sports L. Rev. 13 (2018) | To coin a phrase from Laurel and Hardy, it appears that football and those of us who love the game, are “in another fine mess.”61 This Article examines *22 the forces that have resulted in this “fine mess” where football fans essentially paying week after week to destroy the thing they love. In particular, it delves into the role played by popular culture in creating this modern American tragedy. Part I of this Article provides an overview of key medical information surrounding CTE and brain damage from sub-concussive hits, examines the litigation which resulted in the settlement agreement between affected players and the NFL, and evaluates the effectiveness of past and present concussion protocols. It also focuses on two key films that helped bring the CTE crisis into mainstream consciousness and explains why football and television are a match made in heaven. While issues of popular culture are touched upon in Part I, the second part of the Article is devoted almost exclusively to the role of popular culture in helping to create the concussion crisis. It discusses the influence the concepts of cultivation, heuristic reasoning and resonance have on a fan perception, and considers key lessons fans have learned from films and how this education has created a fan mentality that condones the current level of violence in football. Finally, the paper scrutinizes suggestions about how to modify the way the sport is played in order to allow the game of football to have a viable, and healthy, future not only economically, but for the players and their fans. |
| Alces | 2018 | Neurophobia', A Reply to Patterson | Peter A. Alces | 5 J. L. & Biosciences 457 (2018) | Patterson dismisses my book (‘Moral Conflict,’ textual page references herein are to the book) in terms borrowed from McGinn's review of Changeux, concluding, with McGinn, that arguments promoting the neuroscientific perspective must be metaphysical. Applied to ‘Moral Conflict’, Patterson's central assertion is wrong, on at least three levels: first, McGinn was responding to Changeux's supposed reliance on neuroscience to inform critique of dualism and the establishment of materialism insofar as the metaphysicalnature of ‘the good, the true, and the beautiful’ is concerned. ‘Moral Conflict’ is not concerned with the nature of such experiences; it is concerned with how the law takes account of brain states, a different matter altogether. We might be able to ‘see’ knowledge or even recklessness on an fMRI scan;1 I make no argument about whether we will ever capture the experience of knowledge or recklessness in terms of brain state. Patterson here falls victim to the very Act/Object fallacy he accuses me of running ‘up against’ when he fails to see that McGinn's critique of Changeux was based on McGinn's writing about ‘the activity of thinking’; I and the law care only about ‘what one thinks'. Next, though my argument need not be metaphysical, it actually is, at least according to Bennett and Hacker, whose ‘Philosophical Foundations of Neuroscience’ provided the template for Patterson and Pardo's ‘Minds, Brains, and Law’. My book follows the metaphysical eliminative materialism Bennett and Hacker attribute to Paul Churchland (at 70-73). Finally, asserting that promotion of neuroscience requires engagement with philosophy is akin to asserting that natural selection must account for theology. |
| Wright | 2018 | Severe Brain Injury, Disability, and the Law: Achieving Justice for a Marginalized Population | Megan S. Wright, Nina Varsava, Joel Ramirez, Kyle Edwards, Nathan Guevremont, Tamar Ezer & Joseph J. Fins | 45 Fla. St. U. L. Rev. 313 (2018) | Thousands of persons with severe brain injury who are minimally conscious or “locked in” are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores and analyzes sources of federal, state, and international human rights law that can be leveraged--both in traditional and novel ways--to improve the lives and protect the rights of persons with severe brain injury. We argue that state laws may be the most promising basis for legal action to ameliorate the clinical marginalization and societal neglect faced by persons with severe brain injury, and to promote their recovery and reintegration into their communities. |
| Alexandrovna | 2017 | Neuroscience on Service of Criminalistics | Makarova Olesia Alexandrovna & Abramovsky Andrei Aleksandrovich | 4 Legal Science and Legal Education 121 | The article covers questions of interrelation of criminalistics and other fields of knowledge. Special attention is paid to interrelation of criminalistics and neuro- science. The authors predicted that one of the perspective directions at the present stage of development of criminalistics can be use of neuroscience in the field of criminalistics researches. |
| Procopenko | 2017 | Neurocriminology: Back to the Future | Y.A. Procopenko & D.A. Vorotinzeva | Conference, Fundamental Science & Technologies - Perspective Developments | At all times, in all countries one of the priority directions of the activity was to find and capture criminals in order to create a safe society. The world has evolved and changed, so did the methods of search and capture of criminals. Scientists and the police tried to search them by features of the skull, according to the characteristics of the structure of the body, even the lines on the hand. For a long time scientists have sought to understand what causes people to commit illegal acts? What causes make some people to kill others? |
| Stanek | 2017 | Law and Neuroscience – Points of Connection | Julia Stanek | Proceedings of Higher Educational Institutions | In this article, it is considered as an attempt to apply the results of studies in such sciences as sociology, psychology or neurobiology to solve legal issues. Analyzing the research in the field of possible intersection of neuroscience and law, it could be distinguished between two main groups. The first one involves studies that touch upon fundamental problems of law solutions to which can impact the need to change the entire legal system. This group includes studies of freedom of will, responsibility, criminal responsibility, motivational processes and emotions. The second group of studies is focused on relatively “narrow” problems covering only a specific area of law. It is more interesting to use the studies from the first group in order to create an adequate model of law based on the empirical data. To what extent is it possible in the near future? In order to evaluate this, the article considers the most significant results of neuroscientific research concerning the problem of freedom of will, emotion and motivation. In conclu- sion, evaluating the results of studies in the field of neuroscience, the author indicates the most significant possibilities and limitations of neuroscience. |
| Glannon | 2017 | Some Questions About Brain-Based Mind Reading in Forensic Psychiatry | Walter Glannon | 4 J. L. & Biosciences 605 (2017) | Because the brain generates and sustains mental states, it seems possible that neuroimaging techniques could reveal the content of these states and ‘read’ the mind. Gerben Meynen explores how brain-based mind reading (BMR) could be a technique in forensic psychiatry to ‘assess defendants, prisoners, and possibly also prospective jurors.’1 He describes three types of BMR and ‘the different ways in which a person's mind can be read’ (p. 4). Meynen discusses how BMR could be used for lie detection, to elucidate the role of intent in legal judgements and predict the likelihood of recidivism (p. 16). He mentions confidentiality, trust in the doctor-patient relationship, and the coercive use of these techniques as some of the ethical and legal issues they raise. The last of these issues has been especially pertinent to functional magnetic resonance imaging (fMRI)-based lie detection, which has had variable assessments of accuracy. Apart from this, the BMR techniques Meynen envisages for future application in forensic psychiatry are hypothetical. ‘In fact, at present almost no technique appears to be ready for use in forensic psychiatric evaluations. Therefore, the topic of BMR basically derives its relevance and urgency from anticipated developments in the (near) future. And at present we do not really know the exact nature of the techniques that will eventually be ready for forensic psychiatry use’ (p. 5). Claims about the potential use of BMR in psychiatry and the criminal law are highly speculative. There are thus good reasons for being circumspect about the potential for BMR. Indeed, there are good reasons for skepticism about the very idea of mind reading through measuring brain structure and function and thus the very idea of BMR. This is not only because of limitations in the ability of neuroimaging to reveal actual brainactivity but also because the mind is not located in the brain. The ontological question of the relation between the brain and the mind, and the epistemological questions of what we can ascertain about brainactivity *606 from neuroimaging and what we can ascertain about the mind from this activity need to be addressed before exploring the ethical and legal implications of BMR. I focus on the presumed potential of these techniques to reveal the content of a defendant's mind at the time of a criminal act and how this might influence a judgement about his capacity or incapacity at that time. |
| Eme | 2016 | The Neuroscience of ADHD, the Paradigmatic Disorder of Self-Control | Robert Eme | 3 J. L. & Biosciences 350 (2016) | In their article ‘What does recent neuroscience tell us about criminal responsibility’, Maoz and Jaffe1asserted that currently ‘very little can be said with confidence about what recent work on the neuroscience of self-control implicates, if anything, about criminal responsibility’. They then go on to suggest that perhaps future work might provide the first steps in helping to determine in what ways particular psychological disorders do indeed result in the absence of a substantial capacity to conform one's conduct to the law. This commentary will argue that the future is now with regard to the most common neurodevelopmental disorder--attention-deficit/hyperactivity disorder (ADHD). More precisely, it will argue that the neuroscience of self-control, which heavily influenced the Supreme Court to rule that adolescents who have committed very serious crimes ought not to be punished as severely as adults because of their diminished capacity for self-control due to the developmental immaturity of their brain,2 is equally as robust for ADHD, the paradigmatic disorder of self-control.3 In sum, it will argue that ADHD clearly meets the second of a two-pronged test of reliable neurogenetic evidence advanced by Segal4 that can be introduced as a mitigating factor during criminal sentencing. |
| Wexler | 2015 | A Pragmatic Analysis of the Regulation of Consumer Transcranial Direct Current Stimulation (TDCS) Devices in the United States | Anna Wexler | 2 J. L. & Biosciences 669 (2015) | Several recent articles have called for the regulation of consumer transcranial direct current stimulation (tDCS) devices, which provide low levels of electrical current to the brain. However, most of the discussion to-date has focused on ethical or normative considerations; there has been a notable absence of scholarship regarding the actual legal framework in the United States. This article aims to fill that gap by providing a pragmatic analysis of the consumer tDCS market and relevant laws and regulations. In the five main sections of this manuscript, I take into account (a) the history of the do-it-yourself tDCS movement and the subsequent emergence of direct-to-consumer devices; (b) the statutory language of the Federal Food, Drug and Cosmetic Act and how the definition of a medical device--which focuses on the intended useof the device rather than its mechanism of action--is of paramount importance for discussions of consumer tDCS device regulation; (c) how both the Food and Drug Administration (FDA) and courts have understood the FDA's jurisdiction over medical devices in cases where the meaning of ‘intended use’ has been challenged; (d) an analysis of consumer tDCS regulatory enforcement action to-date; and (e) the multiple US authorities, other than the FDA, that can regulate consumer brain *670 stimulation devices. Taken together, this paper demonstrates that rather than a ‘regulatory gap,’ there are multiple, distinct pathways by which consumer tDCS can be regulated in the United States. |
| Maslen | 2015 | The Regulation of Cognitive Enhancement Devices: Refining Maslen et al.'s Model | Hannah Maslen, Thomas Douglas, Roi Cohen Kadosh, Neil Levy & Julian Savulescu | 2 J. L. & Biosciences 754 (2015) | Our (2014) model for the regulation of cognitive enhancement devices (CEDs) received a great deal of interest from those involved in European device regulation and from academic commentators. Further, since the publication of our recommendations, the number of manufacturers of brainstimulation devices for non-medical purposes has increased, underscoring the need for a regulatory response. In this paper, we clarify aspects of our original proposal and address additional regulatory issues beyond our original focus on the sale of devices. We begin with theoretical points pertaining to the definition of a CED and the distinction between treatment and enhancement. We then respond to practical challenges raised by the prospect of implementing our regulatory framework. Next, we address some wider societal considerations relating to users and other stakeholders. Finally, we revisit the broader regulatory context within which the various discussions are situated. |
| Patterson | 2015 | Review, Consciousness and Moral Responsibility. By Neil Levy (Oxford University Press, 2014. 157 P. + XI, $45) | Dennis Patterson | 2 J. L. & Biosciences 771 (2015) | When and under what circumstances are we responsible for our actions? What role does conscious awareness of one's actions play in the assessment and ascription of responsibility? To answer these questions, Neil Levy has written a provocative and interesting account of the necessary role of consciousness in the assessment of responsibility for action. In an economical 150 pages, Levy makes the case for ‘the consciousness thesis', the idea ‘that consciousness of some of the facts that give our actions their moral significance is a necessary condition for moral responsibility’ (p. 1). |
| Kuersten | 2014 | The Brain, Cognitive Enhancement Devices, and European Regulation | Andreas Kuersten & Roy H. Hamilton | 1 J. L. & Biosciences 340 (2014) | Exciting advances in neuroscience have given rise to devices--now being sold worldwide--which hold the promise of enhancing human cognition. This concerns Maslen et al.--authors of the article, The Regulation of Cognitive Enhancement Devices: Extending the Medical Model--because there are unaddressed possible harms from such equipment. Cognitive enhancement devices (CEDs) are currently entering the European market without special regulations. Their unique ability to influence the brain in potentially deleterious ways is not being accounted for by the law, exposing consumers to risk. |
| Ridder | 2014 | Outstanding Questions Concerning the Regulation of Cognitive Enhancement Devices | Dirk De Ridder, Sven Vanneste & Farah Focquaert | 1 J. L. & Biosciences 316 (2014) | The authors (Maslen et al., 2014) propose to regulate cognitive enhancement devices (CEDs) as medical devices. Extending medical device regulations to CEDs raises some important questions that need to be adequately addressed before it makes sense to pursue this path. A first problem concerns the definition of ‘cognitive enhancement’ and ‘CEDs'. Where does treatment end and enhancement begin? Secondly, since most CEDs such as neurofeedback and transcranial direct current stimulation are currently performed by non-medical health care providers, how will this regulation impact the current practice, and which requirements need to be put in place to regulate their use? Thirdly, distributive justice issues present an obvious ethical limitation. Fourthly, if CEDs are indeed prescribed off-label similar to the off-label prescription of psychopharmacological enhancers by MDs, this will pose problems regarding a lack of sufficient knowledge and expertise due to the highly specialized nature of CEDs. And finally, are we faced with unnecessary worries and unrealistic hopes when it comes to CEDs? In sum, we propose to regulate them regarding product safety and restrict them to competent adult use including professional oversight where indicated. |
| Fritz | 2014 | Buttressing Regulation of Cognitive Enhancement Devices with Principles of Harm Reduction | Nicholas S. Fritz & Peter B. Reiner | 1 J. L. & Biosciences 322 (2014) | Maslen and colleagues offer an excellent model for regulating cognitive enhancement devices (CEDs), and we largely endorse their approach of extending medical device policy to include CEDs. Maslen et al. argue that since the risks and benefits of CEDs can be identified, consumers are best placed to evaluate the impact of these effects on their own wellbeing: ‘experts are to assess what the risks are, the consumer how much they matter’. In principle, we agree: consumers should be allowed to decide what risks are worth taking, but the situation is some what more complicated, for the evidence that consumers are in a strong position to evaluate the many risks associated with CED use is lacking. Indeed, a glance at online forums on CEDs suggests that undue risks are already being taken. Importantly, given the ease with which devices can be built using easily obtainable parts, overly tough regulation will not effectively curtail use, but rather push it underground. For these reasons, we suggest that any regulatory framework be buttressed by principles of harm reduction, providing real-world users with expert-backed recommendations for safe use. We argue for the development of tools that facilitate this dialogue, while recognizing the challenges in so doing. |
| Frankel | 2014 | Considering Advances in Neuroscience Through the Lenses of Law and Human Rights | Mark S. Frankel | 1 J. L. & Biosciences 215 (2014) | Advances in neuroscience should be subject to a robust public dialogue that includes attention to the legal and human rights issues raised by both research and its applications. |
| Maslen | 2014 | The Regulation of Cognitive Enhancement Devices: Extending the Medical Model | Hannah Maslen, Thomas Douglas, Roi Cohen Kadosh, Neil Levy & Julian Savulescu | 1 J. L. & Biosciences 68 (2014) | This article presents a model for regulating cognitive enhancement devices (CEDs). Recently, it has become very easy for individuals to purchase devices which directly modulate brain function. For example, transcranial direct current stimulators are increasingly being produced and marketed online as devices for cognitive enhancement. Despite posing risks in a similar way to medical devices, devices that do not make any therapeutic claims do not have to meet anything more than basic product safety standards. We present the case for extending existing medical device legislation to cover CEDs. Medical devices and CEDs operate by the same or similar mechanisms and pose the same or similar risks. This fact coupled with the arbitrariness of the line between treatment and enhancement count in favour of regulating these devices in the same way. In arguing for this regulatory model, the paper highlights potential challenges to its implementation, and suggests solutions. |
| Thomas | 2019 | Reckless Juveniles | Kimberly Thomas | 52 U.C. Davis L. Rev. 1665 (2019) | This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme Court has concluded that youth are categorically different for purposes of criminal sentencing, and that these categorical differences in maturity, ability to make reasoned decisions, resist outside pressure and influences and the like lead to objective lines being drawn between youth and adults. The Court's distinctions have drawn on a significant body of research literature, including brain imaging scans that help us understand the maturation of the human brain over the course of adolescence. |
| Reyna | 2018 | Brain Activation Covaries With Reported Criminal Behaviors When Making Risky Choices: A Fuzzy-Trace Theory Approach | Valerie F. Reyna, Rebecca K. Helm, Rebecca B. Weldon, Pooja D. Shah, Alexa g. Turpin, and Shravya Govindgari | 147(7) J. Experimental Psychol.: Gen. 1094 | Criminal behavior has been associated with abnormal neural activity when people experience risks and rewards or exercise inhibition. However, neural substrates of mental representations that underlie criminal and noncriminal risk-taking in adulthood have received scant attention. We take a new approach, applying fuzzy-trace theory, to examine neural substrates of risk preferences and criminality. We extend ideas about gist (simple meaning) and verbatim (precise risk-reward tradeoffs) representations used to explain adolescent risk-taking to uncover neural correlates of developmentally inappropriate adult risk-taking. We tested predictions using a risky-choice framing task completed in the MRI scanner, and examined neural covariation with self-reported criminal and noncriminal risk-taking. As predicted, risk-taking was correlated with a behavioral pattern of risk preferences called ""reverse framing"" (preferring sure losses over a risky option and a risky option over sure gains, the opposite of typical framing biases) that has been linked to risky behavior in adolescents and is rarely observed in nondisordered adults. Experimental manipulations confirmed processing interpretations of typical framing (gist-based) and reverse-framing (verbatim-based) risk preferences. In the brain, covariation with criminal and noncriminal risk-taking was observed predominantly when subjects made reverse-framing choices. Noncriminal risk-taking behavior was associated with emotional reactivity (amygdala) and reward motivation (striatal) areas, whereas criminal behavior was associated with greater activation in temporal and parietal cortices, their junction, and insula. When subjects made more developmentally typical framing choices, reflecting nonpreferred gist processing, activation in dorsolateral prefrontal cortex covaried with criminal risk-taking, which may reflect cognitive effort to process gist while inhibiting preferred verbatim processing. |
| Weskalnies | 2018 | Abuse Victims Who Kill and the New Rehabilitation Model | Sara Weskalnies | 2018 Mich. St. L. Rev. 451 (2018) | Part I of this Note discusses the current problems abuse victims who kill their abusers face within the legal system and explains the inadequacies of the trial system, as it often fails to protect abuse victims from incarceration.30 Part II examines the penal philosophies encompassed within the current federal and state sentencing guidelines and not only analyzes their flaws, but also the movement toward an evidence-based system, further supporting rehabilitation's revival.31 Finally, Part III argues that the new rehabilitation model is the best alternative for abuse victims who kill their abusers in self-defense and do not receive an acquittal.32 This section urges the criminal justice system to consider the individual offender and the totality of the circumstances surrounding the crime, including the circumstances influencing the mental state of the offending abuse victim.33 By considering the individual offender, the system itself can institute a reform more cognizant of and sensitive to the mental, emotional, and physical effects of abuse, therefore shifting the focus of sentencing from punishment to treatment.34 This section further addresses the benefits and criticisms of using the new rehabilitation model as a solution.35 This Note ultimately concludes by arguing that the benefits of implementing a rehabilitative focus in sentencing guidelines for abuse victims outweigh any criticism to altering the system. |
| Dittmar | 2019 | Have Your Cake and Eat It Too: Cognitive Neurology and Negligence Law in North Carolina | Derek J. Dittmar | 41 Campbell L. Rev. 181 (2019) | Sometimes a new solution is the best way to fix an old problem. Currently, relying on a case from the early nineteenth century, North Carolina courts refuse to consider an individual's cognitive disability when determining whether she acted reasonably in a negligence case. In other words, juries are instructed to hold a mentally disabled individual to the same duty of care they would use to judge an able-minded individual. Litigants are not allowed to discuss their clients' mental disabilities. This puts a great perspective strain on mentally disabled individuals who are already among the most disenfranchised groups in America. This Comment discusses using modern neurological mapping technology to present mental disabilities as physical disabilities, which advocates are permitted to submit to a jury. Therefore, the jury is not judging a cognitively disabled individual against an unobtainable standard. Instead, it is considering the effects of differing neural anatomy and judging a defendant against a similar person in a similar situation. |
| Icenogle | 2019 | Adolescents’ cognitive capacity reaches adult levels prior to their psychosocial maturity: Evidence for a “maturity gap” in a multinational, cross-sectional sample. | Grace Icenogle, Laurence Steinberg, Natasha Duell, Jason Chein, Lei Chang, Nandita Chaudhary, Laura Di Giunta, Kenneth A. Dodge, Kostas A. Fanti, Jennifer E. Lansford, Paul Oburu, Concetta Pastorelli, Ann T. Skinner, Emma Sorbring, Sombat Tapanya, Liliana M. Uribe Tirado, Liane P. Alampay, Suha M. Al-Hassan, Hanan M.S. Takash & Dario Bacchini | 43(1) L. & Hum. Behav. (2019) | All countries distinguish between minors and adults for various legal purposes. Recent U.S. Supreme Court cases concerning the legal status of juveniles have consulted psychological science to decide where to draw these boundaries. However, little is known about the robustness of the relevant research, because it has been conducted largely in the U.S. and other Western countries. To the extent that lawmakers look to research to guide their decisions, it is important to know how generalizable the scientific conclusions are. The present study examines 2 psychological phenomena relevant to legal questions about adolescent maturity: cognitive capacity, which undergirds logical thinking, and psychosocial maturity, which comprises individuals’ ability to restrain themselves in the face of emotional, exciting, or risky stimuli. Age patterns of these constructs were assessed in 5,227 individuals (50.7% female), ages 10–30 (M = 17.05, SD = 5.91) from 11 countries. Importantly, whereas cognitive capacity reached adult levels around age 16, psychosocial maturity reached adult levels beyond age 18, creating a “maturity gap” between cognitive and psychosocial development. Juveniles may be capable of deliberative decision making by age 16, but even young adults may demonstrate “immature” decision making in arousing situations. We argue it is therefore reasonable to have different age boundaries for different legal purposes: 1 for matters in which cognitive capacity predominates, and a later 1 for matters in which psychosocial maturity plays a substantial role. |
| Denno | 2019 | Neuroscience and the Personalization of Criminal Law | Deborah W. Denno | 86 U. Chi. L. Rev. 359 (2019) | While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. The data gathered from these cases suggest that simplistic views that regard neuroscience as either entirely exculpatory or solely indicative of future dangerousness are misinformed. Second, this Essay posits a probabilistic theory of analyzing evidence based on Bayes's Theorem. Bayes's Theorem offers a compelling model of human reasoning that comports with the process of assessing a defendant's culpability in legal settings. Neuroscientific evidence can thus be understood as a means of modifying initial beliefs and mitigating implicit biases in criminal contexts. Employing these tools, I analyze the impact of personalized evidence on criminal defenses, which I argue are strongly motivated by probabilistic determinations of a defendant's culpability. These determinations have significant impacts beyond individual cases and can contribute to trends in litigation funding. This Essay systematically argues that personalization, fueled by neuroscientific evidence,*360 can provide gains in fairness and efficiency, especially when admitted in the context of criminal defenses, due to their emphasis on probabilistic determinations of culpability. |
| 0 | 2013 | Network Overview | MacArthur Foundation | N/A | Ovewview of the MacArthur Foundation's purpose and scope |
| 0 | 2016 | What, Why, and Where to Begin | MacArthur Foundation | N/A | |
| Dawid | 2014 | Fitting Science into Legal Contexts: Assessing Effects of Causes or Causes of Effects? | A. Philip Dawid, David L. Faigman, Stephen E. Fiendberg | 43 Sociological Methods & Research 359–390 (2014) | Law and science share many perspectives, but they also differ in important ways. While much of science is concerned with the effects of causes (EoC), relying upon evidence accumulated from randomized controlled experiments and observational studies, the problem of inferring the causes of effects (CoE) requires its own framing and possibly different data. Philosophers have written about the need to distinguish between the “EoC” and “the CoE” for hundreds of years, but their advice remains murky even today. The statistical literature is only of limited help here as well, focusing largely on the traditional problem of the “EoC.” Through a series of examples, we review the two concepts, how they are related, and how they differ. We provide an alternative framing of the “CoE” that differs substantially from that found in the bulk of the scientific literature, and in legal cases and commentary on them. Although in these few pages we cannot fully resolve this issue, we hope to begin to sketch a blueprint for a solution. In so doing, we consider how causation is framed by courts and thought about by philosophers and scientists. We also endeavor to examine how law and science might better align their approaches to causation so that, in particular, courts can take better advantage of scientific expertise |
| Jones | 2015 | Law and Neuroscience -- Teacher's Manual | Owen D. Jones, Jeffrey D. Schall, & Francis X. Shen | Aspen Publishers (2015) | |
| Maoz | 2015 | On Reporting the Onset of the Intention to Move | Uri Maoz, Liad Mudrik, Ram Rivlin, Ian Ross, Adam Mamelak, & Gideon Yaffe | , in Surrounding Free Will 184 - 202 (Alfred R. Mele, ed., Oxford University Press) (2015) | Overview of the study of voluntary action, followed by the critiques of these studies. |
| Morse | 2013 | Abolition of the Insanity Defense Violates Due Process | Stephen J. Morse & Richard Bonnie | 41(4) J. Am. Acad. Psychiatry & L. 488-95 (2013) | This article first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section considers and rejects standard practical arguments in favor of abolishing the insanity defense. |
| Shen | 2014 | Synapse and Social Policy: The Legislative Politics of Neurolaw | Francis Shen | in Stanford Law School Center for Law and the Biosciences (Palo Alto, CA) (2014) | N/A |
| Bunge | forthcoming | Trends in Research on Cognitive and Brain Development | Silvia Bunge & Sarah E. Munro | in Trends in Cognitive Sciences | N/A |
| Farah | 2008 | Brain Imaging and Brain Privacy: A Realistic Concern? | Martha J. Ffarah, Elizabeth Smith, Cyrena Gawuga, Dennis Lindsell, & Dean Foster | 21 J. Cognitive Neuroscience 119 (2008) | The article describes the statistical basis of the measurement of psychological traits using functional neuroimaging and ex- amine the degree to which current functional neuroimaging protocols could be used for this purpose. By analyzing the pub- lished data from 16 studies, we demonstrate that the use of imaging to gather information about an individual’s psychological traits is already possible, but to an extremely limited extent |
| Hyman | Meditations on Self-Control: Lessons from the Neurobiology of Addiction | Steven E. Hyman | in Addiction and Self Control (Neil Levy, Ed. Forthcoming) | 0 | |
| 0 | 2011 | Anatomical Parts-Based Regression Using Non-Negative Matrix Factorization | Swapna Joshi, S. Karthikeyan, B.S. Manjunath, Scott Grafton, & Kent A. Kiehl | presented at Computer Vision & Pattern Recognition Conference (2011) | Non-negative matrix factorization (NMF) is an excellent tool for unsupervised parts-based learning, but proves to be ineffective when parts of a whole follow a specific pattern. Analyzing such local changes is particularly important when studying anatomical transformations. We propose a supervised method that incorporates a regression constraint into the NMF framework and learns maximally changing parts in the basis images, called Regression based NMF (RNMF). The algorithm is made robust against outliers by learning the distribution of the input manifold space, where the data resides. One of our main goals is to achieve good region localization. By incorporating a gradient smoothing and independence constraint into the factorized bases, contiguous local regions are captured. We apply our technique to a synthetic dataset and structural MRI brain images of subjects with varying ages. RNMF finds the localized regions which are expected to be highly changing over age to be manifested in its significant basis and it also achieves the best performance compared to other statistical regression and dimensionality reduction techniques. |
| Kiehl | 2008 | Without Morals: The Cognitive Neuroscience of Criminal Psychopaths | Kent A. Kiehl, Nathaniel E. Anderson, Eyal Aharoni, J.Michael Maurer, Keith A. Harenski, Vikram Rao, Eric D. Claus, Carla Harenski, Mike Koenigs, Jean Decety, David Kosson, Tor D. Wager, Vince D. Calhoun, & Vaughn R. Steele | in 3 Moral Psychology: The Neuroscience of Morality 119 (Walter Sinnott-Armstrong, Ed., MIT Press, 2008) | |
| Moore | Mechanical Brains and Responsible Choices | Michael S. Moore | |||
| Moore | 2010 | Renewed Questions About the Causal Theory of Action | Mihcael S. Moore | in Causing Human Actions: New Perspectives on the Causal Theory of Action (Jesus H. Aguilar & Andrei A Buckareff, Eds. 2010) | This chapter goes into a detailed discussion of the causal theory of action (CTA) and attempts to address the questions that have arisen in recent years. In light of recent developments, the fundamental principles of the CTA are reexamined here. The discussion of recent developments is divided into three parts, each corresponding to the three fundamental principles of the CTA. Criticisms of the CTA are divided between those that refuse to identify actions, even in part, with bodily movements; those that refuse to identify the causes of those bodily movements that are actions as mental states of desire, belief, intention, or the like; and those that deny that the relationship between volitions and the bodily movements that are their objects is causal. |
| Moore | 2011 | Blaming the Stupid, Clumsy, Selfish, and Weak: The Culpability of Negligence | Michael S. Moore & Heidi Hurd | Crim. L. & Phil. 5(2): 147-198 | Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. KeywordsNegligence–Recklessness–Advertence–Tracing–Inadvertence–Character–Capacity |
| Phelps | 2009 | Lying Outside the Laboratory: The Impact of Imagery and emotion on the Neural Circuitry of Lie Detection | Elizabeth Phelps | in Using Imaging to Identify Deceit: Scientific and Ethical Questions (2009) | Outside of a laboratory setting, the person accused of the crime faces a highly emotional situation and has ample opportunity to mentally image the circumstances that occurred and ruminate on the situation. It is these factors, emotion and imagery, that differ between the real lie and the laboratory lie. Research in cognitive neuroscience has shown that both imagery and emotion can alter the representation of events. Given that lies outside the laboratory are likely to be personally relevant and emotional, and also imagined with elaboration and repetition, any successful lie detection techniques will need to consider these factors. In this essay, I will explore some of the ways imagery and emotion might impact the potential neural signatures of lying. |
| Raichle | 2009 | An Introduction to Functional Brain Imaging in the Context of Lie Detection | Marc Raichle | in Using Imaging to Identify Deceit: Scientific and Ethical Questions (2009) | Provides the history of imagining |
| Robillard | 2011 | Neuroscience and Law in the Media: What About Addiction? | Julie M. Robillard & Judy Illes | , in Addiction Neuroethics 215_230 (Carter, Hill, and Illes Eds., 2011) | This chapter aims to quantify and qualify addiction content in popular media and analyze the occurrence of addiction in the context of press articles at the intersection of neuroscience and law. Addiction at its core embodies the dualist concept of the relationship between the mind and the body, and it is often seen as a failure of self-control over desires and functions. The political discourse revolves around discussions of policy and governance. Like other discourses, it lends itself to two subject positions, that of the politician and that of the community. The legal discourse can be recognized through language: judicial terms are used to identify substances or behaviors as legal or illegal. This discourse can arise from both illegal drug use and illegal behaviors associated with the use of legal drugs. Similar to the medical discourse, the legal discourse gives rise to two clearly defined subject positions: that of the legal professional and that of people who are affected by the law. |
| Roskies | 2008 | Response to Sie and Wouters: A Neuroscientific Challenge to Free Will and Responsibility? | Adina l. Roskies | 12 Trends in Cognitive Sciences 4 (2008) | Sie and Wouters raise an interesting and complex issue of relevance to current discussions of free will and responsibility. They point out that current compatibilist views are formulated with the assumption that humans are practically rational beings that are able to act for, and are responsive to, reasons. As Sie and Wouters point out, several experiments in psychology have indicated that in many cases our rationality is compromised. Our deviation from ideal rationality is now well appreciated owing to a body of work initiated by Kahneman et al. More recent work on automaticity raises the specter that we act mindlessly, and that reasons have a role in justifying, but not guiding, our actions. |
| Shannon | 2011 | Premotor Functional Connectivity Predicts Impulsivity in Juvenile Offenders | Benjamin J. Shannon, Marcus E. Raichle, Abraham Z. Snyder, Damien A. Fair, Kathryn L. Mills, Dongyang Zhang, Kevin Bache, Vince D. Calhoun, Joel T. Nigg, Bonnie J. Nagel, Alexander A. Stevens, & Kent A. Kiehl | 108 PNAS 27 (2001) | Using functional magnetic resonance imaging, we examined resting-state functional connectivity among brain systems and behavioral measures of impulsivity in 107 juveniles incarcerated in a high-security facility. In less-impulsive juveniles and normal controls, motor planning regions were correlated with brain networks associated with spatial attention and executive control. In more-impulsive juveniles, these same regions correlated with the default-mode network, a constellation of brain areas associated with spontaneous, unconstrained, self-referential cognition. The strength of these brain–behavior relationships was sufficient to predict impulsivity scores at the individual level. Our data suggest that increased functional connectivity of motor-planning regions with networks subserving unconstrained, self-referential cognition, rather than those subserving executive control, heightens the predisposition to impulsive behavior in juvenile offenders. |
| Sinnott-Armstrong | 2014 | Are Addicts Responsible? | Walter Sinnott-Armstrong | in Addiction and Self-Control: Perspectives from Philosophy, Psychology, and Neuroscience 122-143 (Neil Levy Ed., 2014) | The question of whether or not addicts are responsible for their addiction-related actions is confused both because addictions vary widely in important ways and also because responsibility comes in degrees that vary with the degree of control that an addict has over different decisions. I try to make sense out of this confusion by defining addiction in general and clarifying some dimensions along which control and responsibility vary in addiction. Then I address the common objection from transference, which claims that addicts are fully responsible for their actions because they were fully responsible for getting themselves addicted in the first place. |
| Sinnott-Armstrong | 2010 | Insanity Defenses | Walter Sinnott-Armstrong & Ken Levy | in The Oxford Handbook of Philosophy and Crim. L. (Deigh & Dolinko eds., 2010) | We explicate and evaluate arguments both for and against the insanity defense itself, different versions of the insanity defense (M'Naghten, Model Penal Code, and Durham (or Product)), the Irresistible Impulse rule, and various reform proposals. |
| Yang | 2019 | When morality opposes the law: An fMRI investigation into punishment judgments for crimes with good intentions | Qun Yang, Robin Shao, Qian Zhang, Chun Li, Yu Li, Haijiang Li & Tatia Lee | 127 Neuropsychologia 195 (2019) | In judicial practice, morally right but legally wrong instances usually pose significant challenges for legal decision makers. To examine the cognitive and neural foundations of legal judgments in criminal cases involving apparent moral conflicts, we scanned 30 female participants during punishment judgments for crimes committed with good intentions. The behavioral results confirmed that moral acceptability was significantly correlated with the punishment ratings only in the good-intentioned crimes. The fMRI data mainly revealed that the right temporoparietal junction(rTPJ) plays special roles in processing criminal offenders’ state of mind and that the right dorsal lateral prefrontal cortex (rDLPFC) plays roles in resolving moral conflicts involved in legal judgments. Specifically, we found that compared to the bad-intentioned scenarios, the good-intentioned scenarios evoked greater activities during the postreading stage in the brain area of the rTPJ and that a signal increase in the rTPJ was associated with more lenient penalty judgments in the good-intentioned scenarios. Furthermore, reading crime scenarios with good intentions elicited stronger activation in the rdlPFC, which showed enhanced functional connectivity with the medial prefrontal cortex (mPFC). Overall, our study sheds some light on the neurocognitive underpinnings of legal judgments in special criminal cases and enhances our understanding of the relationship between legal and moral judgments. |
| Qing | 2018 | The Integration and Separation Effect of Moral Judgment:Evidence from Event-Related Potentials | Xie Qing, Yang Qun & Tian Xuehong | 2 Psych. Exploration 178 (2018) | The study used event-related potentials methods combined with a two-choice oddball paradigm in an attempt to add new evidence to the ""unified"" vs ""diverse"" debate by looking into the online processing of moral judgments. There were no significant differences in the P2 components of different types of immoral behaviors.All three types of immoral words evoked greater N2 amplitudes than neutral words.Words related to sexual disgust elicited the greatest N2 amplitudes.On P300 and late positive components,sexual disgust words induced greater amplitudes than the other conditions.The main results suggest that moral transgressions about physical harm,dishonest and sexual disgust may share a common mechanism in the early stage of online processing and tend to dissociate from each other in the later stage in the time course of processing. |
| Steinert | 2018 | Doing Things with Thoughts: Brain-Computer Interfaces and Disembodied Agency | Steffen Steinert, Christoph Bublitz, Ralf Jox & Orsolya Friedrich | Philosophy & Tech. 1-26 (2018) | Connecting human minds to various technological devices and applications through brain-computer interfaces (BCIs) affords intriguingly novel ways for humans to engage and interact with the world. Not only do BCIs play an important role in restorative medicine, they are also increasingly used outside of medical or therapeutic contexts (e.g., gaming or mental state monitoring). A striking peculiarity of BCI technology is that the kind of actions it enables seems to differ from paradigmatic human actions, because, effects in the world are brought about by devices such as robotic arms, prosthesis, or other machines, and their execution runs through a computer directed by brain signals. In contrast to usual forms of action, the sequence does not need to involve bodily or muscle movements at all. A motionless body, the epitome of inaction, might be acting. How do theories of action relate to such BCI-mediated forms of changing the world? We wish to explore this question through the lenses of three perspectives on agency: subjective experience of agency, philosophical action theory, and legal concepts of action. Our analysis pursues three aims: First, we shall discuss whether and which BCI-mediated events qualify as actions, according to the main concepts of action in philosophy and law. Secondly, en passant, we wish to highlight the ten most interesting novelties or peculiarities of BCI-mediated movements. Thirdly, we seek to explore whether these novel forms of movement may have consequences for concepts of agency. More concretely, we think that convincing assessments of BCI-movements require more fine-grained accounts of agency and a distinction between various forms of control during movements. In addition, we show that the disembodied nature of BCI-mediated events causes troubles for the standard legal account of actions as bodily movements. In an exchange with views from philosophy, we wish to propose that the law ought to reform its concept of action to include some, but not all, BCI-mediated events and sketch some of the wider implications this may have, especially for the venerable legal idea of the right to freedom of thought. In this regard, BCIs are an example of the way in which technological access to yet largely sealed-off domains of the person may necessitate adjusting normative boundaries between the personal and the social sphere. |
| Farrell | 2018 | Regulating Consumer Use of Transcranial Direct Current Stimulation Devices | Anne-Maree Farrell, Adrian Carter, Nigel Rogasch & Paul Fitzgerald | 209(1) Med. J. Australia 810 (2018) | Non-invasive brain stimulation devices, such as transcranial direct current stimulation (tDCS), are used treat a range of medical conditions. They are also being marketed to healthy students, sportspersons and gamers to enhance their performance. We outline use, safety and effectiveness data regarding these devices, and consider ethical and regulatory issues in the area. We call for the Australian regulator (TGA) to take steps to examine the safety risks involved in using these devices, particularly given concerns over how they might impact vulnerable groups (e.g. mentally ill, children) in the long term. |
| Tigano | 2019 | Neuroimaging and Neurolaw: Drawing the Future of Aging | Vincenzo Tigano, Giuseppe Cascini, Cristina Sanchez-Castañeda, Patrice Péran & Umberto Sabatini | Frontiers in Endocrinology (Forthcoming) | Human brain-ageing is a complex, multidimensional phenomenon. Knowledge of the numerous aspects that revolve around it is therefore essential if not only the medical issues, but also the social, psychological and legal issues related to this phenomenon are to be managed correctly. In the coming decades, it will be necessary to find solutions to the management of the progressive ageing of the population so as to increase the number of individuals that achieve successful ageing. The aim of this article is to provide a current overview of the physiopathology of brain ageing and of the role and perspectives of neuroimaging in this context. The development of neuroimaging has opened new perspectives in clinical and basic research and it has modified the concept of brain ageing. Neuroimaging will play an increasingly important role in the definition of the individual's brain ageing in every phase of the physiological and pathological process. However, when the process involved in age-related brain cognitive diseases is being investigated, factors that might affect this process on a clinical and behavioral level (genetic susceptibility, risks factors, endocrine changes) cannot be ignored but must, on the contrary, be integrated into a neuroimaging evaluation to ensure a correct and global management, and they are therefore discussed in this article. Neuroimaging appears important to the correct management of age-related brain cognitive diseases not only within a medical perspective, but also legal, according to a wider approach based on development of relationship between neuroscience and law. The term neurolaw, the neologism born from the relationship between these two disciplines, is an emerging field of study, that deals with various issues in the impact of neurosciences on individual rights. Neuroimaging, enhancing the detection of physiological and pathological brain ageing, could give an important contribution to the field of neurolaw in elderly where the full control of cognitive and volitional functions is necessary to maintain a whole series of rights linked to legal capacity. For this reason, in order to provide the clinician and researcher with a broad view of the brain-ageing process, the role of neurolaw will be introduced into the brain-ageing context. |
| Ligthart | 2019 | Coercive Neuroimaging Technologies in Criminal Law in Europe | Sjors L. T. J. Ligthart | 32 Info. Tech & L. Series 83 (2019) | Neuroscience is developing constantly and improves neuroimaging technologies which can acquire brain related information, such as (f)MRI, EEG and PET. These technologies could be very useful to answering crucial legal questions in a criminal law context. However, not all defendants and convicted persons are likely to cooperate with these technologies, and as a consequence the possibility of coercive use of these technologies is an important issue. The use of coercive neuroimaging technologies in criminal law, however, raises serious legal questions regarding European human rights. For instance, how does such coercive use relate to the prohibition of torture, inhuman and degrading treatment (‘ill-treatment’, Article 3 European Convention on Human Rights)? This chapter describes four neuroimaging applications and explains how they could contribute to materializing the aims of criminal law. Furthermore, it conceptualizes two types of coercion with which neuroimaging can be applied and explains why that distinction is relevant in this context. Finally, it explores the legal implications of coercive neuroimaging in the context of the prohibition of ill-treatment. |
| Li | 2018 | Get Out of My Head: An Examination of Potential Brain-Computer Interface Data Privacy Concerns | Kevin Y. Li | B.C. Intell. Prop. & Tech. F. 1 (2018) | Brain-compute interfaces (""BCI""), which interpret brain impulses and translate them into real world outputs, currently exist in a variety of forms. With the continued development of BCIs and their increasinging complexity, privacy issues will arise in regars to teh data that they collect .Existing federal statutes, such as HIPAA, as well as state data privacy statutes offer some protection to BCI users, but it remains to be seen whether these laws will be sufficient to accommodate teh amount and sensitivity of the data likely to be generated by future BCIs. Lastly, this article also explores the possibility of admitting data generated from BCIs as evidence in courtrooms, with consideration given to how much intrustion on mental privacy is constitutionally acceptable. |
| Wright | 2018 | When Biomarkers are not Enough: FDA Evaluation of Effectiveness of Neuropsychiatric Devices for Disorders of Consciousness | Megan S. Wright, Keturah James, Adam Pan, Joseph J. Fins | 21 Stan. Tech. L. Rev. 276 (2018) | In this Article, we first review how the FDA evaluates different types of evidence of an intervention's efficacy, focusing on Class III medical devices. We use the case of disorders of consciousness to analyze relevant regulations and guidance for the development of novel neurotechnologies when subjective data is used in an approval process. We then offer suggestions for reform, arguing *277 for a more expansive approach to what constitutes evidence of efficacy en route to more objective and vetted biomarkers. |
| Cerminara | 2018 | RIP Currents: Rough Water for End of Life Decision Making | Kathy L. Cerminara | 21 J. Health Care L. & Pol'y 59 (2018) | Specifically, this Essay highlights two trends in the case law that reflect the combination of scientific disagreement and surrogate concerns about “giving up too quickly.” Pushbacks against brain death diagnoses have appeared increasingly in recent years.10 The field is ripe for the same pushback to develop against persistent vegetative state diagnoses.11 Such pushbacks increasingly toss and turn in rip currents of public discourse about the cost of health care and disability rights. |
| Maurer | 2018 | ""Beauty is Truth and Truth Beauty"": How Intuitive Insights Shape Legal Reasoning and the Rule of Law | Stephen M. Maurer | 42 Seattle U.L. Rev. 129 (2018) | The Article begins by reviewing previous attempts to apply literary theory to legal texts. We argue that the main failing of this literature is that it says little or nothing about how judges and advocates choose between competing legal interpretations. Section II argues that the best way to fill this gap is to ask what scientists have learned about the brain. This includes the fundamental insight that most human thought processes rely on both Type 1 and Type 2 methods. The Article also documents the surprising cognitive psychology result that Type 1 judgments show significant universality, i.e. that humans who study subjects for long periods often *130 make similar choices without regard to the societies they were born into. Section III extends these arguments to law by arguing that legal judgment frequently turns on the brain's Type 1 pattern recognition machinery. The next two Sections build on this foundation to construct an explicit theory of how Type 1 thinking enters into legal reasoning and outcomes. Section IV begins by reviewing nineteenth century theories that claimed a leading role for intuitive reasoning in public policy. Section V updates these theories to accommodate the relatively weak statistical correlations that psychologists have documented, arguing that modern court systems amplify these signals in approximately determinate ways. It also explains why court systems that emphasize close textual analysis are able to resist erosion from competing incentives like cronyism and judicial activism. Section VI builds on these theory insights to suggest specific policy prescriptions. |
| Gerstenzang | 2018 | Counseling the Addicted Client: A Responsible and Restorative Practice | Jennifer Gerstenzang | 42-AUG Champion 40 (2018) | Some clients come to criminal defense lawyer in what may be the darkest period of the clients' lives. Defense attorney have the authority and ability to initiate change and should do so by determining the right treatment for the client, which often includes neuroscientific approaches. |
| Gilad | 2019 | The Snowball Effect of Crime and Violene: Measuring the Triple-C Impact | Michal Gilad, Abraham Gutman, Stephen P. Chawaga | 46 Fordham Urb. L.J. 1 (2019) | This Article is one of the first to take an inclusive look at Comprehensive Childhood Crime Impact (Triple-C Impact)--the monumental problem of exposure to crime during childhood. This problem is estimated to be one of the most damaging and costly public health and public safety problems in our society today. Many of these impacts can be seen through changes in the brain. |
| Paolini | 2019 | NFL Takes a Page from the Big Tobacco Playbook: Assumption of Risk in the CTE Crisis | Mikayla Paolini | 68 Emory L.J. 607 (2019) | As research connecting CTE with repeated blows on the football field grows, the NFL faces litigation concerning its role in preventing or raising awareness of this issue. In response, the League has taken a page from the tobacco industry playbook by employing the same strategies used during decades of litigation surrounding the adverse health consequences of smoking cigarettes. Accordingly, this Comment explores the utility of using Big Tobacco as a predictive template for future NFL/CTE litigation by unpacking the historical parallels and distinctions between these two industry giants, especially as pertains to an assumption of risk defense. Ultimately, this comparative analysis informs litigation strategy by outlining the unique pressures and structures faced by NFL plaintiffs such that they should overcome an assumption of risk defense in CTE cases. While their circumstances are fundamentally different, NFL athletes face the same institutional complicity and orchestrated denial as did tobacco users, only this time, all of America has a Sunday ticket. |
| Gordon | 2019 | About a Revolution: Toward Integrated Treatment in Drug and Mental Health Courts | Sara Gordon | 97 N.C.L.Rev. 355 (2019) | his Article argues that the segregation of drug, alcohol, and mental health courts is out of step with our current understanding of the high rates of co-occurring disorders, and often fails to provide integrated treatment for the multiple disorders a single specialty-court participant might present. Moreover, by segregating specialty courts, we are further stigmatizing addiction and failing to acknowledge that drug and alcohol use disorders are some of the many types of mental illnesses recognized by the medical community. Drug, alcohol, and mental health courts should therefore move away from their traditional siloed approach to the selection and treatment of participants and instead provide individuals with comprehensive and integrated *356 treatment for co-occurring substance use and mental health disorders. |
| Marsh-Carter | 2018 | Virgina Ranks Forty-ninth of Fifty: the Need for Stronger Laws Supporting Foster Youth | Nadine Marsh-Carter, Bruin S. Richardson III, Laura Ash-Brackley, Cassie Baudeán Cunningham | 53 U. Rich. L. Rev. 255 (2018) | The transition from adolescence to adulthood is a critical and often challenging time in a youth's life. With the support of a stable family, friends, and community, youth can grow and transition into healthy, productive adults. When youth lack that support, as most youth with foster care experience do, the transition can be more difficult. Without that support, youth are less likely to obtain safe, stable housing, obtain employment, and build permanent relationships within their community. Foster youth lacking this support are more likely to be homeless and involved in the criminal justice system, and less likely to graduate from high school or college. The vast majority of the country performs significantly better than Virginia in finding permanent families for children and youth6 who have been traumatized through no fault of their own, removed from their homes and families, and placed into foster care. When a state does not find a permanent family for a foster youth, the youth is left to fend for himself once he becomes an “adult,” despite the fact that the youth overwhelmingly lacks the emotional, mental, practical, and educational skills to succeed as an adult. |
| Frye | 2018 | The Lion, The Bat & The Thermostat: Metaphors on Consciousness | Brian L. Frye | 5 Savannah L. Rev. 13 (2018) | Can robots have rights? It depends on the meaning of “robots” and “rights.”1 Different kinds of robots can have different kinds of rights. Robots can already have the rights of things, and may soon be able to have the rights of legal entities. But it is unclear whether robots can have the rights of animals or persons. It probably depends on what theory of mind is true: dualist, reductionist, or agnostic. Under a dualist theory, robots can have rights if they possess a soul or other form of mental substance. Under a reductionist theory, robots can have rights if they are conscious, or at least functionally identical to a human or animal. And under an agnostic theory, it depends on how brains actually work. Philosophers often use metaphors to explore problems they do not understand, and philosophers of mind are no exception. I will describe three metaphors used by philosophers of mind--the lion, the bat, and the thermostat--and reflect on how those metaphors may illuminate our speculations on the possibility of “robot rights.” |
| Froomkin | 2019 | When AIS Outperform Doctors: Confronting the Challenges of a Tort-Induced Over-Reliance on Machine Learning | A. Michael Froomkin, Ian Kerr, Joelle Pineau | 61 Ariz. L. Rev. 33 (2019) | This Article argues that once ML diagnosticians, such as those based on neural networks, are shown to be superior, existing medical malpractice law will require superior ML-generated medical diagnostics as the standard of care in clinical settings. Further, unless implemented carefully, a physician's duty to use ML systems in medical diagnostics could, paradoxically, undermine the very safety standard that malpractice law set out to achieve. Although at first doctor + machine may be more effective than either alone because humans and ML systems might make very different kinds of mistakes, in time, as ML systems improve, *34 effective ML could create overwhelming legal and ethical pressure to delegate the diagnostic process to the machine. Ultimately, a similar dynamic might extend to treatment also. If we reach the point where the bulk of clinical outcomes collected in databases are ML-generated diagnoses, this may result in future decisions that are not easily audited or understood by human doctors. Given the well-documented fact that treatment strategies are often not as effective when deployed in clinical practice compared to preliminary evaluation, the lack of transparency introduced by the ML algorithms could lead to a decrease in quality of care. This Article describes salient technical aspects of this scenario particularly as it relates to diagnosis and canvasses various possible technical and legal solutions that would allow us to avoid these unintended consequences of medical malpractice law. Ultimately, we suggest there is a strong case for altering existing medical liability rules to avoid a machine-only diagnostic regime. We argue that the appropriate revision to the standard of care requires maintaining meaningful participation in the loop by physicians the loop. |
| Dowd | 2019 | Radical Aces: Building Resilience and Triggering Structural Change | Nancy Dowd | 71 Fla. L. Rev. 80 (2019) | n this essay I consider whether ACEs could have radical potential, as a framework for dismantling the causes of developmental hurdles. I consider both whether current, immediate uses of ACEs can facilitate broad solutions, as well as whether ACEs data can be used to trigger legal or policy responses to change structural conditions that generate ACEs. ACEs, in combination with the broad application of neuroscience information and other essential frameworks, might be used to incorporate *81 a broad developmental norm within the state's responsibilities to nurture and foster children and their families. |
| Dillon | 2019 | Banning Solitary for Prisoners with Mental Illness: The Blurred Line Between Physical and Psychological Harm | Rosalind Dillon | 14 NW J.L. & Soc. Pol'y 265 (2019) | The medical and scientific communities are in overwhelming agreement: prolonged solitary confinement has devastating effects on persons suffering from mental illness. There is a strong argument, with growing support, that the practice of prolonged solitary confinement of any prisoner should be abolished as a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. This article is imited to the argument that the practice of solitary confinement is categorically inappropriate for people suffering from mental illness. Mnay negative effects have been observed, including theories that neural pathways in the brains of people subjected to isolation physically change. |
| Tovino | 2018 | A Right to Care | Stacey A. Tovino | 70 Ala. L. Rev. 183 (2018) | [T]his Article asserts a right to care--and establishes a legal basis for such care--for non-Medicare insureds who need skilled care and rehabilitation to (1) aid in their assessment or diagnosis; (2) obtain or maintain their maximum practicable level of consciousness, cognition, functioning, communication, autonomy, or independence; or (3) prevent or slow their deterioration in functioning, as appropriate.31 For individuals with progressive neurological conditions, such as amyotrophic lateral sclerosis, multiple sclerosis, and Parkinson's disease, this right to care includes but should not be limited to management of disease symptoms; maintenance of flexibility and mobility; avoidance of muscle contractures; minimization of fatigue; conservation of energy; and promotion of safety, function, independence, and quality of life, even without the potential for cure or improvement.32 For individuals with disorders of consciousness, by *191 further example, this right should include neuroimaging and other technologies that can best assess or diagnose each insured's disorder of consciousness, with a focus on detecting residual consciousness. This right to care should also include care designed to maximize the insured's potential for consciousness, cognition, and environmental connection, as appropriate.33 Again, this right to care is asserted regardless of the capacity of the insured to fully or partially recover to a pre-injury state. A conclusion proposes structure and content for a new federal regulation at 45 C.F.R. § 156.110(g) that would codify the right to care asserted in this Article. |
| Duru | 2018 | In Search of the Final Head Ball: The Case for Eliminating Heading from Soccer | N. Jeremi Duru | 83 Mo. L. Rev. 559 (2018) | Soccer encourages and demands one action, however, that puts the head in consistent danger: heading the ball.15 Thirty percent (30%) of concussions in soccer occur when two players attempt to head the ball at the same time, resulting in head clashes or heads colliding with other body parts or the ground.16 The desired outcome of an attempted header - head to ball impact - causes untold damage as well.17 This Article, therefore, argues that soccer's governing bodies should eliminate the practice of heading from the game. Doing so would protect generations of soccer players to come and would limit *562 potentially wide-spread liability among soccer governing bodies, as well as the ensuing economic consequences, ensuring the continued existence of “The Beautiful Game.” |
| Grubow | 2018 | O.K. Computer: The Devolution of Human Creativity and granting Musical Copyrights to Artificially Inteligent Joint Authors | Jared Vasconcellos Grubow | 56 Fam. Ct. Rev. 679 (2018) | This Note will explore that notion and argue that the rule barring AIs from being joint authors with humans is unnecessary for musical compositions. Part I of this Note will provide a background on the romantic and alternative conceptions of authorship, how copyright law favors the alternative, and how current neuro-philosophical theories undermine the law's treatment of creativity and authorship. In Part II we will undergo an analysis of how this new, undermined theory of copyright applies to an AI composer, which will show that some AIs meet the constitutional, statutory, and common law requirements for authorship. Lastly, Part III will propose that the U.S. Copyright Office should amend its practices to allow for AI and human joint authorship for musical composition and recommend possible ways of restructuring the music industry to allow for the proposed changes. Although this Note will discuss constitutional authorship generally and include an examination of several cases analyzing other copyrightable subject matter, those discussions serve only as a means of highlighting the relevant issues. This Note's only focus is musical composition. Non-recognition of AI joint authorship nullifies the value of songwriting, *390 which is antithetical to copyright's constitutional purpose of promoting progress. |
| Farrell | 2018 | Football Fallout: The Legalities of CTE | Helen M. Farrell | 33-FALL Crim. Just. 4 (2018) | Chronic traumatic encephalopathy (CTE), an increasingly recognized clinical syndrome, has emerged in the legal field as a diagnosis with significant implications. In criminal and civil matters alike, the mere suggestion of CTE, to say nothing of an expert opinion touting its presence, can alter the outcome of a case. The abundant media and academic hype about CTE has its roots in the contentious battle waged against the National Football League (NFL) by players and their families. This lengthy and adversarial battle has played out on and off the field for at least a decade. Although the principal lawsuit has been settled, CTE continues to star as a player in criminal and civil courts nationwide. And CTE now is gaining traction in both research and litigation relating to combat veterans, domestic violence, and the wide world of sports. Given the emergence of knowledge and acceptance of CTE in civil and criminal matters, it is vital for counsel to understand the illness, its manifestations, and its utility in devising legal strategy. |
| American Association of Pro-Life Obstetricians & Gynecologists | 2018 | AAPLOG Practice Bulletin No. 2: Fetal Pain | American Association of Pro-Life Obstetricians & Gynecologists Practice Bulletin Committee | 33 Issues L. & Med. 237 (2018) | The evidence that fetuses feel pain at earlier gestational ages than previously thought prompts a call for universal management rather than individual practice. The purpose of this document is to present the available evidence for fetal pain, discuss implications for procedures in pregnancy, and to provide recommendations for situations requiring termination of pregnancy. |
| Gertner | 2018 | Against These Guidelines | Nancy Gertner | 87 UMKC L. Rev. 49 (2018) | [T]he stories in Incomplete Sentences need to be put in a legal context, which is the subject of this article. Here, I describe the sentencing framework in which I was obliged to operate--the rules and pressures that are too often irrational *50 and palpably unfair, that fundamentally skewed the work of federal sentencing for the past three decades, including my work and that of my colleagues. |
| Fair | 2018 | A Role of Early Life Stress on Subsequent Brain and Behavioral Development | Damien A. Fair, Alice M, Graham, & Brian Mills | 57 Wash. U. J.L. & Pol'y 89 (2018) | The prevalence of pediatric neuropsychiatric disorders has risen dramatically during the past two decades. A study surveying the years 1997-2008 verified that one in six children have a developmental disability--a number on the rise. Along similar lines, studies show higher incidents of criminal activity, substance use disorders, and the emergence of psychopathologies in early adolescence and young adulthood, which are particularly sensitive periods of brain and behavioral maturation. While developmental trajectories that may lead to adverse outcomes in youth are the result of a mix of genetics and environmental exposure, it is becoming clearer that they do not start at the time of the diagnosis or problem behaviors; rather, these developmental trajectories start at the earliest periods of life. The ability of children to achieve their full physical, academic, and social potential is tightly related to early life events, some of which may occur even before birth. The science is now amassed with investigators and research targeting the role of Early Life Stress and its interaction with biological systems in impacting the development of the brain and complex behaviors across all stages development. |
| Scott | 2018 | Bringing Science to Law and Policy: Brain Development, Social Context, and Justice Policy | Elizabeth Scott, Natasha Duell, & Laurence Steinberg | 57 Wash. U. J.L. & Pol'y 13 (2018) | Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers' involvement in crime. But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend. This Article explains that features associated with biological and psychological immaturity alone do not lead teenagers to engage in illegal conduct. Instead the decision to offend, like much risk-taking behavior in adolescence, is the product of dynamic interaction between the still-maturing individual and her social context. The Article probes the mechanisms through which particular tendencies and traits linked to adolescent brain development interact with environmental influences to encourage antisocial or prosocial behavior. |
| Rogers | 2018 | Addressing the Psychosocial Risk Factors Affecting the Developing Brain of the High-Risk Infant | Cynthia Rogers | 57 Wash. U. J.L. & Pol'y 117 (2018) | The psychological and socio-demographic characteristics of the caregiver, commonly referred to as psychosocial factors, are highly critical in shaping an infant's brain development as they often influence the caregiver's emotional state, stress responses, and overall mental health.1 Poverty is one of the most potent of these psychosocial factors. Poverty is associated with myriad other deleterious exposures and behaviors known to affect caregiver-infant interactions such as parental stress, psychiatric *118 illnesses, and substance abuse.2 These psychosocial stressors are experienced during both the prenatal and postnatal period and are often interconnected. When these stressors are experienced during pregnancy they work together to impact the development of the fetal brain. After birth, the neonatal brain continues to mature and is further impacted by the postnatal environment,3 which often includes continued exposure to a caregiver with these same psychosocial risks. The goal of this Article is to examine how exposure to these prenatal and postnatal stressors can lead to impaired development in children and how changes in our support of young infants and their caregivers during this period could help mitigate the risk of these adverse outcomes. |
| Levitt | 2018 | The Ingredients of Health Brain and Child Development | Pat Levitt & Kathie L. Eagleson | 57 Wash. U. J.L. & Pol'y 75 (2018) | This review explains why “early” matters when it comes to brain and child development. Early is a critical concept that I and others have presented to policy makers and business leaders throughout the country. Early typically includes the prenatal and the first three years after birth. Here we focus on the early postnatal period. |
| Fitch | 2018 | Emerging Adulthood and the Criminal Justice System: #BrainNotFullyCooked #Can'tAdultYet #YOLO | Christine E. Fitch | 58 Santa Clara L. Rev. 325 (2018) | This Note discusses whether these perpetrators and other young adults like them should be held to the same standard as their adult counterparts given the current research. |
| Hodge | 2017 | ""Talk and Die Syndrome"" - The Medical and Legal Consequences of an Intracranial Hemorrhage | Samuel D. Hodge Jr. & Jack E. Hubbard | 19 DePaul J. Health Care L. 1 (2017) | This article will address the medical causes and significance of an intracranial hematoma as well as the court decisions that have resulted from this medical emergency. A second purpose of this publication is to educate the reader about this life-threatening problem to mitigate its consequences by seeking immediate medical care. |
| Perlin | 2017 | "I've Got My Mind Made Up": How Judicial Teleology in Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence | Michael L. Perlin | 24 Cardozo J. Equal Rts. & Soc. Just. 81 (2017) | Neuroscience is seen as persuasive when it is in line with an individual's prior beliefs, but is perceived negatively when it conflicts with those beliefs.In this paper, I will consider what the implications of this behavior are for criminal procedure developments, and will show how this behavior violates the basic precepts of therapeutic jurisprudence. First, I will consider a range of teleological judicial behaviors. Then, I will consider how biologically-based evidence is especially susceptible to these sorts of misjudgments, and specifically focus on how these misjudgments damage the application of constitutional criminal procedure doctrines. Finally, I will consider how this behavior flies in the face of the basic tenets of therapeutic jurisprudence. |
| Schwartz | 2017 | A Prevention Strategy: Eliminating FASD in Indigenous Communities | Bryan P. Schwartz, Terrence Laukkanen, & Justine Smith | 40 Man. L.J. 123 (2017) | Many Aboriginal1 communities in Canada appear to be particularly vulnerable to FASD. This article proposes a prevention strategy for eliminating FASD in these communities. The approach has several key elements. *124 The first element is a recognition that the impact of each case of FASD can be devastating not only in terms of avoidable suffering of a child throughout their life, but also in terms of adverse impacts on the communities in which that child will live. Investment in prevention may result in benefits that far exceed the costs. Secondly, every child of an Aboriginal community is also a citizen of a province or territory and of Canada, and the prevention of FASD should be a concern to public authorities and all societies. In Aboriginal communities, however, the most effective approaches may be ones in which the communities play a lead, or even a primary role, in defining a multi-pronged strategy suited to its individual circumstances. A pan-Canadian overall “prevention strategy” that integrates individual communities might be useful, and could involve many opportunities and incentives for individual communities to develop strategies that are suited to their own circumstances and judgment. Lastly, the particular prevention strategy adopted by any public authority should consider (and can incorporate) potential for improvements at all levels, from the cellular level in an individual to the most general level of community developments. This article will attempt to provide a reasonably thorough review of what efforts have been attempted to prevent FASD at various levels (from micro- to macroscopic), and what has proved effective in practice. Regardless of which strategies are implemented, all strategies-from a pan-Canadian framework (or from individual community strategies within that framework) should include clearly and numerically defined targets (such as reducing incidence of FASD per birth by a certain percentage in a certain amount of time) and empirical monitoring of outcomes. |
| Lamm | 2019 | Bye, Bye, Binary: Updating Birth Certificates to Transcend the Binary of Sex | Emly Maxim Lamm | 28 Tul. J.L. & Sexuality 1 (2019) | t birth, each newborn is effectively sorted into a category that continues on with them forever. Historically, those that were born not conforming to the binary experienced the medicalization of their sex firsthand.7 Yet, such medicalization contradicts the fluidity of gender and ultimately leaves complex and deeply personal decisions to the discretion of the judiciary rather than the individual. Accordingly, the magnitude of the moment of birth cannot be understated--once the “sex” is assigned, it immediately becomes the assumed gender identity. The ambiguities of sex and gender are especially profound in the context of neuroscience and the transgender identity. Although the transgender identity is generally defined as a “cross-gender identification,” transgender individuals also go beyond the male/female paradigm and embrace “genderqueer” and “gender non-conforming” identities. Intriguingly, neuroscience provides both confusion and clarity for the task of understanding sex and gender. On one hand, it complicates our ability to draw rigid distinctions between male and female, but on the other, it reveals that transgender individuals respond in ways mirroring their gender identity rather than their biological sex. Several recent neuroscience studies have discovered that the brains of transgender individuals more closely resemble their gender identity rather than their biological sex. |
| Price-Cates | 2018 | Implicit Bias | Sharon Price-Cates | 313 Aug N.J. Law. 65 (2018) | Research by social scientists and neuroscientists has made available more accurate models on how the brain works, explaining how people think and behave. This research is informing the legal community that while racial bias and discrimination certainly can be intentional, it is just as likely to be unconscious ‘implicit bias.1 Implicit bias refers to automatic and non-conscious attitudes and stereotypes held toward members of certain groups.2 An attitude is an association between a social group and a positive or negative evaluation of that group (e.g., likes and dislikes, favorable and unfavorable).3 A stereotype is an association between a social group or category and a specific trait.4 There is mounting evidence that implicit bias affects understanding, decision-making and behavior toward individuals in ways that promote accumulating advantage and disadvantage.5 |
| Appleton | 2018 | The Developing Brain: New Directions in Science, Policy, and Law | Susan Frelich Appleton, Deanna M. Barch & Anneliese M. Schaefer | 57 Wash. U. J. L. & Pol’y 1 (2018) | This symposium and the conference from which it derives explore new possibilities for bringing insights from our understanding of brain development and its relationship to cognitive, social, and emotional development into the arenas of law and policy. In particular, the papers in this volume provide a legal and policy context for examining recent studies that use neuroscientific tools and methods, including imaging and behavioral studies, to ask questions about how children’s brains are negatively affected by what we call “early stressors.” These studies aim to understand the mechanisms that mediate the impact of socio-economic status (SES) on brain development, such as family adversity, inflammatory pathways, and/or the microbial environment, all of which themselves are influenced by SES. Among such efforts, brain imaging studies in children have shown that being raised in poverty is associated with thinning of the cortex, reduced hippocampal and amygdala volumes, and altered connections of these brain regions to the rest of the brain. Significantly, these changes in brain function and structure are also associated with later health problems and behavioral changes in children, such as increased depression and learning difficulties. |
| Greely | 2019 | Neuroscience and the Criminal Justice System | Henry T. Greely & Nita A. Farahany | 2 Annual Rev. Criminology 451 (2019) | The criminal justice system acts directly on bodies, but fundamentally it cares about minds. As neuroscience progresses, it will increasingly be able to probe the objective, physical organ of the brain and reveal secrets from the subjective mind. This is already beginning to affect the criminal justice system, a trend that will only increase. This review article cannot begin even to sketch the full scope of the new field of law and neuroscience. The first workshop on the subject was held in 2003 (Garland 2004), but the field already has its own casebook (Jones et al. 2014) and the MacArthur Foundation Research Network on Law and Neuroscience (2018) shows more than 1,700 publications in the area between 1984 and 2017. Greely (2009) divided the implications of law into five different categories: prediction, mind-reading, responsibility, treatment, and enhancement. This article examines only three points: the current use of neuroscience to understand and explain criminal behavior, the possibilities of relevant neuroscience-based prediction, and plausible future applications of neuroscience to the treatment of criminals. But first, we discuss the human brain and how it works. |
| Butterton | 2019 | How Neuroscience Technology Is Changing Our Understanding of Brain Injury, Vegetative States and the Law | Glenn R. Butterton | 20 N.C. J. K. & Tech. 331 (2019) | The author examines clinical studies that use neuroscience technology to study patients in Vegetative States. The studies indicate that some of the patients are, in fact, conscious. The author suggests that this finding is a matter of considerable practical importance for the drafting and execution of end-of-life protocols such as Advance Directives and Living Wills. He recommends that statutes, and other guidance used by patients, caregivers, medical institutions, family members and others to draft and interpret such Directives and Wills, be revised or amended to take account of these results. |
| Goodman | 2019 | Class in the Classroom: Poverty, Policies, and Practices Impeding Education | Christine Chambers Goodman | 27 J. Gender, Soc. Pol'y & L. 95 (2019) | Part I of this Article begins with social science evidence to justify the combination approach of “equally adequate” education. It describes the data on the impact of SES on brain development. Part I also addresses the impacts of one’s physical environment, including the levels of poverty, crime, educational opportunity, housing, upward mobility, and stress in neighborhoods on educational outcomes. It then considers some potential counterarguments and poses questions that can guide social scientists in further research. Part II describes the constitutional protections for education and the state court litigation around those issues, concurring with the conclusion of others who believe that the key point of the constitutional right is to provide an education sufficient to participate in democratic processes of the nation. This section addresses the constitutional arguments around education and adequacy versus equality, recent cases putting forth these arguments, and their status. Part III briefly addresses the federal legislation, namely the No Child Left Behind Act (NCLB), which has subsequently been revised and renamed the Every Student Succeeds Act (ESSA). To the extent data is available, this Article will examine how ESSA is working (relative to NCLB), as well as whether it is making progress for students in states who promote either equal or adequate education. Thus far, there is little data about application because the states only recently submitted their plans, and so this part focuses on the ESSA’s goals and shortfalls, and then looks at the plans put into place by several states. Part III will then highlight the adequacy and equality litigation currently and recently pending in selected states. The Article concludes with several proposals for future consideration by courts, policymakers, and legislatures. |
| Zwisohn | 2019 | Vicarious Trauma in Public Service Lawyering: How Chronic Exposure to Trauma Affects the Brain and Body | Megan Zwisohn, Wayne Handley, Danielle Winters, Alyssa Reiter | 22 Rich. Pub. Int. L. Rev. 101 (2019) | Each day, attorneys and other service providers are subject to trauma. By the nature of the profession, they work with victims of crime, victims of poverty, and victims of discrimination. While attorneys do not personally experience this victimization, they do often internalize it and revisit it in case preparation. As a result, attorneys, particularly those in public interest roles, regularly experience, burnout, compassion fatigue, and vicarious trauma. These factors can negatively impact attorneys neurological and physiological functioning, causing them harm and potentially causing harm to their client or their client's case. For these reasons, it is critically important for attorneys and legal offices to promote the development of resiliency and symptom management techniques. This article analyzes the unique trauma that attorneys can sustain from chronic stress, addresses how that can impact an attorney's work, and offers techniques attorneys can use to manage their traumas because as the old adage states “an ounce of prevention is worth a pound of cure.” |
| Coppola | 2019 | Motus Animi in Mente Insana: An Emotion-Oriented Paradigm of Legal Insanity Informed by the Neuroscience of Moral Judgments and Decision-Making | Federica Coppola | 109 J. Crim. L. & Criminology 1 (2019) | Legal insanity is deeply rooted in an intellectualistic conception of the capacity for moral rationality. The vast majority of insanity standards essentially consider the integrity of the defendant's cognitive faculties at the time of the offense. However, the cognitivist model of legal insanity collides with the body of neuroscientific and behavioral literature about the critical role of emotions in moral judgments and decision-making processes. Drawing upon this scientific knowledge, this Article reforms the intellectualistic substance of the capacity for moral rationality that underlies the insanity doctrine by including emotions in its relevant psychological set. Hence, it provides a revised model of legal insanity, one that gives more prominence to individuals' emotional faculties in relation to the crime committed. The analysis highlights that the legal reconsideration of the role of emotions within the capacity for moral rationality turns the insanity defense into a tripartite, more dimensional test--one inclusive of emotional, cognitive, and volitional prongs. Normative arguments in support of the proposed alternative paradigm of legal insanity are illustrated and discussed. |
| Tournas | 2019 | The Fountain of Youth Revisited: Regulatory Challenges and Pathways for Healthspan Promoting Interventions | Lucille Tournas & Gary E. Marchant | 74 Food & Drug L.J. 18 (2019) | For centuries, humankind has tried to evade the inevitability of aging and death by searching for the elusive fountain of youth, but the search has yielded only disappointment, false hopes, and charlatans. In the last decade or so, however, real progress has been made in the scientific understanding and modulation of the aging process. This progress has come about from a new paradigm called the “geroscience” hypothesis, which recognizes that aging is the number one risk factor for all chronic diseases. Therefore, there may be some intrinsic aging factors that can be targeted with interventions, rather than the futile attempt to extend healthy life by treating one chronic disease at a time. Utilizing genetic and other data showing that the aging process is malleable and can be slowed, scientists have recently identified key aging processes that underlie most chronic diseases and the symptoms of aging, such as frailty and cognitive decline. The next step has been to identify potential interventions that can affect or slow those aging processes, and a number of such candidate “geroprotectors” have now been identified, mostly in animal studies but in some cases in humans. The scientific progress that has been achieved in the past decade has advanced a number of promising interventions to the point where they are now ready for human clinical trials, regulatory approval and commercialization. Yet, just as the scientific advances have made significant healthspan extension a realistic possibility for the first time in human history, regulatory and legal impediments have arisen to impede the further advancement of such interventions. Specifically, because the FDA drug approval process is based on prevention and treatment of diseases, and aging is not recognized as a “disease,” there is no obvious regulatory approval pathway for therapeutics that may slow aging and extend healthspans. This paper describes this dilemma, identifies a number of alternative regulatory and commercialization pathways for healthspan extending interventions, and argues that the Food and Drug Administration (FDA) should take a more proactive role in expediting the clinical trials and regulatory approval of healthspan extension agents. |
| Ramirez | 2018 | On the Permanence of Racial Injustice and the Possibility of Deracialization | Steven A. Ramirez & Neil G. Williams | 69 Case W. Res. L. Rev. 299 (2018) | Part I of this Article will show that while race is a social construct, it retains tremendous social power in America in accordance with the predictions of Derrick Bell, fifty years after landmark legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In sum, the U.S. continues its longstanding racial hierarchy today. Part II will suggest that race continues to hold sway in the U.S. through both explicit and implicit bias, and that law can operate to overcome these impediments to human development, as Martin Luther King suggests, through initiatives to comprehensively embrace cultural diversity. Recent studies in neuroscience fully support this central point. Part III will assess whether the U.S. has the political will necessary to mitigate race as it currently exists or will exist in the near future. While the Supreme Court will likely act (as always) to uphold the current hierarchy, demographic realities and economic truths will ultimately operate to diminish the influence of race in American society. The Article concludes that while the U.S. may still have many fits and starts ahead in wrestling with America's original sin, ultimately the value of *307 cultural diversity and the changing demographics in our nation will impel a diminution in the sway of race under current legal and political realities. |
| Washington-Childs | 2018 | The NFL's Problem with Off-Field Violence: How CTE Exposes Athletes to Criminality and CTE's Potential as a Criminal Defense | Aaron E. Washington-Childs | 17 Va. Sports & Ent. L.J. 244 (2018) | What if the NFL's problem with violent crimes was the result of concussions and head trauma? Could concussions and head trauma have altered the minds of NFL players so much that they are more prone to violence? If so, were some players so affected by head trauma that they were no longer capable of making rational decisions or controlling their behavior? This Note will address all of the aforementioned possibilities and will further argue that symptoms resulting from head trauma could be used as an affirmative defense or mitigating factor for crimes. |
| García-López | 2019 | Neurolaw in Latin America: Current Status and Challenges | Eric García-López, Ezequiel Mercurio, Alicia Nijdam-Jones, Luz Anyela Morales, & Barry Rosenfeld | Eric García-López et al., Neurolaw in Latin America: Current Status and Challenges, International Journal of Forensic Mental Health (2019) | Despite several decades of growing interest in the concept of neurolaw in English-speaking countries, it is only a recent area of focus in Latin America. The objective of this article was to facilitate evidence-informed public policy by examining the current state of neurolaw in Latin America. To achieve this goal, this systematic review summarizes published articles, books, and book chapters, and discusses seminal legal cases in order to identify the current state of neurolaw in Spanish-speaking Latin American countries. In total, 61 publications were identified, with the majority coming from Mexico (n = 17), Argentina (n = 15), and Colombia (n = 12). None of the published work identified presented empirical research, but many publications discussed complex topics such as criminal responsibility, free will, and neuroethics. The scant literature base and high concentration of publications emanating from three countries suggest that despite its growing impact abroad, more work is needed in this area in order to influence Latin America legislation and on the development of public policies. Future areas of research and policy related implications are discussed. |
| Frazier | 2019 | Using Your Head: A Different Approach to Tackling the NFL's Concussion Epidemic | Grant Frazier | 10 Harv. J. Sports & Ent. L. 197 (2019) | While some of the NFL’s responses to date hold promise for helping to mitigate the concussion epidemic, they are nonetheless inadequate because a fix-all is unlikely to be developed soon, if ever. As such, this article argues the NFL should commit, through their collective bargaining agreement, to developing (1) genetic screening techniques that will inform players if they are acutely susceptible to substandard concussion recovery outcomes and long-term effects; (2) diagnostic tests that enable objective confirmation of concussion occurrence and recovery (or lack thereof); and (3) pre-mortem testing for concussion-related neurological diseases such as chronic traumatic encephalopathy (CTE). |
| Asp | 2019 | Soft on Crime: Patients with Ventromedial Prefrontal Cortex Damage Allocate Reduced Third-Party Punishment ot Violent Criminals | Eric W. Asp, James T. Gullikson, Kelsey A. Warner, Timothy R. Koscik, & Daniel Tranel | 119 Cortex 33 (2019) | The human impulse to punish those who have unjustly harmed others (i.e., third-party punishment) is critical for stable, cooperative societies. Punishment selection is influenced by both harm outcome and the intent of the moral agent (i.e., the offender's knowledge of wrongdoing and desire that the prohibited consequence occur). We allocate severe punishments to those who commit violent crimes and milder punishments to those who commit non-violent crimes; and we allocate severe punishments to criminals who have malicious intent and milder punishments to criminals who lack malicious intent. Prior research has indicated that aversive, emotional responses of third-party judges may influence punishmentallocation, as increased negative emotion correlates with more punitive punishments. Here, we show that patients with damage to the ventromedial prefrontal cortex (vmPFC; a region necessary for the normal generation of emotion), compared to other neurological patients and healthy adult participants, allocate more lenient third-party punishment to criminals who commit emotionally-evocative, violent crimes. By contrast, patients with vmPFC damage did not differ from comparison participants on punishment allocation for non-emotional, non-violent crimes. These results demonstrate the necessity of the vmPFC for the integration of emotion into third-party punishment decisions, and indicate that negative emotion influences third-party punishment allocation particularly for scenarios involving physical harm to another. |
| DiMattia | 2019 | How Much Brain Deterioration Do You Need to Get Into Court: Analyzing the issue of Statutes of Limitations for Athletes' Concussion-Related Injury Litigation Through the Lens of Toxic Tort Law | Dominic DiMattia | 48 U. Baltimore L.R. 435 (2019) | This Comment argues that eliminating the statute of limitations for CTE cases will allow CTE litigants to bring their claims while they are alive.25 Part II defines CTE and how it functions and discusses the sudden discovery of its prevalence in professional sports leagues.26 Part II will also look at the effect of the first major CTE case, In re National Football League Players Concussion Injury Litigation, on setting precedent for future lawsuits.27 Part III discusses the development of toxic tort law and how it overcomes statute of limitation issues.28 Finally, in Part IV, this Comment will identify the differences between toxic tort diseases and CTE that do not allow common judicial rules to function properly in the concussion litigation arena.29 Instead, the optimal and efficient means to find relief for athletes suffering from CTE is to eliminate *438 statutes of limitation in CTE cases altogether.30 While this idea seems drastic, the nature of CTE effectively bars recovery for plaintiffs and will continue to bar recovery until further developments are made in the field of medicine.31 |
| Carle | 2018 | Acting Differently: How Science on the Social Brain can Inform Antidiscrimination Law | Susan D. Carle | 73 U. Miami L.R. 655 (2018) | Legal scholars are becoming increasingly interested in how the literature on implicit bias helps explain illegal discrimination. However, these scholars have not yet mined all of the insights that science on the social brain can offer antidiscrimination law. That science, which researchers refer to as social neuroscience, involves a broadly interdisciplinary approach anchored in experimental natural science methodologies. Social neuroscience shows that the brain tends to evaluate others by distinguishing between “us” versus “them” on the basis of often insignificant characteristics, such as how people dress, sing, joke, or otherwise behave. Subtle behavioral markers signal social identity and group membership, which in turn trigger the brain's tendency toward us versus them thinking. This research speaks to the considerations underlying antidiscrimination law, and *656 suggests that social neuroscientists and antidiscrimination theorists should be in conversation. Indeed, my investigation shows that social neuroscience and legal antidiscrimination theory are reaching a “consilience”--meaning an unlikely agreement in approaches between disparate academic subjects. Both agree on the importance of promoting tolerance for human behavioral difference. The time is ripe to explore this consilience more deeply. I do so preliminarily in this Article, proposing that antidiscrimination law should pay more attention to (1) the ways in which discrimination occurs through decision-makers' distaste for those who “act differently” (rather than identity status alone), and (2) the need for more theory supporting a general human right to “act differently” within reasonable bounds. |
| Huffman | 2019 | The Enigma of End-of-Life Decisions in Advance Directives | Gregor S.C. Huffman | 53 Real Prop. Trust & Est. L.J. 401 (2019) | This Article discusses advance health-care directives and the subjective, personal choices one must make for a future unknown situation. The Article first examines legal issues created by the various available types, and then moves into religious and philosophical views affecting a person's end-of-life choices. Issues involving a person's health, age, and financial and emotional situation are also discussed. Because a directive does not normally go into effect until a person can no longer make a medical decision, the Article also discusses quality-of-life issues arising from a minimally conscious state, a vegetative state, a locked-in state, and coma. There is then a discussion of the default position courts and medical providers take when no advance directive has been filled out, and the risks of leaving a person's end-of-life decisions to an agent. This Article concludes that an advance directive tends for most to be an enigma because so few have ever thought out the many complex issues raised by this type of document. |
| Friedland | 2019 | Cold Cognition, Hot Emotion, and the Training of Lawyers | Steven Friedland | Forthcoming | Recent advances in neuroscience have shown that cognition and emotion often work interdependently, operating as if emerging from a single faucet. This means that the stereotypes of a divided “cold cognition” and “hot emotion” are overly simplistic and inaccurate. The outdated but influential Langdellian approach to law, lawyering and legal education still places cognitive legal reasoning as the centerpiece. Instead, the cognition-emotion conceptualization should be revised so that positive emotion is expressly accepted, used, and managed within legal systems. Students and lawyers should be taught how to successfully feel and act like lawyers, as well as think like them. |
| Humbach | 2019 | Neuroscience, Justice and the 'Mental Causation' Fallacy | John A. Humbach | 11 Wash U. Jur. Rev. 191 (2019) | This article takes direct aim at a foundational assumption of modern criminal justice, namely, that there is such a thing as “mental causation,” viz. that criminal acts are caused or influenced by mental states such as intentions or volitions. The pre-scientific supposition that mental states can cause criminal acts is the primary basis for holding that people “deserve” to suffer punishment and, as such, is the most serious barrier to acceptance of neuroscience in criminal justice reform. However, this key justification for modern criminal justice practices is premised on a logical fallacy and is ripe for review. |
| Rosenthal | 2019 | Scanning for Justice: Using Neuroscience to Create a More Inclusive Legal System | Hilary Rosenthal | 50 Colum. Hum. Rts. L. Rev. 290 (2019) | Although they may seem to be worlds apart, on further inspection, neuroscience and the law are not so discordant. Neurolaw is an emerging interdisciplinary field that undertakes to examine how an increased understanding of the human nervous system can lead to a more precise explanation for human behavior, which in turn could inform the law, legislation, and policy. While increased dependence on neuroscience in the courtroom raises evidentiary and normative concerns, its use can also have significant implications for civil and human rights by opening doors for plaintiffs to bring claims that historically have been difficult to prove. One such example is the way neuroscience can obviate the outmoded physical-mental divide in tort law. Courts in the United States have been skeptical of awarding damages for “invisible” injuries, such as PTSD, concussions, neurodegenerative diseases, and emotional pain and suffering, all of which can alter brain structure and function, but often do not manifest physically until it is too late for a person suffering those harms to recover damages in a courtroom. However, as neuroscience technology improves, it can help detect these previously hidden or latent injuries, especially for those in marginalized communities, and begin to uproot entrenched policies that perpetuate health inequality. This Note argues that neuroscience, while not without its shortcomings, has become an *291 increasingly important tool to create a fairer, more just, and more rehabilitative justice system. |
| Shen | 2019 | Neuroscience, Artificial Intelligence, and the Case Against Solitary Confinement | Francis X. Shen | 21 Vand. J. Ent. & Tech. L. 937 (2019) | This Article argues that both neuroscience and AI are promising in their potential ability to present courts with new types of evidence on the effects of solitary confinement on inmates' brain circuitry. But at present, neither field has collected the type of evidence that is likely to tip the scales against solitary confinement and end the practice. This Article concludes that ending the entrenched practice of solitary confinement will likely require both traditional and novel forms of evidence. |
| Foulkes | 2019 | Legal and Ethical implications of CRISPR Applications in Psychiatry | Alexandra L. Foulkes, Takahiro Soda, Martilias Farrell, Paola Giusti-Rodríguez, and Gabriel Lázaro-Muñoz | 97 N.C.L. Rev. 1359 (2019) | Gene-environment interactions play a key role in how psychiatric disorders manifest and develop. Psychiatric genetics researchers are making progress in identifying genomic correlates of many disorders. And recently, the field of genetics has given rise to a technology that many claim will revolutionize the biological sciences and propel the field into a transformative phase: the powerful gene-editing tool known as CRISPR-Cas9. This Article illustrates which psychiatric conditions are likely to make attractive targets for CRISPR as the technology evolves and CRISPR therapies become viable tools to manage or prevent disorders in a clinical setting. We examine the potential scientific and clinical challenges of applying CRISPR in the mental health context, along with the regulatory, ethical, and legal issues that might arise as a consequence of these applications. |
| Pyatigorsky | 2019 | ""Study Drugs"": The Mechanisms of ADHD Medications and Their Abuse on College Campuses | Peter Pyatigorsky | 3 Geo. L. Tech. Rev. 476 (2019) | The term “study drugs” refers to a sub-class of prescription stimulants, approved by the FDA for the treatment of Attention Deficit/Hyperactivity Disorder (ADHD), that students routinely abuse to enhance academic performance. This sub-class, categorized as substituted phenethylamines, includes methylphenidate (Ritalin, Concerta), dexmethylphenidate (Focalin), dextroamphetamine (Dexedrine), lisdexamfetamine (Vyvanse), and a mixture of amphetamine salts (Adderall). In the past decade, illicit abuse (i.e., without a prescription) of study drugs on college campuses has skyrocketed, with studies estimating that up to thirty-five percent of college students abuse such stimulant medications. Remarkably, this abuse fails to elicit condemnation. This explainer will first discuss the underlying biochemistry and physiological effects of study drugs. Thereafter, teh evolution of study drug abuse will be examined. |
| Rivera Hernández | 2019 | Incapacidad Mental por quiste Aracnoideo: Lesión Cerebral en el Lóbulo Frontal como Causa de Inimputabilidad | Paola M. Rivera Hernández | 88 Rev. Jur. U.P.R. 600 (2019) | A modo colateral, a través de este artículo también se pretende demostrar la importancia de estudiar el cerebro y su comportamiento para entender las razones por las cuales los seres humanos asumen comportamientos que dan origen a conductas reguladas por nuestro sistema penal. De esta forma, este artículo se suma a las investigaciones que buscan explicar las razones detrás de distintos comportamientos antijurídicos de manera que se pueda desarrollar mayor equidad en el sistema de justicia de Puerto Rico. |
| Colón-Fuentes | 2019 | Teenage Brain Development: Its Impact on Criminal Activity and Trial Sentencing | Gretchen M. Colón-Fuentes | 88 Rev. Jur. U.P.R. 1062 (2019) | New findings in the field of juvenile developmental neuroscience have contributed in recent United States Supreme Court decisions regarding serious crimes made by teenagers.6 Below, I will explain in detail, the process of teenage *1064 brain development, the different ways this influences a teenager's decision-making and how in many occasions this leads to criminal behavior, followed by how the United States Supreme Court has applied these neurobiological discoveries. |
| Olmsted | 2019 | A New Era in Juvenile Sentencing: Why Montgomery, Adolescent Neuroscience, and a Shift in the National Conversation Point Toward a Need for Measure 11 Reform | Joshua Olmsted | 23 Lewis & Clark L. Rev. 465 (2019) | In 1994, Oregon voters passed Ballot Measure 11, a mandatory minimum sentencing scheme that imposes long inflexible sentences for a plethora of serious crimes. In addition to establishing mandatory minimum sentences, Measure 11 dramatically re-shaped the landscape of the juvenile justice system by mandating transfer to adult court for youth between 15 and 17 years old, charged with any Measure 11 offense, even if they are eventually convicted of a lesser offense. In recent years, there has been a push to rethink the way that we evaluate and treat juvenile offenders. Evolving Supreme Court jurisprudence, along with new research into adolescent neuroscience have called into question the appropriateness of treating juvenile and adult offenders equally when dealing with lengthy criminal sentences. This Note examines the history and justifications behind Measure 11's treatment of juvenile offenders and proposes two functional and realistic reforms that would make Measure 11 a fairer sentencing scheme for juvenile offenders. Part I outlines the history of Measure 11, the reforms it laid out for Oregon's sentencing of juvenile offenders, and the system's shortcomings. Part II examines the evaluation of the Supreme Court's jurisprudence regarding juvenile sentencing and how Measure 11's structure clashes with the Court's command that “children are different.” Part III outlines recent advances in adolescent neuroscience and how they relate to juvenile criminal culpability and Oregon's juvenile sentencing practices. Part IV offers proposed reforms and how they fit within the existing provisions of Measure 11. |
| Morales | 2019 | Neurosciencia y la Capacidad de Consentimiento Sexual del Menor Victima | Michelle Ramos Morales | 88 Rev. Jur. U.P.R. 1170 (2019) | Es decir, si vamos a desarrollar política pública para que tengamos menores saludables y con un mejor porvenir, esta debe crearse luego de un estudio concienzudo de los factores que impactan a los menores. Este *1174 escrito buscará aportar una base para comenzar a subsanar esa laguna en nuestro derecho e informar el desarrollo de política pública de menores ante los hallazgos científicos del desarrollo de sus cerebros. Para ello, en la Parte I se expondrá brevemente qué es consentimiento y su aplicación al desarrollo neurológico de menores. En la Parte II se elaborará sobre los descubrimientos de la neurociencia en cuanto al cerebro de los menores de edad en comparación con el de adultos. Finalmente, en la Parte III, se abordará el marco legal relacionado a los menores, los delitos sexuales que los aquejan y su capacidad de consentimiento sexual. Lo anterior, siempre con la intención de exponer cómo las ciencias pueden y deben aportar al desarrollo de política pública que afecten a los menores de edad. |
| Clemente | 2019 | Las Renuncias Discrecionales de la Jurisdicción del Tribunal de Menores Ante el Desarrollo Cerebral a Temprana Edad | Julián M Caraballo Clemente | 88 Rev. Jur. U.P.R. 1082 (2019) | Por definición, la Neurociencia se encarga de estudiar “el sistema nervioso, con el fin de acercarse a la comprensión de los mecanismos que regulan el control de las reacciones nerviosas y del comportamiento del cerebro”.3 Nuestro análisis revisará las etapas que comprenden el proceso cognoscitivo de un cerebro joven y cómo este evoluciona conforme a la edad. Veremos la importancia del desarrollo físico cerebral en la toma de decisiones de los menores de edad y de esta forma poder determinar si estamos ante una instancia donde el actor de determinada conducta realmente comprendía la naturaleza y consecuencia de su acto. |
| Papetti | 2019 | Michelle Ramos Morales, Neurociencia Y La Capacidad De Consentimiento Sexual Del Menor víctima, 88 Rev. Jur. U.P.R. 1170 (2019) | Randy Papetti, Paige Kaneb, & Lindsay Herf | 59 Santa Clara L. Rev. 299 (2019) | If one accepts that medical diagnoses used for forensic purposes must be scientifically reliable, then many SBS/AHT diagnoses do not belong in court. The SBS/AHT diagnosis is premised on certain biomechanical and pathophysiological assumptions and beliefs, nearly all of which have been shown to be unreliable. As accurately summarized in a leading forensic neuropathology treatise: “Virtually all the hallowed tenets of SBS have been challenged on the basis of scientific principles and been found wanting or wrong.”8 Numerous studies and papers, including the only study undertaken by a scientific body, have demonstrated that the evidence base supposedly validating SBS/AHT is of very low quality and riddled with methodological flaws and biases.9 A 2018 book written by one of the authors of this article examines the SBS/AHT controversy and finds the key SBS/AHT beliefs--beliefs which, again, have led to thousands of criminal convictions and family court determinations taking children from their parents--to be so unreliable that in most cases they should be excluded from the courtroom.10 The answer to such criticisms--that courts should reject them because a consensus of child abuse specialists still believe SBS/AHT is reliable--is a response that, for the reasons set forth in this article, courts should evaluate with great caution. |
| McGregor | 2019 | Missed the Mark by a Mile | Sydney McGregor | 46 W. St. L. Rev. 155 (2019) | The scope of this article is narrow as it merely highlights recent legislation that has finally given credence to developmental science as it relates to juveniles. This article simply asks the reader to consider the policies underlying the need for such legislation and to contemplate whether the current status of our juvenile system coupled with Senate Bill 439 (“SB-439”)2 has sufficiently accomplished its purpose, or whether the juveniles who come into contact with the system are owed more. |
| Pittman | 2017 | Cruel and Unusual: The Case Against Registering Kids as Sex Offenders | Nicole I. Pittman & Riya Saha Shah | 32-SUM Crim Just. 32 (2017) | Although the country has moved forward in understanding children's culpability when it comes to sentencing juvenile offenders, it has moved in the opposite direction in responding to children who have engaged in sexual misconduct. The federal government along with 39 states register these children as sex offenders. Lists perceived as necessary to track dangerous people who preyed on children now include more than 200,000 people whose only offense was committed when they were children, some as young as eight years old. Many of their actions constitute normative or experiential behaviors, such as “playing doctor,” streaking, sexting, and teenage romances in which one or both parties are under the legal age of consent. Serious offenses are much less common and not predictive of future behavior. |
| Drogin | 2019 | Psychologist, Neuropsychologist, Clinical Neuropsychologist: An Expert by Any Other Name | Eric Drogin | 33-WTR Crim. Just. 43 (2019) | This column's inaugural outing addressed counsel's need for assistance in “deciphering the roles” of mental health experts. Roles are often helpfully defined by labels, but all criminal justice practitioners know that labels also can confuse and obscure. Although cross examination presents an opportunity to get to the bottom of labeling issues, wouldn't it be nice to gain some relevant insight ahead of time? Let's examine how a prosecutor might interact with a reputable forensic psychologist in determining what certain labels actually mean |
| Hayes | 2017 | Neurolaw: The Intersection of Science and the Law | Hannah Hayes | 25 Perspectives 12 (2017) | While the use of brain magery as evixence is not new to the courtroom, the increasing body of knowledge about hwo the brain works is finding its way into areas of the law beyond civil cases. The last 30 years have seen an explosion of research on neuroscience and behavior, and the growing field of neurolaw attempts to translate these advances in brain science into law and policy. |
| Lyngar | 2017 | Educating Judges at the Intersection of Law and Science | Joy Lyngar | 56 No. 4 Judges' J. 33 (2017) | This article includes identifies seven specific areas in which science can help judges in the courtroom and provides suggestions for further education on each area. |
| Runkle | 2017 | Neuroscience in the Courtroom and the Classroom | Deborah Runkle | 56 No. 4 Judges' J 27 (2017) | Like most new technologies, issues related to neuroscience are, in one way or the other, making their presence known in the legal system. In her study of serious criminal cases, Nita Farahany wrote that “[c]lear statistics are hard to find, but many indicators suggest that courts are increasingly encountering offers of neuroscientific evidence. . . . [M]any people in the legal system hope that insights from neuroscience can help to answer some of the hard and perennial questions law routinely faces. Criminal defendants regularly use neuroscience at every stage of the criminal process. . . .”1 Although attention has focused on the use of neuroscience in criminal cases, in litigating civil cases, neuroscience also is becoming more common. |
| Anderson | 2018 | The Disease of Addiction: Looking for Answers Behind the Numbers | Mary-Margaret Anderson | 57 No. 1 Judges' J. 1 (2018) | it is essential for judges, no matter the context in which they serve, to have the best information about the causes and effects of addiction and the best practices for treatment. This issue endeavors to provide the very latest in the neuroscience of addiction. Potential authors were asked to provide answers to the toughest questions, including: What causes addiction? How does it affect the brain? What are the best treatment options? |
| 0 | 2018 | Neuroscience: Its Future in TBI Evaluations and Litigation | Lyn Gaudet Kiehl & Jason Kerkmans | Expert Witnesses, Spring 2018, at 10 | As neuroscience advances, evaluating traumatic brain injury (TBI) in the context of litigation is becoming an increasingly complex medical-legal issue. This article provides a brief discussion of neuroimaging evidence relating to TBI evaluations in the past, present, and future. |
| Elliott | 2016 | Neuroscience and Negotiation | Kay Elkins Elliott | 25 Alt. Resol. 16 (2015-2016) | The recent interest in looking at the molecular reality of decision-making is the subject of this article. Neuroimaging, while new, holds the promise of allow unprecedent access to the mechanisms of the brain as it makes decisions. The mediator and mediation advocate can benefit fomr knowing more by being acquainted with the growing literature. |
| Hafner | 2019 | Judging Homicide Defendants by Their Brains: An Empirical Study on the Use of Neuroscience in Homicide Trials in Slovenia | Miha Hafner | J. L. & Biosciences 1-29 (2019) | This paper presents a study that analyses all available homicide trials in Slovenia between 1991 and 2015 for neuro-evidence. Almost every fifth case discusses neuroscience. The most prevalent type of neuro-evidence is neuro-psychological testing, less common are structural neuroimaging and electroencephalography, while we discovered no use of functional neu- roimaging. The two largest categories of neurological conditions suffered by defendants are traumatic brain injury and brain damage due to long-term al- cohol and drug abuse. When presented, neuro-evidence affected courts’ de- cisions in 85% of trials (15% of all tried homicide cases) and had an impact on the criminal sentence or another outcome of the trial in 79% of cases. By far most often neuro-evidence affects decisions regarding criminal ca- pacity, ie insanity and (substantially) diminished capacity, which, in turn, strongly reflects in criminal sanctions. Neuroscience information is typically used to mitigate or even reduce the sentence, but never as an aggravating cir- cumstance. It is also frequently utilized to support decisions about medical security measures (compulsory psychiatric treatment). This study further suggests that the double-edged sword of neuroscience is an elusive concept and that the mechanism by which neuroscience affects courts’ decisions in civil-law systems is different from the one in common-law jurisdictions. |
| Nojiri | 2019 | O Direito e suas Interfaces com a Psicologia e a Neurociência (The Law and its Interfaces with Psychology and Neuroscience"" | Sergio Nojiri | O Direito e suas Interfaces com a Psicologia e a Neurociência (APPRIS, ed., 2019) | Este livro reúne 11 artigos que relacionam o Direito, a partir de uma perspectiva crítica e interdisciplinar, com a Psicologia e a Neurociência. Esses textos, originalmente escritos em inglês, trazem para o público brasileiro um universo de pesquisas no campo das ciências cognitivas que farão o leitor repensar sua forma de ver, pensar e agir o Direito. Eles partem do pressuposto de que é importante o direito conhecer não somente suas origens sociais, mas também as biológicas e que é necessário um padrão mínimo de educação científica para os responsáveis pela elaboração de leis e decisões judiciais. Em suma, este livro é direcionado para quem acredita que o Direito é muito mais que um mero conjunto de regras |
| Moore | 2020 | Addiction and Responsibility | Michael Moore | in Palgrave Handbook on Criminal Law and Applied Ethics (Larry Alexander & Kim Ferzan, eds., Palgrave Macmillan 2020) | Book Summary: This handbook consists of essays on contemporary issues in criminal law and their theoretical underpinnings. Some of the essays deal with the relationship between morality and criminalization. Others deal with criminalization in the context of specific crimes such as fraud, blackmail, and revenge pornography. The contributors also address questions of responsible agency such as the effects of addiction or insanity, and some deal with punishment, its mode and severity, and the justness of the state’s imposition of it. These chapters are authored by some of the most distinguished scholars in the fields of applied ethics, criminal law, and jurisprudence. |
| Evans | 2019 | Wondrous Depths: Judging the Mind in the Nineteenth-Century America | Catherine L. Evans | 44 Law & Soc. Inquiry 828 (2019) | Susanna L. Blumenthal's Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016) is a history of the self in nineteenth-century America. When judges considered a person's criminal responsibility or civil capacity in court, they created a body of legal and political thought about the self, society, the economy, and American democracy. This essay uses Blumenthal's book to explore recent work on law and the mind in Britain and North America, and argues that abstract questions about free will, the self, and the mind were part of the everyday jurisprudence of the nineteenth century. Debates about responsibility were also debates about the psychological consequences of capitalism and the borders of personhood and citizenship at a time of rapid economic, political, and social change. |
| Drabiak | 2019 | Expanding Medication Assisted Treatement is not the Answer: Flaws in the Substance Abuse Treatment Paradigm | Katherine Drabiak | 21 DePaul J. Health Care L. 1 (2019) | As multiple stakeholders rush to address the opioid epidemic, federal policy definitively asserts Medication Assisted Treatment (MAT) constitutes the most effective solution and should be expanded to all persons with Opioid Use Disorder (OUD). This article traces how federal policy strategically collapsed different categories of persons who misuse opioids - those with physiological dependence along with persons with addiction - and why discounting relevant differences contradicts current research. Delving into controversial presumptions weaving addiction science, healthy policy, and law, this article explains the intersection between addiction and crime, personal choice and neurobiology, and analyzes how current evidence in fact demonstrates critical flaws underlying the premise of MAT. Media reports, litigation, and case law exemplify the tragic outcomes of MAT's failures when Opioid Treatment Providers offer insufficient care to address patients' underlying addiction. As a result, patients merely obtain an additional substance that fuels active polysubstance abuse, resulting in patient impairment undermining individual recovery and posing a threat to public safety and welfare. |
| Perlin | ""In the Wasteland of Your Mind"": Criminology, Scientific Discoveries and the Criminal Process | Michael L. Perlin & Alison J. Lynch | 4 Va. J. Crim. L. 304 (2016) | ||
| Jefferson | 2018 | Are Psychopaths Legally Insane? | Anneli Jefferson & Katrina Sifferd | 14 Eur. J. Analytic Phil. No. 1 2018 | The question of whether psychopaths are criminally and morally responsible has generated significant controversy in the literature. In this paper, we discuss what relevance a psychopathy diagnosis has for criminal responsibility. It has been argued that figuring out whether psychopathy is a mental illness is of fundamental importance, because it is a precondition for psychopaths’ eligibility to be excused via the legal insanity defense. But even if psychopathy counts as a mental illness, this alone is not sufficient to show the insanity defense is applicable; it must also be shown that, as a result of the illness, specific deficits in moral understanding or control are present. In this paper, we show that a diagnosis of psychopathy will generally not indicate that a defendant is eligible for an insanity defense. This is because the group of individuals subsumed under the diagnosis is so heterogeneous that while some psychopaths do show significant impairments in affect and control which may impact on their responsibility, many psychopaths are not incapacitated in a way relevant to responsibility. |
| Stafford-Clark | 2018 | Clinical and Electro-encephalographic Studies of Prisoners Charged with Murder | D. Stafford-Clark & F.H. Taylor | 12 J. Neurology, Neurosurgery & Psychiatry no. 4, at 325 (2018) | 64 prisoners who faced murder charges were examined. Methodologies included personal and family histories, physical examinations, mental state examinations, and analysis of electro-encephalograms of their brains. |
| Conrad | 1959 | The Electroencephalograph (EEG) as Evidence of Criminal Responsibility | Edwin C. Conrad | 50 J. Crim. L, Criminology, & Police Sci., no. 4, at 405 | This paper explores whether electroencephalographic studies can prove criminal responsibility. |
| Fagan | 2019 | Juvenile Self-Control and Legal Responsibility: Building a Scalar Standard | Tyler K. Fagan, Katrina Sifferd, & William Hirstein | in Surrounding Self-Control: The Philosophy and Science of Self-Control (Al Mele, Ed., 2019) | U.S. criminal courts have recently moved toward seeing juveniles as inherently less culpable than their adult counterparts, influenced by a growing mass of neuroscientific and psychological evidence. In support of this trend, we argue that the criminal law’s notion of responsible agency requires both the cognitive capacity to understand one’s actions and the volitional control to conform one’s actions to legal standards. These capacities require, among other things, a minimal working set of executive functions—a suite of mental processes, mainly realized in the prefrontal cortex, such as planning and inhibition—which remain in significant states of immaturity through late adolescence, and in some cases beyond. Drawing on scientific evidence of how these cognitive and volitional capacities develop in the maturing brain, we sketch a scalar structure of juvenile responsibility, and suggest some possible directions for reforming the juvenile justice system to reflect this scalar structure. |
| Sifferd | 2014 | What Does it Mean to be a Mechanism? Morse, Non-Reductivism, and Mental Causation | Katrina Sifferd | 11 Crim, L. & Phil. Iss. 1, at 143 (2014) | Stephen Morse seems to have adopted a controversial position regarding the mindbody relationship: John Searle’s non-reductivism, which claims that conscious mental states are causal yet not reducible to their underlying brain states. Searle’s position has been roundly criticized, with some arguing the theory taken as a whole is incoherent. In this paper I review these criticisms and add my own, concluding that Searle’s position is indeed contradictory, both internally and with regard to Morse’s other views. Thus I argue that Morse ought to abandon Searle’s non-reductive theory. Instead, I claim Morse ought to adopt a non-eliminative reductive account that can more easily support his realism about folk psychological states, and the existence of causally effective mental states in a purely physical world. |
| Sifferd | 2018 | Non-Eliminative Reductionism: Not the theory of the mind/body relationship some criminal law theorists want, but the one they need | Katrina Sifferd | in Neurolaw and Responsibility for Action: Concepts, Crimes, and Courts (Cambridge University Press), at 71 (2018) | This chapter will argue that the criminal law is most compatible with a specific theory regarding the mind/body relationship: non-eliminative reductionism. Criminal responsibility rests upon mental causation: a defendant is found criminally responsible for an act where she possesses certain culpable mental states (mens rea under the law) that are causally related to criminal harm. If we assume the widely accepted position of ontological physicalism, which holds that only one sort of thing exists in the world – physical stuff – non-eliminative reductive physicalism about the mind offers the most plausible account of the full-bodied mental causation criminal responsibility requires. Other theories of the mind/body relationship, including elminativism and non-reductive physicalism, threaten criminal responsibility because they do not offer satisfactory accounts of mental causation. Eliminativism, as the name implies, eliminates the mental or is skeptical that it can do the causal work necessary to responsibility; and non-reductive theories disconnect the mental from the physical/casual world such that the mental can no longer have reliable causal effects. |
| Sifferd | 2017 | Unconscious Mens Rea: Responsibility for Lapses and Minimally Conscious States | Katrina Sifferd | 76 Cambridge L.J., Iss. 2, at 441 (2017) | In a recent book, Neil Levy argues that culpable action – action for which we are morally responsible – is necessarily produced by states of which we are consciously aware. However, criminal defendants are routinely held responsible for criminal harm caused by states of which they are not conscious in Levy’s sense. In this chapter I argue that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the moral significance of an act is too strict, and that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity for diachronic agency and self-control, not synchronic conscious control. |
| Sifferd | Forthcoming | Chemical Castratino and Other Direct Brain Interventions as Rehabilitative Treatment | Katrina Sifferd | in Neuro-Interventions and the Law (N. Vincent & T. Nadelhoffer, eds. 2019) | I argue that chemical castration and other DBIs typically do not serve the purposes of punishment. |
| Bigenwald | 2019 | Criminal Responsibility and Neuroscience: No Revolution Yet | Ariane Bigenwald & Valerian Chambon | 10 Frontiers in Psych. (27 June 2019) | Since the 1990’s, neurolaw is on the rise. At the heart of heated debates lies the recurrent theme of a neuro-revolution of criminal responsibility. However, caution should be observed: the alleged foundations of criminal responsibility (amongst which free will) are often inaccurate and the relative imperviousness of its real foundations to scientific facts often underestimated. Neuroscientific findings may impact on social institutions, but only insofar as they also engage in a political justification of the changes being called for, convince populations, and take into consideration the ensuing consequences. Moreover, the many limits of neuroscientific tools call for increased vigilance when, if ever, using neuroscientific evidence in a courtroom. In this article, we aim at setting the basis for future sound debates on the contribution of neuroscience to criminal law, and in particular to the assessment of criminal responsibility. As such, we provide analytical tools to grasp the political and normative nature of criminal responsibility and review the current or projected use of neuroscience in the law, all the while bearing in mind the highly publicized question: can neuroscience revolutionize criminal responsibility? Answering this question implicitly requires answering a second question: should neuroscience revolutionize the institution of criminal responsibility? Answering both, in turn, requires drawing the line between science and normativity, revolution and dialogue, fantasies and legitimate hopes. |
| Rise | 2019 | Conceptualizations of Addiction and Moral Responsibility | Jostein Rise & Torleif Halkjelsvik | 10 Frontiers in Psych. (28 June 2019) | The present study explored the connection between conceptualizations of addiction and lay people’s inferences about moral responsibility. In Study 1, we investigated how natural variations in people’s views of addiction were related to judgments of responsibility in a nationwide sample of Norwegian adults. In Study 2, respondents recruited from Mechanical Turk were asked to consider different conceptualizations of addiction and report on how these would affect their judgments of moral responsibility. In Study 3, we tested whether manipulating conceptualizations through textual information and through the framing of addiction in terms of states versus behavior could influence participants’ judgments of moral responsibility. We found that attributions of moral responsibility were lower when addiction was connected to diseases and disorders, such as dysfunctional processes in the brain, and greater when addiction was associated with agency and addictive behaviors. In conclusion, different conceptualizations of addiction imply different moral judgments, and conceptualizations are malleable. |
| Kiehl-Chisolm | 2019 | Neural Interface Devices and Negligence | Scott D. Kiel-Chisholm | 26(2) Tort L.R. 104 (2019) | Neural interface devices that replace human biological parts are now becoming available to consumers. A negligence action has yet to be commenced against a person with a neural interface device in circumstances where harm to another’s property or person has occurred. This paper considers how the current law of negligence, the combination of common law and legislation, will be applied and concludes that the law may need to be adapted or modified. In particular, breach of the duty of care may recognise a standard of care different from that of an individual without a neural interface device while factual causation will experience difficulties. The courts will need to decide negligence proceedings where mind and machine are merged through the integration of a neural interface device and a human being, circumstances the courts have not considered before. |
| Raine | 2018 | Antisocial Personality as a Neurodevelopmental Disorder | Adrian Raine | 14 Ann. R. Clinical Psychol. 259 (2018) | Although antisocial personality disorder (APD) is one of the most researched personality disorders, it is still surprisingly resistant to treatment. This lack of clinical progress may be partly due to the failure to view APD as a neurodevelopmental disorder and to consider early interventions. After first defining what constitutes a neurodevelopmental disorder, this review evaluates the extent to which APD meets neurodevelopmental criteria, covering structural and functional brain imaging, neurocognition, genetics and epigenetics, neurochemistry, and early health risk factors. Prevention and intervention strategies for APD are then outlined, focusing on addressing early biological and health systems, followed by forensic and clinical implications. It is argued both that APD meets criteria for consideration as a neurodevelopmental disorder and that consideration should be given both to the possibility that early onset conduct disorder is neurodevelopmental in nature, and also to the inclusion of psychopathy as a specifier in future Diagnostic and Statistical Manual revisions of APD. |
| Raine | 2018 | The Neuromodal Theory of Antisocial, Violent, and Psychopathic Behavior | Adrian Raine | 277 Psychiatry Res. 64 (2018) | The neuromoral theory of antisocial behaviors argues that impairment to the neural circuitry underlying morality provides a common foundation for antisocial, violent, and psychopathic behavior in children, adolescents, and adults. This article reviews new findings in two research fields since this theory was first proposed: brain mechanisms underlying moral decision-making, and brain systems subserving antisocial behaviors. The neuromoral theory is updated to take into account new empirical findings. Key areas implicated in both moral decision-making and the spectrum of antisocial behaviors include fronto-polar, medial, and ventral prefrontal cortical regions, and the anterior cingulate, amygdala, superior temporal gyrus, and angular gyrus / temporoparietal junction. It is hypothesized that different manifestations of antisocial behavior are characterized by differing degrees of neuromoral dysfunction, with primary psychopathy, proactive aggression, and life-course persistent offending being more affected, and secondary psychopathy, reactive aggression, and crimes involving drugs relatively less affected by neuromoral dysfunction. Limitations of the current model, social contextual factors, neural remediation interventions, ascertaining whether the affective or cognitive component of empathy is most implicated, and directions for future research are outlined. One forensic implication of the model is that significant impairment to the neuromoral circuit could constitute diminished criminal responsibility. |
| Shen | 2019 | Free Webinar: A Student's Guide to Law and Neuroscience | Francis X. Shen | Law and Neuroscience, along with related fields such as Law and Biology and Law and Artificial Intelligence, are becoming increasingly of interest to high school, undergraduate, and graduate students. Yet because these interdisciplinary endeavors are so new, there is a significant lack of available guidance on how best to pursue studies and careers. This online webinar is being provided to help fill that gap, and address students’ most common questions about how to pursue studies and careers at the intersection of law, neuroscience, AI and related fields. The webinar will last 60 minutes, with time for interactive questions and answers. | |
| Aharoni | 2019 | Brain Scans Often Misinterpreted in Criminal Justice System | Eyal Aharoni | in Top of Mind with Julie Rose | If someone commits a crime and, afterward, doctors discover the person has a brain tumor, should the punishment be different? That’s the whole point behind the “insanity” defense –hoping for a lighter sentence by showing that on some level, a person’s brain caused the crime. No surprise, then, that it’s becoming more and more common for defense attorneys to present brain evidence in court –sometimes even MRI or CAT scans of the defendant. How much weight should judges give this evidence? |
| Zohny | 2019 | Biomarkers for the Rich and Dangerous: Why We Ought to Extend Bioprediction and Bioprevention to White-Collar Crime | Hazem Zohny, Thomas Douglas, Julian Savulescu | 13 Crim L. & Phil. 479 (2019) | There is a burgeoning scientific and ethical literature on the use of biomarkers--such as genes or brain scan results--and biological interventions to predict and prevent crime. This literature on biopredicting and biopreventing crime focuses almost exclusively on crimes that are physical, violent, and/or sexual in nature--often called blue-collar crimes--while giving little attention to less conventional crimes such as economic and environmental offences, also known as white-collar crimes. We argue here that this skewed focus is unjustified: white-collar crime is likely far costlier than blue-collar crime in money, health, and lives lost. Moreover, attempts to biopredict and bioprevent blue-collar crime may entail adopting potentially unfair measures that target individuals who are already socio-economically disadvantaged, thus compounding pre-existing unfairness. We argue, therefore, that we ought to extend the study of bioprediction and bioprevention to white-collar crime as a means of more efficiently and fairly responding to crime. We suggest that identifying biomarkers for certain psychopathic traits, which appear to be over-represented among senior positions in corporate and perhaps political organisations, is one avenue through which this research can be broadened to include white-collar crime. |
| Brown | 2019 | Evaluating Birth Injury Cases | Laura Brown | 55 - AUG Trial 46 (2019) | When a newborn suffers a brain injury resulting from lack of oxygen--often referred to as “birth asphyxia”--proving that negligence is to blame is complex and difficult. Thorough evidence gathering about the pattern, timing, and mechanism of the injury is key. |
| Ballingrud | 2019 | Ideology and Risk Focus: A Preliminary Exploration of the Effect of Judicial Ideology on Risk Focus in Supreme Court Opinion Construction | Gordon Ballingrud, Daitlein Jammo | 96 Denv. L. Rev. 793 (2019) | Literature in political science and neurology suggests that conservative politicians are more likely to use rhetoric based in fear and that conservative persons have, on average, stronger disgust and fear responses to stimuli in laboratory settings. We propose to extend this research to the Justices of the Supreme Court. If this research, which suggests that the language of fear and risk should be more prevalent among conservatives than among other ideological positions, is valid, then one should observe this pattern extend to conservative judges. The most common place in which judges touch public rhetoric is through writing opinions for the outcomes of cases that come before them. Therefore, we propose to use the Linguistic Inquiry and Word Count (LIWC) software, a common language-analysis device, to determine the risk focus of a sample of Supreme Court opinions, we find that increasing conservatism in the majority coalition of a case is linked to greater risk focus in the content of the majority opinion. |
| Marlan | 2019 | Beyond Cannabis: Psychedelic Decriminalization and Social Justice | Dustin Marlan | 23 Lewis & Clark L. Rev. 851 (2019) | Psychedelics are powerful psychoactive substances that alter consciousness and brain function. Like cannabis, psychedelics have long been considered prohibited Schedule I substances under the Controlled Substances Act of 1970. However, via the powerful psychological experiences they induce, psychedelics are now being shown to be viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, and even to enhance the wellbeing of healthy individuals. In May 2019, Denver, Colorado became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”)--a potential major shift in the War on Drugs. Ballot initiatives for the decriminalization of psilocybin and similar substances are now reaching voters in other cities and states. What principles might justify this decriminalization--eliminating criminal penalties for, at a minimum, the use and possession--of psilocybin and other psychedelics? This Article provides background on psychedelics and a historic overview of the laws surrounding them. It then considers several potential justifications for decriminalizing psychedelics: (1) medical value; (2) religious freedom; (3) cognitive liberty; and (4) identity politics. Lastly, the Article proposes that, given the neurological changes in the brain caused by use of psychedelics, psychedelic law reform can also be conceptualized as a matter of neurodiversity--a recent claim to equality holding that neurological variations should be recognized and respected along with other human differences. It is argued that situating psychedelic law reform under the neurodiversity paradigm, and thus as a matter of social justice, could lessen the stigma surrounding psychedelics and generate additional popular support for future decriminalization efforts. |
| Reniers | 2018 | Reward Sensitivity and Behavioral Control: Neuroimaging Evidence for Brain Systems Underlying Risk-Taking Behavior | Renate L.E.P. Reniers, Ulrik R. Beierholm, & Stephen J. Wood | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 105 | |
| Decety | 2018 | The Social Neuroscience of Empathy and its Relationship to Moral Behavior | Jean Decety & Jason M. Cowell | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 145 | |
| Vendemia | 2018 | The Neuroscience of Deception | Jennifer M. C. Vendemia & James M. Nye | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 171 | |
| McLernon | 2018 | The Neuroscience of Violent Offending | Heather L. McLernon, Jeremy A. Feiger, Gianni G. Geraci, Gabriel Marmolejo, Alexander J. Roberts, & Robert A. Schug | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 301 | |
| Mokros | 2018 | The Neuroscience of Sexual Offending | Andreas Mokros | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 333 | |
| Nee | 2018 | The Neuroscience of Acquistive/Impulsive Offending | Claire Nee & Stephanos Ioannou | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 359 | |
| Allely | 2018 | Neurobiolgy of Brain Injury and its link with Violence and Extreme Single and Multiple Homicides | Clare S. Allely | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 385 | |
| Fairchild | 2018 | The Neurobiology of Offending Behavior in Adolescence | Graeme Fairchild & Areti Smaragdi | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 421 | |
| Wiliams | 2018 | Engaging with Forensic Populations: A Biologically Informed Approach | Fiona Williams & Adam J. Carter | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 577 | |
| Amen | 2018 | Brain Scanning and Therapeutics: How Do You Know Unless You Look? Neuroimaging Guided Treatment in Forensic Settings | Daniel G. Amen & Kristen Willeumier | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 601 | |
| Perry | 2018 | The Impact of Neglect, Trauma, and Maltreatment on Neurodevelopment: Implications for Juvenile Justice Practice, Programs, and Policy | Bruce D. Perry, Gene Griffin, George Davis, Jay A. Perry, & Robert D. Perry | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 815 | |
| Fabian | 2018 | Forensic Neuropsychology and Violence: Neuroscientific and Legal Implications | John Matthew Fabian | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 837 | |
| McRae | 2018 | Forensic Neuropsychology in the Criminal Court: A Socio-legal Perspective | Leon McRae | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 889 | |
| Pykett | 2018 | Forensic Neuropsychology: Social, Cultural, and Political Implications | Jessica Pykett | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 917 | |
| Ward | 2018 | Explanation in Forensic Neuroscience | Tony Ward & Carolyn E. Wilshire | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 939 | |
| Carter | 2018 | Considerations for the Forensic Practitioner | Adam J. Carter & Ruth E. Mann | in The Wiley Blackwell Handbook of Forensic Neuroscience (eds. Anthony R. Beech & Adam J. Carter) at 947 | |
| Moore | 2018 | The Epiphenomenal Challenges to Responsibility of Contemporary Neuroscience | Michael Moore | in Neurolaw and Responsibility for Action: Concepts, Crimes, and Courts (Cambridge University Press), at 28 (2019) | |
| Moore | 2019 | Contemporary Neuroscience's Epiphernomenal Challenge to Responsibility | Michael Moore | in Oxford Studies in Agency and Responsibility 186 (David Shoemaker ed., 2019). | In this chapter, Moore examines the common conclusion that nobody can be blameworthy for their wrongdoings because nobody posesses the kind of agency required for moral blameworthiness. |
| Moore | 2020 | Addiction, Responsibility, and Neuroscience | Michael Moore | 2020 U. Ill. L. Rev. 375-470 (2020) | ""This Article examines the basic issue of whether addiction is a moral excuse for those otherwise wrongful behaviors done by addicts. Addiction is currently not a legal defense in Anglo-American criminal law, so this moral issue is important because if addiction is a moral excuse then it should provide such a legal defense. Answering the basic issue is pursued in four steps. First, the question is raised as to how addiction should be defined. The definition of addiction used in medicine is taken as a starting point, although the so-called “disease model of addiction” is rejected because it mistakenly attempts to build attributes of excuse into the definition of addiction. Second, a complex mix of psychological explanations of the puzzling behaviors of addicts is examined, the common conclusion being that addicts' acts of use and acquisition of drugs is irrational in a variety of senses of that word. Third, each of the explanations of the behaviors of addicts is probed as to its potential of providing moral excuse for such behaviors. Generally, no such excuse is discovered, although occasionally the irrationalities of addictive behavior does provide partial mitigation from responsibility. In reaching this generally negative conclusion about excuse, no reliance is placed on the responsibility of addicts for becoming addicts in the first place; while addicts have such responsibility, it is no substitute for the responsibility for wrongful acts done as addicts. Fourth, two generations of neuroscience research into addiction is examined for its potential to alter the prior conclusions about how addiction should be conceptualized, explained, or evaluated. Although the first generation of such research--that cast in terms of opioid drugs hijacking the pleasure center of the brain--had the potential to enlarge the excusing potential of addiction, *376 that research was not confirmed in its essential premises. The jury is still out on the potential of the second generation of such research to deepen the excusing potential of addiction."" |
| Moore | 2015 | The Quest for a Responsible Responsibility Test: Norwegian Insanity Law After Breivik | Michael Moore | 9 Crim. L. & Phil. 645 (2015) | The Breivik case in Norway has motivated a reassessment of Norwegian insanity law by the Norwegian government. Because Norway since 2002 has utilized a ‘‘medical model’’ for legal insanity—a model according to which the legal excuse of insanity is identified with some medical concept such as psychosis—the Norwegian reexamination of its law is not without interest throughout the world. In this paper, I utilize the Anglo-American experience with different medical models for insanity to assess the current Norwegian law on insanity. I defend a strong version of the medical model against standard criticisms advanced against it in the Anglo-American literature, and venture some suggested improvements in how that model was applied in the Breivik case. |
| Moore | 2014 | Compatibilism(s) for Neuroscientists | Michael Moore | in 10 Law and the Phil. Of Action 1 (Villaneuva ed., 2014) | Scientific accounts of human behavior like those sought by contemporary neuroscience challenge the idea that we can be responsible and blameable beings. I will examine this premise. |
| Morris | 2019 | Why We Need Guidelines for Brain Scan Data | Evan D. Morris | Wired | Opinion: Brain scans, aided by AI, reveal as much about you as your DNA. Grappling with their ethical implications is vital to scientific integrity |
| Cerminara | 2016 | Law, Perception, and Cultural Cognition Near the End of Life | Kathy L. Cerminara | 55 Washburn L.J. 597 (2016) | This Article will assist in navigating struggles of a prolonged death, such as Theresa Marie Schiavo's. First, Part II will briefly recount Ms. Schiavo's case as a vivid example, before delving into the relevant advances in neuroscience that have occurred since its resolution. Part II will analyze why those advances do not warrant questioning the validity of the current view of VS and MCS. Part III will explain the current sharp demarcation between these two conditions in the law of end-of-life decisionmaking. Finally, in Part IV, this Article will develop a typology of skeptics who question established, long-standing scientific conclusions such as the VS diagnosis. Use of this typology in conjunction with cultural cognition theory will aid in debates over the law relating to end-of-life decisionmaking on behalf of patients in VS. |
| Paschali | 2016 | L'exigence de maintien de traitement chez le patient à l'inconscience irréversible | Catherine Paschali | 9 McGill J. of L. & Health (2015-2016) | As technological progress pushes the boundaries of death, a new ethical and legal debate is emerging. When a patient is in a vegetative state and all hope of rehabilitation is gone, the medical community proposes withdrawing life-sustaining treatment and withholding resuscitation. However, some families, in most cases religious, oppose withdrawing treatment and request that it be maintained. In light of recent scientifc advances allowing unprecedented access to the minds of apparently unconscious patients, the Canadian legal landscape will be explored. First, the author examines how irreversible unconsciousness may justify a doctor's refusal to pursue life-sustaining treatment. Secondly, she examines the fundamental rights invoked by the relatives to support their requests for life-sustaining treatment. Lastly, she evaluates proposed solutions aimed at clarifying who has the power to decide or to initiate a dispute resolution process. In the background to this debate, science continues to advance, with *106 the hope of improving respect for the rights of apparently unconscious patients in the future. |
| Coppola | 2019 | The Brain in Solitude: An (Other) Eighth Amendment Challenge to Solitary Confinement | Federica Coppola | J. L. & Biosciences 1-42 (2019) | Solitary confinement is not cruel and unusual punishment. It is cruel and unusual if one or more of its accompanying material conditions result in a wanton and unnecessary infliction of pain upon an individual. This requirement is met when such conditions involve a “deprivation of basic identifiable human needs” to an extent that they inflict harm or create a “substantial risk of serious harm” and they are enacted with “deliberate indifference” by prison personnel. With limited exceptions, the Supreme Court and lower federal courts have perpetuated a narrow application of these standards. In particular, Courts have often discounted the generalized mental pain caused by extreme isolation. Accordingly, Courts have often neglected the duration of solitary confinement as an autonomous aspect of constitutional scrutiny. Growing neuroscientific research has emphasized that social interaction and environmental stimulation are of vital importance for physiological brain function. It has further highlighted that socio-environmental deprivation can have damaging effects on the brain, many of which may entail irreversible consequences. Drawing on these insights, this article suggests that solitary confinement is in and of itself cruel and unusual punishment even under the current standards. Avenues for a profound rethinking of solitary confinement regimes are presented and discussed. |
| Gonzalez | 2019 | Cases: A Double-Edged Sword in Germany but Not in the United States? | Daniela Guillen Gonzalez, Merlin Bittlinger, Susanne Erk, & Sabine Müller | Frontiers in Psychol. 16 | Our findings from German law students corroborates previous research on German judges but is markedly distinct from studies on United States judges. Whereas in the United States, biological information seems to have a mitigating effect, it seems to increase the rate of involuntary commitment to forensic psychiatric hospitals in Germany. |
| Dunno | 2019 | Forward: Rise of the Machines: Artificial Intelligence, Robotics, and the Reprogramming of Law | Deborah W. Denno & Ryan Surujnath | 88 Fordham L.R. 381 (2019) | This Foreword provides an overview of Rise of the Machines: Artificial Intelligence, Robotics, and the Reprogramming of Law, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School’s Neuroscience and Law Center. Neuroscience—“the branch of life sciences that studies the brain and nervous systems,”—is integral to AI development, as programmers seek to improve machines by understanding human thought patterns. During the early stages of AI, neuroscience was integral to the development of basic neural networks’ reinforcement learning. Today, modern AI research has taken cues from neurological studies to replicate human cognitive functions in an AI’s code. For example, one challenge facing modern AI is continual learning, which is the ability to master a new task without forgetting old ones. Cutting-edge neuroimaging techniques allow scientists to study plasticity in the brain’s neocortex during human continued learning; in AI research, this development has led to the creation of new deep-learning neural networks that solve the catastrophic forgetting problem. As a practical matter, the use of neuroscience in AI development seems to be leading to machines that can learn quickly and without thought instead of having to be “retaught” through costly and processing-intensive cloud computers. |
| Ryber | 2019 | Neuroinventions, Crime, and Punishment | Jesper Ryberg | (Oxford U. Press., Ed. 2019) | In Neurointerventions, Crime, and Punishment, Jesper Ryberg considers various ethical challenges surrounding this question. More precisely, he provides a framework for considering neuroethical issues within the criminal justice system and examines a set of procedures which the criminal justice system relies on to deal with criminal offending. To do this, Ryberg addresses the following questions, among others: Is it morally acceptable to offer more lenient sentences to offenders in return for participation in neuroscientific treatment programs? Or would such offers be unacceptably coercive? Is it possible to administer neurointerventions as a type of punishment? Would it be acceptable for physicians to participate in the administration of neurointerventions on offenders? What is the moral significance of the sordid history of brain interventions for the present or future use of such treatment options? As rehabilitation comes back into fashion after many decades and as neuroscientific knowledge and technology advance rapidly, these intricate and controversial topics become increasingly more urgent. Ryberg argues that many of the in-principle objections to neuroscientific treatment are premature, but given the way criminal justice systems currently function, such treatment methods should not be put into practice. |
| Ciani | 2019 | Profiling Acquired Pedophilic Behavior: Retrospective Analysis of 66 Italian Forensic Cases of Pedophilia | Andrea S. Camperio Ciani, Cristina Scarpazza, Valeria Covelli, & Umberto Battaglia | 67 Int'l J. L. & Psychiatry (2019) | Neurological disorders can be mis-diagnosed as psychiatric ones. This might happen to pedophilia emerging as a symptom of brain insult (i.e. acquired pedophilic behavior). This paper aims to delineate a behavioral profile that might help to identify defendants whose pedophilic behavior is likely to be the consequence of a neurological disorder. Through a systematic review of the literature, seventeen clinical and behavioral variables of the modus operandi and victimology that can distinguish between acquired and developmental pedophilic behavior have been collected. Seven of these were found to be consistent behavioral indicators (i.e. red flags) for acquired pedophilia. Cluster hierarchical analysis on the seventeen variables collected through the systematic review of the literature on cases of acquired pedophilic behavior was applied to a new dataset including 66 Italian closed cases of pedophilia. Stepwise regression and correlation analyses were carried out to further examine the differences between the clusters identified in the cluster analysis. Results revealed that the new sample was partitioned into two clusters. Individuals with ascertained acquired pedophilia were grouped together. The clusters widely differed for the prevalence of red flags (mean number of red flags in each cluster: 2.14 ± 0.79 vs 4.96 ± 0.93, p smaller than 0.001), while no between cluster difference emerged for the other clinical and behavioral variables. Regression analysis provided a robust model that included the three most significant red flags that explain over 64.5% of the variance (absence of masking, spontaneous confession and offenders older age). An organic origin of pedophilic behavior should be suspected if red flags are present in a defendant charged with pedophilia. In those cases, an in depth trans-disciplinary neuroscientific investigation is advocated. The behavioral profile identified might help to provide a proper assessment of defendants. |
| Hanan | 2020 | Incapacitating Errors: Sentencing and the Science of Change | Eve Hanan | 97 Denver L.R. No. 1 (forthcoming 2020) | This Article posits that the cultural belief that adults do not change poses a major impediment to “smart on crime” policies. Current sentencing policies focus on long-term incapacitation of adults with criminal records because of our folk belief that adult personality traits are immutable. Whereas adolescents are expected to mature over time, and thus can rarely be determined to require permanent incapacitation, adults lack the benefit of the presumption of change. The science of adult change has powerful implications for punishment theory and practice. In its broadest sense, the science of adult change supports an empirically grounded, normative claim that sentencing should not attempt to identify the true criminal to permanently exclude. Rather, sentencing policy should engage in only modest predictions about future behavior. The presumption of reintegration as a full member of society should be the norm. Moreover, because adult change occurs in response to environmental stimuli, the science of adult change supports both public accountability for the conditions of confinement and, ultimately, a challenge to incarceration as our primary means of responding to social harm. |
| Hamilton | 2019 | Play Now, Pay Later?: Youth and Adolescent Collision Sports | Vivian E. Hamilton | 71 Hastings L.J. 151 (2019) | The routine and repeated head impacts experienced by athletes in a range of sports can inflict microscopic brain injuries that accumulate over time, even in the absence of concussion. Indeed, cumulative exposure to head impacts--not number of concussions--is the strongest predictor of sports-related degenerative brain disease in later life. The observable symptoms of disease appear years or decades after initial injury and resemble those of other mental-health conditions such as depression and dementia. The years-long interval between earlier, seemingly minor, head impacts and later brain disease has long obscured the connection between the two. Risk of injury differs across demographics, implicating questions of social justice and complicating potential policy responses. For example, younger athletes, whose brains are still developing, are especially vulnerable to injury. Black boys and men participate in football at disproportionately high rates and are thus likely to suffer the effects of repeated head impacts at disproportionately high rates. Finally, female athletes have higher rates of injury and take longer to recover than do males in sports played by both sexes. It is unknown whether female athletes also have higher risk of long-term disease, because sex-related differences have received little attention. |
| Wolpert | 2019 | Concussions and Contracts: The National Football League's Limitations to Protecting its Players from Chronic Traumatic Encephalopathy | Julia Wolpert | 33 J.L. & Health 1 (2019) | Chronic Traumatic Encephalopathy (CTE) is a neurodegenerative brain injury that has become prevalent among high-contact professional sports, especially American football. More and more retired players are exhibiting symptoms of CTE and being diagnosed with CTE post-mortem. While the neurosciencecommunity constantly releases studies showing a causal connection between brain trauma and CTE, the National Football League (NFL) continues to deny that any brain injury can arise from playing football. The NFL must implement provisions in their contracts to fully inform and protect players from this lethal braininjury. This article examines the repercussions of CTE, how players' contracts do and do not provide protections, and the possible provisions the NFL can implement in its contracts to adequately protect players of repeated brain trauma. |
| Jordan | 2019 | The Roper Extension: A California Perspective | Zoe Jordan | 71 Hastings L.J. 197 (2019) | Although adulthood legally begins at age eighteen, young adults between the ages of eighteen and twenty-one are distinct from the rest of the adult population. Many studies conducted over the last two decades have revealed that the prefrontal cortex, the part of the brain responsible for social and emotional maturity as well as impulse control, is not fully developed until near the age of twenty-five. Thus, young adults have a neurobiologically-compromised ability to exercise self-control, adequately consider the consequences of their actions, and resist coercive pressures from others. Notably, the California Legislature has acknowledged the need to treat young adults differently than the rest of the adult population by enacting laws and programs that take their developmental deficiencies into account. Through these various enactments, the legislature has demonstrated a desire to insulate and aid this age group even though they are considered adults under the law. Despite giving these added protections and assistance, the California Legislature has inexplicably failed to exempt young adults from the most severe sentence our criminal justice system has to offer: capital punishment--a sentence traditionally reserved for the most culpable individuals who commit the most egregious crimes. Based on the diminished culpability of young adults and the legislature's own measures to offer additional assistance to these young adults, this Note proposes that the minimum age at which a California citizen should be eligible for capital punishment should be raised from eighteen to twenty-one. |
| Philipsborn | 2019 | Lawyering Competence to Stand Trial with an Eye on Neuroscience | John T. Philipsborn | 43-Nov Champion 44 (2019) | Should courts and lawyers in criminal cases be encouraged to include neuroscience in competence inquiries? Yes, lawyers addressing competence issues should gain familiarity with neuroscience-related literature, and should help courts do so as well. Lawyers should be able, particularly when the hypothesis about incompetence is being linked to possible brain dysfunction, to consider neuroscience-related techniques that could provide explanations about (and corroborating evidence of) the genuineness of the individual's incompetence. This article discusses neuroscience literature and neuroimaging case law that can help counsel effectively represent a client when competence is an issue. |
| Silbaugh | 2019 | The Legal Design for Parenting Concussion Risk | Katharine Silbaugh | 53 Univ. Cal. Davis L.R. 197 (2019) | This Article addresses a question as yet unexplored in the emerging concussion risk literature: how does the statutorily assigned parental role in concussion risk management conceptualize the legal significance of the parent, and does it align with other areas of law that authorize and limit parental risk decision-making? Parents are the centerpiece of the “Lystedt” youth concussion legislation in all fifty states, and yet the extensive legal literature about that legislation contains no discussion of parents as legal actors and makes no effort to situate their statutory role into the larger legal framework of parental authority. This Article considers the Lystedt framework from the perspective of other law engaging parental authority and parental decision-making, placing Lystedt's parental role in that larger family law framework. That lens reveals that the Lystedt legislation may be using the cultural capital of parental authority to shield youth athletic leagues from having to fully grapple with concussion risk. Under the Lystedt framework, parents are unwittingly functioning as an impediment to safety improvements, shielding athletic associations from conventional pressures to improve. The operation of Lystedt is in this way a departure from related areas of law that set boundaries on parental authority to accept risk of injury on behalf of a child, including limitations on the enforcement of parental waivers of liability. Finally, Lystedt unrealistically elevates parental responsibility without adequately providing parents the capacity and opportunity to be effective protectors of their children's welfare. I argue that in a time of intense cultural ambivalence about concussion risk in athletics, the rich concept of parental authority is expropriated in the Lystedt concussion statutes to avoid threats to the structure of youth sports that would otherwise be vulnerable to pressures to change in order to reduce *198 concussion risk. The NFL lobbied states to adopt this legislation, under which parents function to preserve the status quo. |
| Austin | 2019 | Windmills of Your Mind: Understanding the Neurobiology of Emotion | Debra Austin | 54 Wake Forest L.R. 931 (2019) | This Article describes the importance of developing mental strength and challenges lawyers to enhance their understanding of the role emotion plays in their relationships with colleagues, clients, employees, and constituents. Part II, Brain Literacy, describes key components of the emotional and thinking brains. The process of memory formation is illustrated in Part III, Learning and Memory. Part IV, Stress and Cognition, outlines the harmful impacts of stress on brain health and mental performance. The brain's automated response to emotional stimuli is detailed in Part V, Emotion. Recent research results are reviewed in Part VI, Law Students and Lawyers are at Risk for Impaired Well-being. Part VII, Emotion Regulation, explores methods for responding to emotion and the difference between survival and attachment emotions. Part VIII, Emotion and Decision-Making, depicts the process that helps us determine what outfit to wear, what rewards we are strong enough to defer to meet our long-term goals, and how public policy is shaped by emotion. Finally, Part IX, Interventions to Strengthen the Mind, links mental strength to happiness, explains three obstacles to developing mental strength that are commonly *932 experienced by law students and lawyers, and provides ten practices that can promote mental strength. This Article proposes that law students, legal educators, and lawyers will benefit from developing their emotional intelligence, as well as their understanding of the impact of emotion and stress on performance, and how building mental strength can empower their professional and personal lives. With greater emotional intelligence, individuals can improve well-being and performance, and organizations can leverage healthy human beings to enhance capacity and innovation. |
| Friedland | 2019 | Fire and Ice: Reframing Emotion and Cognition in the Law | Steven I. Friedland | 54 Wake Forest L.R. 1001 (2019) | Recent advances in neuroscience have shown that cognition and emotion often work interdependently, operating as if emerging from a single faucet. This means that the stereotypes of a divided “ice cold cognition” and “hot fire emotion” are overly simplistic and inaccurate. The outdated but influential Langdellian1 approach to law, lawyering, and legal education still places cognitive legal reasoning as the centerpiece. Instead, the existing conceptualization should be revised so that positive emotion is expressly accepted, used, and managed within legal systems.2 Students and lawyers should be taught how to successfully feel and act like lawyers, as well as to think like them. |
| Humbach | 2019 | Do Criminal Minds Cause Crime? Neuroscience and the Physicalism Dilemma | John A. Humbach | 12 Wash. U. Jurisprudence R. 1 (2019) | The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant's mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products of their criminal minds. Efforts to reconcile mind-based theories of criminal responsibility with physicalism encounter a dilemma: how can one say that everything occurs in accordance with physical laws while insisting that offenders deserve blame and punishment precisely because their conduct is not dictated by physical laws? The dilemma highlights the fact that, even if mental states can cause actions, they would have to also be “autonomous” of the physical (and physical laws) to be morally significant. Unless causative mental states are untethered to underlying neuronal activity, people's actions are not their “own” but are merely products of causal chains originating outside themselves far back in time. Thus, if mental states are not autonomous, they could no more have independent moral significance than mental states that are purely epiphenomenal. But the supposition that mental states are autonomous leads to the unpalatable suspicion that the law sends people to prison and deprivation based on spooky-spectral New Age nonsense that no modern thinker would, in any other context, believe. |
| Farahany | 2019 | The Costs of Changing our Minds | Nita A. Farahany | 69 Emory L.J. 75 (2019) | The neuroscience revolution poses profound challenges to the doctrine of avoidable consequences in tort law and exposes deep theoretical riddles about the right to our own mental experiences and memories. To address this profound question, this Article begins with a deceptively simple principle of tort law: A victim of tortious wrongdoing by another is held responsible for mitigating her own physical injuries. This Article addresses whether that same doctrine should require a tort victim to likewise mitigate her emotional injuries. The answer to that question is of great and increasing importance because it goes to the heart of how society should address dramatic advances in neuroscience that enable us to change our own minds. This Article proposes a revolutionary way to understand both the answer to this question and to bring daylight to many puzzling doctrines in law--through the right to cognitive liberty. Through an introduction to the groundbreaking concept of cognitive liberty, the confusion plaguing the doctrine of avoidable consequences in tort law for emotional distress injuries is solved and new insights are developed with respect to other doctrines in law. These implications are as far-ranging as the deliberative privilege afforded to judges to the forced competency of prisoners. It quickly becomes apparent that cognitive liberty is the interest upon which many of our most cherished freedoms are secured. |
| Matwyshyn | 2019 | The Internet of Bodies | Andrea M. Matwyshyn | 61 William & Mary L.R. (2019) | This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)--a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies--a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal and policy battle over the integrity of the human body and mind. Framing this integrity battle in light of current regulatory approaches, this Article offers a set of specific innovation-sensitive proposals to bolster corporate conduct safe-guards through regulatory agency action, contract, tort, intellectual property, and secured transactions and bankruptcy. Yet, the challenges of IoB are not purely legal in nature. The social integration of IoB will also not be seamless. As bits and bodies meld and as human flesh becomes permanently entwined with hardware, *78 software, and algorithms, IoB will test our norms and values as a society. In particular, it will challenge notions of human autonomy and self-governance. Legal scholars have traditionally considered Kantian autonomy as the paradigmatic lens for legal determinations impacting the human body. However, IoB threatens to undermine a fundamental precondition of Kantian autonomy--Kantian heautonomy. Damaged heautonomy renders both Kantian autonomy and deliberative democracy potentially compromised. As such, this Article argues that safeguarding heautonomy should constitute the animating legal principle for governance of IoB bodies. The Article concludes by introducing the companion essay to this Article, The Internet of Latour's Things. This companion essay inspired by the work of Bruno Latour offers a sliding scale of “technohumanity” as a framework for the legal and policy discussion of what it means to be “human” in an age where bodies are the “things” connected to the Internet. |
| Darby | 2019 | Lesion Network localization of Free Will | R.R. Darby, J. Joutsa, M.J. Burke, & M.D. Fox | 115 Proceedings of the National Academy of Sciences of the United States of America 42 | Our perception of free will is composed of a desire to act (volition) and a sense of responsibility for our actions (agency). Brain damage can disrupt these processes, but which regions are most important for free will perception remains unclear. Here, we study focal brain lesions that disrupt volition, causing akinetic mutism (n = 28), or disrupt agency, causing alien limb syndrome (n = 50), to better localize these processes in the human brain. Lesion locations causing either syndrome were highly heterogeneous, occurring in a variety of different brain locations. We next used a recently validated technique termed lesion network mapping to determine whether these heterogeneous lesion locations localized to specific brain networks. Lesion locations causing akinetic mutism all fell within one network, defined by connectivity to the anterior cingulate cortex. Lesion locations causing alien limb fell within a separate network, defined by connectivity to the precuneus. Both findings were specific for these syndromes compared with brain lesions causing similar physical impairments but without disordered free will. Finally, our lesion-based localization matched network localization for brain stimulation locations that disrupt free will and neuroimaging abnormalities in patients with psychiatric disorders of free will without overt brain lesions. Collectively, our results demonstrate that lesions in different locations causing disordered volition and agency localize to unique brain networks, lending insight into the neuroanatomical substrate of free will perception. |
| Sirgiovanni | 2017 | Commentary: The Moral Bioenhancement of Psychopaths | Elisabetta Sirgiovanni & Mirko Daniel Garasic | J. Med. Ethics 43 (2017) | We believe that this argument is flawed. In sum, we argue that the psychopath's cognitive-affective system would consistently justify reasons against mandatory MB to herself, even if she wishes differently for others, and that the prescription cannot be extended. What “immoral rule” is the best deducible from the psychopath's cognitive-affective system? If we think of human morality as cooperation in evolutionary terms (Curry, 2016), as the authors do, it seems that psychopaths contradict what has been held inter-culturally as a guiding principle of reciprocity, the Golden Rule. On the contrary, psychopaths respond to what we may call, from the triad, a Dark Rule. Psychopaths believe and feel that “one can treat others (i.e., manipulating, hurting, torturing, killing, etc.) in ways that one would not like to be treated.” In fact, there is no evidence that psychopaths wish to be treated (even unconsciously) in the same ways they treat others. Research shows that when viewing stimuli depicting bodily injuries adopting an image-self perspective, psychopaths have normal neural responses for pain (Decety et al., 2013). These responses do not match the atypical patterns of brain activation psychopaths show when adopting an other-perspective. Thus, the psychopath can consistently justify within her cognitive-affective system that her own case and the other psychopaths' case are relevantly different. |
| Bault | 2020 | The Art of Influencing Consumer Choices: A Reflection on Recent Advances in Decision Neuroscience | Nadège Bault & Elena Rusconi | Front. Psychol. January 2020 | In recent years, our knowledge concerning the neurobiology of choice has increased tremendously. Research in the field of decision-making has identified important brain mechanisms by which a representation of the subjective value of an option is built based on previous experience, retrieved and compared to that of other available options in order to make a choice. One body of research, in particular, has focused on simple value-based choices (e.g., choices between two types of fruits) to study situations very similar to our daily life decisions as consumers. The use of neuroimaging techniques has deepened and refined our knowledge of decision processes. Additionally, computational approaches have helped identifying and describing the mechanisms underlying newly found components of the decisional process. They provide mechanistic explanations for diverse biases that can drive decision makers away from their own preferences or from rational choices. It is now clear that both attentional and affective factors can exert robust effects on an individual’s decisions. Because these factors can be manipulated externally, academic research and theories are of great interest to the marketing industry. This approach is becoming increasingly effective in manipulating consumer behavior and has the potential to become even more effective in the future. Another line of research has revealed differences in the decision-making neural circuitry that underlie sub-optimal choice behavior, rendering some individuals particularly vulnerable to marketing strategies. As neuroscientists, we wonder whether relevant institutions should direct their efforts toward raising citizens’ awareness, demanding more transparency on marketing applications and regulate the most pervasive communication techniques in marketing, in view of their current use and of recent research progress. |
| Haarsma | 2020 | Assessing Risk Among Correctional Community Probation Populations: Predicting Reoffense with Mobile Neurocognitive Assessment Software | Gabe Haarsma, Sasha Davenport, Devonte C. White, Pablo A. Ormachea, Erin Sheena, & David M. Eagleman | Front. Psychol. January 2020 | We seek to address current limitations of forensic risk assessments by introducing the first mobile, self-scoring, risk assessment software that relies on neurocognitive testing to predict reoffense. This assessment, run entirely on a tablet, measures decision-making via a suite of neurocognitive tests in less than 30 minutes. The software measures several cognitive and decision-making traits of the user, including impulsivity, empathy, aggression, and several other traits linked to reoffending. Our analysis measured whether this assessment successfully predicted recidivism by testing probationers in a large urban city (Houston, TX, United States) from 2017 to 2019. To determine predictive validity, we used machine learning to yield cross-validated receiver–operator characteristics. Results gave a recidivism prediction value of 0.70, making it comparable to commonly used risk assessments. This novel approach diverges from traditional self-reporting, interview-based, and criminal-records-based approaches, and can also add a protective layer against bias, while strengthening model accuracy in predicting reoffense. In addition, subjectivity is eliminated and time-consuming administrative efforts are reduced. With continued data collection, this approach opens the possibility of identifying different levels of recidivism risk, by crime type, for any age, or gender, and seeks to steer individuals appropriately toward rehabilitative programs. Suggestions for future research directions are provided. |
| Tortora | Neuroprediction and A.I. in Forensic Psychiatry & Criminal Justics: a Neurolaw Perspective | Leda Tortora, Gerben Meynen, Johannes Bijlsma, Enrico Tronci, & Stefano Ferracuti | Front Psychol (provisionally accepted) | In this paper, we review and analyze the literature concerning the use of brain-reading A.I. for neuroprediction of violence and rearrest to identify possibilities and challenges regarding the future use of these techniques in the fields of forensic psychiatry and criminal justice, considering legal implications and ethical issues raised.The analysis suggests that additional research is required on A.I. neuroprediction techniques, and there is still a great need to understand how they can be implemented in risk assessment in the field of forensic psychiatry. Besides the alluring potential of A.I. neuroprediction, we argue that its use in criminal justice and forensic psychiatry should be subjected to thorough harms/benefits analyses not only when these technologies will be fully available, but also while they are being researched and developed. | |
| Kumarevel | 2020 | Dementia: An Overview for Criminal Law Practioners | Arthi Kumaravel & Eric Y. Drogin | 34 Wtr. Crim. Just. 4 (2020) | As people continue to live longer due to advances in medicine, a great proportion of the population will become afflicted by diseases that affect the brain and impair various aspects of thinking. These diseases are typically seen in the elderly, although advanced age is not synonymous with such conditions. (Andrea Schaffner, Understanding Dementia, 23 Quinnipiac Prob. L.J. 372 (2010).) Understanding the prevalence, presentation, and impact of this phenomenon is important, as more of the client base in criminal proceedings will have a potentially higher risk of being affected |
| Nadler | 2020 | Legal Regulation of Psychosurgery: A Fifty-State Survey | Roland Nadler & Jennifer A. Chandler | 39 J. Leg. Med. 335 (2020) | Following the rise and fall of lobotomy, a majority of U.S. states took legislative aim at psychosurgical procedures. This article canvasses, organizes, and analyzes the existing body of United States statutes and regulations mentioning psychosurgery. Many states regulate psychosurgery without defining the term; existing definitions are imprecise, but many would arguably apply to contemporary procedures like deep brain stimulation. Common to many states are restrictions on surrogate consent to psychosurgery, codifications of patients' consent or refusal rights, and situation-specific bans on the practice targeting certain contexts of vulnerability. Many states have only a handful of scattered laws bearing on psychosurgery, but a few have wide-ranging and well-integrated regulatory regimes. In reviewing these laws we perceive much room for harmonization and modernization. Greater consistency in protecting vulnerable persons from troubling uses of psychosurgery is achievable even alongside an effort to remove undue legal obstacles impeding patient access to potentially therapeutic procedures. Our hope in surveying current psychosurgery law is to inaugurate a conversation on how best to shape its future. |
| Willoughby | 2006 | Timing Brain Damange in Birth Injury Cases | Wayne M. Willoughby & Zev T. Gershon | Trial Reporter, Summer 2006, at 8. | When the parents of a child diagnosed with brain damage in the first year of life come to your office for help, the first question is usually whether the damage could have been prevented. If it was caused by an injury during the perinatal period (around the time of birth) and could have been avoided with a timely delivery--for example, if the health care providers had reacted to worrisome fetal heart rate tracings--your prospective clients could have a viable medical negligence claim. |
| Apfel | 2000 | Evaluating Obstetric Malpractice Cases: A Primer for the Trial Attorney | Dov Apfel | Trial Reporter, Summer 2000, at 11. | Whenever maternal, fetal or neonatal conditions interfere with normal blood flow to the fetal or newborn brain, or reduce the oxygen content of the blood perfusing the fetal or newborn brain tissue--either before the onset of labor, or during labor and delivery, or during the early neonatal period--the potential for irreversible brain damage exists.1 Sometimes the clinical condition of the newborn or the neuroimaging results shortly after birth will alert the physicians and parents to the fact that the baby may have suffered permanent brain injury. In other cases, the parents may suspect that their child suffered brain damage when the child fails to achieve developmental milestones during the first year of life. Regardless of when the parents find out about their child's condition, they are routinely told by treating physicians that no one knows what causes cerebral palsy, or that the outcome was unavoidable, or that the event causing the brain damage must have occurred before labor and delivery. Many parents suspect, however, that the facts and circumstances that led to their child's brain damage were not fully disclosed. Therefore, they may decide to retain an attorney to conduct an independent evaluation of the medical records. When approached to evaluate the circumstances arising in a birth trauma case, lawyers routinely are required to consider whether: (1) there were warning signs of fetal compromise or distress during the antepartum (before onset of labor) or intrapartum (during labor and delivery) period that should have prompted the obstetrician to intervene and expedite the delivery, (2) the treating physicians timely diagnosed and properly managed those fetal, maternal, or neonatal conditions capable of causing irreversible brain damage, and (3) earlier obstetrical intervention, expedited delivery, or timely resuscitation and neonatal care would have prevented the brain damage. |
| Fick | 1999 | Brain Injury: A Matter of Proof | Nathaniel Fick | Trial Reporter, Spring 1999, at 14. | Two million people suffer traumatic brain injury (TBI) in the United States each year.1 A severe TBI case is obvious to all: an individual who has incurred a compound, comminuted, depressed skull fracture and who has spent days or weeks in coma. These cases, however, account for only 20% of all TBI hospitalizations.2 The remaining 80% are classified as mild to moderate cases. There is a high probability that many more such cases go entirely undetected. The challenge lies in recognizing and being able to successfully represent those people who appear normal but are actually victims of this “silent epidemic.” The mild to moderate closed head injury is so misunderstood and overlooked that victims may never receive appropriate medical diagnosis and care, appropriate insurance benefits or proper legal representation. It is important for lawyers to be familiar with the signs and symptoms of a mild to moderate TBI and to present the injury convincingly in court. |
| Krueger | 2013 | Oxytocin Selectively Increases Perceptions of Harm for Victims but not the Desire to Punish Offenders of Criminal Offenses | Frank Krueger, Raja Parasuraman, Lara Moody, Peter Twieg, Ewart de Visser, Kevin McCabe, Martin O'Hara, & Mary R. Lee | 8 Soc. Cognitive & Affective Neuroscience 494 (2013) | The neuropeptide oxytocin functions as a hormone and neurotransmitter and facilitates complex social cognition and approach behavior. Given that empathy is an essential ingredient for third-party decision-making in institutions of justice, we investigated whether exogenous oxytocin modulates empathy of an unaffected third-party toward offenders and victims of criminal offenses. Healthy male participants received intranasal oxytocin or placebo in a randomized, double-blind, placebo-controlled, between-subjects design. Participants were given a set of legal vignettes that described an event during which an offender engaged in criminal offenses against victims. As an unaffected third-party, participants were asked to rate those criminal offenses on the degree to which the offender deserved punishment and how much harm was inflicted on the victim. Exogenous oxytocin selectively increased third-party decision-makers’ perceptions of harm for victims but not the desire to punish offenders of criminal offenses. We argue that oxytocin promoted empathic concern for the victim, which in turn increased the tendency for prosocial approach behavior regarding the interpersonal relationship between an unaffected third-party and a fictional victim in the criminal scenarios. Future research should explore the context- and person-dependent nature of exogenous oxytocin in individuals with antisocial personality disorder and psychopathy, in whom deficits in empathy feature prominently. |
| Denno | 2019 | How Courts in Criminal Cases Respond to Childhood Trauma | Deborah W. Denno | 103 Marquette L. Rev. 301 (2019) | Neurobiological and epidemiological reearch suggests that abuse and adverse events experienced as a child can increase an adult's risk of brain dysfunction associated with disorders related to criminality and violence. Much of this research is predictive, based on psychological evaluations of children; few studies have focused on whether or how criminal proceedings against adult defendants consider indicators of childhood trauma. This Article analyzes a subset of criminal cases pulled from an 800-case database created as part of an original, large-scale, empirical research project known as the Neuroscience Study. |
| Young | 2010 | Damage to Ventromedial Prefontal Cortex Impairs Judgment of Harmful Intent | Liane Young, Antoine Bechara, Daniel Tranel, Hanna Damasio, Marc Hauser, & Antonio Damasio | 65 Neuron 845 (2010) | Moral judgments, whether delivered in ordinary experience or in the courtroom, depend on our ability to infer intentions. We forgive unintentional or accidental harms and condemn failed attempts to harm. Prior work demonstrates that patients with damage to the ventromedial prefrontal cortex (VMPC) deliver abnormal judgments in response to moral dilemmas and that these patients are especially impaired in triggering emotional responses to inferred or abstract events (e.g., intentions), as opposed to real or actual outcomes. We therefore predicted that VMPC patients would deliver abnormal moral judgments of harmful intentions in the absence of harmful outcomes, as in failed attempts to harm. This prediction was confirmed in the current study: VMPC patients judged attempted harms, including attempted murder, as more morally permissible relative to controls. These results highlight the critical role of the VMPC in processing harmful intent for moral judgment. |
| Mackey | 2019 | Neuroimaging-Based Pain Biomarkers: Definition, Clinical and Research Applications, and Evaluation Frameworks to Achieve Personalized Pain Medicine | Sean Mackey, Hentry T. Greely, & Katherine T. Martucci | 4 PAIN Reports 762 (2019) | One of the key ambitions of neuroimaging-based pain biomarker research is to augment patient and clinician reporting of clinically relevant phenomena with neural measures for prediction, prognosis, and detection of pain. Despite years of productive research on the neuroimaging of pain, such applications have seen little advancement. However, recent developments in identifying brain-based biomarkers of pain through advances in technology and multivariate pattern analysis provide some optimism. Here, we (1) define and review the different types of potential neuroimaging-based biomarkers, their clinical and research applications, and their limitations and (2) describe frameworks for evaluation of pain biomarkers used in other fields (eg, genetics, cancer, cardiovascular disease, immune system disorders, and rare diseases) to achieve broad clinical and research utility and minimize the risks of misapplication of this emerging technology. To conclude, we discuss future directions for neuroimaging-based biomarker research to achieve the goal of personalized pain medicine. |
| Robinson | 2020 | I Wish I Knew Then What I Know Now: Looking to the Objective Science in Evaluating Juveniles' (In)competency | Tina M. Robinson | 49 Sw. L. Rev. 144 (2020) | Forensic psychologists, along with legal experts and juvenile advocates, have been arguing for decades that juveniles--especially adolescents age and younger--cannot be competent.10 Although some change has been made according to neuroscience,11 the law has been a dinosaur in catching up with the objective research that has shown proof of what scholars have been arguing for years. Recently, modern technology has provided means to conduct objective studies that further support the argument that juvenile statutes should be redefined in order to be specific to juvenile competency issues.12 While papers have addressed this scientific evidence, specifically about the evidence regarding juveniles' underdeveloped prefrontal cortex,13 *146 little has been discussed about how modern technology has been used to show juveniles also have other underdeveloped parts of the brain, including how research has given objective data on how psychosocial development, along with other biological factors, are intertwined and affect competency.14 This note will argue that it is time for states to catch up with the times and create statutes based on this collaborative, objective evidence. In addition, this note will argue that based on this objective information, there is a strong argument that not only are juveniles not able to be competent, but that based on science, a juvenile's brain is malleable15 and therefore, they should not be automatically sent to juvenile facilities that promote recidivism versus rehabilitation--as is the current norm16--but instead be placed in treatment facilities according to their deficiencies. This would restore the original intent of the juvenile justice system--rehabilitation, not punishment. |
| Hurley | 2019 | Juvenile Life without Parole: How the Supreme Court of Ohio Should Interpret Montgomery v. Louisiana | Grace O. Hurley | 68 Clev. St. L. Rev. 102 (2019) | Regardless of the numerous differences between juveniles and adults, some states, including the State of Ohio, continue to impose upon juvenile homicide offenders one of the harshest forms of punishment: life without parole. In 2016, the United States Supreme Court decided Montgomery v. Louisiana, and in doing so, the Court reiterated its previous contention that a sentence of juvenile life without parole should only be imposed upon juvenile homicide offenders whose crimes reflect “irreparable corruption.” The Supreme Court of Ohio has yet to apply the Court's Montgomery decision, but this Note suggests that if it does, the court should utilize the case as a way to end the imposition of this type of sentence on juveniles in Ohio. |
| McAllister | 2019 | Cybernetic Enhancement of Soldiers: Conserving Hors de Combat Protections for Combatants Under the Third Geneva Convention | Amanda McAllister | 7 J. L. & Cyber Warfare 67 (2019) | This Articles argues that the cybernetic enhancement of soldiers will pierce serious legal lacunae through the mask of hors de combat statuses under LOAC and GCIII and further argues that an additional *73 Geneva Convention is necessary to address the incoming revolution in military affairs.22 Part I begins with the development of LOAC and elaborates on POW protections under the GCIII and hors de combat status determinations. Part II explores brain-computer interfaces (BCI) as emerging technologies seeking to outfit soldiers to enhance their abilities beyond the “human.” Next, Part II introduces “the emergence of a creature known as the cyborg,” as well as the thickening mist of post-humanism surrounding our interactions with technology.23 Part III then explores how BCIs fused with soldiers, and specifically DARPA's proposed brain chips to make possible network-enabled telepathy and cerebral control of UAVs, would erode rather than bolster protections and lead to denials of POW status under the GCIII for captured or surrendering combatants. Part III closes by examining how these issues may be exacerbated against the linguistic and rhetorical challenges of post-humanism. Last, Part IV proposes plans for an additional Geneva Convention to address technology, including cybernetic enhancement, as a revolution in military affairs. |
| Ligthart | 2019 | Coercive Neuroimaging , Criminal Law, and Privacy: A European Perspective | Sjors L.T.J. Ligthart | 6 J. L & Biosciences 289 (2019) | Different studies have shown that neuroimaging technologies can contribute to answering crucial legal questions of criminal law, generally regarding guilt, legal insanity and the risk of recidivism. However, the use of neuroimaging in criminal law also raises important legal questions. One of those questions is whether neuroimaging should be applied coercively to defendants and prisoners in light of privacy considerations. This paper examines this question regarding the European legal context. I argue that most neuroimaging applications yield data, which is, in terms of privacy sensitivity, no more sensitive than data acquired through current methods of criminal investigation, such as compulsory DNA testing. Therefore, I argue that some types of coercive neuroimaging will, in general and under certain specific conditions and safeguards, not contravene the right to privacy as set out in Article 8 of the European Convention on Human Rights. I suggest that while on the one hand one could advocate the need for a novel, specific European human right to mental privacy, on the other hand, it is possible to argue that such a right may be superfluous in respect of the use of existing neuroimaging technologies. |
| Shen | 2020 | Aging Judges | Francis X. Shen | 81 Oh. St. L.J. 235, 235-314 (2020) | America’s judiciary is aging. The average age of federal judges is 69 years old, older than it has been at any other time in the country’s history. The typical reaction to this demographic shift is concern that aging judges will serve past their prime. Scholars have thus offered proposals for mandatory judicial retirement, judicial term limits, and mechanisms for judicial removal. In this Article, I critique such proposals and draw on cognitive neuroscience to argue that rather than forcing their retirement, we should be empowering aging judges. The central neuroscientific insight is that individual brains age differently. While at the population level, age generally leads to reductions in information processing speed, and for some, serious deficits in memory and decision-making capacity, there is much individual variation. An 80-year old judge is at significantly greater risk for dementia than a 50-year old judge. But it does not follow that all 80-year old judges have diminished cognitive capacities, nor that all 50-year old judges are free from cognitive decline. Given individual differences in how aging affects cognitive decline, the current system — which mandates intense health scrutiny when a judge is younger, followed by no required medical evaluation for the rest of the judge’s career — can be vastly improved. I argue that we can empower judges by providing them opportunities for confidential, accurate, and thorough cognitive assessments at regular intervals throughout their judicial careers. If carefully developed and implemented so as to avoid politicization and to ensure complete confidentiality of results, individualized judicial cognitive health assessments will allow judges to make more informed decisions about when and how to modify their service on the bench. More individualized assessment will allow the legal system to retain the wisdom of experienced judges, while avoiding the injustice that comes with handing over the courtroom to a judge who is no longer capable of running it. |
| de Leeuw | 2020 | Personhood in the Age of Biolegality | Marc de Leeuw & Sonja Van Wichelen | n/a | This volume showcases emerging interdisciplinary scholarship that captures the complex ways in which biological knowledge is testing the nature and structure of legal personhood. Key questions include: What do the new biosciences do to our social, cultural, and legal conceptions of personhood? How does our legal apparatus incorporate new legitimations from the emerging biosciences into its knowledge system? And what kind of ethical, socio-political, and scientific consequences are attached to the establishment of such new legalities? The book examines these problems by looking at materialities, the posthuman, and the relational in the (un)making of legalities. Themes and topics include postgenomic research, gene editing, neuroscience, epigenetics, precision medicine, regenerative medicine, reproductive technologies, border technologies, and theoretical debates in legal theory on the relationship between persons, property, and rights. |
| Sinclair-House | 2020 | Addiction is a Brain Disease, and it Doesn't Matter: Prior Choice in Drug Use Blocks Leniency in Criminal Punishment | Nicholas Sinclair-House, John J. Child, & Hans S. Crombag | 26 Psychol. Pub. Pol'y & L. 36 (2020) | Our aim was to explore how (neuro)scientific understanding of addiction as a brain-disease impacts criminal sentencing decisions in courts in England and Wales, where legal rules concerning intoxication, prior-fault and mental disease conflict, and sentencing guidelines lack clarity. We hypothesized that despite significant neuropsychiatric overlap of addiction and other brain-disorders, variables in relation to etiology would moderate magistrates’ sentencing decisions in cases involving addicted offenders. Using a questionnaire-based, quantitative design, and combining frequentist and Bayesian analysis approaches, we probed court magistrates’ sentencing decisions, and underlying rationale, for defendants presenting with brain damage resulting from a (fictional) disease, addiction to heroin, or more complex, mixed etiologies. When identical neuropsychiatric profiles resulted from disease, but not heroin addiction, prison sentences were significantly reduced. Study 1 (N=109) found the pivotal factor preventing addiction from mitigating sentences was perceived choice in its acquisition; removing choice from addiction increased the odds of sentence reduction (~20- fold) and attaching choice to disease aggravated or reversed earlier leniency. Study 2 (N=276) replicated these results and found that when heroin use led to disease or vice versa, magistrates found middle ground. These differences were independent of the age of first drug use. Finally, evidence of addiction was more likely to evoke punishment considerations by magistrates, rather than rehabilitation. Consistent with legal rules relating to intoxication but running counter to norms around mental-illness and choice, our results demonstrate the need for greater clarity in sentencing guidance on addiction specifically, and mental disorders more generally |
| Casey | 2019 | Healthy Development as a Human Right: Lessons from Developmental Science | B.J. Casey | 102 Neuron. 724 (2019) | Healthy psychological and brain development is not a privilege, but a fundamental right that requires special protections and opportunities for building cognitive, emotional, and social skills necessary for becoming a contributing member of our society. |
| Fox | 2019 | Subversive Science | Dov Fox | 124 Penn St. L. Rev. 153 (2019) | This Article introduces the phenomenon of subversive science, reveals its operation in modern American society, and analyzes its implications for law and policy amidst calls to defund or repress controversial lines of inquiry. Existing debates center on whether cutting-edge science casts doubt on abstract ideals that animate our legal system, from racial equality to criminal responsibility. This focus misses the deeper and more practical danger that lies in how citizens misperceive and misapply these ideals in election and trial decisions. What makes certain science “subversive” is its power to shake the public's faith in those democratic cornerstones. Emerging bodies of psychology research show that presenting voters with genomic studies of group differences makes them less willing to fund early education for the underprivileged. In a similar vein, brain imaging studies--that predict whether people will commit certain acts before they even intend to--can lead jurors to question free will and acquit guilty defendants. Neither scientific illiteracy nor cultural worldviews explains away these results, defying the orthodoxy that individuals conform their views on contested matters to their command of the facts or values that define their identities. Refraining the debate about subversive science means targeting the transmission of knowledge, rather than its production. I advance a range of systematic reforms to combat the alternative facts and cognitive bias through novel forms of engagement in congressional hearings, classroom lessons, and courtroom testimony. |
| Cicirello | 2019 | Raising the Age of Juvenile Delinquency: What Science Says About the Age of Maturity and Legal Culpability | Brittany Cicirello | 53 Prosecutor 4 (2019) | In Roper v. Simmons, 543 U.S 551 (2005), the United States Supreme Court incorporated recent discoveries in developmental neuroscience to eliminate the death penalty for persons under the age of eighteen. Since that case, advocates have pointed to Roper to justify raising the age of juvenile delinquency and protect a newly-created category of emerging adults (aged 18-35 years old). While psychology and developmental neuroscience have made significant progress in documenting the development changes of adolescents (ages 12-18), both lack concentrated attention on emerging adults. Each discipline also comes to a different conclusion concerning an individual's maturity. What proponents of developmental neuroscience, and of the psychological studies as well, fail to address is (1) how these differences in maturity affect a person's pro-social decision-making and (2) how these differences are legally significant. These scientific developments do have a place in informing policymakers decisions regarding treatment options, sentencing mitigators, or changes to expungement laws. To stretch the science to support wholesale reform of the juvenile justice system and raise the age of juvenile delinquency from eighteen to twenty-five years old is unwarranted. The science may support the need to include age as a mitigating factor at sentencing as well as increase the expungement opportunities for crimes committed by the emerging adult group. Any change beyond that is not supported by the scientific findings at this time. |
| Paruch | 2019 | Banishing Juvenile Solitary Confinement: A Call to Reform Michigan's Practices | Deborah Paruch | Mich. B.J., Nov. 2019, at 40. | This article addresses the practice of subjecting juveniles to solitary confinement and its shattering effects on mental health. It presents the current state of national and international law on this issue and shows that Michigan's current practice of subjecting juveniles to extended periods of isolation violates international law, contradicts current trends in state and federal law, and is contrary to evolving standards of decency. |
| Shen | 2013 | Legislating Neuroscience: The Case of Juvenile Justice | Francis X. Shen | 46 Loy. L.A. L. Rev. 985 (2013). | Neuroscientific evidence is increasingly being introduced in legal contexts, and neurolaw scholarship is correspondingly on the rise. Yet absent from neurolaw research to date are extended examinations of neuroscience in legislative domains. This Article begins to fill that gap with a focus on the illustrative case of neuroscience and juvenile justice in state legislatures. Such examination reveals distinctions between lab neuroscience, lobbyist neuroscience, and legislator neuroscience. As neuroscience narratives are constructed in the policy stream, normative questions arise. Without courtroom evidentiary rules to guide the use of neuroscience in legislatures, these questions are complicated. For instance, to what extent should lobbyists and legislators adhere to the complexities and caveats of laboratory science? How much should lawmakers simplify and reformulate the scientific findings to achieve desired policy ends? The Article argues that the construction of neuroscience narratives is necessary and desirable, but if the narratives diverge too greatly from actual research findings, they may ultimately undermine the efficacy of the neuroscience in policymaking |
| Morse | 2019 | Neuroscience and Criminal Law: Perils and Promises | Stephen J. Morse | ,in The Palgrave Handbook of Applied Ethics and the Criminal Law (Larry Alexander & Kimberly Kessler Ferzan eds., 2019). | This chapter addresses the potential contributions of neuroscience to criminal justice decision-making and policy, with special emphasis on criminal responsibil- ity. The neurosciences in question are the behavioral neurosciences, such as cog- nitive, affective, and social neuroscience, because these are the types of neuroscience most relevant to law. There have been major advances in these fields since the beginning of the present century when non-invasive functional magnetic resonance imaging (fMRI) to investigate brain function became widely available for research. The central question for this chapter is whether the neuro- science is relevant to criminal justice. The general conclusion is that it is scarcely useful at present but may become more relevant as the science progresses. |
| Morse | 2020 | Against the Received Wisdom: Why the Criminal Justice System Should Give Kids a Break | Stephen J. Morse | Crim. L. & Phil. (2020) | Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review. After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break. If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable. Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: 1) coherence and simplicity; 2) a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and 3) a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability. |
| Gagnon | 2019 | Stress Impairs Episodic Retrieval by Disrupting Hippocampal and Cortical Mechanisms of Remembering | S.A. Gagnon, M. Waskom, T.I. Brown, & A.D. Wagner | 29 Cerebral Cortex 2947 (2019) | Despite decades of science investigating the neural underpinnings of episodic memory retrieval, a critical question remains: how does stress influence remembering and the neural mechanisms of recollection in humans? Here, we used functional magnetic resonance imaging and multivariate pattern analyses to examine the effects of acute stress during retrieval. We report that stress reduced the probability of recollecting the details of past experience, and that this impairment was driven, in part, by a disruption of the relationship between hippocampal activation, cortical reinstatement, and memory performance. Moreover, even memories expressed with high confidence were less accurate under stress, and this stress-induced decline in accuracy was explained by reduced posterior hippocampal engagement despite similar levels of category-level cortical reinstatement. Finally, stress degraded the relationship between the engagement of frontoparietal control networks and retrieval decision uncertainty. Collectively, these findings demonstrate the widespread consequences of acute stress on the neural systems of remembering |
| Brown | 2020 | Stress Disrupts Human Hippocampal-Prefontal Function during Prospective Spatial Navigation and Hinders Flexible Behavior | Thackery I. Brown, S.A. Gagnon, & A.D. Wagner | Brown, Thackery I., Gagnon, S. A., Wagner, A.D., Stress Disrupts Human Hippocampal-Prefrontal Function during Prospective Spatial Navigation and Hinders Flexible Behavior, Current Biology 30(10) 1821-1833 (2020) | |
| Philipsborn | 2020 | The Court Related Risk Assessment Radar: Should Neuroprediction and Inferences from Neuroimaging Be on it? | John Philipsborn | 38 Am. J. Forensic Psychol. 5 (2020) | This article, by a veteran criminal defense lawyer who has been conducting research on risk assessment methods that are either used in or at least considered by courts and associated programs in the United States, is focused on the proliferation of risk assessment tools and approaches. It considers whether neuroprediction and the use of neuroscience methods like brain imaging studies have gained acceptance with scholars and researchers whose works have been referenced in judicial decisions, and who are recognized for their influence on the development of the field of criminal justice related risk assessment—particularly the assessment of risk of violence. The conclusion is that the weight of current scholarship is still on the side of viewing neuroprediction as a hypothesis in need of further testing, and as an endeavor that is not yet sufficiently well accepted and validated as to be able to be viewed as fitting the predominant legal definition of a reliable endeavor—though established researchers continue to develop the field and the techniques associated with it. |
| Player | 2019 | Involuntary Civil Commitment: A Solution to the Opioid Crisis? | Candice T. Player | 71 Rutgers U. L. Rev. 589 (2019) | The United States is in the grip of a deadly opioid crisis, fueled by prescription opioids and the appearance of fentanyl in the drug supply. Despite the anguish that people with drug addictions experience, most people who are addicted to drugs do not seek treatment voluntarily. To that end, families are urging legislators to expand access to involuntary civil commitment, as a tool to combat the opioid crisis. While courts have broad authority to confine people with substance use disorders, and doing so might be associated with positive outcomes, including reductions in drug use, using civil commitment to force people with substance use disorders into treatment despite their objections presents an ethical dilemma. States have the parens patraie authority to care for people who are unable to care for themselves, but in their current form, most civil commitment statutes reach people with substance use disorders who are competent to make treatment decisions. There is a place for civil commitment, but without a judicial determination of incompetence, using civil commitment to confine drug users is a dangerous exercise of the parens patriae power. |
| Kuersten | 2020 | Tasing the Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, and the Validity of Subsequent Constitutional Rights Waivers | Andreas Kuersten | Wm. & Mary Bill Rts. J. (forthcoming 2020) | Conducted electrical weapons (CEWs) — the most famous and widely used of which are offered under the TASER brand — are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike — that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates criminal suspects’ ability to understand Miranda warnings given by officers and to competently waive their constitutional rights against self-incrimination and to counsel. Some have gone so far as to recommend a mandated delay between when suspects are tased and when officers may administer Miranda warnings in order to protect individuals’ rights. Intimate understandings of the law of Miranda v. Arizona and the true effects of CEWs on cognitive capacity are critical for determining the prudence of this recommendation, and have broader implications for the criminal justice system. This Article is the first to conduct a thorough survey and analysis of the law of Miranda with regard to how courts determine whether individuals’ waivers of their constitutional rights following Miranda warnings are knowing, intelligent, and voluntary. Ultimately, cognitive capacity is an important factor, but, in examining this faculty, courts generally rely most heavily on subjective indicia of mental acuity manifested at the time Miranda warnings were administered — e.g., reasoning ability, tone, bodily movements, and temperament. Objective indicia of mental acuity — i.e., those shown through empirical research to signal cognitive ability, such as age, education, intelligence, and blood alcohol content — are routinely treated as less valuable than subjective indicia, particularly when the two are in opposition. This presents a high bar for empirical research on the cognitive effects of CEWs to scale in order to meaningfully influence court determinations of the legitimacy of rights waivers. This Article is also the first to conduct a comprehensive survey and examination of the literature addressing the cognitive effects of CEWs and compare these effects to those of other forceful arrest methods. Studies reveal that, rather than having a unique effect on cognition through some interaction between electric current and the brain, CEWs actually appear to impact mental faculties through a general stress effect, which other forceful methods of arrest have as well — e.g., physical altercation, police dog attack, and pepper spray. Therefore, an exceptional rule requiring a delay in administering Miranda warnings to suspects subject to CEWs does not seem appropriate. Nevertheless, the literature does show forceful arrest methods meaningfully affecting individual mental acuity. While more research is necessary to more finely deduce the extent of these impacts, they appear to be such that courts should consider a forceful arrest close enough in time to the administration of a Miranda warning to be a negative factor in assessing defendants’ competence to waive their rights, similar to evidence indicating low intelligence or intoxication at the time of waiver. |
| Kuersten | 2020 | Legal Ramifications of Brain-Computer-Interface Technology | Andreas Kuersten | 11(1) AJOB Neuroscience 61 (2020) | |
| Kuersten | 2019 | Brain Modulation and Patent Law | Andreas Kuersten & Anna Wexler | 37(1) Nature Biotechnology 18 (2019) | ""Neurotechnologies aimed at directly influencing the brain are advancing at a considerable rate. Correspondingly, as shown by Roskams-Edris et al.1, the number of approved patents related to methods for direct brain modulation in the United States has increased considerably over the last two decades. But Roskams-Edris et al. argue that such patent rights should not be permitted. We respectfully disagree"" |
| Beecher-Monas | 2020 | Fundamentals of Neuroscience and the Law: Square Peg, Round Hole | Erica Beecher-Monas & Edgar Garcia-Rill | n/a | ""Twenty years ago, a neuroscientist and a legal scholar became friends and (as truly great researchers are wont to do) intellectual collaborators. In many ways, this book is the culmination of the intellectual partnership between Erica Beecher-Monas and Edgar Garcia-Rill. It is with great sadness that I write this foreword after my dear friend, Erica, passed away in 2017. For those of us who knew Erica, we had the privilege of engaging with a person who was truly excited by ideas. Erica loved ideas and threw herself into the life of the law, developing her unique concept of intellectual due process in the context of scientific evidence. This set her apart among scholars of evidence law – an area of the law that is dominated by male legal scholars. Erica’s contributions in the areas of scientific evidence and the intersection of neuroscience and law are groundbreaking. Erica, of course, was more than an impressive academic mind. She possessed a wonderful spirit. Erica lived life large. She enjoyed and embraced life and the world. She was generous, kind, and enthusiastic. Even after her illness required her to use an oxygen tank, Erica would cheerfully tell you that it was “no big deal.” Life was good, and her illness would be fixed by modern medicine. She persevered through her illness with a positive attitude that was remarkable. Add to this indomitable spirit the partnership she formed with neuroscientist Edgar Garcia-Rill, and the result is the book you have in front of you. I was privileged to have a ringside seat as Edgar and Erica began their intellectual collaboration. I was a lucky observer and occasional participant at many a dinner party as they discussed and sparred over ideas. Both possess a similar engagement with ideas and a desire to inform and educate the world for the benefit of society as a xii Foreword whole. Erica and Edgar wrote six articles together about the intersection of neuroscience and law. Their collaboration was unique in the legal and scientific academy and contributed a truly novel approach to how brain science can inform legal rules. I only wish that their partnership could have lasted longer. However, we should all be grateful that, prior to Erica’s death, she and Edgar committed to paper this last collaboration."" |
| Moore | 2020 | Mechanical Choices: The Responsibility of the Human Machine | Michael S. Moore | n/a | ""Mechanical Choices details the intimate connection that exists between morality and law: the morality we use to blame others for their misdeeds and the criminal law that punishes them for these misdeeds. This book shows how both law and morality presuppose the accuracy of common sense, a centuries-old psychology that defines people as rational agents who make honorable choices and act for just reasons. It then shows how neuroscience is commonly taken to challenge these fundamental psychological assumptions. Such challenges--four in number--are distinguished from each other by the different neuroscientific facts from which they arise: the fact that human choices are caused by brain events; the fact that those choices don't cause the actions that are their objects but are only epiphenomenal to those choices; the fact that those choices are identical to certain physical events in the brain; and the fact that human subjects are quite fallible in their knowledge of what they are doing and why. The body of this book shows how such challenges are either based on faulty facts or misconceived as to the relevance of such facts to responsibility. The book ends with a detailed examination of the neuroscience of addiction, an examination which illustrates how neuroscience can help rather than challenge both law and morality in their quest to accurately define excuses from responsibility."" |
| Aono | 2019 | Neuroscientific Evidence in the Courtroom: A Review | Darby Aono, Gideon Yaffe & Hedy Kober | 4(40) Cognitive Res.: Principles & Implications 1 (2019) | ""The use of neuroscience in the courtroom can be traced back to the early twentieth century. However, the use of neuroscientific evidence in criminal proceedings has increased significantly over the last two decades. This rapid increase has raised questions, among the media as well as the legal and scientific communities, regarding the effects that such evidence could have on legal decision makers. In this article, we first outline the history of neuroscientific evidence in courtrooms and then we provide a review of recent research investigating the effects of neuroscientific evidence on decision-making broadly, and on legal decisions specifically. In the latter case, we review studies that measure the effect of neuroscientific evidence (both imaging and nonimaging) on verdicts, sentencing recommendations, and beliefs of mock jurors and judges presented with a criminal case. Overall, the reviewed studies suggest mitigating effects of neuroscientific evidence on some legal decisions (e.g., the death penalty). Furthermore, factors such as mental disorder diagnoses and perceived dangerousness might moderate the mitigating effect of such evidence. Importantly, neuroscientific evidence that includes images of the brain does not appear to have an especially persuasive effect (compared with other neuroscientific evidence that does not include an image). Future directions for research are discussed, with a specific call for studies that vary defendant characteristics, the nature of the crime, and a juror’s perception of the defendant, in order to better understand the roles of moderating factors and cognitive mediators of persuasion."" |
| Yaffe | 2019 | Compromised Addicts | Gideon Yaffe | ,in 5 Oxford Studies in Agency and Responsibility: Themes from the Philosophy of Gary Watson 191 (D. Justin Coates & Neal A. Tognazzini eds., 2019). | “The chapter seeks to better understand the prospects of Watson’s account of addiction. In particular, it is concerned with the question of how addiction can weaken the demand that the addict comply with otherwise legitimate demands. Watson answers this question by pointing to the way in which addictive desires distract attention in a way that makes it unreasonable to expect addicts to comply with legitimate demands with the same alacrity with which we expect non-addicts to comply with such demands. Demurring, the chapter argues instead that the expectation that addicts comply with otherwise legitimate demands is weakened because, for the addict, wholehearted effort to comply is simply not possible.” |
| Powers | 2018 | Consequences for Peers Differentially Bias Computations About Risk Across Development | Katherine E. Powers, Gideon Yaffe, Catherine A. Hartley, Juliet Y. Davidow, Hedy Kober & Leah H. Somerville | 147(5) J. Experimental Psychol.: Gen. 671 (2018) | ""Adolescents routinely take risks that impact the well-being of the friends they are with. However, it remains unclear when and how consequences for friends factor into decisions to take risks. Here we used an economic decision-making task to test whether risky choices are guided by the positive and negative consequences they promise for peers. Across a large developmental sample of participants ages 12–25, we show that risky decision computations increasingly assimilate friends’ outcomes throughout adolescence into early adulthood in an asymmetric manner that overemphasizes protecting friends from incurring loss. Whereas adults accommodated friend outcomes to a greater degree when the friend was present and witnessing these choices, adolescents did so regardless of whether a friend could witness their decisions, highlighting the fundamentality of adolescent social motivations. By demonstrating that outcomes for another individual can powerfully tune an actor’s risk tolerance, these results identify a key factor underlying peer-related motivations for risky behavior, with implications for the law and risk-prevention. (PsycINFO Database Record (c) 2018 APA, all rights reserved)"" |
| Hoffman | 2018 | The Neuroscience of Blame and Punishment | Morris B. Hoffman & Frank Krueger | , in Self, Culture and Conciousness: Interdisciplinary Convergences on Knowing and Being 207-23 (Sangeetha Menon et al. eds., 2018) | ""In the last five years, a great deal has been learned about how human brains address the social problem of punishing wrongdoers. Although it is far too early to be confident that these insights will shed any practical light on criminal law or procedure, patterns are emerging that suggest a framework that someday could have significant legal and social consequences. In this chapter, we first survey the behavioural and theoretical evidence supporting the proposition that the willingness to blame then punish norm-violators is an evolved human trait. Then we sample the recent neuroscience literature on normative punishment, and follow that with a presentation of our neuropsychological model of blame and third-party punishment. We finish with a discussion of the potential implications a confirmed model might have for law and policy."" |
| Vaughn | 2014 | Correlates of Traumatic Brain Injury Among Juvenile Offenders: A Multi-site Study | Michael G. Vaughn, Christopher P. Salas-Wright, Matt DeLisi & Brian E. Perron | 24(3) Crim. Behav. & Mental Health 188-203 (2014) | ""Background. There is some evidence that antisocial individuals, including young delinquents, are significantly more likely than people in the general population to incur a traumatic brain injury (TBI). Extant studies are hampered by methodological limitations, such as small sample sizes, lack of control for confounding effects, and use of single sites and may lack representativeness. Hypothesis. The hypothesis for this study is that young offenders with a history of TBI will not only be at higher risk of impulsivity and negative emotionality than their non‐injured peers but also that those with TBI will have had more previous victimisation experiences. Methods. Data from two sites (Philadelphia, PA and Phoenix, AZ) in a substantial longitudinal, prospective study – the Pathways to Desistance Study – were used to compare young people (average age 16 years) who reported TBI with those who did not. Independent variables were behavioural, criminogenic and psychosocial measures. Results. Male youths were about twice as likely as young females to report TBI. Such injury was associated with higher impulsivity and negative emotion ratings, even after allowing for potentially confounding factors, including sex. In addition, TBI was independently associated with self‐reported experience of victimisation. Conclusions/implications. This extends the generalisability of earlier suggestions of a relationship between TBI and offending, and various factors thought likely to mediate the relationship. The implications are, thus, that it is likely to be of practical value to screen young people who get into the criminal justice system for a history of TBI, and thus to allow for more specific tailoring of interventions to reduce the range of associated problems, including likely reoffending."" |
| Chitsabesan | 2015 | Traumatic Brain Injury in Juvenile Offenders: Findings From the Comprehensive Health Assessment Tool Study and the Development of a Specialist Linkworker Service | Prathiba Chitsabesan, Charlotte Lennox, Huw Williams, Omar Tariq & Jenny Shaw | 30(2) J. Head Trauma Rehabilitation 106-115 (2015) | ""Background: Young people in contact with the youth juvenile justice system have well-documented vulnerabilities including high rates of mental health and neurodevelopmental disorders. Studies have suggested that they may also be at increased risk of traumatic brain injury (TBI). Objective: (1) To describe the profile of a cohort of juvenile offenders with TBI and associated comorbidity with other neurodevelopmental disorders, mental health needs, and offending behavior. (2) To describe the development of a specialist brain injury service for juvenile offenders with TBI within custody. Methods: Ninety-three male participants aged 15 to 18 years were consecutively admitted to a custodial secure facility. They were evaluated using a range of different neurocognitive and mental health measures including the Rivermead Post-Concussion Symptoms Questionnaire and the Comprehensive Health Assessment Tool. Results: Eight-two percent of those interviewed reported experiencing at least 1 TBI, and 44% reported ongoing neuropsychological symptoms. Eighteen percent of those sustaining a TBI reported moderate-severe postconcussion symptoms. Conclusions: There is a high prevalence of TBI in juvenile offenders in custody, with many experiencing multiple episodes. This study highlights the need for further research in this area. An example of a specialist brain injury linkworker service is described as one example of a model of service delivery for this group."" |
| Lansing | 2016 | Cumulative Trauma, Adversity and Grief Symptoms Associated with Fronto-temporal Regions in Life-course Persistent Delinquent Boys | Amy E. Lansing, Agam Virk, Randy Notestine, Wendy Y. Plante & Christine Fennema-Notestine | 254 Neuroimaging 92-102 (2016) | ""Delinquent youth have substantial trauma exposure, with life-course persistent delinquents [LCPD] demonstrating notably elevated cross-diagnostic psychopathology and cognitive deficits. Because adolescents remain in the midst of brain and neurocognitive development, tailored interventions are key to improving functional outcomes. This structural magnetic resonance imaging study compared neuroanatomical profiles of 23 LCPD and 20 matched control adolescent boys. LCPD youth had smaller overall gray matter, and left hippocampal, volumes alongside less cortical surface area and folding within the left pars opercularis and supramarginal cortex. LCPD youth had more adversity-related exposures, and their higher Cumulative Trauma, Adversity and Grief [C-TAG] symptoms were associated with less surface area and folding in the pars opercularis and lingual gyrus. Neuroanatomical differences between LCPD and control youth overlap with data from both maltreatment and antisocial literatures. The affected left frontal regions also share connections to language- and executive-related functions, aligning well with LCPD youths' cognitive and behavioral difficulties. These data also dovetail with research suggesting the possibility of neurodevelopmental delays or disruptions related to cumulative adversity burden. Thus, concurrent treatment of LCPD youths' C-TAG symptoms and, cognitive deficits with overlapping neuroanatomical bases, may be most effective in improving outcomes and optimizing neurodevelopmental trajectories."" |
| Buckingham | 2016 | Trauma Informed Juvenile Justice | Samantha Buckingham | 53 Am. Crim. L. Rev. 641 (2016) | ""The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways. The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety. This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children."" |
| Gordon | 2017 | The Relationship Between Traumatic Brain Injury and Criminality in Juvenile Offenders | Wayne A. Gordon, Lisa A. Spielman, Amanda E. Hahn-Ketter & Karla Therese L. Sy | 32(6) J. Head Trauma Rehabilitation 393-403 (2017) | ""Objective: To examine the relationship between traumatic brain injury (TBI) and criminal behavior in youth who are incarcerated or on probation in Texas. Setting: Seven juvenile justice facilities. Participants: Juvenile offenders in state or county correctional facilities or on probation. Design: Screening for TBI was conducted among adolescents at 7 juvenile justice centers. Main Measures: Participants were administered the Brain Injury Screening Questionnaire, and results were linked to participants’ offense history and psychiatric diagnoses. Results: One in 4 juvenile offenders met criteria for TBI, and the majority of injuries occurred prior to the adolescents’ criminal offenses. A history of TBI was related to more violent crimes, as well as more mental health diagnoses and symptoms. Conclusion: The high rates of TBI and levels of distress found in juvenile offenders suggest a need for preventive actions, interventions to compensate for challenges related to TBI, and programs to assist individuals’ transitions into the community."" |
| Lansdell | 2018 | I Am Not Drunk, I Have an ABI': Findings from a Qualitative Study into Systematic Challenges in Responding to People with Acquired Brain Injuries in the Justice System. | Gaye Lansdell, Bernadette Saunders, Anna Eriksson, Rebecca Bunn & Susan Baidawi | 25(5) Psychiatry Psychol. & L. 737-58 (2018) | ""The over-representation of acquired brain injury (ABI) amongst prisoner and juvenile justice populations is a significant issue across jurisdictions. This article reports on the findings of over 100 interviews conducted in Victoria, Australia with people who have an ABI, as well as key stakeholder groups who work in, or with, the justice system. The study identified systemic problems faced by people with ABI along multiple points of the justice system continuum. Improved identification and diagnosis of ABI, well-resourced support for those with the condition, comprehensive training to improve ABI literacy among all stakeholder groups, and a more appropriate and therapeutic approach to people with ABI in the justice system are all recommended."" |
| Migden | 2017 | The Injustice of a Felony Conviction for Offenders Under Age Twenty-One: A New Option for the Courts to Save Our Youths' Futures: Senior Youthful Offender Status | Scott E. Migden | 55(2) Fam. Ct. Rev. 292-306 (2017) | ""When the Criminal Justice System adjudicates an individual felony offender, it complicates many aspects of that individual’s life; from applying for colleges, and jobs to attempting to become contributing member of society. In New York, to prevent seven- to sixteen-year-old youth who commit felony offenses from becoming felony offenders, the courts prosecute them as juvenile delinquents or juvenile offenders. In the United States, individuals under the age of twenty-one cannot purchase alcohol or tobacco and cannot get married without parental consent, but they can be charged with a felony. Before and even after reaching the age of twenty-one, individuals are still in need of guidance, support, education, employment, and stability as brain development is still ongoing. To help protect those who have not reached the age of twenty-one, states should implement Senior Youthful Offender Hearings as proposed in this Note. This hearing is a two-part hearing: (1) determine if an individual should be considered eligible for the protections under the current Youthful Offender Laws and (2) determine sentencing and alternatives to incarceration, focused on steering Senior Youthful Offenders on the right path."" |
| Sloan | 2015 | Note, Why Parole Elegibility Isn't Enough: What Rope, Graham, and Miller Mean for Juvenile Offenders and Parole | Sarah Sloan | 47 Colum. Hum. Rts. L. Rev. 243 (2015) | ""At his most recent parole board hearing, Eric Smith again expressed remorse about the murder of four-year-old Derrick Robie, which Smith had committed when he was just thirteen years old. ""[H]e didn't deserve anything that I did to him, and no-one [sic] deserved that kind of violence or any kind of violence of that nature,"" Smith said. ""[Y]ou can't justify something like that and I'm not going to even try. What I can tell you is that at the time, I had no value system towards life. I didn't value life. . . . I took my anger and frustration and rage out on him . . . ."" Smith discussed the years of bullying that he had experienced before the murder, and he described his progress and accomplishments since being incarcerated: obtaining his GED, becoming certified for residential carpentry and electrical work, and participating in various therapeutic programs. He noted that he had not received a disciplinary ticket in nearly ten years, and he explained his plans for release: where he would live and the job he had already lined up. Smith ended by saying, ""[i]n 20 years of my incarceration, who I was at age 13 does not exist. That child that I was that committed that crime, he's gone. He's never coming back. . . . I can go out in society and live by their rules. I'm not a threat. I value life."" A few days later, the parole board announced its decision: parole denied, for the seventh time in a row. This Note explores the intersection of juvenile offenders like Eric Smith and the parole process, and it offers a proposal to reform parole board decision-making for youthful offenders and bring it into compliance with the principles laid out in recent Supreme Court cases."" |
| Denno | 1990 | Biology and Violence: From Birth to Adulthood | Deborah W. Denno | n/a | This book presents the most comprehensive study to date of the major biological, psychological and environmental predictors of criminal behavior, particularly violence, through a detailed analysis of nearly 1000 low-income black youths from their birth to early adulthood. By examining over 150 variables spanning the lives of these youths, the study concludes that both biological and environmental factors produce strong, and independent, effects on delinquency and adult crime among males and females, who are distinguished from their controls. Powerful influences on violence include behavioral disorders during youth, low school achievement, parents with a low educational level, an absent father, hyperactivity, lead poisoning, left-handedness and mixed dominance, soft neurological signs, and neurological abnormalities. Case study comparisons between the most violent males and females and their controls show that criminals evidence a higher incidence of lead poisoning, disobedience, head injury, and a history of epileptic seizures among themselves or their immediate family members. Violent females are also more likely to have a family member who was incarcerated. The results do not confirm the findings of previous studies indicating direct relationships between violence and early intelligence, mental retardation, socioeconomic status, or early central nervous system dysfunction. The author concludes that both biological and environmental factors, in interaction, cause crime. For example, whereas some factors, such as hyperactivity, can be genetically transmitted across generations, causing a biological predisposition to criminal behavior, hyperactive people, as adults, can in turn, create instability in their families, making their children more prone to criminality, an environmental condition. The author concludes that most factors contributing to criminal and violent behavior can be prevented because they have environmental origins that can be eliminated. |
| Denno | 1985 | Biological, Psychological, and Environmental Factors in Delinquency and Mental Disorder: An Interdisciplinary Bibliography | Deborah W. Denno & Ruth M. Schwarz | n/a | ""This bibliography provides information on the role of biological, psychological, and environmental explanations of deviant behavior in the development of crime and violence and in the control, treatment, and rehabilitation of offenders. It contains more than 2,200 references to materials on biological, psychological, and environmental influences on child development; biological, physiological, and medical factors associated with brain functions and central nervous system disorders; and biological, psychological, and sociological factors related to mental disorder and crime. An appendix lists hierarchically the subject headings used to classify the bibliographic entries. The index, which contains over four hundred subject headings on a wide range of topics, links the subject headings in the hierarchical listing to entries in the bibliography proper."" |
| Denno | 2014 | Overview of U.S. Criminal Law | Deborah W. Denno | , in Genetics, Robotics, Law, Punishment 369-410 (Debora Provolo, Silvio Riondate & Feridun Yenisey eds., 2014) | ""The unstoppable evolution of genetics and robotics stimulates a careful reflection on the role of law in the regulation of science and on the “resistance” of traditional legal instruments before unprecedented modalities of harm to individual rights and to the need for (not only penal) protection of new interests of the human person emerging as a consequence of scientific and technological developments. The inter-disciplinary contributions in this volume deal with the most critical aspects with regard to: role and limits of penal intervention in the regulation of genetics and human biotechnology, genetics and constitutional rights, structure and functions of DNA and sequencing technologies, penal biolaw and issues of beginning of life, medically assisted procreation, pre-implantation genetic diagnosis, protection of genetic identity, cloning, gene manipulative treatments, genetic experimentation and research on embryos, protection of genetic integrity, punishability of incest, employment of genetics and robotics in crime prevention, penal protection of genetic privacy and genetic data, genetic discrimination, human psyche and free will, neuroethics, behavioural genetics, neurosciences, forensic genetics, new technologies and legal compliance, biotechnological strengthening of the person, robotics and biorobotics, telerobotic surgery, bionics applications and protection of fundamental rights, artificial intelligences, non-human agents and liability issues. The following contributors have participated to this work: Gleb Bogush, Riccardo Borsari, Gülay Bulut, Stefano Canestrari, Carlo Casonato, Deborah W. Denno, Eric Hilgendorf, Roberto E. Kostoris, Natalya Krylova, Maria Beatrice Magro, Andrea Manfrinati, Adelmo Manna, Leonardo Mazza, Óscar Morales García, Paolo Moro, Emrah Nikerel, Lorenzo Pasculli, Pietro Pietrini, Debora Provolo, Silvio Riondato, Carlos María Romeo Casabona, Rino Rumiati, Francesco Salerno, Amedeo Santosuosso, Giuseppe Sartori, Cristina Scarpazza, Zsolt Szomora, Marta Tomasi, Ugur Tumerdem, Feridun Yenisey, Francesca Zanuso, Mario Zatti."" |
| Denno | 1996 | Legal Implications of Genetics and Crime Research | Deborah W. Denno | , in Genetics of Criminal and Antisocial Behavior 248-64 (Gregory Bock & Jamie Goode eds., 1996) | ""This book offers a fresh perspective on the controversial topic of criminal and antisocial behavior. It synthesizes findings from behavioral and population genetics, evolutionary biology and criminology and presents the latest findings in twin studies, adoption cohort studies, molecular genetics and animal models for human aggression. Also included is a detailed analysis of the legal implications of genetics and crime research and strategies for rehabilitation."" |
| Denno | 1987 | Violent Behavior and Cerebral Hemisphere Function | Deborah W. Denno & Israel Nachshon | , in The Causes of Crime: New Biological Approaches 185-217 (Sarnoff Mednick, Terrie Moffitt & Susan Stack eds., 1987). | ""Experimental support for the hypothesis that violent behavior is associated with left-hemisphere dysfunction is scarce. This study examines the association between crime, violence, and left-hemisphere dysfunction using measures of hand, eye, and foot dominance within a sample of 1,066 males born and raised in Philadelphia between the ages of 10 and 18 years as part of the Biosocial Study conducted at the Center for Studies in Criminology and Criminal Law at the University of Pennsylvania. Overall there were no significant differences between offenders and non-offenders in measures of hand and foot preferences. However, for eye preference, there were significant between-group differences, particularly for violent offenders. Altogether violent offenders were more apt to show left-eye preference rather than right-eye preference. As the literature discusses, an increased incidence of left-side preference in a given population may be related to left-hemisphere dysfunction. The finding of a partial correspondence (eye preference only) rather than full correspondence among the three indices of lateral preferences (hand, eye, and foot preferences) may be attributed to environmental influences, such as the effects of brain trauma at birth. In addition, possible associations between hemisphere dysfunction and behavior disorders and crime can also be affected by other biological and social factors over the course of an individual’s development."" |
| Denno | 2006 | The Scientific Shortcomings of Roper v. Simmons | Deborah W. Denno | 3 Ohio St. J. Crim. L. 379 (2006) | ""This Article contends that some of the case law and social science research that form the basis for the United States Supreme Court's decision in Roper v. Simmons are insufficient and outdated. The Court also relies heavily upon briefs submitted by the respondent and his amici, in lieu of providing more pertinent citations and analysis that could have enhanced and modernized the Court's arguments. The sparse and sometimes archaic sources for Roper potentially limit the opinion's precedential value. For example, the Court cites Erik Erikson's 1968 book, Identity: Youth and Crisis, to support the view that, relative to adults, juveniles have more undeveloped and unstable identities. While Erikson's influence as a psychologist is indisputable, his work reflects an outmoded psychoanalytic perspective. Furthermore, the Court does not specify which of Erikson's highly complex theories are relevant to Roper's conclusions. The shortcomings of Erikson's book and other sources cited in the opinion would be less apparent but for the Court's overall dearth of social science support. This Article concludes that despite Roper's correct result, the Court's application of interdisciplinary studies was, in part, flawed, thereby detracting from the Court's otherwise progressive direction. Ultimately, the opinion's strength derives more from its traditional legal analysis than from its application of relevant social science, an outcome the Court may not have fully intended."" |
| Denno | 1994 | Testing Penry and Its Progeny | Deborah W. Denno | 22 Am. J. Crim. L. 1 (1994) | ""In Penry v. Lynaugh, the United States Supreme Court held that the Texas death penalty statute was applied unconstitutionally because the trial court gave no instructions allowing the jury to “consider and give effect to” the defendant’s mitigating evidence of organic brain damage, moderate retardation, and disadvantaged background. The Court considered these mitigating factors relevant because of society’s steadfast belief in the lesser culpability of defendants whose criminal acts are due to a disadvantaged background, or to emotional and mental disorders. The jury must have jury must have full consideration of such evidence in order to give its “reasoned moral response” to the defendant’s character and crime. Yet Penry and its progeny have provided no adequate guidance on what jury instructions and mitigating factors, apart from those presented in Penry, would be appropriate in other cases. As a result, the Texas Court of Criminal Appeals has applied such restrictive evidentiary standards to Penry claims that nearly all are denied apart from those few that proffer the “same” or “similar” evidence found in Penry. This Article empirically challenges the legal doctrine underlying Penry and its progeny. First, it shows that there is no empirical support for the Texas court’s constricted interpretation of the kinds of mitigating evidence that can provide Penry relief under Article 37.071, the former Texas death penalty statute (“former statute”) at issue in Penry. Next, it contends that Penry’s whole concept of mitigation and aggravation rests upon false assumptions concerning the correlates of crime and future dangerousness. These conclusions are based primarily upon the results of the “Biosocial Study,” one of this country’s largest studies of biological and environmental correlates of crime. The Biosocial Study analyzed numerous variables predicting crime within a group of nearly five hundred males who resided in Philadelphia from the time of their birth until their twenty-second birthday. Although there have been many longitudinal studies of crime and behavioral disorders, no one has been able to examine so intensively a large sample of individuals both before and after the start of their criminal careers. The Biosocial Study found no evidence that mental retardation, the disorder of most significance in Penry, has a significant link to crime or to future dangerousness when controlling for other influential factors, such as family characteristics and biological and environmental stressors. The Biosocial Study did find, however, associations between crime and other kinds of factors. For example, it reported strong and consistent links between lead poisoning, family instability, verbal ability, and crime — factors that the Texas court has either rejected or would be likely to reject in its review of Penry claims. This Article also notes that even though the Texas legislature eventually amended the former statute (“amended statute”), the former statute still applies to the nearly four hundred inmates on death row in Texas. Moreover, it is likely that some of the constraints encountered with the former statute will continue with its amended version despite language that, on its face, would suggest otherwise. In sum, while many articles and cases have analyzed Penry’s doctrine this Article takes a different tack by questioning the doctrine’s empirical foundations."" |
| Denno | 1993 | Considering Lead Poisoning as a Criminal Defense | Deborah W. Denno | 20 Fordham Urb. L.J. 377 (1993) | ""No doubt, Frank XI stood apart from his peers. At age twenty-three, he already had an extensive criminal record: twenty-seven officially recorded offenses as a juvenile and ten offenses as an adult. His first recorded offense was for truancy at age ten. From ages twelve to twenty-two, he had at least two and as many as six recorded offenses every year. These offenses included robbery, assault, theft, and repeated disorderly conduct. Frank was a subject in the ""Biosocial Study,"" one of this country's largest ""longitudinal"" studies of biological, sociological, and environmental predictors of crime. A longitudinal study analyzes the same group of individuals over a period of time.' The Biosocial Study is unique because it analyzed numerous variables relating to a group of nearly one thousand males and females during the first twenty-four years of their lives: from the time the subjects' mothers were admitted into the same Philadelphia hospital to give birth until the subjects' twenty-fourth birthday. A significant factor in the Biosocial Study was that all subjects resided in Philadelphia, and all shared the same urban environment and school system. Detailed information was collected during the course of these subjects' lives in order to answer two basic questions: First, what factors within, or in addition to, these subjects' urban environments were related to any criminal behavior they may engage in? Second, what factors were associated with fairly well-established indicators of crime, such as academic and disciplinary problems in school? The multidisciplinary nature of the Biosocial Study's data enabled the testing of many different theories of crime: biological, psychological, social, and environmental. Given this broad range, however, one of the Biosocial Study's major findings was particularly striking: Among males, lead poisoning, a factor related to the urban environment, was among the strongest predictors of crime, even though numerous biological and psychological factors were also examined. This Essay first describes the Biosocial Study and its results, and then considers whether it is viable to establish a lead poisoning criminal defense in light of the Study's finding of a significant relationship between lead poisoning and its three variables indicating behavioral problems at different ages: adult crime, juvenile crime, and disciplinary problems in school. It is suggested that it is philosophically inconsistent to provide for criminal defenses based upon what appear to be ""internal"" factors, such as brain tumors, but then discount defenses based on what appear to be ""external"" factors, such as lead poisoning or other types of environmental factors, given the fragile assumptions of causation that this ""internal-external"" distinction is based on. This Essay concludes that because the criminal law does provide for some defenses, urban criminal justice appears to be fair. The considerable disparity between the types of defenses found acceptable in the criminal law, however, makes urban criminal justice unfair. In light of this unfairness, this Essay suggests that the criminal law be more flexible in considering both internal and external factors in determining an individual's eligibility for a criminal defense. However, this Essay also suggests that a number of presently accepted (or proposed) criminal law defenses should be restricted or eliminated altogether. These defenses either lack a firm causal foundation, or they appear to be more arbitrarily applied."" |
| Denno | 1985 | Sociological and Human Developmental Explanations of Crime: Conflict or Consensus? | Deborah W. Denno | 23 Criminology 711 (1985) | ""This paper examines multidisciplinary correlates of delinquency in an attempt to integrate sociological and environmental theories of crime with human developmental and biological explanations of crime. Structural equation models are applied to assess links among biological. psychological, and environmental variables collected prospectively from birth through age 17 on a sample of 800 black children at high risk for learning and behavioral disorders. Results show that for both males and females, aggression and disciplinary problems in school during adolescence are the strongest predictors of repeat offense behavior. Whereas school achievement and family income and stability are also significant predictors of delinquency for males, early physical development is the next strongest predictor for females. Results indicate that some effects on delinquency also vary during different ages. It is suggested that behavioral and learning disorders have both sociological and developmental correlates and that adequate educational resources are necessary to ensure channels of “legitimate opportunities” for high ‐risk youths."" |
| Demetrio Crespo | 2017 | Fragmentos sobre Neurociencia y Derecho Penal | Eduardo Demetrio Crespo | n/a | ""La obra se caracteriza por una preocupación común: la legítima aspiración a un Derecho penal basado por encima de todo en la dignidad del ser humano, sin asumir postulados irreconocibles con el mundo real. En el plano metodológico la no admisión de la disociación entre los fenómenos y el modo que las normas tienen de captarlos está detrás de algunos planteamientos.” (This work is characterized by a common concern: the legitimate aspiration to have a criminal law system based on human dignity, without assuming conceptions incompatible with the real world. In the methodological sphere, this work deals with the lack of admission of disassociation between phenomena and how the law captures such phenomena). |
| Demetrio Crespo | 2013 | Identidad y Responsibilidad Penal | Eduardo Demetrio Crespo | , in Anuario de la Facultad de Derecho de la Universidad Autonoma de Madrid (2013) | ""The present article deals with the problem of ""self"" in the philosophy of mind and its implications for criminal responsibility, considering the recent controversy between Neuroscience and Criminal Law on the scope of determinism in the definition of voluntary behaviour."" |
| Demetrio Crespo | 2013 | Neurociencias y Derecho Penal: Nuevas Perspectivas en el Ambito de la Culpabilidad y Tratamiento Juridico-Penal de la Peligrosidad | Eduardo Demetrio Crespo & Manuel Maroto Calatayud | (Eduardo Demetrio Crespo & Manuel Maroto Calatayud eds., 2013) | |
| Demetrio Crespo | 2020 | Humanist Compatibilism: A Proposal for Reconciliation Between Neuroscience and Criminal Law | Eduardo Demetrio Crespo & Manuel Maroto Calatayud | 22(2) J. Organizational Psych. (forthcoming 2020) | |
| Demetrio Crespo | 2011 | Libertad de Voluntad, Investigación sobre el Cerebro y Responsabilidad Penal: Aproximación a los Fundamentos del Moderno Debate sobre Neurociencias y Derecho Penal | Eduardo Demetrio Crespo & Manuel Maroto Calatayud | 2011(2) InDret 1, 1-38 (2011) | |
| Jones | 2020 | Detecting Mens Rea in the Brain | Owen D. Jones, Read Montague & Gideon Yaffe | 169 U. Pa. L. Rev. 1, 1-32 (2020) | ""What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there? If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization assumes. We combined advanced functional brain-imaging technology with new artificial intelligence tools to see if the brain activities during knowing and reckless states of mind can ever be reliably distinguished. As our experiment indicates, the answer is Yes. So here we provide an overview of our brain-scanning experiment, discuss important implications, and detail several necessary precautions, so our results won’t be over- or mis-interpreted."" |
| Stanziani | 2020 | Marking the Progress of a ""Maturing"" Society: Madison v. Alabama and Competency for Execution Evaluations | Marissa Stanziani, Jennifer Cox, Elizabeth Bownes, Keisha D. Carden & David S. DeMatteo | 26 Psychol. Pub. Pol'y & L. 145 (2020) | ""In February 2019, the Supreme Court of the United States (SCOTUS) addressed whether dementia and/or dementia-related amnesia of the crime precluded a defendant from being executed (Madison v. Alabama, 2019). Consistent with their previous holdings in Ford v. Wainwright (1986) and Panetti v. Quarterman (2007), SCOTUS reaffirmed the prohibition on the execution of an individual who lacks a rational understanding of the crime he or she committed and their impending punishment. However, SCOTUS did not make a direct determination in Madison’s case and instead remanded the case to lower courts to decide his fate. Two important rulings were proffered: (a) failing to remember the crime does not preclude an individual from execution, and (b) mental illnesses other than psychotic disorders may render an individual incompetent for execution. This article explores the confluence of factors underpinning Madison’s case and the important consequences of these rulings for mental health professionals working with the growing aging prisoner population. More specifically, this article traces the evolution of the competency for execution (CFE) standard, explores dementia and associated effects within the context of the Madison ruling, and discusses Madison v. Alabama and its implications for CFE and forensic evaluators."" |
| Bonnie | 2020 | Determination of Death by Neurologic Criteria in the United States: The Case for Revisiting the Uniform Determination of Death Act | Richard J. Bonnie, Ariane Lewis, Thaddeus Mason Pope, Leon Epstein, David Greer, Matthew Kirschen, Michael Rubin & James Russell | 47(4) J. L. Med. & Ethics 9, 9-24 (2020) | ""Although death by neurologic criteria (brain death) is legally recognized throughout the United States, state laws and clinical practice vary concerning three key issues: (1) the medical standards used to determine death by neurologic criteria, (2) management of family objections before determination of death by neurologic criteria, and (3) management of religious objections to declaration of death by neurologic criteria. The American Academy of Neurology and other medical stakeholder organizations involved in the determination of death by neurologic criteria have undertaken concerted action to address variation in clinical practice in order to ensure the integrity of brain death determination. To complement this effort, state policymakers must revise legislation on the use of neurologic criteria to declare death. We review the legal history and current laws regarding neurologic criteria to declare death and offer proposed revisions to the Uniform Determination of Death Act (UDDA) and the rationale for these recommendations."" |
| Hoffman | 2020 | The Psychology of the Trial Judge | Morris B. Hoffman | , in Handbook on Law and Cognitive Science (Jerald Hage ed.) | |
| Aharoni | 2020 | Evolutionary Psychology, Jurisprudence, and Sentencing | Eyal Aharoni & Morris B. Hoffman | , in Handbook of Evolutionary Psychology (Todd Shackelford ed.) | |
| Hoffman | 2020 | The Intersection of Age and Gender on the Criminal Bench: Are Younger Female Judges Harsher with Serious Crimes? | Morris B. Hoffman, Francis X. Shen, Vijeth Iyengar & Frank Krueger | Colum. J. Gender & L. (forthcoming 2020) | |
| Hoffman | 2020 | A Commentary on Professor Shen's Aging Judges | Morris B. Hoffman | 81 Ohio St. U. L. Rev. 167, 167-182 (2020) | ""Let me begin this discussion of Francis Shen’s thought-provoking look at Aging Judges with two disclosures. First, Francis and I are friends, colleagues, and co-authors. We met in 2009, when I was a member and Francis a fellow in the John D. and Catherine T. MacArthur Foundation’s Law and Neuroscience Project. We have since collaborated on many things, including co-authoring a book, several law review articles, and one science paper. Second, and I think much more important in terms of driving this commentary, I am an aged judge. I was appointed to the Colorado state trial bench in 1990 at the age of thirty-eight, which as far as I know is still a record for youngest appointment on my bench. I am now sixty-seven, the second oldest judge on my bench. So I think I have some perspective to bring to this topic, not only as an old judge but also as a once very young one. I divide my comments into three parts: first, a listing of what I found to be some of the most intriguing and sometimes surprising descriptive aspects of this piece, which I use largely to illustrate that I agree with Professor Shen that cognitive disability among judges is a growing problem that needs attention; second, a discussion of whether Shen’s proposed remedy is feasible (spoiler alert: I think it is, and, with some specific suggestions about how it could be presented and to whom, I think it could be made even more feasible); and, finally, some thoughts about where I think the proposal needs more attention to detail and how it might be too timid in one dimension and too aggressive in another."" |
| Sznycer | 2020 | The Origins of Criminal Law | Daniel Sznycer & Carlton Patrick | 4 Nature Hum. Behav. 506, 506-516 (2020) | ""Laws against wrongdoing may originate in justice intuitions that are part of universal human nature, according to the adaptationist theory of the origins of criminal law. This theory proposes that laws can be traced to neurocognitive mechanisms and ancestral selection pressures. According to this theory, laypeople can intuitively recreate the laws of familiar and unfamiliar cultures, even when they lack the relevant explicit knowledge. Here, to evaluate this prediction, we conduct experiments with Chinese and Sumerian laws that are millennia old; stimuli that preserve in fossil-like form the legal thinking of ancient lawmakers. We show that laypeople’s justice intuitions closely match the logic and content of those archaic laws. We also show covariation across different types of justice intuitions: interpersonal devaluation of offenders, judgements of moral wrongness, mock-legislated punishments and perpetrator shame—suggesting that multiple justice intuitions may be regulated by a common social-evaluative psychology. Although alternative explanations of these findings are possible, we argue that they are consistent with the assumption that the origin of criminal law is a cognitively sophisticated human nature."" |
| Macpherson | 2019 | Moral Enhancement, at the Peak of Pharmacology and at the Limit of Ethics | Ignacio Macpherson, María Victoria Roqué & Ignacio Segarra | 33(9) Bioethics 992, 992-1001 (2019) | ""The debate over the improvement of moral capacity or moral enhancement through pharmacology has gained momentum in the last decade as a result of advances in neuroscience. These advances have led to the discovery and allowed the alteration of patterns of human behavior, and have permitted direct interventions on the neuronal structure of behavior. In recent years, this analysis has deepened regarding the anthropological foundations of morality and the reasons that would justify the acceptance or rejection of such technology. We present a review of proposals for pharmacological interventions directed directly towards moral enhancement. In addition, we identify the ethical dilemmas that such interventions may generate, as well as the moral assessment of the authors of these studies. There is a moderate consensus on the risks of any intervention on the intimate structure of the human condition, its autonomy and identity, but there are large differences in explaining the reasons for this concern and especially in justifying such interventions. These findings show that it is necessary to investigate the moral assessment of authors and the ethical dimension within the field of pharmacology in order to identify future trends."" |
| Peterson | 2020 | Alive Inside | Andrew Peterson, Adrian M. Owen & Jackson Karlawish | 34(3) Bioethics 295, 295-305 (2020) | ""This article provides an ethical analysis of the U.S. practice guideline update on disorders of consciousness. Our analysis focuses on the guideline’s recommendations regarding the use of investigational neuroimaging methods to assess brain‐injured patients. Complex and multifaceted ethical issues have emerged because these methods alter the clinical understanding of consciousness. We address issues of false hope, patient suffering, and cost. We argue that, in spite of these concerns, there is significant benefit to using neuroimaging to assess brain‐injured patients in most cases."" |
| Davis | 2020 | Millions Have Been Invested in the Emerging Field of Neurolaw. Where Is It Leading? | Kevin Davis | ABA J. (June 1, 2020) | ""Robert Hauser, a criminal defense attorney in suburban Chicago, was hired by a man charged with shooting his wife after she berated him for leaving a coffeepot on all day. After firing four shots from a revolver, Larry Lotz called 911 and told the dispatcher what he’d done. His wife, Karen, 59, died later at the hospital. The criminal case against Lotz came down to two fundamental questions: Was he mentally stable when he shot her, and to what extent should he be held accountable under the law?"" |
| Blume | 2020 | Death by Numbers: Why Evolving Standards Compel Extending Roper's Categorical Ban Against Executing Juveniles from Eighteen to Twenty-One | John H. Blume, Hannah L. Freedman, Lindsey S. Vann & Amelia Courtney Hritz | 98 Tex. L. Rev. 921, 921-51 (2020) | ""Nearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under eighteen at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience. In the intervening years, however, much has changed in juvenile sentencing jurisprudence, the legal treatment of young people, and neuroscience. These changes beg the question: Why eighteen? Is the bright-line rule that the Court announced in Roper still constitutionally valid or do the changes since 2005 now point to a new cutoff at twenty-one? To answer those questions, this Essay considers post-Roper developments in the relevant domains to make the case that the eighteen-year-old constitutional line should be extended to age twenty-one. It does so by applying the Supreme Court’s evolving-standards-of-decency methodology. Specifically, this Essay examines all death sentences and executions imposed in the United States post-Roper and looks at the current state of neuroscientific research that the Court found compelling when it decided Roper. Two predominant trends emerge. First, there is a national consensus against executing people under twenty-one. This consensus comports with what new developments in neuroscience have made clear: people under twenty-one have brains that look and behave like the brains of younger teenagers, not like adult brains. Second, young people of color are disproportionately sentenced to die—even more so than adult capital defendants. The role of race is amplified when the victim is white. These trends confirm that the logic that compelled the Court to ban executions of people under eighteen extends to people under twenty-one."" |
| Breitfeld | 2020 | Hot-Car Deaths and Forgotten-Baby Syndrome: A Case Against Prosecution | Erika Breitfeld | 25 Berkeley J. Crim. L. 72, 72-106 (2020) | ""This article calls on prosecutors and policymakers to re-examine their perception and treatment of parents who forget their children in cars. It offers prosecutors a guide on how to analyze these cases and urges them to advocate for reform in their communities. For support, the article explores the neuroscience behind forgetting a child. It also examines recent cases to identify three categories of parents in hot-car child deaths: parents who truly forget their children in the car, parents who take calculated risks because they are uneducated about the danger of leaving children in cars, and parents who commit criminally negligent and intentional filicide. Finally, the article argues that fundamental criminal- law principles do not support a finding of criminal responsibility against truly forgetful parents—and argues that prosecutors should use community engagement along with existing safety and educational tools to reduce the ranks of the first two parent groups and the number of hot- car child deaths."" |
| Ralph | 2019 | Neuropsychological and Developmental Factors in Juvenile Transfer Hearings: Prosocial Perspectives | Norbert Ralph | 23 U.C. Davis J. Juv. L. & Pol'y 1, 1-24 (2019) | ""California, like most states, has proceedings available to transfer juveniles with criminal charges to the adult criminal justice system.2 These proceedings are usually referred to as “transfer hearings,” and they have become an important part of juvenile delinquency law.3 In California, youths are eligible for transfer to adult court when they commit any section 707(b) offense if they are fourteen years old or older,4 or when they commit any felony if they are sixteen years old or older.5 The multiple issues related to transfer hearings is an emergent area of legal practice, as interpretations of the laws and strategies are still developing, and appellate decisions clarifying the law are forthcoming. Developmental neuropsychological, brain, and forensic research are useful tools in understanding important issues related to transfer hearings.6 One approach examines these issues using the concepts of prosocial or moral reasoning in juveniles and their relevance to juvenile delinquency and justice issues.7 The concepts of prosocial and moral reasoning provide a conceptual framework to understand development during adolescence and explore how development relates to forensic issues, including the time-limited or adolescent specific nature of many harmful and illegal behaviors, and the treatments or interventions that can be used to accelerate prosocial reasoning to reduce recidivism.8 The following paper reviews research in this area that are relevant to transfer hearings, and with special reference to youths with pending sexual charges. The paper discusses: I. The teenage brain and developmental neuropsychology. II. Epidemiological and community-based studies. III. Neuropsychological assessment of social judgment. IV. Treatments to promote social reasoning in adolescence. V. Considerations regarding juveniles who have committed sexual offenses."" |
| Jaeger | 2020 | Predicting Variation in Endowment Effect Magnitudes | Christopher Brett Jaeger, Sarah F. Bronson, Daniel Levin & Owen D. Jones | 41 Evolution & Hum. Behav. 253, 253-59 (2020) | ""Hundreds of studies demonstrate human cognitive biases that are both inconsistent with “rational” decisionmaking and puzzlingly patterned. One such bias, the “endowment effect” (also known as “reluctance to trade”), occurs when people instantly value an item they have just acquired at a much higher price than the maximum they would have paid to acquire it. This bias impedes a vast range of real-world transactions, making it important to understand. Prior studies have documented items that do or do not generate endowment effects, and have noted that the effects vary in magnitude. But none has predicted any of the substantial between-item variation in those magnitudes across a large and novel set of items. Working from evolutionary theory, we derived six factors that predicted 52% of the between-item variation in magnitudes for a novel set of 24 items. These results deepen understanding of both the causes of and patterns in endowment effects. More broadly, they suggest that many other cognitive biases may be similarly approached, and potentially linked by a common theoretical framework."" |
| Fozdar | 2020 | Neuropsychiatric Reflections on Madison v. Alabama | Manish A. Fozdar | 48 J. Am. Acad. Psychiatry & L. 151, 151-54 (2020) | ""In Madison v. Alabama (2019), the U.S. Supreme Court addressed two questions in the context of Vernon Madison’s diagnosis of vascular dementia. The court majority ruled that Mr. Madison’s inability to remember his crime secondary to vascular dementia does not prevent him from forming a rational understanding of the reasons for his death sentence. The court also ruled that the Eighth Amendment applies similarly to a prisoner experiencing dementia as it does to a prisoner experiencing psychotic delusions. Finally, the court ruled that the district court of Alabama had incorrectly applied standards from Ford v. Wainwright (1986) and Panetti v. Quarterman (2007)3 to their decision and remanded the case for further review. The entire syllabus of Madison v. Alabama is a fascinating read from a neuropsychiatric perspective. The dissenting opinion led by Judge Alito starts with the statement: “What the Court has done in this case makes a mockery of our Rules” (Ref. 1, p 731). The dissent is almost entirely predicated on what the dissenters believed to be wrong reasoning by the majority. I will not focus nor elaborate on these disagreements. I will make an earnest attempt to analyze the court’s argument from the neuropsychiatric perspective and then discuss its potential implications for future cases involving neuropsychiatric disorders."" |
| Du | 2020 | The Application of Neuroscience Evidence on Court Sentencing Decisions: Suggesting a Guideline for Neuro-Evidence | Yu Du | 18 Seattle J. for Soc. Just. 493, 493-523 (2020) | ""Recently, neuro-evidence has been increasingly accepted in courtrooms. In 2010, the U.S. Supreme Court accepted its first quantitative electroencephalography (qEEG) evidence, which was used to reduce a death penalty to a life-in-prison sentence in a heinous homicide case. However, sentencing decisions differ even when there are similar neuroscientific mitigators. This article compares and analyzes why similar cases result in different final sentences. This comparative analysis sheds light on how neuroscience should be applied, interpreted, inferred, and generalized in a variety of legal contexts. I offer seven suggestions to regulate the use of neuro-evidence and potentially decrease its erroneous influence in court sentencing decisions. Furthermore, I point out several neuro-challenges for future research and debate. I am optimistic about the interconnection between neuroscience and law in future legal reform."" |
| Llamas | 2020 | Neuroscience in Youth Criminal Law: Reconsidering the Measure of Punishment in Latin America | Nicolás Ezequiel Llamas & José Ángel Marinaro | 11 Frontiers Psychology, Feb. 2020, at 1-4 | ""Due to the new discoveries and advances made in technology in the field of neuroscience in the last few decades, it has been possible to get a better understanding of the development of the human brain. This has had a significant impact on youth criminal law, especially in relation to the behavior of adolescents and their capacity to control impulsive reactions. In this article, we will discuss the repercussions of this improved understanding on the amount of penalty for convicted adolescents in Latin America. It is important to mention that the minimum age of criminal responsibility on each country of this region is quite different (mostly between 12 and 16 years old). Despite this and other divergences, we think it is possible to make an approach from the point of view of the Inter-American Human Rights System."" |
| Mercurio | 2020 | Adolescent Brain Development and Progressive Legal Responsibility in the Latin American Context | Ezequiel Mercurio, Eric García-López, Luz Anyela Morales-Quintero, Nicolás E. Llamas, José Ángel Marinaro & José M. Muñoz | 11 Frontiers Psychology, Apr. 2020, at 1-13 | ""In this article, we analyze the contributions of neuroscience to the development of the adolescent brain and shed additional light on the minimum age of criminal responsibility in the context of Latin America. In neurobiology, maturity is perceived to be complex because the brain’s temporal development process is not uniform across all its regions. This has important consequences for adolescents’ behavior; in their search for the acceptance of their peers, they are more vulnerable to pressure and more sensitive to stress than adults. Their affectivity is more unstable, and they show signs of low tolerance to frustration and important emotional reactivity, with a decrease in the capacity to self-regulate. Consequently, risky behavior presents itself more frequently during adolescence, and behaviors that transgress norms and social conventions typically peak between the ages of 17 and 19 years. However, only a small percentage of young offenders escalate their behavior to committing crimes during adulthood. In comparative law, there are considerable differences in Latin American countries’ legal dispositions regarding the minimum age of criminal responsibility; Brazil, Costa Rica, and Ecuador regard the age of criminal responsibility to be 12 years, while Argentina accepts this to be 16 years. From a legal viewpoint, however, the debate about the minimum age of criminal responsibility is connected to other circumstances that, because they are still at a developmental stage, are attributed to adolescents’ rights in their decision-making and understanding of autonomy (e.g., the minimum ages for voting, alcohol consumption, and medical consent). We argue that research on the development of the adolescent brain does not provide definitive answers about the exact age required for different juridical purposes. Nonetheless, the current state of knowledge does allow for reflection on the development and maturation of adolescents and the implications for considering them criminally responsible. It also validates demands for a system that provides adolescents with greater protection and that favors their healthy integral development. In any case, although a specific minimum age is not evident, this study is disposed not to recommend lowering the age of criminal responsibility, but rather increasing it."" |
| Vincent | 2020 | Neurointerventions and the Law: Regulating Human Mental Capacity | Nicole A. Vincent, Thomas Nadelhoffer, and Allan McCay | (Nicole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""Features original chapters on a wide variety of issues that relate to neurointerventions in the legal domain. Presents discussions of a large range of neurointerventions-e.g., pharmacological interventions vs. brain implants. Contains an exclusive introduction that details different kinds of neurointerventions and how they relate to more traditional forms of non-neural interventions.""In this article, we analyze the contributions of neuroscience to the development of the adolescent brain and shed additional light on the minimum age of criminal responsibility in the context of Latin America. In neurobiology, maturity is perceived to be complex because the brain’s temporal development process is not uniform across all its regions. This has important consequences for adolescents’ behavior; in their search for the acceptance of their peers, they are more vulnerable to pressure and more sensitive to stress than adults. Their affectivity is more unstable, and they show signs of low tolerance to frustration and important emotional reactivity, with a decrease in the capacity to self-regulate. Consequently, risky behavior presents itself more frequently during adolescence, and behaviors that transgress norms and social conventions typically peak between the ages of 17 and 19 years. However, only a small percentage of young offenders escalate their behavior to committing crimes during adulthood. In comparative law, there are considerable differences in Latin American countries’ legal dispositions regarding the minimum age of criminal responsibility; Brazil, Costa Rica, and Ecuador regard the age of criminal responsibility to be 12 years, while Argentina accepts this to be 16 years. From a legal viewpoint, however, the debate about the minimum age of criminal responsibility is connected to other circumstances that, because they are still at a developmental stage, are attributed to adolescents’ rights in their decision-making and understanding of autonomy (e.g., the minimum ages for voting, alcohol consumption, and medical consent). We argue that research on the development of the adolescent brain does not provide definitive answers about the exact age required for different juridical purposes. Nonetheless, the current state of knowledge does allow for reflection on the development and maturation of adolescents and the implications for considering them criminally responsible. It also validates demands for a system that provides adolescents with greater protection and that favors their healthy integral development. In any case, although a specific minimum age is not evident, this study is disposed not to recommend lowering the age of criminal responsibility, but rather increasing it."" |
| Jones | 2021 | Law and Neuroscience | Owen D. Jones, Jeffrey D. Schall, & Francis X. Shen | (2d ed. forthcoming 2021) | . |
| Eagleman | 2020 | Livewired: The Inside Story of the Ever-Changing Brain | David Eagleman | (2020). | ""What does drug withdrawal have in common with a broken heart? Why is the enemy of memory not time but other memories? How can a blind person learn to see with her tongue, or a deaf person learn to hear with his skin? Why did many people in the 1980s mistakenly perceive book pages to be slightly red in color? Why is the world’s best archer armless? Might we someday control a robot with our thoughts, just as we do our fingers and toes? Why do we dream at night, and what does that have to do with the rotation of the Earth? The answers to these questions are right behind our eyes. The greatest technology we have ever discovered on our planet is the three-pound organ carried in the vault of the skull. This book is not simply about what the brain is; it is about what it does. The magic of the brain is not found in the parts it’s made of but in the way those parts unceasingly reweave themselves in an electric, living fabric. In Livewired, you will surf the leading edge of neuroscience atop the anecdotes and metaphors that have made David Eagleman one of the best scientific translators of our generation. Covering decades of research to the present day, Livewired also presents new discoveries from Eagleman’s own laboratory, from synesthesia to dreaming to wearable neurotech devices that revolutionize how we think about the senses."" |
| Bandes | 2020 | Introduction | Susan A. Bandes, Jody Lynee Madeira, Emily Kidd White & Kathry D. Temple | , in Edwar Elgar Research Handbook on Law and Emotion (Susan A. Bandes et al. eds., forthcoming 2020). | ""This is the Introduction to the forthcoming volume THE EDWARD ELGAR RESEARCH HANDBOOK ON LAW AND EMOTION, edited by Susan A. Bandes, Jody Lynee Madeira, Kathryn D. Temple, and Emily Kidd White. The goals of this volume are threefold: to introduce the general reader to the burgeoning field of Law and Emotion; to bring together voices from a wide array of disciplines and methodologies on a broad range of topics; and to move the conversation forward while identifying important areas for further study. The Handbook contains thirty-six chapters by an international group of authors who draw on neuroscience, philosophy, literary theory, psychology, history, sociology, and other fields to examine the role of a wide range of emotions in a variety of legal contexts. The authors analyze what role emotions like disgust, anger, moral outrage, shame, remorse, loyalty, compassion, empathy and love play in the shaping of legal doctrines and the dynamics of legal institutions. They also consider less frequently discussed emotional states like “attachment” and “closure.” They move beyond traditionally “emotional” venues like the criminal law and the jury trial to encompass topics like contracts, property, bankruptcy, and international law, legal actors like judges and defense attorneys, and venues like the negotiation session and truth and reconciliation commissions. In addition to these chapters, all original to the volume, the HANDBOOK also includes three of the classic articles that helped introduce and define the field of Law and Emotion."" |
| Mariëlle | 2020 | Giving Children a Voice in Court? Age Boundaries for Involvement of Childre in Civil Proceedings and the Relevance of Neuropsychological Insights | Bruning Mariëlle & Jiska Peper | 13 Erasmus L. Rev. 31, 31-44 (2020). | ""In the last decade neuropsychological insights have gained influence with regard to age boundaries in legal procedures, however, in Dutch civil law no such influence can be distinguished. Recently, voices have been raised to improve children’s legal position in civil law: to reflect upon the minimum age limit of twelve years for children to be invited to be heard in court and the need for children to have a stronger procedural position. In this article, first the current legal position of children in Dutch law and practice will be analysed. Second, development of psychological constructs relevant for family law will be discussed in relation to underlying brain developmental processes and contextual effects. These constructs encompass cognitive capacity, autonomy, stress responsiveness and (peer) pressure. From the first part it becomes clear that in Dutch family law, there is a tortuous jungle of age limits, exceptions and limitations regarding children’s procedural rights. Until recently, the Dutch government has been reluctant to improve the child’s procedural position in family law. Over the last two years, however, there has been an inclination towards further reflecting on improvements to the child’s procedural rights, which, from a children’s rights perspective, is an important step forward. Relevant neuropsychological insights support improvements for a better realisation of the child’s right to be heard, such as hearing children younger than twelve years of age in civil court proceedings."" |
| Casey | 2020 | Healthy Development as a Human Right: Insights from Developmental Neuroscience for Youth Justice | B.J. Casey, Kim Taylor-Thompson, Estée Rubien-Thomas, Maria Robbins, & Arielle Baskin-Sommers | 16 Ann. Rev. L. & Soc. Sci. 9.1, 9.1-9.20 (forthcoming 2020) | ""Healthy development is a fundamental right of the individual, regardless of race, ethnicity, or social class. Youth require special protections of their rights, in part owing to vulnerabilities related to psychological and brain immaturity. These rights include not only protection against harm but opportunities for building the cognitive, emotional, and social skills necessary for becoming a contributing member of society. They apply to all youth, including those within the adult criminal justice system, which raises the legal question of when adult capacity and responsibility begin and special protections are no longer warranted. This article highlights (a) empirical findings from developmental science on when psychological and neurobiological development reaches maturity; (b) the extent to which this scientific knowledge guides current policies and practices in the treatment of youth in the United States; and (c) emerging policies in the treatment of young people in the justice system based on developmental science."" |
| Sinnott-Armstrong | 2016 | Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage | Walter Sinnott-Armstrong | (Walter Sinnott-Armstrong ed., 2016). | ""Modern medicine enables us to keep many people alive after they have suffered severe brain damage and show no reliable outward signs of consciousness. Many such patients are misdiagnosed as being in a permanent vegetative state when they are actually in a minimally conscious state. This mistake has far reaching implications for treatment and prognosis. To alleviate this problem, neuroscientists have recently developed new brain-scanning methods to detect consciousness in some of these patients and even to ask them questions, including Do you want to stay alive?"" Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage addresses many questions regarding these recent neuroscientific methods: Is what these methods detect really consciousness? Do patients feel pain? Should we decide whether or not to let them die or are they competent to decide for themselves? And which kinds of treatment should governments and hospitals make available? This edited volume provides contextual information, surveys the issues and positions, and takes controversial stands from a wide variety of prominent contributors in fields ranging from neuroscience and neurology to law and policy to philosophy and ethics. Finding Consciousness should interest not only neuroscientists, clinicians, and ethicists but anyone who might suffer brain damage, which includes us all."" |
| Fins | 2020 | Cruzan and the Other Evidentiary Standard: A Reconsideration of a Landmark Case Given Advances in the Classification of Disorders of Consciousness and the Evolution of Disability Law | Joseph J. Fins | 73 S. Methodist U. 91, 91-117 (2020). | ""IT is more than a bit ironic that the decision in Cruzan v. Director, Missouri Department of Health hinged on the relationship of evidentiary standards and the Due Process Clause of the Fourteenth Amendment. The question before the U.S. Supreme Court was whether Missouri’s Supreme Court had correctly ruled that they could assert a clear and convincing evidence standard for consequential decisions made by surrogates on behalf of an incompetent patient. The U.S. Supreme Court affirmed the Missouri court’s decision and asserted that there had been no violation of the Due Process Clause. For the majority, the question of evidence related to the quality of knowledge that might allow a surrogate to make a decision to withdraw life-sustaining therapy. In the absence of clear and convincing evidence to the contrary, treatment would continue and thus life would be preserved."" |
| Wagner | 2020 | The Criminally Damaged Brain and the Need to Expand Mental Health Courts: A Look at the Traumatized Mind, Unfortunate Criminal Consequences, and the Divergent Paths of Prison or Treatment | Adam R. Wagner | 44 Nova L. Rev. 403, 403-440 (2020). | ""Many medical professionals now consider crime to be a disease brought on by mental deficiencies. This does not mean that the deficiency need be present since birth, but can be brought about through head trauma such as concussions, sub-concussive impacts, or explosions, which may lead to a traumatic brain injury (""TBI""), chronic traumatic encephalopathy (""CTE""), frontal lobe issue(s), etc. These injuries can cause an individual to lose the ability ""to regulate emotion and behavior.""' The individual becomes prone to act violently and even criminally-sometimes going from being cool, calm, and collected to exploding in an uncontrollable fit of rage with no apparent trigger.' It is a common assumption that everyone makes their own choices and these choices are the determining factor in what they do. ""However, neuroscience indicates that our choices sometimes are based upon electrical impulses and neuron activity that are not a part of conscious behavior. This includes not only criminal activity, but also decisions made by police, prosecutors, and jurors to arrest, prosecute, or convict."" When looking at crime, it is necessary to understand what the prosecution must prove. For a verdict of guilty, the prosecution must prove the elements of a crime beyond a reasonable doubt. Typically, this includes the element of intent to commit the crime. The question then is whether the element of intent can be proven in individuals with severe neurological disorders caused by neurological trauma."" Serious rationality impairments may undermine or even diminish criminal responsibility. One study has shown that TBIs are roughly seven times higher in prisoners than the general population. There is evidence that over one million inmates suffer from some form of mental illness. If mental impairment due to brain trauma was taken into account at trial, how many people would be in institutions receiving help, instead of rotting away in prison as the environment furthers their criminal nature? |
| Avery | 2020 | Greatly Exaggerating Dualism's Death: Neuroscience and U.S. Law | Joseph Avery | 105 Cornell L. Rev. Online 127, 127-139 (2020). | ""In Texas Department of Housing and Community Affairs v. Inclusive Communities, a case that considered durative confounding of the Fair Housing Act, the United States Supreme Court held that even in the absence of discernible discriminatory intent, disparate impact produced by policy or practice may warrant remedy. Writing for a 5-4 majority, Justice Anthony Kennedy referenced “unconscious prejudices” and “disguised animus,” pointing to a demarcation between mentation and action, concluding that the former is often inscrutable—to the subject and to external evaluators alike. Less than a year following Inclusive Communities, researchers showed that it is possible to “read” thoughts based on neural activity alone. Looking at brain scans, the researchers were able to determine—with over 90% accuracy— whether participants were seeing a presently viewed face for the first time, a matter of much import for criminal identifications. Slight experimental progress would entail impingement on concerns intimate with Inclusive Communities: if there is a question of discriminatory intent, don’t look to disparate impact, a test that is both over-inclusive (non-discriminatory policies and practices, by statistical variance alone, will occasionally have disparate impact) and under-inclusive (many discriminatory actors may act ineffectually). Look instead to neural activity, where proof of intent, and not just evidence, is located. Mind and body, the theory goes, are one."" |
| Vincent | 2020 | Law Viewed Through the Lens of Neurointerventions | Nicole A. Vincent, Thomas Nadelhoffer & Allan McCay | , in Neurointerventions and the Law: Regulating Human Mental Capacity 1 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""The development of modern diagnostic neuroimaging techniques led to discoveries about the human brain and mind that helped give rise to the field of neurolaw. This new interdisciplinary field has led analytic jurisprudence and philosophy of law in novel directions by providing an empirically informed platform from which scholars have reassessed topics such as mental privacy and self-determination, responsibility and its relationship to mental disorders, and the proper aims of criminal law. Similarly, the development of neurointervention techniques that promise to deliver new ways of altering people’s minds (by intervening in their brains) creates opportunities and challenges that raise important and rich conceptual, moral, jurisprudential, and scientific questions, and help us to tease apart analytic jurisprudence from synthetic jurisprudence. This volume advances the field of neurolaw by investigating issues raised by the development and use of neurointerventions (actual, proposed, and potential) to regulate human mental capacity, and those raised by the law’s regulation of the use of neurointerventions."" |
| Levy | 2020 | Cognitive Enhancement: Defending the Parity Principle | Neil Levy | , in Neurointerventions and the Law: Regulating Human Mental Capacity 33 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""According to the parity principle, the means whereby an agent intervenes in his or her mind, or the minds of others, is irrelevant when it comes to assessing the moral status of the intervention: what matters is how the intervention affects the agent. This chapter sets out the case for the parity principle, before defending it from recent objections due to Christoph Bublitz and Reinhard Merkel. Bublitz and Merkel argue that direct interventions bypass agents’ psychological capacities and therefore produce states over which agents have less control and which are less reflective of who they genuinely are. I argue that indirect interventions that are processed psychologically may be no less destructive of control or of the degree to which the resulting states are reflective of the agent and, further, that direct interventions may be morally unproblematic. Given that right now and for the foreseeable future indirect interventions threaten our autonomy far more often and far more deeply than direct, the distinction between direct and indirect interventions doesn’t even provide a useful heuristic for assessing when an intervention into the mind/brain is problematic."" |
| Bublitz | 2020 | Why Means Matter: Legally Relevant Differences Between Direct and Indirect Interventions into Other Minds | Jan Christoph Bublitz | , in Neurointerventions and the Law: Regulating Human Mental Capacity 49 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""Whether there are intrinsic differences between different means to intervene into brains and minds is a key question of neuroethics, which any future legal regulation of mind-interventions has to face. This chapter affirms such differences by a twofold argument:. First, it present differences between direct (biological, physiological) and indirect (psychological) interventions that are not based on crude mind–brain dualisms or dubious properties such as naturalness of interventions. Second, it shows why these differences (should) matter for the law. In a nutshell, this chapter suggests that indirect interventions should be understood as stimuli that persons perceive through their external senses whereas direct interventions reach brains and minds on different, nonperceptual routes. Interventions primarily differ in virtue of their causal pathways. Because of them, persons have different kinds and amounts of control over interventions; direct interventions regularly bypass resistance and control of recipients. Direct interventions also differ from indirect ones because they misappropriate mechanisms of the brain. These differences bear normative relevance in light of the right to mental self-determination, which should be the guiding normative principle with respect to mind-interventions. As a consequence, the law should adopt by and large a normative—not ontological—dualism between interventions into other minds: nonconsensual direct interventions into other minds should be prohibited by law, with few exceptions. By contrast, indirect interventions should be prima facie permissible, primarily those that qualify as exercises of free speech. The chapter also addresses a range of recent objections, especially by Levy (in the previous chapter)."" |
| Glannon | 2020 | Neuroprosthetics, Behavior Control, and Criminal Responsibility | Walter Glannon | , in Neurointerventions and the Law: Regulating Human Mental Capacity 89 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""Arguments for moral and criminal responsibility generally assume that the control necessary for responsibility rules out all forms of brain manipulation. The agent’s mental states must be the direct causes of her actions. Yet when they operate effectively, neuroprosthetics do not undermine but restore control of motor and mental functions that have been lost from brain injury or impaired by neurodevelopmental and neurodegenerative disorders. Neural implants enable varying degree of voluntary agency by restoring varying degrees of the relevant functions. Whether or to what extent a person with a device implanted in her brain can be criminally responsible for an action, omission or consequence of an action or omission depends on the extent to which she can control the device and the thought and behavior it is designed to regulate. I present actual and hypothetical cases involving three different types of brain implants to explore how individuals with these devices implanted in their brains can control their mental states and actions. Brain implants that alter motor and mental functions should make us reconsider standard interpretations of psychological and physical criteria of criminal responsibility."" |
| Gilbert | 2020 | Is There Anything Wrong with Using AI Implantable Brain Devices to Prevent Convicted Offenders from Reoffending? | Frédéric Gilbert & Susan Dodds | , in Neurointerventions and the Law: Regulating Human Mental Capacity 113 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""The world’s first clinical trial using advisory brain implant operated by artificial intelligence (AI) has been completed with significant success. The tested devices predict a specific neuronal event (epileptic seizure), allowing people implanted with the device to be forewarned and to take steps to reduce or avoid the impact of the event. In principle, these kinds of artificially intelligent devices could be used to predict other neuronal events and allow those implanted with the device to take precautionary steps or to automate drug delivery so as to avoid unwanted outcomes. This chapter examines moral issues arising from the hypothetical situation where such devices controlled by AI are used to ensure that convicted criminal offenders are safe for release into society. We distinguish two types of predictive technologies controlled by AI: advisory systems and automated therapeutic response systems. The purpose of this chapter is to determine which of these two technologies would generate fewer ethical concerns. While there are moral similarities between the two technologies, the latter raises more concerns. In particular, it raises the possibility that individual moral decision-making and moral autonomy can be threatened by the use of automated implants."" |
| Focquaert | 2020 | Offering Neurointerventions to Offenders with Cognitive-Emotional Impairments: Ethical and Criminal Justice Aspects | Farah Focquaert, Kristof Van Assche & Sigrid Sterckx | , in Neurointerventions and the Law: Regulating Human Mental Capacity 127 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""A wide variety of medications and neuromodulation techniques are being investigated to manage risk factors for deviant behavior. If certain neurointerventions can restore impaired moral decision-making and behavior in offenders, should the criminal justice system be permitted to use such neurointerventions and, if so, under which conditions? In this chapter, the authors argue that it can be ethical to offer neurointerventions to offenders as a condition of probation, parole, or sentence reduction, provided that the fulfillment of five minimal ethical conditions is verified on a case-by-case basis. The authors further argue that forcing neurointerventions as part of an offender’s sentence or as a postprison requirement is both ethically and practically problematic, with the possible exception of benign neurointerventions without side effects."" |
| Hardcastle | 2020 | Diversion Courts, Traumatic Brain Injury, and American Vets | Valerie Gray Hardcastle | , in Neurointerventions and the Law: Regulating Human Mental Capacity 149 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""The Centers for Disease Control and Prevention estimates that the lifetime traumatic brain injury (TBI) rates for prisoners are higher than for the general population. The impulsive and aggressive behaviors resulting from TBI also parallel incarceration rates. But how scientific communities understand the origins of behavior clashes with how our justice system does. Medicine, psychiatry, neuropsychology, and neurology all hold that deformities in the brain can influence or even determine a person’s thoughts, desires, impulses, and ability to control behavior. In contrast, U.S. law assumes that adults are rational beings who act for specific reasons and that, in each instance, an individual could have done otherwise. Yet, the American court system is beginning to differentiate returning combat vets with brain disorders from other offenders, creating diversion courts for veterans accused of a variety of crimes. These courts allow military offenders to enter a mental health treatment program instead of being jailed. Several questions arise from this practice. Should vets be treated differently than other noncombatant defendants with similar brain injuries? Should brain disorders affect how we assign or understand legal notions of punishment and responsibility? How do we connect data regarding neural interventions with punishment and remediation? And how do we distinguish “mad” from “bad”? This chapter attempts to answer these questions."" |
| McCay | 2020 | Neurobionic Revenge Porn and the Criminal Law: Brain-Computer Interfaces and Intimate Image Abuse | Allan McCay | , in Neurointerventions and the Law: Regulating Human Mental Capacity 168 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""Brain computer interfaces make possible a form of neurobionic agency in which people interact with the Internet by mental action, without the need for a bodily movement. This chapter considers the possibility of someone uploading intimate images of another person, without their consent, onto social media by way of brain–computer interface. The author highlights the novel and perhaps problematic nature of the options for response to such offending (given current doctrine) that are available to the criminal law. The example of revenge porn is used as a case study to very tentatively consider the criminal law’s response to neurobionic offending more generally. While the law has criminalized bodily actions, omissions and certain kinds of status, neurobionic agency falls into none of these traditional categories, and some issues flow from this failure. The author argues that neurobionic revenge porn would present a challenge to the criminal law relating to the determination of the conduct that constitutes the actus reus. Thus, if the courts are required to respond to this kind of offending, it will raise questions about a concept that is currently central to the criminal law."" |
| Nadelhoffer | 2020 | Folk Jurisprudence and Neurointervention: An Interdisciplinary Investigation | Thomas Nadelhoffer, Daniela Goya-Tocchetto, Jennifer Cole Wrigth & Quinn McGuire | , in Neurointerventions and the Law: Regulating Human Mental Capacity 191 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""Our chapter is motivated by an underlying assumption that layperson’s intuitions, beliefs, and judgments about moral and legal issues and public policy—which we refer to as “folk jurisprudence”—is relevant to philosophical and legal theorizing about the normative status of the use of neurological interventions. While we are quick to acknowledge that researchers need not be entirely beholden to the dictates of folk jurisprudence, we nevertheless believe that layperson’s attitudes about the relationship between neuroscience and the law ought to at least serve as feasibility constraints when it comes to the important project of getting from theory to practice. Given our beliefs concerning the relevance of folk intuitions to philosophical theorizing and public policy, we set out to explore these intuitions in a systematic way. So, we present the findings from three studies we ran which investigated people’s intuitions about the following practices and policies: (a) using interventions to reduce implicit bias in judges and jurors, (b) using interventions to reduce violence impulsivity on violent offenders, and (c) using interventions to improve moral behavior not only in prison populations but also in the general population. Having presented our findings, we then discuss what we take to be the relevance of this type of research to philosophy, law, and public policy."" |
| Dawson | 2020 | Judicious Use of Neuropsychiatric Evidence when Sentencing Offenders with Addictive Behaviors: Implications for Neurointerventions | Andrew Dawson, Jennifer Chandler, Colin Gavaghan, Wayne Hall & Adrian Carter | , in Neurointerventions and the Law: Regulating Human Mental Capacity 231 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""This chapter examines how courts in commonwealth jurisdictions have used neuropsychiatric evidence as a mitigating factor in sentencing, in cases involving (a) drug- and gambling-addicted offenders and (b) offenders prescribed dopaminergic medication for a movement disorder. The authors first examine how courts have approached criminal offending linked in some way to drug or behavioral addictions. Generally, commonwealth courts see drug- or gambling-addicted offenders as morally blameworthy agents deserving of imprisonment. Some courts have occasionally adopted a medical stance and allowed an individual’s drug or gambling addiction to mitigate their sentence. The justification for adopting a medical stance has arguably been the greater economic and public health benefits of a medical approach rather than a strong embrace of neuropsychiatric evidence. In contrast, in two recent cases in which criminal offences have been attributed to dopaminergic medication prescribed for movement disorders, courts have strongly relied upon neuropsychiatric evidence as a mitigating factor at sentencing. Reliance on this evidence was unnecessary in these cases, as the noncustodial sentences imposed on patients could have been justified on other grounds. This evidence was also misapplied. The authors conclude with an analysis of the implications of this misapplication for the use of neurointerventions to reduce addiction-related offending. This analysis is vital to ensuring that future courts determining an appropriate neurointervention for a movement-disordered offender unwilling to reduce their medication will not be hamstrung by a conflation of causality and compulsion."" |
| Bülow | 2020 | ""It Will Help You Repent"": Why the Communicative Theory of Punishment Requires the Provision of Medications to Offenders with ADHD | William Bülow | , in Neurointerventions and the Law: Regulating Human Mental Capacity 255 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""This chapter explores The question of whether prison inmates suffering from attention-deficit/hyperactivity disorder (ADHD) should be administered a psychopharmacological intervention (methylphenidate) for their condition. The theoretical starting point for the discussion is the communicative theory of punishment, which understands criminal punishment as a form of secular penance. Viewed through the lens of the communicative theory, the provision of pharmacological treatment to offenders with ADHD need not necessarily be conceived of as an alternative to punishment, but as an aid to achieving the penological ends of secular penance. The criminal justice system punishes offenders who commit offences prohibited under the criminal law, and the hope is that this will lead them to become repentant, to start reforming themselves, and to reconcile with those whom they wronged. However, the neurophysiological obstacles associated with severe ADHD present serious obstacles to achieving repentance and self-reform. As a remedy, the chapter proposes that to achieve those aims, criminal offenders diagnosed with ADHD should be offered the option to undergo pharmacological treatment. This proposal is defended from the objection that secular penance made possible by methylphenidate is less authentic."" |
| Ryan | 2020 | Is It Really Ethical to Prescribe Antiandrogens to Sex Offenders to Decrease Their Risk of Recidivism? | Christopher James Ryan | , in Neurointerventions and the Law: Regulating Human Mental Capacity 270 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""Many jurisdictions have laws that allow convicted sex offenders to be given antiandrogens as a component of sentencing. In other jurisdictions legislation facilitates the voluntary use of antilibidinal drugs in this population on the assumption that these compounds will decrease the rate of recidivism in sex offenders. This chapter begins with an overview of the current legal situation in various jurisdictions and provides examples of the assumptions of efficacy often made by academics and the judiciary. It then examines the theoretical basis of any hoped-for efficacy of antiandrogens in reducing recidivism before a critical examination of the actual empirical evidence for this, including a best-case scenario estimation of the how many offenders would need to take antiandrogens to prevent one from reoffending. The chapter also reviews the harms associated with the use of antiandrogen drugs (to the extent that these are known) before returning to the ethical question that forms the chapter’s title and concluding that the state should not authorize the compulsory or coerced used of antiandrogens, primarily because of the lack of evidence of efficacy of these substances."" |
| Sifferd | 2020 | Chemical Castration as Punishment | Katrina L. Sifferd | , in Neurointerventions and the Law: Regulating Human Mental Capacity 293 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""This chapter explores whether chemical castration can be justified as a form of criminal punishment. The author argues that castration via the drug medroxyprogesterone acetate (MPA), or some similar drug, does not achieve the punishment aims of retribution, deterrence, or incapacitation, but might serve as punishment in the form of rehabilitative treatment. However, current U.S. chemical castration statutes are too broad to be justified as rehabilitative. The state is warranted in targeting psychological states in criminal defendants for rehabilitative treatment where such states (a) act as a primary cause of a criminal offender’s crime and (b) give rise to extraordinary worries that the offender will recidivate. Current statutes qualify criminal offenders for castration who do not have overwhelming sexual urges or other psychological states causally related to their crime that may be treated with MPA. Thus, even assuming the efficacy of MPA, such statutes are unjustifiable because they apply chemical castration to offenders for whom castration will have no rehabilitative effect."" |
| Davies | 2020 | Foundational Facts for Legal Responsibility: Human Agency and the Aims of Restorative Neurointerventions | Paul Sheldon Davies | , in Neurointerventions and the Law: Regulating Human Mental Capacity 319 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""The project of restorative neurointerventions has the ambitious aim of restoring specific competencies to some baseline. This includes the restoration of capacities integral to practical reasoning, and thus to various form of legal responsibility, that are deficient in some way. The goal is to restore such persons so they may legitimately be held legally responsible for future actions. The thesis of this chapter is that this project faces serious skepticism. This skepticism derives not from doubts that relevant capacities can be restored. It derives rather from the apparent fact that at least some of the capacities we intuitively take as integral to legal responsibility are capacities that human beings in general do not possess, including humans not afflicted by any statistically aberrant incapacity. This apparent fact—that humans in general do not possess capacities that are taken to be integral for responsibility—derives from the integration of findings in affective and cognitive neuroscience and in social psychology. If the proposed integration is correct, then the alleged foundational facts for legal responsibility fail to apply to organisms like us, and the project of neurorestoration cannot succeed unless the actual capacities (if any) that render us genuinely responsible are discovered."" |
| Vierra | 2020 | Make Me Gay: What Neurointerventions Tell Us About Sexual Orientation and Why It Matters for the Law | Andrew Vierra | , in Neurointerventions and the Law: Regulating Human Mental Capacity 351 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""Current legal arguments for gay rights use gay primarily to refer to individuals that have same-sex erotic desires. However, as this chapter argues using a thought experiment based on a neurointervention that would alter the orientation of one’s erotic desires, the term gay should be understood in a broader sense to include a more diverse group of individuals, including some individuals that do not have same-sex erotic desires. For this reason, the current restrictive use of the term gay presumed in legal discourse doesn’t capture the entire gay community that we should want to extend rights to. To rectify this problem with the way that arguments for gay rights are being framed, this chapter suggests that we expand the use of the term gay in legal discourse to encompass a more heterogeneous population than the one picked out by same-sex-attracted individuals, and it explains some of the advantages of doing so."" |
| Erler | 2020 | Neuroenhancement, Coercion, and Neo-Luddism | Alexandre Erler | , in Neurointerventions and the Law: Regulating Human Mental Capacity 375 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""This chapter addresses the claim that, as new types of neurointervention get developed allowing us to enhance various aspects of our mental functioning, we should work to prevent the use of such interventions from ever becoming the “new normal,” that is, a practice expected—even if not directly required—by employers. The author’s response to that claim is that, unlike compulsion or most cases of direct coercion, indirect coercion to use such neurointerventions is, per se, no more problematic than the pressure people all find themselves under to use modern technological devices like computers or mobile phones. Few people seem to believe that special protections should be introduced to protect contemporary Neo-Luddites from such pressures. That being said, the author acknowledges that separate factors, when present, can indeed render indirect coercion to enhance problematic. The factors in question include lack of safety, fostering adaptation to oppressive circumstances, and having negative side effects that go beyond health. Nonetheless, the chapter stresses that these factors do not seem to be necessary correlates of neuroenhancement."" |
| Hopkins | 2020 | Neurointerventions and Business Law: On the Legal and Moral Issues of Neurotechnology in Business and How They Differe from the Criminal Law Context | Patrick D. Hopkins & Harvey L. Fiser | , in Neurointerventions and the Law: Regulating Human Mental Capacity 406 (Nichole A. Vincent, Thomas Nadelhoffer & Allan McCay eds., 2020). | ""Neurointerventions of various sorts open up options that law can have a hard time dealing with. While the effects of neurotechnology on criminal law have been extensively investigated, the effects on business law are just as important. New and potential technology could allow for more powerful methods of job candidate screening, monitoring, and performance improvement than the conventional methods of interviewing, training, motivational programs, and free caffeine dosing in the staff break room. This chapter examines the legal, social, and moral issues involved in workplace neurointerventions, showing how different the business law context is from the criminal law context, how a different set of rules and expectations govern employment relationships, and how both employers and employees could be motivated to use neurointerventions, and we describe a basic set of different policy options for how to regulate such technology that vary according to what social values are maximized."" |
| Sinnott-Armstrong | 2010 | Lessons from Libet | Walter Sinnott-Armstrong | , in Conscious Will and Responsibility: A Tribute to Benjamin Libet 235 (Walter Sinnott-Armstrong & Lynn Nadel eds., 2010). | ""The real question that Libet's experiments raise is whether our conscious wills cause the willed actions. What is at issue is the effects rather than the causes of conscious will. The question is whether conscious will is impotent, not whether it is free. If conscious will is impotent, then we cannot control our actions by means of conscious will, and this disability might reduce our freedom of action. Libet's experiments raises or sharpens this new question. By raising a new issue in a new way, Libet's work made (and continues to make) many people rethink their assumptions. The assumptions at stake are both normative and descriptive. The relevant normative assumption is, roughly, that causation by conscious will is necessary for responsibility. The descriptive assumption that Libet questions is, again roughly, that conscious will causes the willed action. This chapter addresses these assumptions in turn. It concludes that Libet's experiments do not undermine responsibility in general, but they do illuminate some particular cases as well as common standards of responsibility."" |
| Phelps | 2012 | Emotion's Impact on Memory | Elizabeth A. Phelps | , in Memory and Law (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012) | ""A strong emotional reaction to an event often results in an increased sense of vividness and confidence when recollecting that event in the future. However, these vivid and confident memories for emotional events can sometimes be surprisingly inaccurate in their details. This chapter reviews psychological and neuroscience research illustrating how the emotional quality of events might alter later memory. The chapter examines how the rich recollective experience of shocking and emotional events may result from the selective attention and memory storage for a few critical details of the event resulting in strong, and likely accurate, memory for these details. This strong memory for a few details of the event may result in a mistaken belief in the accuracy of other memory details. A possible reason is that memory vividness serves to promote fast action in the face of future, similar events, and the critical details are likely those that are most important for determining future actions. Implications for the reliability of memory in legal settings are discussed."" |
| Gronlund | 2012 | Lineup Procedures in Eyewitness Identification | Scott D. Gronlund, Charles A. Goodsell & Shannon M. Andersen | , in Memory and Law (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012) | ""Faulty eyewitness identification is a leading reason that innocent people are convicted and incarcerated. Wells (1978) introduced a distinction between two sets of variables that affect the accuracy of identification decisions: estimator and system variables. Estimator variables are factors like the adverse effects on encoding of stress or the difficulty of cross-race identifications. Little can be done to circumvent these effects. However, system variables are under the control of the criminal justice system and research has been directed at developing procedures to enhance the accuracy of eyewitness identification. The chapter considers four categories of system variable research involving lineups: content, instructions, behavioral influence, and presentation method. The chapter reviews the evidence supporting each and update recommendations made by Wells et al. (1998). Particular attention is directed at sequential versus simultaneous lineup presentation methods because the ostensible advantage of sequential lineups has been the most influential system-variable reform."" |
| Roediger | 2012 | The Curious Complexity Between Confidence and Accuracy in Reports from Memory | Henry L. Roediger III, John H. Wixted & K. Andrew Desoto | , in Memory and Law (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012) | ""The reliability of confident eyewitness evidence is critical for the legal system, but conflicting evidence exists on the relation of confidence and accuracy in reports from memory. This chapter reviews four methods (and a fifth hybrid method) used to address this issue, and the chapter surveys evidence obtained by each method. Both positive correlations and zero correlations can be obtained between confidence and accuracy; in fact, a negative correlation between confidence and accuracy is possible in certain circumstances (when people are asked to judge events similar to the one originally viewed). Despite this wide range of possible outcomes, it is also true that confidence and accuracy are often positively related in forensically relevant studies. However, even under those conditions, high-confidence errors can and do occur. Like other types of evidence, confidence is a useful but imperfect indicator of truth. We recommend that eyewitness testimony be considered only one (fallible) indicant of guilt. The problem of high confidence errors or false memories (demonstrated in nearly all research on the topic) makes the sole use of eyewitness testimony in adjudicating guilt too risky."" |
| Chua | 2012 | Evaluating Confidence in Our Memories | Elizabeth F. Chua | , in Memory and Law (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012) | ""Recognition confidence is a common metric used to assess the accuracy of eyewitness identifications. Consequently, it is critical that we understand what information individuals use to make confidence judgments about their memory. Drawing on research in the field of metamemory (i.e., knowledge of one’s own memory), this chapter examines findings from the behavioral, eye tracking, and neuroimaging literature to determine what factors influence subjective memory confidence, and their relationship to objective accuracy. Critically, confidence judgments may be based on factors other than direct retrieval of the original event, such as familiarity or fluency of the cue that serves to elicit the sought after memory. The chapter also evaluates the potential for techniques such as functional magnetic resonance imaging (fMRI) and eye tracking in distinguishing highly confident accurate and highly confident inaccurate memory."" |
| Hasel | 2012 | Evidentiary Independence | Lisa E. Hasel | , in Memory and Law (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012) | ""Evidence collected early in a criminal investigation has been shown to affect the decisions made by criminal investigators, forensic scientists, and witnesses to a crime. The early evidence can spark an array of confirmation biases that affect the collection and interpretation other evidence throughout the investigation. Therefore, one piece of faulty evidence collected early in an investigation can lead to the accumulation of multiple pieces of faulty evidence, which may result in a wrongful conviction. This chapter addresses how distinct pieces evidence collected during an investigation may not be independent of one another. Because of its implications for memory, this chapter largely focuses on how eyewitnesses’ memories can be influenced, leading to the contamination of important evidence that may be presented in a criminal trial. Suggestions are made for decreasing evidentiary interdependence during investigations."" |
| Hirst | 2012 | Memory and Jury Deliberation | William Hirst, Alin Coman & Charles B. Stone | , in Memory and Law (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012) | ""Although psychology has intensely studied both eyewitness testimony and jury decision-making, there has only been minimal research on the efforts jury members make during deliberation to collectively and collaboratively remember the testimony they heard during a trial. This chapter reviews the Court’s instructions to juries about the reliability of their memories and the burgeoning laboratory-based literature on collaborative remembering and the ways collaborative efforts shape subsequent memory, particularly, the collective memory of a jury. Although this research does not specifically examine the memories emerging from jury deliberation, it is suggestive. While the Courts urge jurors to trust their collective memories over their notes or written transcripts, the laboratory-based research indicates that group dynamics during conversational interactions may not only lead to selective remembering, but may substantially alter what jurors remember and forget about a trial. The collective memories of juries may not be a reliable recollection of courtroom testimony."" |
| Demaine | 2012 | Realizing the Potential of Insturctions to Disregard | Linda J. Demaine | , in Memory and Law (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012) | ""The chapter addresses a longstanding issue of import to the courts—what instructions to disregard trial judges should issue when jurors are exposed to unfairly prejudicial inadmissible evidence. While the purpose of these instructions is easily stated—to minimize the influence objectionable evidence exerts on jurors—how best to formulate the instructions is considerably more challenging. Courts exclude this evidence precisely because it tends to unduly bias jurors against parties, contrary to the constitutional guarantee of a fair trial. What might trial judges say to effectively negate this prejudice? The chapter takes two converging approaches to answering this question. It draws upon empirical research in the behavioral sciences to: 1) evaluate previous proposals intended to improve on the traditional instructions to disregard, and 2) suggest factors that trial judges might profitably consider when crafting and delivering instructions to disregard."" |
| Sandberg | 2012 | The Memory of Jurors | Anders Sandberg, Walter P. Sinnott-Armstrong & Julian Savulescu | , in Memory and Law (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012) | ""Cognitive performance of the participants has crucial significance for legal trials, sometimes making the difference between fair and unfair verdicts. Jury members are expected to passively listen to long arguments, often about unfamiliar subjects, retain that information and then perform an unbiased deliberation to reach a just verdict. There are many natural cognitive limitations that impair this process: inattention, sleepiness, stress, the fallibility of human memory and our cognitive biases. Could juror cognition be improved, and would this improve the legal process? This chapter compares external aids such as notetaking with biomedical aids such as cognition enhancement drugs. It appears likely that enhancement drugs might improve juror cognition if used well, and in any case at least some jurors are likely already using them. There is also the possibility that some of them might introduce cognitive biases. However, given the low bar required for juror competence these biases might be regarded as acceptable, especially compared to the biases inherent in the deliberation process itself."" |
| Kiehl | 2013 | Introduction | Kent A. Kiehl & Walter P. Sinnott-Armstrong | , in Handbook on Psychopathy and Law 1 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | |
| Forth | 2013 | Assessment of Psychopathy: The Hare Psychopathy Checklist Measures | Adelle Forth, Sune Bo & Mickey Kongerslev | , in Handbook on Psychopathy and Law 5 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""This chapter discusses the development, assessment procedures, psychometric properties, strengths, and limitations of the PCL-R, PCL:SV, and PCL:YV. The discussion also touches on salient issues pertinent to the use of these instruments in clinical and legal settings, such as cutoff scores, categorical versus dimensional, misuses, labeling, and relationship with Antisocial Personality Disorder."" |
| Fowler | 2013 | Alternatives to the Psycopathy Checklist--Revised | Katherine A. Fowler & Scott O. Lilienfeld | , in Handbook on Psychopathy and Law 34 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""In this chapter, we review conceptual and methodological alternatives to the Psychopathy Checklist—Revised (PCL-R). We begin with self-report measures, followed by observer measures and finally implicit measures, and examine the advantages and disadvantages of each approach. Within each section, we survey the contemporary status of alternative psychopathy measures with an emphasis on their psychometric properties, research and clinical uses, and limitations. We do not examine alternative measures of psychopathy in children or adolescents given that the childhood psychopathy construct and its controversies merit a substantial discussion beyond the scope of this chapter and are covered elsewhere in this volume. In addition, there is minimal overlap between adult and child psychopathy in the measures used."" |
| Pardini | 2013 | Developmental Conceptualization of Psychopathic Features | Dustin A. Pardini & Amy L. Byrd | , in Handbook on Psychopathy and Law 61 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""This chapter provides an overview of contemporary conceptualizations of psychopathic characteristics in childhood and early adolescence, discusses evidence for stability and change in these features over time, examines the potential etiological underpinnings of these characteristics, and reviews findings regarding the impact of early interventions on psychopathic features. Implications for the juvenile justice system are addressed within the context of limitations in the existing literature."" |
| Lokaneeta | 2018 | Creating a Flawed Art of Government: Legal Discourses on Lie Detectors, Brain Scanning, and Narcoanalysis in India | Jinee Lokaneeta | 14 L., Culture & Humans. 420, 420-38 (2018) | "In this article, I analyze the legal discourses surrounding three scientific techniques – lie detectors, brain scans, and narcoanalysis – that are currently being used in criminal investigations in India. I focus on two main themes: First, I analyze the significance of these techniques emerging in a context where custodial torture and deaths occur routinely; Second, I explore the role of the courts in assessing the techniques that were presented as an explicit shift in the mode of state power. I suggest that the legal discourses can be read as indicative both of a liberal state’s desire to modernize as well as its specifically postcolonial nature. I argue that contrary to the contention of the courts that the use of these techniques would replace torture in investigations, the edifice defended by the courts actually reflects a flawed attempt at an art of government." |
| Vitacco | 2013 | Adolescent Psycopathy and the Law | Michael J. Vitacco & Randall T. Salekin | , in Handbook on Psychopathy and Law 78 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""This chapter aims to unpack issues related to adolescent psychopathy and the law and provide a basis for both the appropriate and inappropriate assessment of psychopathy with this population. Although some clinicians and scholars have posited that psychopathy should never be assessed in adolescents, the position now appears more untenable given recent movement in the fields of forensic psychology and psychiatry. One way of understanding the clinical-legal applications of psychopathy is to review articles summarizing the use of psychopathy in legal proceedings."" |
| Koenigs | 2013 | The Decision-Making Impairment in Psycopathy: Psychological and Neurobiological Mechanisms | Michael Koenigs & Joseph P. Newman | , in Handbook on Psychopathy and Law 93 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""The aim of this chapter is to outline the current state of knowledge on the psychological and neurobiological mechanisms that underlie psychopathy so that legal experts may incorporate this information as they craft policy to best ensure public safety and welfare. We assert that it is reasonable and instructive to conceptualize psychopathy broadly as a disorder of decision making and to consider the specific deficits that may contribute to the overall decision-making impairment. To this end, we have reviewed theoretical and empirical work suggesting that diminished emotional reactivity and a defect in the flexible allocation of attention are likely critical factors. We propose that psychopathy may entail a primary deficit in attention, as an attentional defect could theoretically account for the observed abnormalities in processing both affective and nonaffective information. Importantly, the attentional deficit in psychopathy appears to operate at an early, relatively automatic stage of information processing, suggesting that psychopathic behavior may reflect a lack of decision-making competence rather than a deliberate intention to harm others. To make this conclusion more definitively, future research will need to be carefully designed to parse and specify the information- processing capability of psychopaths."" |
| Schaich | 2013 | Do Psychopath Make Moral Judgments? | Jana Schaich Borg & Walter P. Sinnott-Armstrong | , in Handbook on Psychopathy and Law 107 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""The goal of this chapter is to provide a comprehensive review of the scientific evidence for and against the hypothesis that psychopaths are impaired in their moral judgments. In our view, contrary to popular opinion, the current literature does not provide evidence suggesting psychopaths have severe moral cognition deficits. However, as will become clear, few firm conclusions can be reached about moral cognition in psychopaths without further research. So far there are very little data examining moral judgment or decision making in psychopaths, partially because historically psychopathy research has been practicably and financially difficult to implement. Another reason is that psychopaths are often pathological liars, so it is hard to determine what they really believe. Additional obstacles arise because different researchers have used inconsistent criteria for diagnosing psychopathy and because few scientific tests of moral judgment or belief are established and/or standardized. To interpret this limited evidence, it is critical that both psychopathy and moral judgments be defined carefully. We therefore begin by discussing both of these definitions in turn."" |
| Anderson | 2013 | Functional Neuroimaging and Psychopathy | Nathaniel E. Anderson & Kent A. Kiehl | , in Handbook on Psychopathy and Law 131 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""This chapter reviews the most prominent support for these theories, highlighting data that suggest functional differences in the brains of psychopaths. In this chapter, it will become clear that functional activity in both cortical and subcortical structures is implicated in psychopathy, as well as in brain regions that bridge the gap between the two. Investigating the neural underpinnings of psychopathy is an urgent endeavor that has rightfully attracted increasing efforts from the scientific community. Like any field undergoing rapid growth, neuroimaging in psychopathy is vulnerable to methodological issues and subsequent interpretive variation. An examination of the current literature will reveal a dizzying array of concepts and perspectives not easily addressed in this brief review. Several of these issues are discussed in greater detail in accompanying chapters, but at the risk of redundancy, a concise discussion of the most important issues to consider when generalizing outcomes across studies follows. Many additional methodological considerations are potentially relevant but are beyond the scope of this chapter."" |
| Boccardi | 2013 | Structural Brain Abnormalities and Psychopathy | Marina Boccardi | , in Handbook on Psychopathy and Law 150 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""The research described in this chapter illustrates that the young discipline of investigating the cerebral morphologic correlates of psychopathy has depicted a pattern of difference from controls involving limbic and paralimbic regions. These features are consistent with the specific pattern of functional differences, and with the observed behavior of these people in society. Nonetheless, the temptation to use scientific data in social settings and in the legal system may be more complex than the appearance of certainty of scientific data may suggest, and numerous methodological aspects must be taken into account for a proper translation of these findings—as well as to communicate correctly and effectively between disciplines characterized by a different level of complexity. Neuroscientific evidence can be used to achieve a deeper comprehension of psychopathy and to treat individual cases in a more appropriate way, but many intermediate steps should be pursued first, as is the case when transferring medical data to clinical settings. Indeed, other disciplines, which, like medicine, have standardized a procedure leading from the research level to the outline of guidelines for using the achieved knowledge in clinical practice, may provide a template that might be useful in the dialogue between neuroscience and the law."" |
| Viding | 2013 | Quantitative Genetic Studies of Psychopathic Traits in Minors: Review and Implications for the Law | Essi Viding, Nathalie M.G. Fontaine & Henrik Larsson | , in Handbook on Psychopathy and Law 161 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | . |
| Waldman | 2013 | The Search for Genes and Environments that Underlie Psychopathy and Antisocial Behavior: Quantitative and Molecular Genetic Approaches | Irwin D. Waldman & Soo Hyun Rhee | , in Handbook on Psychopathy and Law 180 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | . |
| Caldwell | 2013 | Treatment of Adolescents with Psychopathic Features | Michael F. Caldwell | , in Handbook on Psychopathy and Law 201 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | . |
| Rice | 2013 | Psycopathy and Violent Recidivism | Marnie E. Rice & Grant T. Harris | , in Handbook on Psychopathy and Law 231 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""Based on the research summarized in this chapter we conclude that the measurement of psychopathy in the context of formal violence risk assessment systems can afford real value in the operation of criminal justice. That is, some means must be used to determine the level of custody (e.g., community vs. incarceration), its conditions, and its duration. Somehow, candidates must be identified for long-term treatment and other interventions aimed at reducing the risk of violence in adult and juvenile offenders. Simply put, these tasks cannot be effectively accomplished without reference to a means to rank cases with respect to their actual risk of subsequent violent crime."" |
| Edens | 2013 | Taking Psychopathy Measures ""Out of the Lab"" and into the Legal System: Some Practical Concerns | John F. Edens, Melissa S. Magyar & Jennifer Cox | , in Handbook on Psychopathy and Law 250 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""In this chapter we have highlighted what we believe are significant and as of yet unresolved questions regarding the reliability and validity of psychopathy measures, and the PCL instruments in particular when used to inform legal decision-making. These controversies include the (1) field reliability of scores in applied, and especially adversarial, legal proceedings (e.g., SVP cases), (2) predictive validity of PCL-R scores in relation to specific settings (e.g., capital murder trials) and particular populations (e.g., adolescent girls), (3) relevance of affective and interpersonal features in relation to violence risk assessment, and (4) incremental contribution of the PCL measures beyond extant risk assessment instruments. In addition, as noted at the beginning of this chapter, reliability and validity are not static properties of psychological scales. No instrument therefore is intrinsically reliable and valid and the legitimacy of the scores derived from it should be considered on a case-by-case basis."" |
| Litton | 2013 | Criminal Responsibility and Psychopathy: Do Psychopaths Have a Right to Excuse? | Paul Litton | , in Handbook on Psychopathy and Law 275 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""This contribution to the Handbook on Psychopathy and Law argues that the characteristics of persons with psychopathy that support the strongest case for exemption from criminal responsibility also undermine a right to excuse. Whether the criminal law should hold them responsible may be settled by consequentialist considerations, which, I argue, speak in favor of criminal responsibility. Part I attempts to establish the strongest prima facie case for legally excusing persons with psychopathy. It does so by addressing two distinct questions: First, should the law require moral competency (the capacity to respond to distinctly moral reasons) as a requirement of responsibility, or should the minimal ability to follow the law’s commands be sufficient? Second, do criminal law doctrines, in fact, contemplate morally competent agents or, rather, agents who merely possess rational capacities sufficient for following rules? The prima facie argument concludes that the law should require and does contemplate moral competence for criminal responsibility, thus implying a prima facie reason to excuse persons with extreme psychopathy. Part II counters this prima facie case. It argues that treating the psychopath as criminally responsible does not harm his interests. Punishment’s association with moral blame distinguishes it from civil commitment, and a psychopath’s well-being, whether defined by his subjective experience or objective factors, is not impaired by being the target of moral blame. As such, the psychopath lacks the interest grounding the right to excuse. Finally, pragmatic and other moral considerations speak strongly in favor of holding psychopaths legally responsible regardless of whether they are, in fact, morally responsible for wrongdoing."" |
| Pillsbury | 2013 | Why Psychopaths Are Responsible | Samuel H. Pillsbury | , in Handbook on Psychopathy and Law 297 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""This book chapter argues that psychopaths should be held fully responsible for the criminal acts they commit. The law's current view, holding persons responsible for harms done for reasons that demonstrate basic disregard for others, has been challenged by a conception of moral responsibility based on reason-responsiveness: the capacity of an individual to recognize and respond to the special obligations of moral principles. The behavioral science of psychopathy suggests that psychopaths lack a capacity for appreciating the special force of moral reasons. Some therefore have argued that they lack the basic rationality required for moral responsibility. To resolve the tension between norms of reason-responsiveness and criminal law, the author examines the basic function of criminal law. In order to achieve its social, moral and political goals, the criminal law assesses the social-moral meaning of conduct, which justifies its view of culpability as harmful conduct demonstrating disregard. Under this approach, psychopaths are fully rational actors, following a me-now philosophy that often leads to harmful conduct demonstrating disregard. The argument for responsibility is illustrated by consideration of the Columbine massacre, in which one of the participants was likely a psychopath."" |
| Morse | 2013 | Preventive Detention of Psychopaths and Dangerous Offenders | Stephen J. Morse | , in Handbook on Psychopathy and Law 321 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | . |
| Corrado | 2013 | Some Notes on Preventive Detention and Psychopathy | Michael Louis Corrado | , in Handbook on Psychopathy and Law 346 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | ""Assuming that the term “psychopath” refers only to those violent offenders who are incapable of responding to moral concerns, how to treat the psychopath is a wonderful test for any theory of responsibility, punishment, and preventive detention. In this paper I distinguish two (somewhat overlapping) approaches to the problem, the responsibility approach and the rights approach. According to the first, the psychopath should be punished for his behavior and not preventively detained if, and only if, he is responsible for what he does. The larger question of punishment versus preventive detention then depends upon the answer to the question, whether the someone who cannot respond to moral concerns is responsible for what he does. I find this approach in the work of Morse and Litton. According to the second theory, we have a right to be punished if, but only if, we respect the rights of others. I find this approach in the work of Murphy and Slobogin. This approach takes no notice of the question whether the offender is capable of respecting rights of others. I argue that the “responsibility” approach is the correct approach, but I also argue for a conclusion different from that of Morse and Litton, namely that the psychopath should in fact be “punished” and not detained. (I put the words “responsibility” and “punished” in scare-quotes to indicate that my position as an incompatibilist requires me to reject both punishment and responsibility as they are currently understood. As I argue in the paper, distinguishing between control over actions and the ability to originate actions requires us to distinguish cases in which preventive detention is appropriate – that is, cases in which the actor is not in control of his behavior – from cases involving actors in control of their behavior. These are cases for which some functional equivalent of the currently unjustified practice of punishment must be found, an equivalent that respects the offender’s ability to control his behavior and that does not result in indefinite confinement.)"" |
| Luna | 2013 | Psychopathy and Sentencing | Erik Luna | , in Handbook on Psychopathy and Law 358 (Kent A. Kiehl & Walter P. Sinnott-Armstrong eds., 2013) | . |
| Singh | 2014 | Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal, and Ethical Challenge | Ilina Singh, Walter P. Sinnott-Armstrong & Julian Savulescu | (Ilina Singh, Walter P. Sinnott-Armstrong & Julian Savulescu eds., 2014). | ""Many decisions in the legal system and elsewhere depend on predictions of bad behaviors, including crimes and mental illnesses. Some scientists have suggested recently that these predictions can become more accurate and useful if they are based in part on biological information, such as brain structure and function, genes, and hormones. The prospect of such bioprediction, however, raises serious concerns about errors and injustice. Can biological information significantly increase the accuracy of predictions of bad behavior? Will innocent or harmless people be mistakenly treated as if they were guilty or dangerous? Is it fair to keep people in prisons or mental institutions longer because of their biology? Will these new instruments of bioprediction be abused in practice within current institutions? Is bioprediction worth the cost? Do we want our government to use biology in this way? All of these scientific, legal, and ethical questions are discussed in this volume."" |
| Singh | 2014 | Introduction: Deviance, Classification, and Bioprediction | Ilina Singh & Walter P. Sinnott-Armstrong | , in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal, and Ethical Challenges (Ilina Singh, Walter P. Sinnott-Armstrong & Julian Savulescu eds., 2014) | ""After people do terrible things, energy focuses on post hoc explanations and assessments of the individual for purposes of punishment. For the moment, these assessments are still largely made using what some see as crude tools, including interviews with the person and reports from witnesses who observed the person’s behaviour during the crime and before. Rarely, but increasingly, scientific evidence in the form of biological assays, brain scans and genetics penetrates the landscape of psychiatric and legal assessments to diagnose mental fitness, assess culpability and ensure just punishment. Now imagine that, instead of post hoc explanations, there was a robust and reliable scientific way to predict bad behaviour of the sort that seriously violates social norms. If it were possible to take biological and social data points from individuals and calculate a risk for future anti-social or violent behaviour, would it be a good idea to do so? In which cases? Who should be told about the risks? Which interventions are justified to minimise the risk that individuals are deemed to pose to society?"" |
| Baum | 2014 | Behavioral Biomarkers: What Are They Good for? | Matthew Baum & Julian Savulescu | , in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal, and Ethical Challenges (Ilina Singh, Walter P. Sinnott-Armstrong & Julian Savulescu eds., 2014) | ""Biomarkers range from metabolites, protein levels and genetic variants to brain states, and can target varied behaviours. This chapter focuses on the MAOA polymorphism and its use as biomarker to predict criminally aggressive behavior. Only when a certain genetic variant is combined with childhood maltreatment is there an increase in the likelihood of future aggression. The MAOA biomarker was chosen because the science is comparatively well developed and the predicted behaviour is socially undesired. This discussion also magnifies ethical issues relevant to other biomarkers; for example, biomarkers of susceptibility to Post Traumatic Stress Disorder (PTSD) in soldiers."" |
| Walsh | 2014 | Bioprediction in Youth Justice | Charlotte K. Walsh | , in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal, and Ethical Challenges (Ilina Singh, Walter P. Sinnott-Armstrong & Julian Savulescu eds., 2014) | ""This chapter seeks to explore the following topics in violence amongst youth: a long-standing concern about the very small percentage of young people who go on to cause a disproportionate amount of violent harm; a growing belief that these children are neurologically damaged in a detectable way; increased understanding that these impairments occur (at least partially) as a result of abuse or neglect, generally parental; and the implicit hope that science, predominantly neuroscience, can help in doing something about this unhappy situation."" |
| Wolpe | 2014 | Rethinking the Implications of Discovering Biomarkers for Biologically Based Criminality | Paul Root Wolpe | , in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal, and Ethical Challenges (Ilina Singh, Walter P. Sinnott-Armstrong & Julian Savulescu eds., 2014) | ""The scientific inquiry into the biological basis of criminal behavior is problematic. The intent in this chapter is not to provide a critique of the science of biological criminology, but of the ethical implications of that pursuit for public policy. What are the potential pitfalls of a biologically-based approach to criminal justice? What are the ethical challenges to criminal, penal, and jurisprudential policy based on the notion that we can predict which individuals, families, or ethnic or racial groups might have a predisposition to criminal behavior? The purpose of the chapter is to caution against the mistranslation of the science of biological criminality into policy, a process that often happens outside of, or in spite of, the influence of scientists."" |
| Viding | 2014 | Genetic Biomarker Research of Callous-Unemotional Traits in Children: Implications for the Law and Policymaking | Essi Viding & Eamon McCrory | , in Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal, and Ethical Challenges (Ilina Singh, Walter P. Sinnott-Armstrong & Julian Savulescu eds., 2014) | ""This chapter begins by providing a short overview of the twin method and then consider four important points regarding the existing quantitative genetic data: (i) CU traits show heritable and mainly non-shared environmental influences in childhood/adolescence.(ii) Same genetic and environmental influences are important in accounting for individual differences in CU traits for both males and females (although the magnitude of their influence may vary between sexes). (iii) At least for males, genetic factors account for stability of CU traits across development. (iv) Antisocial behavior in the presence of CU traits is strongly heritable."" |
| Brayton | 2016 | Finding Consciousness: An Introduction | Meghan Brayton & Walter Sinnott-Armstrong | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 1 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter introduces key ethical and practical issues involving patients with disorders of consciousness and provides background information for readers who are new to these issues. It reviews the overall concept of the different states of consciousness in comparison with death. The relevant court cases and recent technological developments are described. This chapter launches the discussions that follow and provides a narrative that shows how the various chapters fit together."" |
| Diviney | 2016 | Discussion with a Caring Father | Ken Diviney & Katherine Grichnik | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 12 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter brings the academic discussions down to earth by recounting, through a personal interview, the struggles of a father to take care of his son. Ken Diviney’s son suffered severe brain damage and is now in a minimally conscious state. Frustrated by dealing with an obtuse medical establishment, Ken eventually was forced to take control of his son’s therapy. He transformed his house to make available the needed facilities. He continues to provide personal care to fight the repercussions of minimal consciousness on all the systems of the body."" |
| Baker | 2016 | The Geography of Unconsciousness: From Apparent Death to the Minimally Conscious State | Jeffrey P. Baker | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 21 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter recounts the broad medical and cultural history of ideas about unconsciousness and the minimally conscious state. It provides a useful background concerning the various issues and beliefs about death and consciousness. Brain death and the vegetative state are discussed in detail. The chapter considers the hopes and fears of people from the last three centuries that provide the basis for current approaches. Examples include premature burials of live persons, respirators and iron lungs, modern ventilation, organ procurement, and withdrawal of food and fluids as a means of letting patients die."" |
| Bernat | 2016 | Consciousness and Death: The Whole-Brain Formulation of Death | James L. Bernat | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 38 (Walter Sinnott-Armstrong ed., 2016) | ""In this chapter, Bernat explains and defends his well-known and popular definition of death. The chapter discusses the distinction between death of the components of an organism, such as the brain, and death of the organism as a whole. Using a biophysical analytical method, Bernat and his colleagues define death as the irreversible cessation of the functioning of the organism as a whole. The paradigm of death, its definition, criteria of death, and various tests to declare death are discussed. Then the author shows why patients in persistent vegetative states should not be considered dead."" |
| Bayne | 2016 | Modes of Consciousness | Tim Bayne & Jakob Hohwy | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 57 (Walter Sinnott-Armstrong ed., 2016) | ""In this chapter, modes of consciousness are distinguished from states of consciousness. A mode of consciousness is a global way of being conscious, such as waking, dreaming, seizures, and the minimally conscious state. States of consciousness are content specific, such as hearing music or feeling pain. Both modes and states of consciousness contrast with “levels of consciousness” in neurology. This original framework helps readers understand how the consciousness after brain damage is similar in some ways and different in other ways from normal consciousness."" |
| Schnakers | 2016 | What Is It Like to Be in a Disorder of Consciousness? | Caroline Schnakers | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 83 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter explains and contrasts various scales that neurologists use to measure consciousness. These scales attempt to differentiate patients in a minimally conscious state from those in a vegetative state. They include the Glasgow Coma Scale, the Coma Recovery Scales, the Nociception Coma Scale, and the author’s own Coma Recovery Scale‒Revised. These scales are crucial for avoiding misdiagnosis and misunderstanding of patients with severe brain damage. Findings of studies on residual brain activity are described, with a focus on distinguishing conscious from unconscious states."" |
| Owens | 2016 | Decoding Thoughts in Behaviorally Nonresponsive Patients | Adrian M. Owens & Lorina Naci | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 100 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter summarizes the recently developed methods by which neuroscientists can detect consciousness in severely brain-damaged patients. These methods involve the use of functional magnetic resonance imaging or electroencephalography to discern willful brain activity in patients and healthy volunteers. Subjects are asked to use mental imagery of particular motor functions, and these can be used to indicate answers to “yes or no” questions. The authors discuss how far these methods can succeed in determining thoughts, intentions, feelings, and other mental states in patients who show no outward signs of consciousness as well as the diagnostic and judicial implications."" |
| Davies | 2016 | Persistent Vegetative State, Akinetic Mutism, and Consciousness | Will Davies & Neil Levy | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 122 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter introduce a healthy dose of skepticism about whether brain scans can prove any significant intentions, agency, or consciousness in brain-damaged patients. The authors argue that the abilities to follow commands and answer questions show only that these patients respond to external stimuli. They do not demonstrate that they have internally-originated intentions, much less plans, interests, or preferences about how life will proceed. Patients who pass these tests, they claim, still might have no more consciousness than patients with a different diagnosis: extreme akinetic mutism. They conclude that these tests do not demonstrate what is relevant to the moral status of being a person."" |
| Gipson | 2016 | Lay Attitudes to Withdrawal of Treatment in Disorders of Consciousness and Their Normative Significance | Jacob Gipson, Guy Kahane & Julian Savulescu | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 137 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter first outlines a general framework for addressing ethical issues by applying Beauchamp and Childress’s principles of autonomy, beneficence, nonmaleficence, and justice. The authors then report the results of their survey of how laypeople rank these principles and reach overall judgments about whether patients with various disorders of consciousness should be allowed to die. The survey responses differ from those of physicians and bioethicists in fascinating ways. They also vary depending on whether the question is asked abstractly or concerns an actual concrete case and whether the question is about treatment withdrawal for other people or for themselves if they were in such a condition. The authors close by arguing that popular opinions about issues such as treatment withdrawal have indirect relevance to normative issues regarding what we should do."" |
| Shepherd | 2016 | Moral Conflict in the Minimally Conscious State | Joshua Shepherd | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 160 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter explains the values that conflict in choices of whether to let brain-damaged patients die. The author argues for the moral significance of consciousness, including not only phenomenal consciousness but also access consciousness, because it brings abilities. Nonetheless, other values, including autonomy and distributive justice, can conflict with the well-being of patients who have only minimal kinds of consciousness. These conflicts come to a head when a patient in such a state asks or previously asked to die. The considerations, as well as informational deficits at the time of the decision, are important to consider in regard to advance directives."" |
| Hawkins | 2016 | What Is Good for Them? Best Interests and Severe Disorders of Consciousness | Jennifer Hawkins | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 180 (Walter Sinnott-Armstrong ed., 2016) | ""Hawkins sees the moral debates surrounding brain-damaged patients as coming down to two questions: whether the patients suffer and whether they derive benefit from their lives. In Hawkins’ view, life brings benefits only to those who have the capacities to form relationships and to value. Patients in permanent vegetative states and even minimally conscious states lack these capacities. For this reason, Hawkins defends the choice to allow such patients to die. In responding to the likely objection that such patients could express a desire to live, Hawkins questions the value of such messages on the basis that we cannot assess the quality of the decision making or the process behind it."" |
| Gray | 2016 | Minimally Conscious States and Pain: A Different Approach to Patient Ethics | Valerie Gray Hardcastle | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 207 (Walter Sinnott-Armstrong ed., 2016) | ""In this chapter, Hardcastle questions whether consciousness determines how much we should care about a living being. Instead of consciousness, Hardcastle focuses on pain and argues that consciousness is not required for pain. We do not know what it is like to be in a minimally conscious state, and misdiagnoses are numerous. For these reasons, it is reckless to assume that patients who have been diagnosed as being in a permanent vegetative state or a minimally conscious state lack pain or consciousness. That assumption could result in extreme and extended suffering, so we should assume that pain is possible and treat it."" |
| Farahany | 2016 | The Legal Circle of Life | Nita A. Farahany & Rachel Zacharias | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 229 (Walter Sinnott-Armstrong ed., 2016) | ""This chapter introduces a theoretical framework by which legal life and death can be defined in terms of consciousness. The authors discuss various medical and legal definitions of death and current issues surrounding them. They propose that death be defined normatively for law. They also discuss the implications of their proposed legal standard for tort, estate, organ donation, and criminal law as well as abortion."" |
| Philipsborn | 2020 | Risk Assessment Update: Remembering to Track Imaging-Based Neuroprediction as Part of the Risk Assessment Panorama | John Philipsborn | Champion, July 2020, at 40. | "Researchers have expressed enthusiasm for the study of the “biology” of crime and the related development of “neuroprediction,” one aspect of which is the attempt to use brain imaging techniques to corroborate a risk of violence assessment. While lawyers are not yet likely to encounter neuroscience evidence when they litigate the admissibility of a prediction of future violence, they should track developments in this area." |
| Dash | 2020 | Expanding Frontier of Neurolaw: Post Smt. Selvi v. State of Karnataka | Sidhartha Sekhar Dash, Harish Ch. Padhi & Biswadeep Das | 7 J. Critical Rev. 4907, 4907-4913 (2020) | "Scientific temper in the investigation of the crime is a necessity. The scope of science is ever increasing with the advent of the new sphere of existing science, expanding its frontier. Neuroscience is having the potential to affect the jurisprudence and judgements of the courts. Neuroscience shall help law to realise its constitutional values including the right to silence. Advance form of neuro-imaging tools can assist law enforcement agency to probe into the various dimension of mind having normative and evidential relevance. The paper introduces neurolaw, shows it expansion to jurisprudence, and sheds lights on new developments of neuroscience reflecting the judgement of the Supreme Court of India." |
| Castrellon | 2020 | Distinct Brain Mechanisms Linked to Evidence Accumulation and Crime-Type Bias in Juror Decisions | Jaime J. Castrellon, Shabnam Hakimi, Jacob M. Parelman, Lun Yin, Jonathan R. Law, Jesse A.G. Skene, David A. Ball, Artemis Malekpour, Donald H. Beskind, Neil Vidmar, John M. Pearson, J. H. Pate Skene & R. McKell Carter | (Nov. 12, 2020) (unpublished manuscript) (on file with bioRxiv). | "Efforts to explain jury decisions have focused on competing models emphasizing utility, narrative, and social-affective mechanisms, but these are difficult to distinguish using behavior alone. Here, we use patterns of brain activation derived from large neuroimaging databases to look for signatures of the cognitive processes associated with models of juror decision making. We asked jury-eligible subjects to rate the strength of a series of criminal cases while recording the resulting patterns of brain activation. When subjects considered evidence, utility and narrative processes were both active, but cognitive processes associated with narrative models better explain the patterns of brain activation. In contrast, a biasing effect of crime type on perceived strength of the case was best explained by brain patterns associated with social cognition." |
| Rissman | 2021 | Brain-Based Memory Detection and the New Science of Mind Reading | Jesse Rissman & Emily R. Murphy | , in The Oxford Handbook of Human Memory (Michael J. Kahana & Anthony D. Wagner eds., forthcoming). | "An extensive body of neuroimaging research has shown that the brain responds differently when people encounter something they recognize from past experience relative to when they encounter something they have never before seen. If such a “neural signature” of recognition was sufficiently reliable, it could theoretically be used as a forensic tool to detect whether or not someone remembers a given person, place, object, voice, smell, or any other stimulus. Although brain-based memory detection techniques have already been used for forensic purposes by police and prosecutors in some countries, efforts to promote their more widespread adoption have been met with hesitation, given uncertainty about their efficacy and reliability. In this chapter, we offer a critical review of the scientific status of memory detection. We examine the ways that researchers have used neuroimaging approaches such as electroencephalography (EEG) and functional magnetic resonance imaging (fMRI) to capture temporal and spatial brain activation profiles that seemingly index different recognition memory states. Some of the more recent work has specifically addressed forensically-relevant factors such as the use of real-world acquired memories, classification of individual subjects rather than analysis of group differences, and the effect of subjects’ deployment of evasive countermeasures. We also highlight the application of multivariate analysis techniques, which are capable of decoding brain activity patterns on individual trials, and thus can yield inferences about a participant’s memory for specific stimuli or event details. Despite substantial progress made in recent years, we discuss critical methodological shortcomings and biological limitations that may ultimately limit the forensic value of brain-based memory detection." |
| Jones | 2020 | Law and Neuroscience | Owen D. Jones, Jeffrey D. Schall, & Francis X. Shen | (2d ed. 2020) | "The implications for law of new neuroscientific techniques and findings are now among the hottest topics in legal, academic, and media venues. Law and Neuroscience--a collaboration of professors in law, neuroscience, and biology--is the first and still only coursebook to chart this new territory, providing the world's most comprehensive collection of neurolaw materials. This text will be of interest to many professors teaching Criminal Law and Torts courses, who would like to incorporate the most current thinking on how biology intersects with the law." |
| Godage | 2019 | The Effect of Mediation on Mediators: How Neuroscience Shows Mediations Techniques Can Be Utilized to Improve Emotional Well-Being, Empathy, and Emotional Intelligence | Dinu Godage | 35 Ohio St. J. on Disp. Resol. 269, 269-287 (2019). | "Over the last two decades, neuroscience research has been integrated with legal analysis to deepen our understanding of many legal arenas, including mediation--an avenue used by disputing parties to solve problems outside of the courtroom.1 Researchers have used neuroscience to understand how mediating parties interact with one another, why the parties act in the manner they do, and the neurobiological reactions that lead to dispute resolution outcomes.2 Despite this burgeoning interest in the use of neuroscience to understand mediation and the disputing parties, the neuroscience community has only scarcely analyzed the neuroscientific impact on a key player in mediation--the mediator. Therefore, this paper will analyze the neuroscientific effects of mediation on the mediator. I theorize that mediators' techniques used to reduce the effect of emotion and enhance the use of rational thoughts between disputing parties elicit positive neurological reactions in the mediators themselves. In addition, I theorize that mediators utilization of such techniques helps them develop positive emotional well-being, emotional intelligence, and empathy tactics that, in turn, aid in sorting through their own emotional and rational thoughts outside of the mediation context." |
| Sieber | 2019 | Souled Out of Rights? - Predicaments in Protecting the Human Spirit in the Age of Neuromarketing | Alexander Sieber | 15 Life Scis., Soc'y & Pol'y 6, 6-17 (2019). | "Modern neurotechnologies are rapidly infringing on conventional notions of human dignity and they are challenging what it means to be human. This article is a survey analysis of the future of the digital age, reflecting primarily on the effects of neurotechnology that violate universal human rights to dignity, self-determination, and privacy. In particular, this article focuses on neuromarketing to critically assess potentially negative social ramifications of under-regulated neurotechnological application. Possible solutions are critically evaluated, including the human rights claim to the 'right to mental privacy' and the suggestion of a new human right based on spiritual jurisdiction, where the human psyche is a legal space in a substantive legal setting." |
| Grey | 2020 | Sex-Based Brain Differences and Emotional Harm | Betsy Grey | 70 Duke L.J. Online 29, 29-73 (2020). | |
| Muglia | 2020 | Neuroscience and Juvenile Crimes: Criminal Categories and Psychology of Judging | Luca Muglia | , Giustizia Insieme (Nov. 13, 2020). | "Il focus ha l’obiettivo di illustrare i risultati delle moderne neuroscienze, mostrandone le applicazioni in ambito penale minorile e le ricadute sulla psicologia del giudicare" |
| Muglia | 2020 | Adolescents, Addictions, and Social Recovery: The New Frontiers of "Cognitive" Law | Luca Muglia, Antonio Cerasa & Umberto Sabatini | , Diritto Penale e Uomo (Sept. 16, 2020). | "Il cervello degli adolescenti si presta a valutazioni che interessano svariati settori delle neuroscienze e che si intrecciano inevitabilmente con gli interventi di pertinenza della giustizia minorile, chiamata a disciplinare gli ambiti di applicazione delle scoperte scientifiche e ad integrare il sapere delle scienze psicosociali. Il presente contributo offre un interscambio tra neuroscienze e diritto minorile per cercare di comprendere le cause e conseguenze delle nuove forme di dipendenze che attanagliano la popolazione giovanile. Cercheremo di designare possibili scenari futuri in cui le neuroscienze potranno fornici profili neurobiologici e neuropsicologici su cui plasmare interventi di recupero sociale dei minori." |
| Muglia | 2020 | Thoughts, Languages, and Spaces of the Web: How and Why They Influence the Mind of Adolescents | Luca Muglia | , State of Mind (July 31, 2020). | "Le neuroscienze hanno analizzato il contributo di fattori genetici e ambientali ai meccanismi mentali alla base del pensiero e delle differenze cognitive" |
| Pirro | 2020 | The Crisis of the Family and the New Forms of Juvenile Deviance: Beyond the Mask | Valentina Pirro, Luca Muglia & Maria Rupil | , Giustizia Insieme (Apr. 21, 2020). | "Il focus ha l’obiettivo di sviluppare un pensiero sulla complessità della famiglia e le nuove forme di devianza minorile, ivi comprese quelle intrafamiliari, a partire da una riflessione sul contesto sociale e culturale che caratterizza la società attuale" |
| Friedland | 2021 | Neuroscience and the Active Jury | Steven Friedland | Elon U. Sch. Law, Legal Studies Research Paper, forthcoming 2021). | "In 1990, the Northwestern University Law Review published The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. Rev.190 (1990). The Article conceptualized the jury “as a democratic representative of the community through its verdicts” and argued that because of this democratic role, it should be equipped for success. The Article suggested that a modern active jury model, where jurors under the proper circumstances should be permitted to take notes and ask questions, was preferable to the traditional passive model, particularly when both a cross-section of the community and verdict accuracy were desired jury parameters. That is because there is a natural conflict between the accuracy and cross-section objectives. If the cross-section of the community means jurors would be drawn from all persons in the community, the result would be to attract average citizens who may or may not have solid educational skills. Consequently, the accuracy goal would be easily marginalized, especially under a passive jury model where jurors are expected to remember evidence and arguments up to weeks—even months—at a time before they can discuss it. The argument in favor of the active jury suggested that it provided a way to improve jury efficiency and accuracy. How have those arguments of 1990 weathered the storms of intervening decades? Fairly well, I think. This short Essay doubles down on these claims, arguing that neuroscience discoveries have shown that active, engaged thinkers have better retention and recall and therefore will be better jurors overall. The Essay makes four points about how advancing neuroscience, especially in the digital age, supports active jury functioning." |
| Bartholomew | 2020 | Copyright and the Brain | Mark Bartholomew | 98 Wash. U. L. Rev. 525, 525-586 (2020). | "This Article explores the intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer.” Embedded within this test are several assumptions about audiences and art. Brain science calls these assumptions into question. The substantial similarity test posits that aesthetic reactions are unmeasurable and uniform. In actuality, they can be quantified and vary depending on audience and artistic medium. Neuroscience has already reconfigured the law in many areas, from tort damages to the death penalty. Now it may offer copyright law a way forward, opening up the black box of aesthetic encounters to reveal what is most salient when making the comparison at the heart of copyright infringement. Three suggested reforms—admitting expert testimony to tailor the substantial similarity test to different kinds of artistic works, using survey evidence to better understand the aesthetic responses of specialized audiences, and reordering the infringement analysis to debias judges and jurors—deploy the insights of neuroaesthetics to improve the law of copyright infringement." |
| Denno | 2021 | Empirical Use of Neuroscientific Evidence in Criminal Justice | Deborah W. Denno | , in The Encyclopedia of Behavioural Neuroscience (Sergio Della Salla ed.,2d ed. 2021). | "The growing influx of neuroscientific evidence in various criminal justice systems has prompted several excellent assessments of the nature and degree of its impact in courtrooms in the United States and other countries. However, there have been few efforts to conduct a comparative analysis of systematic empirical research on the use of neuroscientific evidence in criminal cases, which is this chapter's goal. This review breaks new ground by detailing the critical similarities and differences among all seven empirical studies that researchers have conducted up to 2019. What is the main takeaway? Across most of the studies, neuroscientific evidence was firmly planted in five different countries' criminal justice systems, and defense attorneys primarily used it for purposes of mitigation. Research findings documented the extent of its impact at all phases of the criminal justice system, particularly sentencing. Most studies also reported that the use of such evidence in the courtroom was increasing over time or, if not, it was being more thoroughly discussed. In essence, neuroscientific evidence has a secure foothold in criminal justice that will only become stronger. That said, it is critically important to emphasize the studies' limitations and the nuances behind their results. While the studies employed a common framework and relied on widely accepted legal databases, they also shared deep structural challenges. Empirical research is showing more accurately how neuroscientific evidence is helping criminal justice systems better assess mental states and assign punishments. Yet, the legal system's process of collecting and organizing information needs to advance and modernize." |
| Bedi | 2020 | Towards an Objective Measure of Trademark Fame | Suneal Bedi & Mike Schuster | 54 U.C. Davis L. Rev. 431, 431-489 (2020). | "Identifying whether a trademark is “famous” (a necessary condition for dilution protection) is historically a difficult question for courts. It is a haphazard procedure, driven mostly by the intuition of judges and imprecise proxies like “how much a company spent on advertising.” There is presently no clear empirical method to determine whether a trademark is famous. That lack of clarity creates unpredictability and unfairness in legal proceedings. This Article is the first to provide a uniform, empirically based measure of trademark fame situated in neuroscience and branding theory. Our interdisciplinary approach utilizes an existing method commonly employed in marketing research and imports it into the legal realm. Importantly, we root our approach in consumer perceptions, rather than the company-based proxies that courts routinely use. We first define fame as a function of how quickly consumers identify a trademark as being associated with its particular product (e.g., Budweiser and beer). We then show that this recognition speed can be empirically measured using a technique called the product/recall method. Through this, trademark fame can be objectively quantified. Using three large-scale experimental studies, we show how this method is a better, more predictable measure of fame that should be adopted in trademark litigation. Through this evaluation, we draw attention to previous court decisions that incorrectly analyzed trademark fame because they did not employ the method we propose." |
| Vranizan | 2020 | , Note, Washington's Young Offenders: O'Dell Demands a Change to Sentencing Guildelines | Erika Vranizan | 43 Seattle U. L. Rev 1331, 1331-1354 (2020) | "This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply because they are of the age of majority cannot stand. Instead, this Note argues that Washington should add to its sentencing guideline departure statute a direct subsection that would require Washington courts to consider a defendant’s youthfulness at the time the offense was committed, if the offender falls into the young adult offender category. Part I of this Note provides background information regarding the relationship between youthfulness and culpability and gives an overview of the historical foundations of juvenile law and its development over time. Part II describes the advancements in neurological and psychological scientific research that courts have begun to use in evaluating the youthfulness of an offender. Furthermore, Part II breaks down the combined immaturities of the brain—distinguishing between behavioral and structural immaturities—and examines how these immaturities present themselves in a young offender. Part III then describes in detail how the U.S. Supreme Court has recognized these advancements in adolescent brain science in their holdings in Roper, Graham, and Miller. Additionally, Part III examines Washington State’s response to these cases and highlights the importance of the findings from O’Dell for offenders over the age of eighteen. Finally, Part IV argues that the courts should be afforded the ability to depart from the sentencing guidelines for psychologically and neurologically immature defendants even when those defendants are older than eighteen years of age. Courts should be granted this ability through passage of new laws to amend the sentencing guidelines. Under such a scheme, it would be mandatorily presumed that defendants who fall within this age category meet the court’s “youthful” criterion and likewise have a right to a downward departure in the sentence guideline calculation. Further, upon such a finding, a young offender would be permitted to serve his or her time in the appropriate state juvenile detention facility where the offender could participate in programs and policies focusing on rehabilitation and reintegration." |
| Bennett | 2014 | Confronting Cognitive “Anchoring Effect"" and “Blind Spot” Biases In Federal Sentencing: a Modest Solution For Reforming a Fundamental Flaw | Mark W. Bennett | 104 J. Crim. L. & Criminology 489, 489-534 (2014). | ""Cognitive “anchoring effect” bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by “anchoring” a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts—doctors, lawyers, real estate agents, psychologists, and auditors—as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random. Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range. This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it—their improved awareness can only enhance the fairness of sentencing."" |
| Murphy | 2020 | Evidence of Memory from Brain Data | Emily R.D. Murphy & Jesse Rissman | J. L. & Biosciences 1, 1-58 (2020) | ""Much courtroom evidence relies on assessing witness memory. Recent advances in brain imaging analysis techniques offer new information about the nature of autobiographical memory and introduce the potential for brain-based memory detection. In particular, the use of powerful machinelearning algorithms reveals the limits of technological capacities to detect true memories and contributesto existing psychological understandingthat all memory is potentially flawed. This article first provides the conceptual foundation for brain-based memory detection as evidence. It then comprehensively reviews the state of the art in brain-based memory detection research before establishing a framework for admissibility of brain-based memory detection evidence in the courtroom and considering whether and how such use would be consistent with notions of justice. The central question that this interdisciplinary analysis presents is: if the science is sophisticated enough to demonstrate that accurate, veridical memory detection is limited by biological, rather than technological, constraints, what should that understanding mean for broader legal conceptions of how memory is traditionally assessed and relied upon in legal proceedings? Ultimately, we argue that courtroom admissibility is presently a misdirected pursuit, though there is still much to be gained from advancing our understanding of the biology of human memory."" |
| McWilliams | 2020 | The Use of Neuroscience and Psychological Measurement in England's Court of Protection | Andrew McWilliams, Stephen M. Fleming, Anthony S. David & Gareth Owen | 11 Frontiers Psychiatry Article 570709 (2020) | "The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks “mental capacity” to take a particular decision and describes how the “best interests” of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests.Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings.Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court.Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to “impairment of mind or brain,” with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to “functional decision-making abilities.” Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations.Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom." |
| Dash | 2020 | Neurolaw: A Jurisprudential Analysis | Sidhartha Sekhar Dash, Harish Chandra Padhi, & Biswadeep Das | 7 Eur. J. Molecular & Clinical Med. 1546, 1546-1560 (2020) | "The emerging discipline of Neurolaw is strange and diversely combined. Neurolaw tries to cross-fertilise the theories and values of neuroscience and law, towards an objective which is common to both the disciplines, as well as charting new terms to expand frontiers of both the disciplines. Neuroscience and Law are nearing close to serve the new objectives than what these disciplines traditionally set so far. However, the term and concept of "Neurolaw" give a challenging meaning and hence the foundation of Neurolaw in jurisprudence has to be analysed through the prism of jurisprudence. The scope of this work is to analyse the foundational ideas and concepts Neurolaw from the standpoint of jurisprudence. The analysis of the foundational ideas and concepts of Neurolaw, from different schools of jurisprudence, can contribute to the clarity of objectives of Neurolaw as a discipline of study. The analysis from the vintage of different schools of jurisprudence, which is so far absent in various Neurolaw-literatures, leads to a promising conclusion that, the more Neurolaw engages with jurisprudence, the more it can contribute to different schools of jurisprudence and thereby can find own limitations and expansions to stand as a unique discipline to contribute to the knowledge tradition." |
| Baker | 2020 | The Advent of Effortless Expression: An Examination of the Copyrightability of BCI-Encoded Brain Signals | Jonathan Baker | 150 Minn. L. Rev. 389, 389-427 (2020) | "Brain-computer interfaces (BCIs) will be among the first devices to challenge the implicit assumption that copyrightable expression must be fixed at the direction of the motor cortex. BCIs will effectively abridge the traditional, biological process of expression by directly receiving thoughts from neural networks, decoding those thoughts, and digitally recording--i.e., “fixing”--them to a digital device. BCIs, which were initially defined as “communication system[s] that [do] not depend on the brain's normal output pathways of peripheral nerves and muscles,” are, in essence, “new output channel[s] for the brain.” For the first time, “the fruits of intellectual labor” need not blossom through the author's hand. With BCIs, humans will possess the means to express and fix their thoughts without the direction of the motor cortex, and, so long as these BCI-fixed thoughts are sufficiently original, they would seemingly qualify for copyright protection under modern copyright doctrine. The Copyright Act of 197633 and the Constitution, of course, do not explicitly address granting protection to works generated through this novel avenue of expression, and whether either authority even contemplates granting protection to BCI-encoded brain signals is quite unlikely. The preliminary question of whether BCI-encoded brain signals even qualify as expression--under any definition of the word--is similarly shrouded in uncertainty. Ultimately, the advent of BCI technology will challenge the fundamental assumptions underlying modern copyright doctrine and burden the judiciary with difficult questions that Congress must ultimately answer." |
| Ward | 2018 | The Contribution of Neuroscience to Forensic Explanation | Tony Ward, Carolyn Wilshire, & Lucy Jackson | 24 Psych. Crime L. 195, 195-209 (2018) | "In light of the growing interest in forensic neuroscience, a pressing question concerns whether or not neurobiological evidence and explanations can make a useful contribution to understanding and managing crime. Here we argue that neuroscience methodologies, such as EEG and fMRI, can provide a valuable source of information about phenomena related to criminal behaviour, which complements traditional sources such as interviews and self-report scales. However, despite this optimistic message, there is good reason to be cautious in interpreting neurobiological data. It is tempting to see this type of evidence as somehow ‘privileged’ over other sources. However, elucidating the neurobiological mechanisms that support a behaviour does not tell us what led to that behaviour. Given how little we currently know about the relationship between neural activity and specific mental functions, we should be cautious about inferring psychological processes on the basis of brain activity measures alone. Finally, we should always keep in mind that every neuroscience study is predicated upon a psychological framework, and this framework affects all aspects of the project. Therefore, the evidence obtained from a neuroscience study is only ever as good as the psychological framework on which that study was founded." |
| Anderson | 2020 | Re-wiring Guilt: How Advancing Neuroscience Encourages Strategic Interventions Over Retributive Justice | Nathaniel E. Anderson & Kent A. Kiehl | 11 Frontiers Psych. Article 390 (2020) | "The increasing visibility of neuroscience employed in legal contexts has rightfully prompted critical discourse regarding the boundaries of its utility. High profile debates include some extreme positions that either undermine the relevance of neuroscience or overstate its role in determining legal responsibility. Here we adopt a conciliatory attitude, reaffirming the current value of neuroscience in jurisprudence and addressing its role in shifting normative attitudes about culpability. Adopting a balanced perspective about the interaction between two dynamic fields (science and law) allows for more fruitful consideration of practical changes likely to improve the way we engage in legal decision-making. Neuroscience provides a useful platform for addressing nuanced and multifaceted deterministic factors promoting antisocial behavior. Ultimately, we suggest that shifting normative attitudes about culpability vis-à-vis advancing neuroscience are not likely to promote major changes in the way we assign legal responsibility. Rather, it helps us to shed our harshest retributivist instincts in favor of more pragmatic strategies for combating the most conspicuous patterns promoting mass incarceration and recidivism." |
| Pernu | 2020 | From Neuroscience to Law: Bridging the Gap | Tuomas K. Pernu & Nadine Elzein | 11 Frontiers Psych. Article 1862 (2020) | "Since our moral and legal judgments are focused on our decisions and actions, one would expect information about the neural underpinnings of human decision-making and action-production to have a significant bearing on those judgments. However, despite the wealth of empirical data, and the public attention it has attracted in the past few decades, the results of neuroscientific research have had relatively little influence on legal practice. It is here argued that this is due, at least partly, to the discussion on the relationship of the neurosciences and law mixing up a number of separate issues that have different relevance on our moral and legal judgments. The approach here is hierarchical; more and less feasible ways in which neuroscientific data could inform such judgments are separated from each other. The neurosciences and other physical views on human behavior and decision-making do have the potential to have an impact on our legal reasoning. However, this happens in various different ways, and too often appeal to any neural data is assumed to be automatically relevant to shaping our moral and legal judgments. Our physicalist intuitions easily favor neural-level explanations to mental-level ones. But even if you were to subscribe to some reductionist variant of physicalism, it would not follow that all neural data should be automatically relevant to our moral and legal reasoning. However, the neurosciences can give us indirect evidence for reductive physicalism, which can then lead us to challenge the very idea of free will. Such a development can, ultimately, also have repercussions on law and legal practice." |
| García-López | 2020 | Derecho Penal y Neurociencia | Eric García-López | 2020 | ""¿Podrá la ciencia transformar la perspectiva clásica del derecho penal? ¿Podremos comprender por completo el comportamiento humano cuando develemos los misterios del encéfalo?"" Derecho Penalyneurociencia es un libro que explora la relación entre el derecho y las ciencias encargadas de analizar el sistema nervioso central, con el objetivo de buscar respuestas científicas a fenómenos delictivos y victimológicos. En este libro, coordinado por Eric García - López, el lector podrá ingresar en una de las discusiones más novedosas y polémicas del siglo xxi: la relación entre la neurociencia y el derecho"" |
| Spence | 2008 | Playing Devil's Advocate: The Case Against fMRI Lie Detection | Sean A. Spence | 13 Legal & Criminological Psych. 11, 11-25 (2008) | "The advent of functional neuroimaging raises the intriguing possibility that investigators might be able to determine (one day) whether an individual is lying or telling the truth, according to the activity of their brain. Ultimately, such techniques might be applied in the forensic sphere. However, the empirical data supporting this conjecture derive from a body of work that is still early on in its development. Hence, when invited to play ‘Devil's advocate’, the author is prompted to critique a pivotal weakness within the current literature. The latter comprises 16 peer‐reviewed functional magnetic resonance imaging studies purporting to describe the neural correlates of lying. Most have demonstrated greater activation of prefrontal regions while participants lie relative to when they tell the truth. Most have failed to detect areas where truthfulness elicits specific activation (consistent with the view that truthfulness constitutes a ‘baseline’ in human cognition and communication; while lying requires something more). However, there is a great deal of variation between the findings described and, crucially, there is an absence of replication by investigators of their own findings. Hence, basic issues of reliability need to be addressed before functional neuroimaging is applied to cases that matter in the ‘real world’." |
| Dash | 2021 | Expanding Frontier of Neurolaw: Post Smt. Selvi V. State of Karnataka | Sidhartha Sekhar Dash, Harish Chandra Padhi & Biswadeep Das | 7 J. Critical Revs. 4907, 4907-13 (2021) | "Crimes are committed in very sophisticated form these days. It is highly technical as well. The investigating agency can be benefited from the use of modern scientific developments to commensurate with the diversified and perplexed modus operandi of offences. The court of law can also take help of the expertise of science in this matter. One of the branches of biological science working to help in this regard is neuroscience. Neuroscience has various inclinations towards law. The neuroscience is such inclined towards the law that this new discipline is termed as Neurolaw. It is having the potential to address various complex questions of the motivation of crime and shall assist law in realising its objectives. However, in Salvi judgement of the Supreme Court of India, one such technique, Brain Mapping, was not allowed considering various factors. The apprehension of the Courts to allow the Brain Mapping, however, is affected by the recent development of neuroscience. The scope of the paper is to put forth the recent development after the decision of the court than towards shedding lights on the normative aspect of the decisions of the court, which is discussed incidentally." |
| Heller | 2021 | Watching Androids Dream of Electric Sheep: Immersive Technology, Biometric Psychography, and the Law | Brittan Heller | 23 Vand. J. Ent. & Tech. L. 1, 1-51 (2021) | "Virtual reality and augmented reality present exceedingly complex privacy issues because of the enhanced user experience and reality-based models. Unlike the issues presented by traditional gaming and social media, immersive technology poses inherent risks, which our legal understanding of biometrics and online harassment is simply not prepared to address. This Article offers five important contributions to this emerging space. It begins by introducing a new area of legal and policy inquiry raised by immersive technology called “biometric psychography.” Second, it explains how immersive technology works to a legal audience and defines concepts that are essential to understanding the risks that the technology poses. Third, it analyzes the gaps in privacy law to address biometric psychography and other emerging challenges raised by immersive technology that most regulators and consumers incorrectly assume will be governed by existing law. Fourth, this Article sources firsthand interviews from early innovators and leading thinkers to highlight harassment and user experience risks posed by immersive technology. Finally, this Article compiles insights from each of these discussions to propose a framework that integrates privacy and human rights into the development of future immersive tech applications. It applies that framework to three specific scenarios and demonstrates how it can help navigate challenges, both old and new." |
| Johnson | 2021 | Catching Up with Convergence: Strategies for Bringing Together the Fragmented Regulatory Governance of Brain-Machine Interfaces in the U.S. | Walter G. Johnson | 30 Annals Health L. & Life Sci. 177, 177-206 (2021) | ""After a decade of stalled innovation, the past five years have seen brain-machine interfaces (BMIs) make rapid advances through the convergence of ideas from and progress in multiple other emerging technologies. However, the sheer complexity of these neuro-technologies will produce a complicated and incomplete regulatory environment, which could delay the potential benefits and fail to manage the risks BMIs may create for patients or consumers. Regulating these neuro-technologies will demand managing risks at the intersection of safety, effectiveness, cyber-security, consumer protection, equity, data privacy, personal autonomy, and dual use. These convergent risks compound the thorny “pacing problem,” in which accelerating technological innovation overtakes public regulators and their efforts to understand and manage risks. In the United States, the Food and Drug Administration (FDA) and Federal Trade Commission (FTC) already have authority to regulate some neuro-technologies. However, the agencies have jurisdiction over different subject matters which overlap and under lap in BMIs due to technological convergence. This convergence will ultimately create significant regulatory problems for BMIs and neuro-technologies generally. Managing the complexities of convergence in BMIs will require a policy response defined by early action, regulatory coordination, and political support from lawmakers."" |
| Nuñez | 2021 | Scanning for Bias: A Neuroscientific Response to Policing with Implicit Bias | Jeanelly Nuñez | 27 Cardozo J. Equal Rts. & Soc. Just. 295, 295-321 (2021) | "" ""I can't breathe” were the words an unarmed Black man screamed eleven times before being choked to death by a New York City police officer. On July 17, 2014, Officer Daniel Pantaleo executed a fatal chokehold on forty-three-year-old Eric Garner in an attempt to arrest and detain him for selling untaxed loose cigarettes. Although video footage shows Eric Garner refusing to cooperate with--and pulling away from--several police officers, the video also evinces Officer Pantaleo's immediate decision to wrestle Eric Garner to the ground and place him in a chokehold, a practice which the New York City Police Department banned in 1993. The physical attack concludes with Eric Garner's oral plea for more air until eventually his lifeless body falls limp. Eric Garner was unarmed and appeared to show no physical or combative threat, other than being a Black man. Six years later, on May 25, 2020, George Floyd echoed Eric Garner's similar plead when he encountered four Minneapolis police officers. However, this time, an unarmed George Floyd screamed “I can't breathe” thirty times before losing consciousness and dying. Officer Derek Chauvin chose to restrain Mr. Floyd, a forty-six-year-old Black man, by pinning his knee to Mr. Floyd's neck for a total of eight minutes and fifteen seconds. This neck-pinning maneuver is no longer allowed in most Minnesota law-enforcement agencies, but Minneapolis still allows this maneuver as a “non-deadly force option.” Unfortunately, these are stories the world knows far too well, as Black Americans are 2.5 times more likely to be killed during police encounters than White Americans. Yet, despite various high-profile cases and increased video evidence, police officers are rarely prosecuted, let alone convicted, for shooting deaths. This Article attempts to directly respond to this widespread public health crisis by addressing the disparate effect of policing on communities of color and endeavoring to dismantle the racism associated with policing. Specifically, this Article proactively proposes that mandatory neuroimaging thresholds aimed at detecting strong racial biases be implemented into the pre-employment screening process of police officers, in an effort to flag and potentially eliminate strongly biased applicants from the candidate pool. This Article begins by examining the numerical data surrounding racial injustices by illustrating how men of color are much more likely than their white counterparts to fall victim to fatal police violence, drug arrests, traffic and Terry stops, and imprisonment. Part II then highlights the extent to which race influences police contact and provides a first look at implicit racial bias and its unavoidable connection to policing. Part III explores the neuroscience behind racial bias and helps dissect the genesis of bias. Part IV then proceeds by appraising how brain scanning technology and psychological testing can be used to detect strong racial biases and how such technology and testing should be incorporated into the policing pre-employment screening process. Part V concludes by investigating the potential challenges to the proposed form of pre-employment screening by comparing the reliability and validity of current pre-employment practices for police officers with neuroscientific testing."" |
| Brietzke | 2021 | A Primer on Neuropsychological Testing for Elder Law Attorneys | Colin A. Brietzke | 28 Elder L.J. 221, 221-79 (2021) | "To most legal practitioners, neuropsychological testing is seen as either fascinating or complicated, but in both cases, their underlying concern is: what am I going to do with the report? Much like any expert, neuropsychologists work with ideas that are not immediately familiar to most legal professionals. This Article endeavors to familiarize legal practitioners with the objective, validated, peer-reviewed, and consistently administered nature of neuropsychological evaluations. By creating a greater understanding of neuropsychological evaluations, this introduction will serve all involved by helping attorneys better present or discredit this highly probative type of evidence and bring greater clarity to the beautifully complex but often murky subject of how the human brain works." |
| Coppola | 2021 | The Emotional Brain and the Guilty Mind: Novel Paradigms of Culpability and Punishment | Federica Coppola | (Oxford: Hart Publishing, 2021) | ""This book seeks to reframe the normative narrative of the 'culpable person' in American criminal law through a more humanising lens. It embraces such a reframed narrative to revise the criteria of the current voluntarist architecture of culpability and to advance a paradigm of punishment that positions social rehabilitation as its core principle. The book constructs this narrative by considering behavioural and neuroscientific insights into the functions of emotions, and socio-environmental factors within moral behaviour in social settings. Hence, it suggests culpability notions that reflect a more contextualised view of human conduct, and argues that such revised notions are better suited to the principle of personal guilt. Furthermore, it suggests a model of 'punishment' that values the dynamic power of change of individuals, and acknowledges the importance of social relationships and positive environments to foster patterns of social (re)integration. Ultimately, this book argues that the potential adoption of the proposed models of culpability and punishment, which view people through a more comprehensive lens, may be a key factor for turning criminal justice into a less punitive, more inclusionary and non-stigmatising system."" |
| Ligthart | 2020 | Freedom of Thought in Europe: Do Advances in 'Brain-Reading' Technology Call for Revision? | Sjors Ligthart | 7 J. L. & Biosciences 1, 1-27 (2020) | "Since advances in brain-reading technology are changing traditional epistemic boundaries of the mind, yielding information from the brain that enables to draw inferences about particular mental states of individuals, the sustainability of the present framework of European human rights has been called into question. More specifically, it has been argued that in order to provide adequate human rights protection from non-consensual brain-reading, the right to freedom of thought should be revised, making it ‘fit for the future’ again. From the perspective of criminal justice, the present paper examines whether such a revision is necessary within the European legal context. It argues that under its current understanding, the right to freedom of thought would probably not cover the employment of most brain-reading applications in criminal justice. By contrast, the right to freedom of (non-)expression will provide legal protection in this regard and, at the same time, will also allow for certain exceptions. Hence, instead of revising the absolute right to freedom of thought, a legal approach tailored to non-consensual brain-reading could be developed under the already existing right not to convey information, ideas, and opinions as guaranteed under the freedom of (non-)expression. This might need to re-interpret the right to freedom of expression, rather than the right to freedom of thought." |
| Shapiro | 2021 | Olmstead Enforcements for Moderate to Severe Brain Injury: the Pursuit of Civil Rights Through the Application of Law, Neuroscience, and Ethics | Zachary E. Shapiro, Chaarushena Deb, Caroline Lawrence, Allison Rabkin Golden, Jaclyn Wilner, Allison Durkin, Zoe M. Adams, Wenqing Zhao, Keturah James, Adam Pan, Megan S. Wright & Joseph J. Fins | 95 Tul. L. Rev. 525, 525-600 (2021) | "Our Article considers what the legal system can do to identify and support the recovery and reintegration of persons with severe brain injury, suffering from disorders of consciousness. We explore the possibility of marshaling law to advocate for this cohort of patients, who are currently overlooked by the medical and legal systems. Despite their potential for recovery, many of these individuals remain segregated in nursing homes, where they do not receive adequate medical care, much less the rehabilitation that might permit the restoration of functional communication, which is so central to their reintegration to the nexus of their homes and families. Deprived of these medical interventions, these patients are further isolated and segregated from civil society. We view this situation as unethical and as a violation of the American with Disabilities Act. To remedy this violation of law, we explore the application of Olmstead enforcements to patients with severe brain injury. We trace the legal evolution of disability law and Olmstead enforcements, deriving from the leading United States Supreme Court case regarding deinstitutionalization and community reintegration, Olmstead v. L.C. ex rel. Zimring. Our Article highlights how Olmstead could be used in an effort to desegregate and reintegrate those with hidden consciousness back into their communities." |
| Scarpazza | 2020 | A Multidisciplinary Approach to Insanity Assessment as a Way to Reduce Cognitive Biases | Cristina Scarpazza, Ilaria Zampieri , Alessio Miolla, Giulia Melis, Pietro Pietrini & Giuseppe Sartori | 319 Forensic Sci. Int'l 1, 1-9 (2020) | "Insanity assessment requires the evaluation of the psychopathological condition that underlies the mensrea. Psychopathological evaluation may be quite challenging due to (i) absence of biomarkers; (ii) lowinter-rater reliability; (iii) presence of cognitive bias. This intrinsic low reliability of forensic psychiatricdiagnosis does impact on insanity assessment, leading to arbitrary and unjust legal outcomes for theexaminee. Thus, strategies to improve the reliability of insanity evaluation are strongly needed. Amultidisciplinary approach has been proposed as a way to enrich clinical diagnosis with reliable andbiologically founded data, thus minimizing subjectivity, reducing controversies and increasing inter-subject concordance in insanity assessment. By discussing a real case, here we show how theconvergence of multiple indices can produce evidence that cannot be denied without introducing logicalfallacies. Applying this approach, the forensic discussion will move from the presence/absence ofpsychopathology to the impact of psychopathology on insanity. This article illustrates how amultidisciplinary evaluation, which integrates neuroscientific methods with the classical insanityassessment, may lead to a more accurate approach in insanity evaluation. Critically, this approach willminimize the impact of cognitive bias on insanity opinion and thus result in an improvement of the whole criminal justice process." |
| Scarpazza | 2021 | Idiopathic and Acquired Pedophilia as Two Distinct Disorders: An Insight from Neuroimaging | Cristina Scarpazza, Livio Finos, Sarah Genon, Laura Masiero, Elena Bortolato, Camilla Cavaliere, Jessica Pezzaioli, Merylin Monaro, Nicolò Navarin, Umberto Battaglia, Pietro Pietrini, Stefano Ferracuti, Giuseppe Sartori & Andrea S. Camperio Ciani | Brain Imaging & Behav. (2021) | ""Pedophilia is a disorder of public concern because of its association with child sexual offense and recidivism. Previous neuroimaging studies of potential brain abnormalities underlying pedophilic behavior, either in idiopathic or acquired (i.e., emerging following brain damages) pedophilia, led to inconsistent results. This study sought to explore the neural underpinnings of pedophilic behavior and to determine the extent to which brain alterations may be related to distinct psychopathological features in pedophilia. To this aim, we run a coordinate based meta-analysis on previously published papers reporting whole brain analysis and a lesion network analysis, using brain lesions as seeds in a resting state connectivity analysis. The behavioral profiling approach was applied to link identified regions with the corresponding psychological processes. While no consistent neuroanatomical alterations were identified in idiopathic pedophilia, the current results support that all the lesions causing acquired pedophilia are localized within a shared resting state network that included posterior midlines structures, right inferior temporal gyrus and bilateral orbitofrontal cortex. These regions are associated with action inhibition and social cognition, abilities that are consistently and severely impaired in acquired pedophiles. This study suggests that idiopathic and acquired pedophilia may be two distinct disorders, in line with their distinctive clinical features, including age of onset, reversibility and modus operandi. Understanding the neurobiological underpinnings of pedophilic behavior may contribute to a more comprehensive characterization of these individuals on a clinical ground, a pivotal step forward for the development of more efficient therapeutic rehabilitation strategies."" |
| Scarpazza | 2021 | Translational Application of a Neuro-Scientific Multi-Modal Approach into Forensic Psychiatric Evaluation: Why and How? | Cristina Scarpazza, Alessio Miolla, Ilaria Zampieri, Giulia Melis, Giuseppe Sartori, Stefano Ferracuti & Pietro Pietrini | 12 Frontiers Psychiatry Article 597918 (2021) | "A prominent body of literature indicates that insanity evaluations, which are intended to provide influential expert reports for judges to reach a decision “beyond any reasonable doubt,” suffer from a low inter-rater reliability. This paper reviews the limitations of the classical approach to insanity evaluation and the criticisms to the introduction of neuro-scientific approach in court. Here, we explain why in our opinion these criticisms, that seriously hamper the translational implementation of neuroscience into the forensic setting, do not survive scientific scrutiny. Moreover, we discuss how the neuro-scientific multimodal approach may improve the inter-rater reliability in insanity evaluation. Critically, neuroscience does not aim to introduce a brain-based concept of insanity. Indeed, criteria for responsibility and insanity are and should remain clinical. Rather, following the falsificationist approach and the convergence of evidence principle, the neuro-scientific multimodal approach is being proposed as a way to improve reliability of insanity evaluation and to mitigate the influence of cognitive biases on the formulation of insanity opinions, with the final aim to reduce errors and controversies." |
| Akil | 2020 | The Brain in Isolation: A Neuroscientist's Perspective on Solitary Confinement | Huda Akil | , in Solitary Confinement: Effects, Practices, and Pathways Toward Reform 199 (Jules Lobel & Peter Scharff Smith eds., 2020) | "For most of known civilization, human society has struggled with how to best deal with individuals who represent a serious threat to the group as a whole or to some of its specific members. The creation of incarceration and other means of confinement dates back at least to Babylonian times (e.g., the Code of Hammurabi, 1750s BC), while the prison system as currently known in the Western world is thought to have emerged in the sixteenth century in England and the Netherlands and spread to the rest of Europe in the seventeenth century. Incarceration in prisons has become part of the justice system in almost all cultures – as a means of societal protection, a tool for punishment, an approach to reform, or some combination thereof. While less brutal than some other historical approaches to controlling behavior, such as torture and public execution, it is still subject to many abuses. As a uniquely human invention, incarceration has not evovled nearly as much as other approaches to human social functioning." |
| Kuersten | 2021 | Neuroscience and the Model Penal Code’s Mens Rea Categories | Andreas Kuersten & John D. Medaglia | 71 Duke L.J. Online 53, 53-86 | "This Essay addresses recent research and commentary regarding the potential contributions of cognitive neuroscience to law. For the first time, cognitive neuroscience methods have been brought to bear on the Model Penal Code’s (MPC’s) culpable–mental state categories through a neuroimaging study seeking to identify the neural correlates of knowledge and recklessness. Subsequently, this study has been presented as a paradigm for utilizing cognitive neuroscience to answer important legal questions. However, the original experiment appears to suffer serious experimental-design and conceptual limitations, belying subsequent advocacy for the legal utility of cognitive neuroscience. This Essay methodically details these limitations and argues that the original study does not seem to have actually elicited knowledge or recklessness in subjects or, even if it did, elicited them in discrete-enough fashion to permit identification of the mental states’ neural correlates. The Essay also contends, more broadly, that cognitive neuroscience appears inapt for investigating the propriety of the MPC’s mens rea delineations since these are articulated in purely psychological-behavioral terms: mental states are the only requisites. Only psychological-behavioral manifestations provide base evidence of mental states’ existences. And psychological-behavioral research, not cognitive neuroscience, is the most direct way to investigate the practical, moral, and legal appropriateness of the MPC’s mental states by illuminating how individuals experience them, identify them in others, or employ them to dispense blame and punishment. Ultimately, recent cognitive neuroscience research does not appear to reveal anything of legal significance regarding the MPC. And, more broadly and contrary to recent assertions, cognitive neuroscience has substantial limitations when it comes to producing legally-relevant information. Going forward, psychological-behavioral research should be given primacy in cognitive science investigations of MPC concepts. Cognitive neuroscience studies, on the other hand, should be treated with exceptional skepticism." |
| Jwa | 2021 | Enhancing the Developing Brain: Tensions between Parent, Child, and State in the United States | Anita S. Jwa | 8 J. L. & Biosciences 1, 1-24 (2021) | "Recent technological advances in neuroscience offer a novel way for parents to nurture their children: altering brain activation to improve cognitive functions. Parental use and state regulation of cognitive enhancement will inevitably cause tensions between parent, child, and state. These tensions stem from three different but fundamentally related causes, namely minors’ incompetency in making decisions about their own welfare, parental autonomy to make decisions about the upbringing of their minor children, and the state’s interests in protecting minors’ well-being. However, these tensions are not without precedents. The courts have frequently struggled to set the boundary of parental autonomy and to balance parents’ rights, children’s interests, and state’s interests, and have accumulated extensive precedents in various contexts. This article reviews previous US court decisions in select contexts analogous to cognitive enhancement—medical intervention, education, and mandatory vaccination—and analyzes their implications for the use of cognitive enhancement on minors. This article will provide a useful guide for policy makers and researchers to identify and analyze issues regarding cognitive enhancement and to develop sound policies to ensure responsible use of this novel technology." |
| Morse | 2021 | Internal and External Challenges to Culpability | Stephen J. Morse | 53 Ariz. State. L.J. 617, 617-653 (2021) | ""“[E]ven a dog distinguishes between being stumbled over and being kicked.” The thesis of this Article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to the importance of mental states in the context of mental abnormalities and of external challenges to personhood and agency based on the new behavioral neuroscience and genetics. The latter challengers argue that the central role the criminal law gives to mental states is deeply misguided. I begin with the law's conception of the person as a folk psychological agent who can potentially be guided by reason. Then I canvas the internal challenges to the importance of mental states, rooted in a trilogy of United States Supreme Court opinions: Montana v. Egelhoff, Clark v. Arizona, and Kahler v. Kansas. In each, the Court permitted limitations on the extent to which defendants could introduce evidence of mental abnormalities to avoid convictions. I conclude that all these decisions are misguided and that such limitations should not be adopted legislatively or judicially and should be rolled back by legislation whenever possible. My goal is not to criticize the formal legal reasoning of the opinions, although I do so in passing, but to engage at the level of policy. The action is now in the courts and legislatures. Next, I address the newer, broader challenges to personhood, agency, and responsibility that are fueled by alleged advances in behavioral neuroscience and genetics. Some of these are quite radical. They may even turn out to be correct, but at present, there is no conceptual or empirical reason to believe that they are true. Moreover, there is certainly insufficient reason to jettison notions of criminal responsibility that have been developing for centuries and to adopt instead the proposed, radical conception of justice. I do not argue for any particular categorization or hierarchy of mens rea terms, or for any particular form of an affirmative defense of legal insanity. Nevertheless, culpability, as expressed in mental state requirements (including action), is central to our value as moral agents."" |
| Lynch | 2021 | "I See What Is Right and Approve, But I Do What Is Wrong": Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging | Alison J. Lynch & Michael L. Perlin | 25 Lewis & Clark L. Rev. 453, 453-488 (2021) | "In this Article, we first consider the relevant differences between antisocial personality disorder (ASPD) and psychopathy. Then, we look at the meager cohort of federal sentencing cases in which the issue of psychopathy is even raised, and consider decision-making in this context from the perspective of implicit racial bias. Next, we present some background on the controversy of “psychopathy” diagnosis; here, we share what we call the “inside baseball” about the debate--on the differences between psychopathy and ASPD--that has rocked the world of the psychology academy. We will also analyze how our current ideas about punishment and recidivism could change by using psychopathy research as a case study, and consider how this new research creates extra responsibilities for both lawyers and expert witnesses in their representation of criminal defendants in such cases. Specifically, we will focus on how the use of these terms has a disproportionately negative impact on persons of color, looking closely at the way the instruments that are used to assess these conditions are subject to significant racial bias. Finally, we unpack these issues through the lens of therapeutic jurisprudence, a school of thought that considers the extent to which the legal system can be a therapeutic agent." |
| Johnston | 2021 | The Status and Legitimacy of M’Naghten’s Insane Delusion Rule | E. Lea Johnston & Vincent T. Leahey | 54 U.C. Davis L. Rev. 1777, 1777-1852 (2021) | ""This Article investigates jurisdictions' compliance with M'Naghten's directive for how to treat delusions in insanity cases and assesses the validity and reasonableness of courts' application of the law. Most U.S. jurisdictions employ an insanity test roughly modeled on the rule articulated in the 1843 M'Naghten's Case. This test focuses on a defendant's inability to know, because of a mental disease, the nature of her act or its wrongfulness. But the M'Naghten judges also issued a second rule--particular to delusions--that has received much less attention. This rule holds that, when the defendant labors under a “partial delusion only,” her culpability must be assessed as if the factual content of her delusion were true. Thus, if a person with delusions killed as she believed in self-defense, she should be acquitted. But if she killed anticipating future harm, she would be convicted of intentional murder. Commentators have long dismissed the delusion rule as obsolete, and the last examination of states' use of the rule was sixty years ago. This Article excavates the insane delusion rule and assesses its current force. Its review reveals the rule maintains its vibrancy, continues to evolve, and in some places is growing in influence. Nine jurisdictions--California, Florida, Georgia, Nevada, Oklahoma, Tennessee, Texas, and the federal and military systems--give special significance to delusions. These jurisdictions vary in their understanding of how the rule relates to general insanity; whether the rule functions only to establish (not defeat) insanity; and whether it operates as a background principle or manifests in jury instructions. The status of the rule is currently in flux, so understanding its permutations may inspire movement in the law. Next, the Article subjects the insane delusion rule and its current variants to the crucible of modern science. The justness of the rule turns on whether a defendant with delusions likely possessed--and could have fairly been expected to exercise-- adequate reasoning abilities while in the throes of psychosis. To examine this question, the Article applies insights from the cognitive sciences on how delusions are formed, are maintained, and may affect moral decision-making. Research in psychology and cognitive neuroscience suggests that the cognitive biases and emotional impairments that contribute to the origin and maintenance of delusions impair the capacity for moral decision-making in delusional individuals, at least in the context of decisions connected to those delusions. The scientific findings demonstrate the inseparability of cognition, emotion, and volition and thus hold implications for the insane delusion rule, insanity more generally, and the broader legal treatment of individuals with psychosis."" |
| Ali | 2021 | Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, and Accountability in Armed Conflict | Salahudin Ali | 29 Cath. U.J.L. & Tech. 1, 1-30 (2021) | "Using LOAC as a guide, this article seeks to provide a foundation to answer questions and provide recommendations to facilitate a discussion as to how commanders, or those deemed superiors, may retain cognitive and intuitive freedom, allowing a level of responsibility and accountability for their actions. This in turn promotes compliance with established legal regimes regarding respondeat superior in the legal tradition of the LOAC. Indeed, results of previous cases dealing with respondeat superior may have differed if a technology such as BCI was available at the time. Through this article's discussion, recommendations such as cognitive liberty, retaining jurisdiction of the mind, and ethical algorithm design and architecture, may assist in limiting the impacts of BCI's inevitable arrival on the battlefield. A potential resolution of these issues may have consequences far beyond the niche field of LOAC, touching upon greater questions of culpability and accountability that society will inevitably expect to be resolved when such technologies like BCI become increasingly ubiquitous. I will do this in parts II-VII, below. Part II describes the LOAC regime governing commander responsibility. Part III describes brain functions and BCI, BCI's underlying technology, and key issues BCI poses for the LOAC legal regime. Part IV analyzes the intersection of BCI with the LOAC regime. Part V discusses normative implications of the intersection of BCI and the LOAC regime. Part VI provides recommended concepts to deal with the emergence of BCI and its impact on LOAC. Part VII provides conclusory remarks." |
| Hodge | 2021 | Vicarious Trauma: A Growing Problem among Legal Professionals That May Become a More Prevalent Cause of Action | Samuel D. Hodge, Jr. & Lauren Williams | 53 Tex. Tech. L. Rev. 511, 511-533 (2021) | ""Isaac James is an associate in a prominent law firm that handles catastrophic injuries. He can appreciate the clients' pain because his parents were killed in a plane crash when he was a child. His job is very demanding, and counsel works long hours. Recently, he participated in a case in which a family of four was killed when their car exploded in a ball of fire after being hit by an out-of-control tractor-trailer. He did a great job developing the testimony and creating the exhibits shown to the jury. Following the trial, Isaac requested a two-week vacation, which was certainly well-deserved. At the end of that period, however, he notified the law firm's managing partner that he would not be returning to his job. The associate claims that as a result of the long-term exposure of handling cases involving people with devastating injuries, he is suffering from vicarious trauma. Mr. James asserts that he is plagued with various physical and emotional manifestations, including diarrhea, the inability to sleep, loss of weight, and irritability, that make him unable to function. He concluded his communication by noting that he will be filing claims for worker's compensation and long-term disability insurance. Cases involving vicarious trauma will only increase in prevalence unless a concerted effort toward awareness of the disorder and training to mitigate its effects within the legal field becomes more commonplace. This Article will explore this phenomena, the brain's physiological response to stress, why attorneys, judges, and their staff are susceptible to vicarious trauma, and the court cases on the topic."" |
| Wobser | 2021 | What’s on Your Mind? Neuroscience Evidence and Its Reliability throughout Criminal Proceedings | Andrew B. Wobser | 52 U. Tol. L. Rev. 175, 175-196 (2021) | ""What is responsible for human behavior: an individual or their brain? Many questions about human behavior have persisted throughout human history, including how behavior occurs and whether humans are in control of this behavior. Despite intense and extensive study, no definitive answers have arisen, nor are there signs of hope these questions will ever be answered. Neuroscience is one of the most prevalent fields seeking to understand and explain human behavior. Today's technology makes it easier than ever to study the human brain, the organ responsible for the functionality of the human body. In seeking to understand human behavior, society is also faced with the question of how to control behavior. Primarily, how society can protect itself against “bad” behavior. The criminal justice system is in place for this very purpose. Criminal law dictates what behavior is undesirable in society and sets out means of punishing individuals that participate in such behavior, all with the goal of protecting society. Both neuroscience and criminal law are centered around human behavior, so it is no wonder that these fields have intersected. The legal system has become increasingly accepting of neuroscience evidence within the courtroom, primarily with regard to explaining why defendants committed an offense. Defendants specifically have presented such evidence in hopes of excusing their own behavior or lessening their responsibility for the offense by claiming they were not in control of their actions. While this intersection may seem to be an obvious next step for both fields, there is reason for caution. While scientific fields of study and legal theory may overlap, they are still two completely separate entities and may not be entirely compatible with one another. As these fields continue to overlap, guidance should be provided as to how and when neuroscience evidence can and should be applied to criminal proceedings. Part I of this note provides a brief explanation of the basic goals of neuroscience and certain methodology used in the study of the brain. The intersection of neuroscience and law is also explored, explaining how neuroscience has been used in the courts as of this point in time. Part II delves into current evidentiary rules courts are obligated to follow when presented with expert evidence and how these rules apply to neuroscience specifically. This section also describes certain concerns among the neuroscientific and legal community regarding jurors' perceptions of neuroscience evidence. Part III then surveys the use of neuroscience evidence by criminal defendants at various stages of the criminal process and how such evidence often varies in reliability depending on what the evidence is presented to show."" |
| Brown | 2021 | Mother, May I Give a DNA Sample? The Incapacity of Juvenile Offenders and Suspects to Consent to Abandoned DNA Collection | Lauren Brown | 125 Penn St. L. Rev. 837, 837-869 (2021) | ""Deoxyribonucleic acid (“DNA”), the “genetic blueprint” for almost all living creatures, recently has become a critical tool for law enforcement in solving crimes. Law enforcement often collects DNA from hair, saliva, or other bodily fluids left on items suspects later discard, such as cigarette butts or water bottles. Law enforcement then uses the “abandoned” DNA to identify perpetrators of crimes. The U.S. Supreme Court has held that the practice of using abandoned DNA does not run afoul of the Fourth Amendment's protection against unreasonable searches and seizures, relying on California v. Greenwood's holding that an individual cannot possess a reasonable expectation of privacy in trash. Thus, courts presume that suspects who discard trash in police stations have consented to collection of their DNA. The U.S. Supreme Court has not, however, examined the Fourth Amendment implications of collecting abandoned DNA from juvenile suspects. Neuroscience research over the last decade indicates that adolescents' brains do not finish maturing until as late as age 25. Consent to a search must be knowing, intelligent, and voluntary; but during the years of adolescence, the faculties controlling knowledge, intelligence, and voluntariness have not yet fully developed. The adolescent brain's underdeveloped capacity for future orientation, reward circuitry, impulse control, and executive function make consent to abandoned DNA collection impossible. This Comment explains how law enforcement collects and uses DNA, particularly abandoned DNA, to solve crimes. A discussion of the Supreme Court's abandoned DNA jurisprudence regarding collection from adult suspects and a review of the salient differences in the adolescent brain affecting ability to consent will follow. In light of the neurological differences between juveniles and adults, courts should adopt a bright-line rule that juvenile suspects as a class do not have the capacity to consent to the collection of their abandoned DNA."" |
| Sarazin | 2021 | “Neurointerventions, Crime, and Punishment: Ethical Considerations” by Jesper Ryberg | Fiona Sarazin | 58 Osgoode Hall L.J. 499, 499-507 (2021) | "A unique hallmark of criminal law is that it concerns itself with the moral culpability of offenders. Penal theory has long purported to align with the prevalent orthodoxies of criminology, which have been increasingly informed by cognitive science. Recent advancements in brain imaging and neuroscience have revealed a growing ability to target structural and functional impairments that predispose psychopathy and violent tendencies. Neurointerventions, Crime, and Punishment delineates the ethical objections to the use of brain interventions, or “neurointerventions” (NIs) on offenders within a criminal justice framework for the purpose of crime prevention. NIs encompass a variety of methods that affect the conative, affective, or cognitive aspects of the mind. The author, Jesper Ryberg, approaches the subject matter from a background in criminal justice ethics and neuroethics. As a professor of Ethics and Philosophy of Law at Roskilde University in Denmark, he has made an impressive contribution to the recent literature in the fields of penal theory, ethics, and neuroscience." |
| Rosenfeld | 2013 | Review of Recent Studies and Issues Regarding the P300-Based Complex Trial Protocol for Detection of Concealed Information | J. Peter Rosenfeld, Xiaoqing Hu, Elena Labkovsky, John Meixner & Michael R. Winograd | 90 Int’l J. Psychophysiology 118, 118-34 (2013) | ""In this review, the evolution of new P300-based protocols for detection of concealed information is summarized. The P300-based complex trial protocol (CTP) is described as one such countermeasure (CM)-resistant protocol. Recent lapses in diagnostic accuracy (from 90% to 75%) with CTPs applied to mock crime protocols are summarized, as well as recent enhancements to the CTP which have restored accuracy. These enhancements include 1) use of performance feedback during testing, 2) use of other ERP components such as N200 in diagnosis, 3) use of auxiliary tests, including the autobiographical implicit association test, as leading to restored diagnostic accuracy, and 4) a study of the mechanisms underlying CMs. A novel, doubly efficient version of the CTP involving presentation of two probes in one trial is described as a new way to improve accuracy to levels above 90% in mock crime situations. Finally, a thorough analysis of the legal issues surrounding use of the CTP in U.S. is given."" |
| Ben-Shakar | 2011 | The CIT in the Courtroom: Legal Aspects | Gerson Ben-Shakar & Mordechai Kremnitzer | , in Memory Detection: Theory and Application of the Concealed Information Test 276, 276-90 (Bruno Verschuere, Gershon Ben-Shakhar & Ewout Meijer eds., 2011) | "This chapter focuses on the admissibility of evidence based on CIT outcomes in criminal trials. We adopted the criteria formulated in Daubert v. Merrell Dow Pharmaceuticals Inc. (1993) to evaluate admissibility. The literature on polygraph admissibility, which revolved only on the CQT, suggests that this technique does not meet the Daubert criteria. An examination of the CIT by these criteria reveals that although the current CIT research body sug-gests that it has a good potential for meeting the Daubert criteria, it is premature to recommend at this time that CIT outcomes will be used as admissible evidence in criminal trials. The main reason for this reservation is that the bulk of the CIT research is an experi-mental laboratory research and very little information exists today on CIT validity in the realistic forensic context. We recommend that future CIT research will examine the validity of this tech-nique in realistic settings, or at least rely on laboratory experiments that better approximate realistic conditions." |
| Bernstein | 2009 | How to Tell if a Particular Memory Is True or False | Daniel M. Bernstein & Elizabeth F. Loftus | 4 Persps. on Psych. Sci. 370, 370-74 (2009) | ""How can you tell if a particular memory belonging to you or someone else is true or false? Cognitive scientists use a variety of techniques to measure groups of memories, whereas police, lawyers, and other researchers use procedures to determine whether an individual can be believed or not. We discuss evidence from behavioral and neuroimaging studies and research on lying that have attempted to distinguish true from false memories. Consider the following situation. Mary X sits on the witness stand in court, recounting an emotionally charged memory involving childhood sexual abuse. Her report is both detailed and emotional. She explains how her grandfather molested her and how she had repressed the event for many years before recovering the memory in therapy. Is Mary's report the result of a real memory or a product of suggestion or imagination or some other process? This hypothetical example has many real-world parallels: Individuals claim that they have recovered memories of events long forgotten. Lacking corroborative evidence or a confession that can be trusted, what are we to make of these claims? Although the field of memory research has demonstrated repeatedly that memory is fallible and prone to distortion, often we are faced with a difficult question: How do we tell if a particular memory is true or false? We regard this as one of the biggest challenges in human memory research. Cognitive scientists have developed several techniques to measure groups of memories. Also, police, lawyers, and researchers have developed techniques to help them judge whether a person can be believed or not. These two approaches—focusing on the memories reported or the person reporting the memories—represent two very different ways of answering the thorny question we have posed. Unfortunately, neither approach presently can assess whether a particular memory is true or false. We discuss these two approaches in turn, and then discuss a third approach to answering our question that involves focusing on the particular memory."" |
| Rosenfeld | 2004 | Simple, Effective Countermeasures to P300-Based Tests of Detection of Concealed Information | J. Peter Rosenfeld, Matthew Soskins, Gregory Bosh & Andrew Ryan | 41 Psychophysiology 205, 205-19 (2004) | "We found countermeasures to protocols using P300 in concealed information tests. One, the “six-probe” protocol, in Experiment 1, uses six different crime details in one run. The countermeasure: generate covert responses to irrelevant stimuli for each probe category. Hit rates were 82% in the guilty group; 18% in the countermeasure group. The average reaction time (RT) distinguished these two groups, but with overlap in RT distributions. The “one-probe” protocol, in the second experiment, uses one crime detail as a probe. Here, one group was run in 3 weeks as a guilty group, a countermeasure group, and again as in Week 1. Countermeasure: Covert responses to irrelevant stimuli. In Week 1, hit rate was 92%. In Week 2, it was 50%. In Week 3, 58%. There was no overlap in the irrelevant RT distribution in Week 2: Countermeasure use was detectable. However, in Week 3, the RT distributions resembled those of Week 1; test-beaters could not be caught. These studies have shown that tests of deception detection based on P300 amplitude as a recognition index may be readily defeated with simple countermeasures that can be easily learned." |
| Mertens | 2008 | The Role of Psychophysiology in Forensic Assessments: Deception Detection, ERPs, and Virtual Reality Mock Crime Scenarios | Ralf Mertens & John J.B. Allen | 45 Psychophysiology 286, 286-98 (2008) | "Few data are available to address whether the use of ERP-based deception detection alternatives have sufficient validity for applied use. The present study was designed to replicate and extend J. P. Rosenfeld, M. Soskins, G. Bosh, and A. Ryan's (2004) study by utilizing a virtual reality crime scenario to determine whether ERP-based procedures, including brain fingerprinting, can be rendered less effective by participant manipulation by employing a virtual reality crime scenario and multiple countermeasures. Bayesian and bootstrapping analytic approaches were used to classify individuals as guilty or innocent. Guilty subjects were detected significantly less frequently compared to previous studies; countermeasures further reduced the overall hit rates. Innocent participants remained protected from being falsely accused. Reaction times did not prove suitable for accurate classification. Results suggested that guilty verdicts from ERP-based deception detection approaches are likely to be accurate, but that innocent (or indeterminate) verdicts yield no useful interpretation in an applied setting." |
| Winograd | 2011 | Mock Crime Application of the Complex Trial Protocol (CTP) P300-Based Concealed Information Test | Michael R. Winograd & J. Peter Rosenfeld | 48 Psychophysiology 155, 155-61 (2011) | ""The Complex Trial Protocol (CTP), was shown to be an improvement over the previous “three stimulus” P300-based concealed information tests (CITs). Not only was it highly accurate with autobiographical information but was also resistant to the use of countermeasures (CMs). The current study applied the CTP to the detection of incidentally acquired information in a mock crime scenario. In previous “three stimulus” mock crime studies utilizing P300-based CITs, participants memorized a guilty knowledge item(s). Special care was taken in the current study to ensure that participants' knowledge of the guilty item in the mock crime was obtained only during the commission of the act in order to bolster ecological validity. Overall, 92% of all participants in guilty, innocent, and countermeasure conditions were correctly classified. CM use was again indexed by reaction times (RTs)."" |
| Hu | 2015 | Suppressing Unwanted Autobiographical Memories Reduces Their Automatic Influences: Evidence From Electrophysiology and an Implicit Autobiographical Memory Test | Xiaoqing Hu, Zara M. Bergström, Galen V. Bodenhausen & J. Peter Rosenfeld | 26 Psych. Sci. 1098, 1098-1106 (2015) | "The present study investigated the extent to which people can suppress unwanted autobiographical memories in a memory-detection context involving a mock crime. Participants encoded sensorimotor-rich memories by enacting a lab-based crime (stealing a ring) and received instructions to suppress memory of the crime in order to evade guilt detection in a brain-wave-based concealed-information test. Aftereffects of suppression on automatic memory processes were measured in an autobiographical Implicit Association Test. Results showed that suppression attenuated brain-wave activity (the P300) associated with crime-relevant memory retrieval, which rendered waveforms from innocent and guilty participants indistinguishable. However, the two groups could nevertheless be discriminated via the late-posterior-negative slow wave, which may reflect the need to monitor response conflict arising between voluntary suppression and automatic recognition processes. Finally, extending recent findings that suppression can impair implicit memory processes, we provide novel evidence that suppression reduces automatic cognitive biases often associated with actual autobiographical memories." |
| Ward | 2017 | Attempts to Suppress Episodic Memories Fail but Do Produce Demand: Evidence from the P300-Based Complex Trial Protocol and an Implicit Memory Test | Anne C. Ward & J. Peter Rosenfeld | 42 Applied Psychophysiology Biofeedback 13, 13-26 (2017) | "Instructions to voluntarily suppress memories of a mock crime have been reported to result in decreased P300 amplitude during a P300-based concealed information test (CIT) and reduced autobiographical Implicit Association Test (aIAT) D scores, supporting successful suppression. However, one such study, (Hu et al., Psychological science 26(7):1098–1106, 2015) used the P300-based Complex Trial Protocol with a 50–50 target to nontarget ratio, which could impose much response switching and thereby drain cognitive resources, also resulting in reduced P300. The present study replicated Hu et al. (Psychological science 26(7):1098–1106, 2015) with one major variation—a less intrusive 20–80 target to nontarget ratio that required less response switching. Detection rates were high using both the brainwave-based CIT (90% accuracy) and the aIAT (87% accuracy). However we found no significant differences between the suppression and simple guilty groups on the major indices of concealed information detection, which compare probe and irrelevant P300 responses. While we did find that overall P300 amplitude was reduced in the suppression group, this reduction was not specific to probe responses. Additionally, while there were group differences in aIAT hit rates, there were no differences in aIAT D scores. Taken together, these findings suggest that the previously demonstrated reductions in P300 are a reflection of task demand rather than of effective voluntary memory suppression." |
| Rosenfeld | 1987 | Late Vertex Positivity in Event-Related Potentials as a Guilty Knowledge Indicator: A New Method of Lie Detection | J. Peter Rosenfeld, Victoria Tepe Nasman, Richard Whalen, Brad Cantwell & Lisa Mazzeri | 34 Int’l J. Neurosci. 125, 125-29 (1987) | "Subjects were allowed to choose an item to keep from nine items in a box. They then were shown one of nine words randomly selected on a display screen. One of these words described the chosen item, the others described novel items. The subjects were told to try not to react emotionally to any of the words, but to try to defeat this test of deception. It was found that large positive waves with latencies between 400 and 700 ms poststimulus were present in the ERPs to the chosen but not to the novel words." |
| 2014 | The Impact of Prior Knowledge from Participant Instructions in a Mock Crime P300 Concealed Information Test | Michael R. Winograd & J. Peter Rosenfeld | 94 Int’l J. Psychophysiology 473, 473-81 (2014) | "In P300-Concealed Information Tests used with mock crime scenarios, the amount of detail revealed to a participant prior to the commission of the mock crime can have a serious impact on a study's validity. We predicted that exposure to crime details through instructions would bias detection rates toward enhanced sensitivity. In a 2 × 2 factorial design, participants were either informed (through mock crime instructions) or naïve as to the identity of a to-be-stolen item, and then either committed (guilty) or did not commit (innocent) the crime. Results showed that prior knowledge of the stolen item was sufficient to cause 69% of innocent–informed participants to be incorrectly classified as guilty. Further, we found a trend toward enhanced detection rate for guilty–informed participants over guilty–naïve participants. Results suggest that revealing details to participants through instructions biases detection rates in the P300-CIT toward enhanced sensitivity.' | |
| Hu | 2013 | N200 and P300 as Orthogonal and Integrable Indicators of Distinct Awareness and Recognition Processes in Memory Detection | Xiaoqing Hu, Narun Pornpattananangkul & J. Peter Rosenfeld | 50 Psychophysiology 454, 454-64 (2013) | "In an event-related potential (ERP)-based concealed information test (CIT), we investigated the effect of manipulated awareness of concealed information on the ERPs. Participants either committed a mock crime or not (guilty vs. innocent) before the CIT, and received feedback regarding either specific (high awareness) or general (low awareness) task performance during the CIT. We found that awareness and recognition of the crime-relevant information differentially influenced the frontal-central N200 and parietal P300: Probe elicited a larger N200 than irrelevant only when guilty participants were in the high awareness condition, whereas the P300 was mainly responsive to information recognition. No N200-P300 correlation was found, allowing for a combined measure of both yielding the highest detection efficiency in the high awareness group (AUC = .91). Finally, a color-naming Stroop task following the CIT revealed that guilty participants showed larger interference effects than innocent participants, suggesting that the former expended more attentional resources during the CIT." |
| Baker | 2015 | Making Sense of Research on the Neuroimage Bias | D. A. Baker, Jillian M. Ware, N. J. Schweitzer & Evan F. Risko | 26 Pub. Understanding Sci. 251, 251-58 (2015) | "Both academic and legal communities have cautioned that laypersons may be unduly persuaded by images of the brain and may fail to interpret them appropriately. While early studies confirmed this concern, a second wave of research was repeatedly unable to find evidence of such a bias. The newest wave of studies paints a more nuanced picture in which, under certain circumstances, a neuroimage bias reemerges. To help make sense of this discordant body of research, we highlight the contextual significance of understanding how laypersons’ decision making is or is not impacted by neuroimages, provide an overview of findings from all sides of the neuroimage bias question, and discuss what these findings mean to public use and understanding of neuroimages." |
| 2021 | State of Mind, State of Law: Introduction to the Neuroscience and the Law Symposium | Charles J. Reid, Jr. | 15 U. St. Thomas J.L. & Pub. Pol'y 1, 1-137 (2021) | The Symposium “Neuroscience and the Law,” which took place in February 2020 at The University of St. Thomas, discussed the topics of free will, criminal law and neuroscience, addictive behavior and the law, mental health under international human rights law, and more. The presenters included academics from Israel, France, the United Kingdom, and the United States. | |
| 2021 | Neuroscience and the Law | Robert M. Sapolsky | 15 U. St. Thomas J.L. & Pub. Pol'y 138, 138-61 (2021) | "All of you today have gotten to hear some wonderfully subtle, nuanced explorations of the intersection between law and neuroscience. My intent in this talk is to do anything but that, and to be incredibly unsubtle and unnuanced. I will perhaps represent the lunatic fringe in terms of the views of where the two fields intersect. I think maybe the best way of summarizing it is that this will be a version of a talk I gave a couple of years ago at the Stanford law school to firstyear students in their first week of law school. The talk was entitled, “Why You Should Quit Law School Immediately,” and, as far as I can tell, it had no impact whatsoever. It is probably just as well. To jump to the punch line, I am a very, very hard incompatibilist. I believe there is no free will whatsoever, and that is going to have to utterly transform how we think about every aspect of our society. From how we judge harshly, to how we praise, and everything in between." | |
| 2021 | Toward a Definition of "Neurolaw" | Francis X. Shen | 15 U. St. Thomas J.L. & Pub. Pol'y 174, 174-85 (2021) | "Let’s start by returning to our guiding question: What is neurolaw? There is no accepted definition yet. Google tells me, and Merriam Webster tells me, that this term does not exist. So, we must answer it ourselves. Here is a working definition: neurolaw is the legal use and governance of neuroscientific tools, concepts, and data. When I use the phrase “legal use,” I intend for legal to be broad. And “use” means everything from a conceptual shift to an evidentiary tool, to an expert testifying. “Governance” is important too. It is not just that neuroscience has some new information that we might use in the law, it is also that law is a regulator. The FDA, FTC, and so forth in the United States and, internationally, other global bodies govern the use of neuroscientific tools, new concepts, and new data. With that working definition on the table, I want to touch on three things today. First, I will offer just a few words about why a definition of the field matters. The second part of the talk will provide a sense of the breadth and the depth of law and neuroscience as it is currently playing out. I will give you some snapshots of real cases and then, at the end, a few thoughts on how we might pull all of this together." | |
| 2021 | An Update on Gambling Disorder, Neuroscience, and the Law | Stacey A. Tovino | 15 U. St. Thomas J.L. & Pub. Pol'y 186, 186-99 (2021) | "This Essay attempts to build on my prior scholarship in the area of gambling disorder and the law, with a particular focus on assessing the impact that advances in neuroscience may have had on the legal treatment of individuals with gambling disorder. In Part I of this Essay, I reference recent (i.e., post-2016) illustrative advances in the neuroscientific understanding of gambling disorder. In Part II of this Essay, I explore whether there have been any post-2016 changes in the ways that health insurance and disability nondiscrimination treat individuals with gambling disorder. A conclusion suggests directions for future law and policy efforts." | |
| 2021 | Competence to Stand Trial Assessment: Practice-Based Views on the Role of Neuroscience | John T. Philipsborn & Melissa Hamilton | 15 U. St. Thomas J.L. & Pub. Pol'y 259, 259-95 (2021) | "What follows is a discussion that is meant for judges, forensic mental health experts, and lawyers whose involvement in criminal cases means, when necessary, accessing the tools and knowledge to address, analyze, and respond to evidence of the accused’s alleged incompetence to stand trial. There is here a discussion of practice guidelines, caselaw, competencerelated orders, commentaries, and recommendations that should be pertinent when the accused’s competence to stand trial is questionable. Courts, and the lawyers who appear in such cases, should be aware of the information that can be offered by neuroscientists from the various fields involved in researching, assessing, and documenting brain structure and function. This writing, a combination of a literature review and a commentary that includes illustrative court orders, is offered by the combination of a practicing lawyer with more than forty years of criminal case litigation experience, some of it as counsel of record in competence adjudications and otherwise as a court qualified lawyer-expert on competence to stand trial, and by an academic who researches the use of forensic science in the law." | |
| 2021 | Neurolaw: Brain-Computer Interfaces | Nadine Liv | 15 U. St. Thomas J.L. & Pub. Pol'y 328, 328-55 (2021) | "Brain-Computer Interfaces (BCIs) are currently being developed for therapeutic and recreational purposes and are expected to be widely used in the next two decades. Legal scholars have recently begun considering the ethical and legal implications of future use of BCIs. Some point out the peculiarities BCIs entail. Most notable is the fact that BCI-technology enables its users to affect the world using devices such as robotic arms, prosthesis, or other machines, while the execution of commands in such devices runs through computers directed by brain signals which, in contrast to usual forms of actions, does not involve bodily movement at all. Others call for recognizing new human rights in the age of neurotechnology to protect the mind, the last refuge of individual freedom and self-determination, from governments and companies gaining unprecedented access to components of mental information and abusing BCI-technology to influence individuals’ capacity to govern their behavior freely. However, given the early stage of these emerging technologies’ development, the legal literature on this matter remains sparse. Scholars have yet to propose a concrete regulatory model that ensures the integrity of BCI-technology and protects users from unknown external manipulations. Without adequate safeguards, access to the neural processes that underlie conscious thought risks profound violation of individual privacy with the potential to subvert free will; personal identity, agency, and moral responsibility may be diminished. Such outcomes could change the nature of human societies and humanity. This conference paper will cover the legal implications of BCIs and present examples of normative inconsistencies concerning the use of BCIs. This paper will explore the change BCI-technology can bring to human society’s nature, address BCIs from the perspective of law, policy, and public." interest, and advocate for a comprehensive reform of neuro-rights." | |
| 2021 | A Model for Analyzing and Grading the Quality of Scientific Authorities Presented to State Legislative Committees | Rose Tempowski, Maxine Lintern, Jill Molloy & Sarah L. Cooper | 15 U. St. Thomas J.L. & Pub. Pol'y 356, 356-86 (2021) | "Longitudinal studies have confirmed that human brains continue to mature and restructure throughout adolescence, with the prefrontal cortex – responsible for executive functions – maturing into an individual’s twenties. Studies examining adolescent decision-making demonstrate that young people prioritize rewards when assessing risk, take more risks in ‘hot’ contexts and are more likely to take risks when in the presence of their peers. These findings have motivated arguments that the immaturity of an adolescent brain could impact on culpability for criminal offences; a point recognized by the US Supreme Court in 2005: From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Since 2007, states have begun to ‘Raise the Age’ and move towards a national consensus of 18 for the upper age limit of juvenile court jurisdiction. Vermont has even gone beyond this, raising the age limit to 20. Little is known, however, about the extent to which, one, the evidential body of adolescent brain science is informing this legislative movement, or, two, robust science is presented to legislative decision-makers and by whom. This paper presents a model, developed by Tempowski, for analyzing and grading the quality of scientific arguments (related to adolescent developmental neuroscience) and authorities presented to legislative committees examining ‘Raise the Age’ legislation. It has been applied to four states between 2000 and 2019: Connecticut, Vermont, Michigan and Wisconsin. The former two were selected as states which had already, or were repeatedly attempting, to raise the age of juvenile jurisdiction above 18 and the latter two were states which, as of the beginning of the research in 2018, had not reached the national consensus of 18. Almost 700 pieces of evidence were analyzed. Using the model, each item was reviewed for, first, the quality of their scientific argument, by examining how a dominant theory was communicated, and second, the quality of the scientific authorities which underpinned their argument, by assessing criteria such as whether studies were peer-reviewed, performed in humans, randomized control trials or whether they were opinion-based. After grades were assigned for these two analyses, items were also categorized by author and a thematic analysis conducted. The model tells us that overall, although detailed scientific arguments about brain science and culpability are made to the legislature, poor quality evidence is provided to support these and, most often, there is a lack of scientific evidence entirely. Our research shows that campaign organizations, academia, religious groups, police chiefs and parents regularly provide testimony in this public process and that the themes of funding, recidivism and serious offences are repeatedly referenced. This paper provides a summary of the results from Connecticut, Michigan, Vermont and Wisconsin. Part I provides context through a discussion of the developing neuroscience and legal activity, Part II discusses the methodology of the analysis model and Part III offers conclusions about the quality of science referenced, who participates in the process of providing testimony to state legislative committees, and the themes discussed by these witnesses." | |
| 2021 | The Neuroscience of Free Will | Adina L. Roskies | 15 U. St. Thomas J.L. & Pub. Pol'y 162, 162-73 (2021) | "In this paper I focus on two different ways in which neuroscience has made arguments about the lack of free will or the illusion of free will. One is an argument from determinism, and the other is an argument about the inefficacy of conscious will. I will address both of those different research programs, and I will argue that neither of them actually succeeds in undermining the notion of free will. At the end, I will discuss further the philosophical implications of my views." | |
| 2021 | The Law and Ethics of Freedom of Thought | Marc Jonathan Blitz & Jan Christoph Bublitz (eds.) | 2021 | "Freedom of thought is one of the great and venerable notions of Western thought, often celebrated in philosophical texts – and described as a crucial right in American, European, and International Law, and in that of other jurisdictions. What it means more precisely is, however, anything but clear; surprisingly little writing has been devoted to it. In the past, perhaps, there has been little need for such elaboration. As one Supreme Court Justice stressed, “[f]reedom to think is absolute of its own nature” because even “the most tyrannical government is powerless to control the inward workings of the mind.” But the rise of brain scanning, cognition enhancement, and other emerging technologies make this question a more pressing one. This volume provides an interdisciplinary exploration of how freedom of thought might function as an ethical principle and as a constitutional or human right. It draws on philosophy, legal analysis, history, and reflections on neuroscience and neurotechnology to explore what respect for freedom of thought (or an individual’s cognitive liberty or autonomy) requires." | |
| 2021 | The Bionic Plaintiff and the Cyborg Defendant: Liability in the Age of Brain-to-Computer Interface | Barbara Pfeffer Billauer | 25 Va. J.L. & Tech 38, 38-110 (2021) | "Human-enhancing devices via machine-interface are rapidly approaching mass-marketability. These devices include hydraulically, mechanically, or electrically powered exoskeletons that allow functionality for the neurologically impaired. Newer devices, recently approved by the FDA, power such devices via brain waves transmuted into electrical signals. This Brain-to-Computer Interface (BCI) technology has been utilized in advanced designs, such as controlling a stylus or robotic arms, and more mundane contraptions, such as wheelchairs, via brain waves signaling intention. All are governed under Class II FDA designation for devices posing low and moderate risks. Of concern are studies that have recorded the existence of a readiness potential. These are brainwaves recordable shortly before the intent to move - or even awareness of such intent - is acknowledged by the user. This raises the question regarding whether BCI technology can mobilize devices based on unconscious or subconscious thoughts - creating the possibility of “unintended” harm, and calling into question the legal definition of “intent” needed to prove assault and battery. The BCI devices also render it nearly impossible to divine relative contribution of fault in the event of an accident: was it due to the intent (conscious or not) of the user - or product malfunction, perhaps generating a product liability suit against the manufacturer? It appears this new technology is poised to throw the tort system into disarray. Here, I postulate that FDA Class III regulation is warranted for BCI devices allowing remote movements engineered by pure thought. This would assure greater oversight and protection - not just for the user - but for bystanders and the public-at-large. I further suggest that enhanced testing is warranted - and that failure to pursue such testing might render the manufacturer liable in tort, allowing breach of preemption bars. This approach might possibly furnish double protection: deterrence via lawsuit, plus FDA oversight. This double protection, I suggest, is warranted in such potentially dangerous situations. Finally, I highlight the difficulties in assessing legal fault and recklessness when actions are committed without full awareness." | |
| 2020 | Applying the Model Penal Code Insanity Defense to Sleepwalking Killers and Psychopaths: Interfacing Neuroscience and Criminal Law | April Xiaoyi Xu | 23 New Crim. L. Rev. 471, 471-515 (2020) | "The American legal system currently tends to excuse sleepwalking killers, particularly based on the involuntary act defense, more so than the insanity defense. By contrast, the law generally does not excuse psychopathic murderers. However, the status quo may not be the optimal or most just solution to this legal dilemma; depending on one's philosophical beliefs regarding the tension between society's interest and the accused's rights, one can identify various flaws within the prevailing application of the insanity defense in cases involving sleepwalking and psychopathy. As the law is constantly evolving, there is space for growth in this area, especially with the advancement in neuroscience, which can offer more insight into sleepwalkers' and psychopaths' brains. In approaching the complex questions of whether and how the law should excuse sleepwalking killers and psychopaths from punishment, this article turns to relevant findings from neuroscience for support and focuses on one particular approach, that of the Model Penal Code (MPC) insanity defense. We begin with an overview of the relevant criminal law doctrine in contextualizing the MPC's approach to insanity defense. We then apply the relevant MPC section, § 4.01, to the sleepwalking killer and psychopath contexts, bearing in mind relevant studies and findings in neuroscience and related scientific disciplines, as well as their limitations at this stage. Part of the analysis considers the U.S. Supreme Court's latest insanity law decision, Kahler v. Kansas (2020), in relation to the subject matter of this article." | |
| 2020 | Neurolaw: An Attempt to Classify fMRI Brain Imaging as Evidence in the Polish Criminal Trial | Magdalena Krupa | 24 J. Crim. L. & Penal Stud. 87, 87-116 (2020) | " "Neurolaw" is an interdisciplinary field that combines issues related to law and other sciences such as psychology or criminology. The emergence of this field is associated with the rapid development of new techniques and research methods. This article focuses on the possibility of using functional magnetic resonance imaging in a criminal trial. To prove whether it is possible to use an fMRI image as evidence in a criminal trial, linguistic, systemic, and functional interpretations of given legal provisions were presented. The only reasonable solution seems to be to admit such evidence as a part of psychiatric expert evidence or to conduct an fMRI test during an expert examination using technical means which allow controlling the unconscious reactions of the subject’s organism." | |
| 2021 | Disabling and Criminalising Systems? Understanding the Experiences and Challenges Facing Justice Experienced, Neurodiverse Children in the Education and Youth Justice Systems | Anne-Marie Day | SSRN (Oct. 28, 2021) | "Children defined as ‘neurodiverse’ are over-represented in the English and Welsh criminal justice system, and face a number of challenges as they navigate their way through the education and youth justice systems. This paper will empirically examine this neglected area of criminal justice involvement in young lives. It argues that both the education and youth justice systems in England and Wales are disabling and criminalising through processes that, often unintentionally; label, stigmatise, isolate, neglect and harm neurodiverse children. Consideration will turn, in the concluding section of the paper, to what a ‘child first’ education and youth justice system would look like for neurodiverse children." | |
| 2021 | Can Neuroimaging Prove Pain and Suffering?: The Influence of Pain Assessment Techniques on Legal Judgments of Physical versus Emotional Pain | Hannah J. Phalen, Jessica M. Salerno & N.J. Schweitzer | 45 L. & Hum. Behav. 393, 393-412 (2021) | "Objectives: It is difficult to “prove” pain and suffering—particularly emotional suffering. Neuroimaging technology might bolster pain claims in civil cases by making pain seem less subjective. We examined how neuroimaging of physical and emotional pain influences judgments of pain and suffering across nonlegal and legal contexts. Hypotheses: We hypothesized that participants would rate pain assessed using neuroimaging as more severe and award higher compensation than pain assessed using self-report measures. We also hypothesized that participants would rate physical (vs. emotional) pain as more severe, except when the pain claim was bolstered by a neuroimaging assessment. Method: In two experiments, we tested how pain assessment techniques influence perceptions of pain severity and monetary compensation differently for physical or emotional pain. Using a within-subjects design, participants (Experiment 1, N = 411, 59% male, 80% White) read 6 vignettes that described a person’s chronic physical or emotional pain, evaluated using a clinical assessment, neuropsychological assessment, or neuroimaging assessment. We conceptually replicated Experiment 1 in a legal context (Experiment 2, N = 353, 42% male; 80% White) and tested whether the neuroimaging effect was due to knowing that the pain was assessed by neuroimaging or also required the inclusion of a neuroimage. Results: When pain was assessed using neuroimaging (vs. non-neuroimaging assessments), participants rated the pain as more severe and gave larger monetary awards. When a person alleged physical (vs. emotional) pain, participants rated the pain as more severe and gave larger monetary awards. We conceptually replicated these findings in Experiment 2 and found that the neuroimaging effect was due to hearing about neuroimaging assessment and did not necessitate the inclusion of a neuroimage. Conclusion: Neuroimaging technology could be extremely useful for plaintiffs trying to overcome the difficult hurdle of proving their pain." | |
| 2021 | How the Evolving State of Neuroscience Informs the Definition of Adulthood: A Psychiatrist’s Perspective | Sarah Mallard Wakefield & Pamela McPherson | 7 J. Pediatric Neuropsych. 161, 161-68 (2021) | "Deliberating on the state of the science underlying the prediction of dangerousness and the application of that science is a weight carried by the law. Over the past few decades new technologies have allowed neuroscience to document intricacies of the developing brain. As neuroscience has expanded and refined the evidence of biopsychosocial influences on brain development, neurolaw has considered the implications of the scientific research for criminal law. Assigning an age for the onset of adulthood is a sociolegal construct. Science cannot assign an exact age to adulthood. Neuroscience has established that brain development continues through the mid-twenties, but exposure to adverse childhood experiences, perinatal exposures and conditions, and genetic pre-disposition to mental illness changes this trajectory so that neither the course nor endpoints are fixed. The Court holds the responsibility to apply the law to an individual set of circumstances but often asks psychiatrists what factors help explain an individual’s actions or state of mind and to apply the science and the art of medicine to help explain the individual. However, a psychiatrist’s testimony is a tool used by attorneys to further an argument. Is the law ready to accept the neuroscience of emerging adulthood and does it meet Daubert are ever-evolving question and answer sets as studies are repeated and the evidence mounts regarding brain development. Even so, at the end of the day, what psychiatrists know to be true or science accepts to be fact is not the same as policy or law. Many other factors are at play." | |
| 2021 | Neurolaw and the Neuroscience of Free Will: An Overview | Renato César Cardoso | 21 SCIO Revista de Filosofía 55, 55-81 (2021) | "Due to the advent of modern neuroscience, several scientific disciplines have developed entirely new theories, perspectives, and methodologies. The substantial advances and discoveries made in this field over the last decades, especially those concerned with human cognition and behavior, have steered the course of many traditional research areas and given rise to others, like neuroethics and neurolaw. Here we take a look at some of the general characteristics of the growing field of neurolaw, an interdisciplinary field that dwells on the intersection of law and neuroscience. We then discuss the neuroscience of free will, one of the most impacting and pressing topics in the neurolaw debate, with special attention to Libet’s paradigm, recent scientific developments, and novel interpretations that question customary assumptions about it. " | |
| 2021 | Neuroimaging Evidence: Scientific Integrity, Criminal Justice, Efficient Admissibility | Amalea Khoshaba | 62 Jurimetrics J. 77, 77-109 (2021) | "This Comment illustrates the creation of a uniform standard that permits neuroimaging evidence in the courtroom to help determine competency, culpability, and guide sentencing. By exploring several case studies and current legal standards, this Comment highlights the reasons for a uniform standard to ensure equal opportunities for defendants. Among other issues, this Comment also considers the direct ethical and legal questions surrounding neuroimaging evidence. Neuroimaging evidence is increasingly used in state and federal courtrooms in the United States to help explain the behavior of criminal defendants. Currently, judges have discretion whether to admit or reject neuroimaging evidence even if the evidence indicates brain abnormalities, disorders, or injuries. Without a uniform neuroscience standard in place in the criminal courtroom, requiring consideration on request, defendants willing to submit neuroimaging evidence are left to the mercy of the court. Neuroimaging technology provides the opportunity for physicians to detect physical differences in the brain that may manifest into criminal behavior down the road. In many criminal cases, the admission and consideration of neuroscientific evidence has led to reduced sentences. Conversely, when neuroscientific evidence is rejected, defendants cannot introduce the biological data to mitigate their circumstances to potentially produce more favorable outcomes. A uniform neuroscience standard with appropriate safeguards in place can strengthen the legal system's accuracy. In addition to impacting mitigation, a uniform neuroscience standard will assist with the identification of malicious tendencies and recidivism rates. While neuroimaging evidence is constantly evolving, the justice system will be better equipped to admit this evidence upon incorporating appropriate guidelines while validating the science." | |
| 2021 | Neurotechnology, Criminal Law and Human Rights: Interdisciplinary Perspectives | University of Sydney Law School | Dec. 14, 2021 | "What kind of human rights challenges might emerge from neurotechnology and how might these challenges play out in criminal justice? This event will address these questions. Investment from companies such as Elon Musk’s Neuralink, Facebook and a host of others gives reason to take seriously the possibility that neurotechnologies, such as brain-computer interfaces, may soon be more widely available in society. Recently, Chile has become a world-leader in responding to possible human rights implications of more widespread use of technologies that interact with the brain, and has now changed its constitution in order to address emerging challenges. Whether one imagines people committing crimes by way of brain-computer interface, or the employment by the state of technologies that monitor brains, or even intervene on them to reduce the risk of a person offending, it seems reasonable to expect that there will be a criminal justice dimension to neurotechnology. But should governments monitor brains? Should they use a neurotechnological means to address crime? There are obvious human rights implications concerning such hypothetical scenarios. Given the possibility that, at some point, the uptake of neurotechnologies might start to accelerate, it seems prudent to envisage some of the issues that might emerge now, rather than waiting until technology is entrenched in a way that is undesirable. With this in mind, scholars and policymakers from around the world are starting to consider the human rights implications of neurotechnology. While considering some general issues relating to neurotechnology and human rights, this event will also examine the technology with a somewhat more specific aim in mind and ask what human rights implications it may have for criminal justice. The consideration of such issues requires scholars from a variety of backgrounds including science and technology, and philosophy, as well as law and we look forward to investigating the issues with the below-mentioned speakers and others. The audience we expect is similarly diverse and we invite scholars from a variety of backgrounds, legal practitioners, scientists, technologists, policymakers, and others who wish to consider the themes that will be discussed." | |
| Fins | 2016 | Guardianship and the Injured Brain: Representation and the Rights of Patients and Families | Joseph J. Fins & Barbara Pohl | , in Finding Consciousness: The Neuroscience, Ethics, and Law of Severe Brain Damage 246 (Walter Sinnott-Armstrong ed., 2016) | ""The authors of this chapter address legal and policy issues surrounding guardianship of brain-damaged patients. Guardians assist patients in many ways and make many important decisions regarding treatment. Still, there is potential for infringing a patient’s civil liberties, especially when guardianship is assumed to be permanent. The authors argue that we need to structure guardianship so as to protect patients both while they are incompetent and also when they might regain competence. They also recommend that close family members be privileged in guardianship because they tend to have the greatest knowledge of and respect for the wishes of that individual patient."" |
| 2021 | Copyright and the Creative Process | Mark Bartholomew | 97 Notre Dame L. Rev. 357, 357-416 (2021) | "Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything--from test answer sheets to instruction manuals to replicas of items in the public domain--is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It turns out that creativity can be partially measured, that authorial intent is critical to creative production, and that expertise and creative output are highly correlated. If copyright law's goal is truly to promote creativity, it should define that foundational concept to accord with scientific fact." | |
| 2022 | Effective Connectivity and Criminal Sentencing Decisions: Dynamic Causal Models in Laypersons and Legal Experts | Takeshi Asamizuya, Hiroharu Saito, Ryosuke Higuchi, Go Naruse, Shozo Ota & Junko Kato | 00 Cerebral Cortex 1, 1-13 (2022) | "This magnetic resonance imaging study is designed to obtain relevant implications for criminal justice and explores the effective connectivity underlying expertise. Laypersons and experts considered sentences for remorseful and remorseless defendants, respectively, with and without mitigation, in hypothetical murder cases. Two groups revealed no differential activation. However, dynamic causal modeling analysis found distinct patterns of connectivity associated with subjects’ expertise and mitigating factors. In sentencing for remorseful defendants, laypersons showed increased strength in all bidirectional connections among activated regions of Brodmann area (BA) 32, BA23, the right posterior insula, and the precuneus. In contrast, legal experts sentenced based on mitigation reasoning, showed increased strength only in the bidirectional connection between the insula and the precuneus. When sentencing for remorseless ones without mitigation, both laypersons and experts increased the connection strength, but with reverse directionality, between regions; legal experts strengthened connectivity from BA10 to other regions, that is, the right anterior insula and BA23, but the directionality was reversed in laypersons. In addition, the strength of connection to BA32 and BA10 was correlated with changes in punishments by mitigating factors. This is a crucial result that establishes the validity of the connectivity estimates, which were uninformed by the independent (behavioral) differences in the severity of punishment." | |
| 2022 | Novel Neurorights: From Nonsense to Substance | Jan Christoph Bublitz | 15 Neuroethics 1, 1-15 (2022) | "This paper analyses recent calls for so called “neurorights”, suggested novel human rights whose adoption is allegedly required because of advances in neuroscience, exemplifed by a proposal of the Neurorights Initiative. Advances in neuroscience and technology are indeed impressive and pose a range of challenges for the law, and some novel applications give grounds for human rights concerns. But whether addressing these concerns requires adopting novel human rights, and whether the proposed neurorights are suitable candidates, are a diferent matter. This paper argues that the proposed rights, as individuals and a class, should not be adopted and lobbying on their behalf should stop. The proposal tends to promote rights infationism, is tainted by neuroexceptionalism and neuroessentialism, and lacks grounding in relevant scholarship. None of the proposed individual rights passes quality criteria debated in the feld. While understandable from a moral perspective, the proposal is fundamentally fawed from a legal perspective. Rather than conjuring up novel human rights, existing rights should be further developed in face of changing societal circumstances and technological possibilities." | |
| 2021 | Neurorights and Mental Freedom: Emerging Challenges to Debates on Human Dignity and Neurotechnologies | Eric García-López, José M. Muñoz & Roberto Andorno | 15 Front. Hum. Neurosci. art. 823570 (2021) | "The past three decades have witnessed extraordinary developments in neuroscience and neurotechnologies. These advances give us new insights into the brain's functioning and how it correlates to behavior. By allowing direct access to mental data and new forms of intervention in the brain, such developments have great potential to improve the wellbeing of patients suffering from neurological disorders. Moreover, the convergence of artificial intelligence (AI) technology with data from brain activity is accelerating our understanding of the mental processes underpinning human behavior. The new knowledge resulting from the confluence of neuroscience and AI and the tools derived from it are very promising in terms of the development of new diagnostic, preventive, or therapeutic measures for neurological conditions." | |
| 2021 | Paving the Way for Mind-Reading: Reinterpreting “Coercion” in Article 17 of the Third Geneva Convention | John Zarrilli | 17 Duke J. Const. L. & Pub. Pol'y Sidebar 1, 1-30 (2021) | "Mind-reading is no longer a concept confined to the world of science-fiction: “Brain reading technologies are rapidly being developed in a number of neuroscience fields.” One obvious application is to the field of criminal justice: Mind-reading technology can potentially aid investigators in assessing critical legal questions such as guilt, legal insanity, and the risk of recidivism. Two current techniques have received the most scholarly attention for their potential in aiding interrogators in determining guilt: brain-based lie detection and brain-based memory detection." | |
| 2022 | Protecting the Mind: Challenges in Law, Neuroprotection, and Neurorights | Pablo López-Silva & Luca Valera | (Pablo López-Silva & Luca Valera eds., 2022). | "This book offers a comprehensive analysis of philosophical, social, ethical, and legal challenges arising as a consequences of current advances in neurosciences and neurotechnology. It starts by offering an overview of fundamental concepts such as mental privacy, personal autonomy, mental integrity, and responsibility, among others. In turn, it discusses the influence of possible misuses or uncontrolled uses of neurotechnology on those concepts, and, more in general, on human rights and equality. Then, it makes some original proposals to deal with the main ethical, legal, and social problems associated to the use of neurotechnology, both in medicine and in everyday life, suggesting possible policies to protect privacy, neural data, and intimacy. Crossing the borders between humanities, natural sciences, bio-medicine, and engineering, and taking into account geographical and cultural differences, this book offers a conceptual debate around policy and decision making concerning some of the key neuroethical challenges of our times. It offers a comprehensive guide to the most important issues of neurojustice and neuroprotection, together with a set of new paradigms to face some of the most urgent neuroethical problems of our times." | |
| 2021 | “My Bewildering Brain Toils in Vain”: Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery | Alison J. Lynch, Michael L. Perlin & Heather Cucolo | 74 Rutgers U.L. Rev. 215, 215-70 (2021). | "Individuals with traumatic brain injuries (“TBI”) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. These individuals' cases are often not handled in the way that the cases of defendants who present with mental illness or intellectual disability may be--there may be no discussion of diversion opportunities or a need for comprehensive evaluation and treatment. Additionally, attorneys assigned to represent this cohort may not have encountered individuals with TBI before and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood. A grave example of this point, and a foundation for this Article, is the case of Lisa Montgomery, who, despite evidence of serious mental illness and significant brain damage, was convicted, sentenced to death, and ultimately executed for the murder of a pregnant woman and the kidnapping of the woman's unborn child. Montgomery was the first woman to face federal execution in the U.S. since 1953, and was executed on January 13, 2021. Her case reflects all that is wrong with the way we treat criminal defendants with traumatic brain injuries. In this paper, we discuss common ways that individuals with traumatic brain injuries become involved in the criminal justice system, and how attorneys can better prepare an effective defense or mitigation. We consider, in some depth, several of the substantive areas of criminal law and procedure in which an understanding of TBI is especially significant (including, but not limited to, competency status, the insanity defense and the death penalty), and assess the quality of counsel--and experts--in such cases, using the Montgomery case as a prism." | |
| 2022 | Neurorights: The Chilean Constitutional Change | Allan McCay | AI & Soc'y (2022) | "Towards the end of 2021, Chile became the first nation in the world to have a constitution in force that explicitly addresses the challenges of emerging neurotechnologies. Whilst this legislative response to technologies that draw on knowledge pertaining to neuroscience and artificial intelligence received some international media attention, it deserved more. The modification of the constitution might even be thought of as an important historic event given that emerging neurotechnologies have the potential to gather data from our brains, or even to manipulate them, thereby influencing what we think or do. Chile is the first country in the world to directly address the human rights challenges." | |
| 2021 | Brain Chips and Whole Brain Emulation Could Ensure Football's Survival: Is It Worthwhile? | James T. Gray | 32 Marq. Sports L. Rev. 49, 49-77 (2021) | "Currently, the collective American national responses to brain-based health and safety issues range from banning football, amending football hitting rules, to prohibiting youth from full contact participation until they become adolescents. Additional recommendations have included improved coaching of competitors, limited physical player contact during practices, and cumulative head hit count maximum limits. However, the shortcomings of these piecemeal responses will constrain football's violent civic appeal and start to erode its historical privilege amongst the American public. Nonetheless, there is one response to football's traumatic brain injury dilemma that should be explored. To thrive, as compared to merely survive, football will be compelled, within the next 50 years, to replace biological athletes with synthetic ones. More specifically, in order to maintain football, in its present form, the use of either brain chips or Whole Brain Emulation (WBE) will ultimately be embraced by America's football culture." | |
| 2022 | The State of Florida v. Kelvin Lee Coleman Jr.: The Implications of Neuroscience in the Courtroom through a Case Study | Panagiota Loizidou, Rory E. Wieczorek-Flynn & Joseph C. Wu | Psych., Crime & L., 2022, at 1, 1-22 | "Neuroscience can provide evidence in some cases of legal matters, despite its tenuous nature. Among others, arguing for diminished capacity, insanity, or pleading for mitigation is the most frequent use of neurological evidence in the courtroom. While there is a plethora of studies discussing the moral and legal matters of the practice, there is a lack of studies examining specific cases and the subsequent applications of brain knowledge. This study details the capital punishment trial of Kelvin Lee Coleman Jr., charged in 2013 with double murder in Tampa, Florida, to illustrate the extent that expert opinions – based on neuroimaging, neurological, and neuropsychiatric examinations – had an impact on the court’s decisions. The defendant was sentenced to life imprisonment without the possibility of parole. According to the comments of the trial’s jury, the most influential reason for not sentencing the defendant to death is the fact that during the incident was that he was under extreme mental and emotional disturbance. Other reasons were evidence of brain abnormalities resulting from neurological insult, fetal alcohol syndrome, and orbitofrontal syndrome contributing to severely abnormal behavior and lack of impulse control." | |
| 2016 | Behavioral and Neural Impairments of Frontotemporal Dementia: Potential Implications for Criminal Responsibility and Sentencing | Colleen M. Berryessa | 46 Int'l J.L. & Psychiatry 1, 1-6 (2016) | "Individuals in the early stages of the behavioral variant of frontotemporal dementia (bvFTD), a progressive neurodegenerative disorder marked by atrophy to the brain's frontal regions, exhibit severe disturbances to social and moral processing and decision-making after the onset of the disorder. These behavioral impairments, underlain by the neural deficits associated with the disorder, can often lead individuals with bvFTD to criminally offend. As such, behavioral and frontotemporal lobe abnormalities exhibited by offenders with bvFTD potentially represent several complex challenges for the legal system. This paper examines some of the ways in which the behavioral and neural impairments associated with bvFTD may influence issues surrounding the criminal responsibility, specifically legal insanity, and sentencing of offenders with bvFTD in the U.S. legal system. As there is very little literature in these areas concerning bvFTD, the existing academic dialogue on psychopathy, a disorder with similar behavioral symptoms and neural deficits, is used to frame the discussion on these issues." | |
| 2022 | Nohwere | Peter A. Alces & Robert M. Sapolsky | 63 Wm. & Mary L. Rev. 1079, 1079-1117 (2022) | "Our normative systems conceive of law and morality as the Erewhonians understood physical disease—a product of sufficient choice to attach blame, fault, and concepts of desert. But on what basis do we draw the distinctions between physical and normative malady: Are not both just (generally) distinguishable manifestations of mechanical causes? If human agents are essentially mechanical entities, on what basis could we find a normative difference between, say, tuberculosis and selfishness or insufficient ability to feel compassion for others? In fact, if you are actually indifferent to the suffering of others, a typical psychopath, what could be the nonphysical cause of that indifference?" | |
| 2022 | Neuroscience and Criminal Justice: Time for a "Copernican Revolution"? | John S. Callender | 63 Wm. & Mary L. Rev. 1119, 1119-66 (2022) | "The main purpose of this Article is to argue for a fundamental change in the conceptual orientation of criminal justice: from one based on concepts such as free will, desert, and moral responsibility, to one based on empirical science. The Article describes research in behavioral genetics, acquired brain injuries, and psychological traumatization in relation to criminality. This research has reached a level of development at which the traditional approach to criminality is no longer tenable and should be discarded. I argue that mental health legislation provides a model that could be adapted and applied to offenders." | |
| 2022 | The Diversity of Norm Psychologies: A Challenge for the Law | Paul Sheldon Davies | 63 Wm. & Mary L. Rev. 1167, 1167-1213 (2022) | "Can we craft a coherent set of laws applicable to populations with deep cultural diversity? The full force of this question—call it the generalization challenge—has emerged recently thanks to advances in the sciences of the human, especially theories of neuroscience and psychology framed by theories of biological and especially cultural evolution. The goal of this Article is to describe enough of those advances to make clear the force of the challenge. The motivation is simple: as we endeavor to imagine the future of law in light of discoveries in neuroscience and related disciplines, being apprised of the generalization challenge may increase our chances of discovering an effective solution." | |
| 2022 | How Experts Have Dominated the Neuroscience Narrative in Criminal Cases for Twelve Decades: a Warning for the Future | Deborah W. Denno | 63 Wm. & Mary L. Rev. 1215, 1215-88 (2022) | "Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants. This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, especially insanity cases, which often concern a defendant’s brain damage or abnormality. To support these arguments, this Article reports the results of my original Twelve-Decade Neuroscience Study (“The Study”) examining the criminal justice system's use of the insanity defense in all criminal cases—totaling 8,358—which involved neuroscientific evidence from 1900 to 2020. The Study shows that, despite the increasing influx of neuroscientific evidence and its purportedly greater objectivity into the criminal justice system, experts still sway how that evidence is cast when it concerns a defendant claiming insanity. The Study’s results also explain how experts for the defense and the prosecution vary in their approaches. For example, defense experts employ narratives to emphasize the impact of neuroscientific evidence on a defendant's brain and behavior for purposes of mitigating punishment. In contrast, prosecutors increasingly use accusations of malingering in their attempts to win cases—claiming that defendants are lying about their disorders. This Article concludes that in years hence, courts may expect seemingly more impartial information derived from neuroscientific tests to incorporate more accurate and precise indicators of the human mental condition. Whether the field of neuroscience will succeed in that quest will be one more question for the future and the experts who still may try to shape it." | |
| 2022 | Using Burdens of Proof to Allocate the Risk of Error when Assessing Developmental Maturity of Youthful Offenders | David L. Faigman & Kelsey Geiser | 63 Wm. & Mary L. Rev. 1289, 1289-1316 (2022) | "Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it cannot be assessed in individuals with confidence. This fact is an instance of a fundamental disconnect that occurs at the intersection of science and law between what scientists study and what courts ordinarily need to know. Scientists typically study phenomena at the group or population level, whereas courts usually need to determine whether a particular case is an instance of some known phenomenon. This is called the group to individual (G2i) problem. Although the G2i problem cannot be fully resolved, it can be managed by using the base-rate data available in the research literature to set the burden of proof. Setting the burden of proof is a classic mechanism for allocating the risks of making a mistake. Two factors in particular inform judgments about allocating risk of error, with the first being the likelihood or frequency of the fact in question and the second being the costs associated with the error. The rarer the fact and the larger the cost of a mistake, the greater the burden of proof should be. The latter factor, the costs associated with error, lies behind the traditional burdens of proof of preponderance of evidence and proof beyond a reasonable doubt in civil and criminal cases, respectively. In contrast, while the former factor, the frequency of the fact in question, is used regularly in areas of applied science, it has generally not informed allocations of burdens of proof in court. This Article sets forth a framework of shifting burdens of proof grounded in the research literature that can be employed to allocate the risk of error when assessing developmental maturity in the sentencing of offenders across the age spectrum." | |
| 2022 | The Future of Law and Neuroscience | Owen D. Jones | 63 Wm. & Mary L. Rev. 1317, 1317-45 (2022) | "I was asked to speculate about where the field of Law & Neuroscience may be ten years from now. In that spirit (and while recognizing that the future rarely complies with our predictions) I attempt here some extrapolations. I first consider potential advances in the technologies for monitoring and manipulating brain states, the techniques for analyzing brain data, and the efforts to further integrate relevant fields. I then consider potential neurolaw developments relevant to: (1) detecting things law cares about; (2) individualizing developmental states and brain states; (3) evidence-based legal reforms; (4) legal decision-making; and (5) brain-brain interfaces." | |
| 2022 | Collective Cognitive Capital | Emily R. D. Murphy | 63 Wm. & Mary L. Rev. 1347, 1347-1408 (2022) | "This Article calls for a new project for law and neuroscience. It outlines a structural, not individual, application of brain and behavioral science that is aligned with the general goal of basic science research: improving the lives of citizens with a better understanding of the human experience. It asks brain and behavioral science to move explicitly into public policy territory, and specifically onto ground more traditionally occupied by economists—but in ways the project of “behavioral economics” has not yet ventured. Put simply, policy analysts should focus on brains—“collective cognitive capital”—with the same intensity with which they focus on money, rights, or other policy metrics. To that end, this Article introduces and explores the novel framework of “collective cognitive capital”: a way of thinking of brain health and brain function as an aggregated resource. Collective cognitive capital is a conceptual framework for synthesizing brain and behavioral data and using it to assess the impacts of policy choices. The core thesis for this future of “law and neuroscience” is simple: we can and should use brain and behavioral science to evaluate public policy decisions by how they affect the brain functioning of the people. Normatively, policies should seek to maximize “collective cognitive capital” because it is inherently valuable. Cognitive and emotional functioning, and overall brain health, subserve and maximize individual agency and freedom." | |
| 2022 | Neuroscience, Criminal Sentencing, and Human Rights | Elizabeth Shaw | 63 Wm. & Mary L. Rev. 1409, 1409-43 (2022) | "This Article discusses ways in which neuroscience should inform criminal sentencing in the future. Specifically, it compares the ethical permissibility of traditional forms of punishment, such as incarceration, on the one hand, and rehabilitative “neurointerventions” on the other. Rehabilitative neurointerventions are interventions that aim directly to modify brain activity in order to reduce reoffending. Various jurisdictions are already using techniques that could be classed as neurointerventions, and research suggests that, potentially, an even wider range of rehabilitative neurointerventions may be developed. This Article examines the role of human rights (in particular, the moral right to mental integrity and the legal right against degrading treatment) as a constraint on the state’s use of neurointerventions. It also discusses the extent to which traditional forms of punishment, such as incarceration, interfere with the right to mental integrity." | |
| 2022 | A Safe Culture for Neuroscience | Bruce Waller | 63 Wm. & Mary L. Rev. 1445, 1445-83 (2022) | "When examining the future impact of neuroscience on the law, the first step requires narrowing the scope of the inquiry: advances in neuroscience are exciting, but the beneficial or harmful effects of those advances will depend on the specific culture in which they occur. In some cultures—such as in Norway or Sweden—integrating advances in neuroscience into the criminal justice system is likely to enhance understanding and improve the treatment of offenders and potential offenders. In the neoliberal culture of the United States, advances are more likely to exacerbate the profound wrongs of the criminal justice system rather than ameliorate them. The important question for neoliberal cultures is whether advances in neuroscience might contribute to the reform of those cultures. While neuroscience can contribute to that goal, there is a danger that neuroscience advances might encourage the radical individualist orientation of neoliberalism and revive a “nothing works” attitude toward rehabilitation. The benefits of neuroscience are more likely to emerge when the worst elements of neoliberal culture have been reformed." | |
| 2021 | Law and Mind: A Survey of Law and the Cognitive Sciences | Bartosz Brożek, Jaap Hage & Nicole A. Vincent | Bartosz Brożek, Jaap Hage & Nicole A. Vincent, eds. 2021 | "Are the cognitive sciences relevant for law? How do they influence legal theory and practice? Should lawyers become part-time cognitive scientists? The recent advances in the cognitive sciences have reshaped our conceptions of human decision-making and behavior. Many claim, for instance, that we can no longer view ourselves as purely rational agents equipped with free will. This change is vitally important for lawyers, who are forced to rethink the foundations of their theories and the framework of legal practice. Featuring multidisciplinary scholars from around the world, this book offers a comprehensive overview of the emerging field of law and the cognitive sciences. It develops new theories and provides often provocative insights into the relationship between the cognitive sciences and various dimensions of the law including legal philosophy and methodology, doctrinal issues, and evidence." | |
| 2022 | Neurociencia y Derecho: El impacto del Neuroderecho en la práctica judicial chilena | Ricardo Camargo Brito & Nicolás Ried Soto | 48 Revista Chilena de Derecho 107, 107-29 (2022) | "La recepción de las neurociencias en juicio ha tenido una historia que se extien-de desde la década de 1940, pero que en la jurisprudencia comparada se ha intensificado en los últimos años de manera muy significativa, dando lugar a la disciplina del neuroderecho. Este trabajo ofrece una síntesis del neuroderecho en la jurisprudencia comparada y realiza un análisis del estado de la cuestión en nuestra jurisprudencia nacional, mediante la revisión de una base de datos jurisprudencial en la materia que se extiende entre los años 2002 y 2019. Se concluye que el neuroderecho en nuestro país aún tiene un desarrollo muy incipiente y concentrado fundamentalmente en materias de litigación de daños civiles y laborales." | |
| 2021 | The Solitary Confinement of Juveniles: It Is a Cruel and Unusual Punishment | Deborah Paruch | 57 Idaho L. Rev. 689, 689-718 (2021) | "This article addresses the practice of subjecting juveniles to solitary confinement, and the shattering effects this has on their mental health. It presents the current state of national and international law on this issue, and argues that this nation's current practice of subjecting juveniles to extended periods of isolation is a violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment. Part I addresses the conditions and the history of the practice of solitary confinement in the United States. Part II discusses the devastating effects solitary confinement has on the individuals subjected to this treatment. It presents the current scientific studies that demonstrate the significant psychological and physical effects suffered by individuals, with a particular focus on juveniles. Part III presents the U.S. Supreme Court's Eighth Amendment Cruel and Unusual Punishment cases, and selected federal circuit and district court decisions. Part IV sets out the arguments why this practice violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. More specifically, it argues that the practice of subjecting juveniles to extended periods of isolation violates international law, contradicts current trends in state and federal law, and is contrary to evolving standards of decency. It also advocates for a different standard of culpability when applied to juveniles, which would be wholly consistent with the Court's sentencing decisions." | |
| 2022 | Criminal Acts and Basic Moral Equality | John A. Humbach | 14 Wash. U. Juris. Rev. 341, 341-76 (2022) | "Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as intentions, can cause physical effects (bodily movements)--a factual assumption that is at odds with the evidence of neuroscience and whose only empirical support rests on a fallacious logical inference (post hoc ergo propter hoc). There is, in fact, no evidence that mental states like intentions have anything to do with causing the bodily movements that constitute behavior. Nonetheless, the mental-cause basis for moral responsibility, though it rests on a false factual inference, has enormous implications for criminal justice policy. While society must obviously protect itself from dangerous people, it does not have to torment them. The imperative to punish, a dominant theme of criminal justice policy, is not supported by evidence or logic, and it violates basic moral equality." | |
| 2022 | Excessive Sanctions and Evolving Standards of Decency: The Mitigating Nature of Sexual Trauma for Juvenile Survivors Who Murder | Ingrid Hofeldt | 23 Minn. J.L. Sci. & Tech. 415, 415-46 (2022) | "Approximately 2,500 Americans sit behind bars serving life without parole (LWOP) sentences for murders they committed as children. A huge proportion of juvenile murderers experienced horrific harms, ranging from violent abuses in their neighborhood parks to sexual abuse in the hidden corners of their homes, but lacked the tools to manage, heal, and initiate recovery from their traumas. These youth, many of whom are now adults, received sentences that often did not account for the mitigating nature of their traumas. This Note will argue that juvenile murder defendants with trauma histories generally, and sexual trauma histories specifically, deserve shorter sentences given the impact of that trauma on their development. It will further argue that courts do not sufficiently consider the mitigating evidence of sexual trauma when sentencing youth for murder. Part I will examine the neurological, sociological, and psychological research on the relationship between abuse and juvenile murder, illustrating how abuse strongly correlates with violent behavior among a subset of these children. Part II will showcase the limitations of evidence at sentencing and the extent to which evidence of trauma actually impacts juvenile murder defendants' sentences. Part III will argue that the current framework for sentencing a population of defendants who disproportionately experience arguably mitigating circumstances serves no moral, legal, or policy purpose. This Note concludes that while courts have begun to dabble in trauma-informed sentencing, on a structural level the government must shift resources from the juvenile criminal legal system towards earlier public health interventions because these defendants' abuse histories are a public health crisis for defendants, their victims, and their communities. This reallocation is necessary to avoid committing a grave injustice against some of this country's most vulnerable youth." | |
| 2022 | "Incorrigibility Is Inconsistent with Youth": The Supreme Court's Missed Opportunity to Cure the Contradiction Implicit in Discretionary JLWOP Sentencing | Ana Ionescu | 76 U. Miami L. Rev. 612, 612-52 (2022) | "The juvenile life without parole (“JLWOP”) caselaw is based in part on the science underlying adolescent brain development. Numerous research studies have examined the behaviors and brain processes of adolescents. Courts have relied on these findings in reaching some of its most important decisions affecting juveniles implicated in the criminal justice system. The latest of those decisions came in 2021 with the Jones v. Mississippi case before the United States Supreme Court. The Court held that a sentencing court is not required to make a specific finding of permanent incorrigibility before sentencing the juvenile defendant to life without parole. This Comment exposes the contradiction implicit in the permanent incorrigibility standard applied in JLWOP cases: how can juveniles be found to have transient characteristics but also be deemed permanently incorrigible? Specifically, the paradox lies in a discretionary JLWOP sentence because it implies that the juvenile's crime reflects permanent incorrigibility, and the child is forever incapable of being reformed. However, adolescent brain science supports the findings that juveniles possess temporary *613 attributes, and the adolescent brain continues to develop through adulthood, such that juveniles have an enhanced capacity for rehabilitation. Moreover, courts have adopted these scientific truths as binding precedent. Ultimately, the Supreme Court justices missed a perfect opportunity in Jones to eliminate the contradictory permanent incorrigibility standard from the JLWOP sentencing scheme." | |
| 2021 | Introduction | Bartosz Brożek & Jaap Hage | , in Law and Mind: A Survey of Law and the Cognitive Sciences 1, 1-14 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This commentary examines the issue of judicial bias in response to the chapter, The Psychology of the Trial Judge, by Morris Hoffman. With a focus on retributive punishment judgments, it questions whether human decision makers, including judges, can rely on their powers of rationality, or whether such judgments are fundamentally emotional and intuitive. I begin with the observation that we, as a society, do not have a clear conceptual understanding of why we punish criminals. Further, there are good reasons to think that retributive attitudes might be the expression of psychological biases, and this poses problems for the prospect of rational punishment. At the least, a coherent justification for punishment should be informed by an empirical understanding of the causes of these psychological biases, including their evolutionary origins. Evolutionary scholarship suggests that retributive attitudes evolved to generate consequentialist outcomes like deterrence, but they did so to achieve a competitive advantage between individuals, not to protect society as a whole. Such findings suggest that our retributive attitudes today might not always function in ways that are best for society. Thus, understanding why our punishment psychology evolved in the ways that it did, we as a society can more cogently evaluate whether we embrace those reasons or reject them. An appreciation of our evolved psychology of punishment can also provide a framework for unifying the rival legal justifications for punishment. From this perspective, retributive and consequentialist motives for punishment are not completely incompatible. Rather, they are different levels of analysis for describing our universal punishment psychology." | |
| 2021 | Are the Cognitive Sciences Relevant for Law? | Jaap Hage | , in Law and Mind: A Survey of Law and the Cognitive Sciences 17, 17-49 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This chapter addresses the question of whether the cognitive sciences are relevant for law. The answer to this question will turn out to be a threefold ‘yes’. First, if law is traditionally conceived as a set of rules that prescribe what ought to be done, there is a role for the cognitive sciences in determining the facts of the cases to which the law is to be applied (evidential reasoning). Legal decision making often involves the application of open-textured concepts, and the cognitive sciences can study the psychological processes and perhaps also the biases involved in such an application. Moreover, the results of the cognitive sciences may also be important for the evaluation of law, and for determining what good law might be. A perhaps more ambitious role for cognitive sciences in law has to do with the determination of the content of the law. If law is a social phenomenon, and if social phenomena depend on what goes on in human minds, cognitive sciences can, at least in theory, study the content of the law. Some would argue that the cognitive sciences could never fulfil this more ambitious role, because law has to do with what OUGHT to be done, or ought to be the case, while sciences, including cognitive sciences, can only study what IS the case. It will be argued that this fundamental objection against this role for the cognitive sciences is misguided: there is no hard difference between IS and OUGHT and even if law belongs to the realm of OUGHT, cognitive sciences may still be relevant for determining the content of the law. Finally, the cognitive sciences may disrupt the image of humankind that underlies law. It turns out that people are less rational than they may seem at first glance, that they often do not know what motivates them, that it is not obvious what actions and agents are and that it is unclear what the best level of explanation is for human actions or bodily movements. A change in the image of humankind that underlies law, to reflect the recent insights of the cognitive sciences but also of ancient philosophical debates, may have important consequences for the contents of law." | |
| 2021 | Social and Normative Facts | Carsten Heidemann | , in Law and Mind: A Survey of Law and the Cognitive Sciences 50, 50-54 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "To talk of ‘ought-facts’ is apt insofar as any manifestation of an Ought seems to be connected with some kind of objectivity. And if facts are simply ‘true thoughts’, there is nothing strange about saying, for example, ‘It is a fact that, under circumstances c, x ought to be the case’. Taking ought-facts to be facts sui generis does not entail, however, that they can be reduced to natural facts, or brute social facts (or some other kind of non-normative facts). On the contrary, the case might be argued that natural facts depend for their objectivity on irreducible normativity, namely, obligations to think in a certain way." | |
| 2021 | Law, Folk Psychology and Cognitive Science | Łukasz Kurek | , in Law and Mind: A Survey of Law and the Cognitive Sciences 55, 55-85 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "Folk psychology (henceforth FP) is the common-sense understanding of the mind. The idea behind this chapter is that the legal understanding of the human mind – that is, how the human mind is conceptualized within, for example, criminal law, tort law, contract law or jurisprudence – has its roots in FP. One of the goals of the chapter is to determine in more detail how the mind, and its relationship with behaviour, are conceptualized within law. Numerous contemporary philosophers and cognitive scientists are interested in FP. Various claims – both of an empirical and philosophical nature – have been made as to what the features of FP are. Considerable disagreement remains in connection to even its most basic features. Much of this chapter pertains to issues which have emerged at the intersection between FP and cognitive science as they are directly relevant to the discussion about the folk-psychological underpinnings of law. An example of such a feature, and one which will often resurface in this chapter, is whether FP makes any commitments as to how the mind really works. If FP makes such claims and they turn out to be false, this could be used as an argument against the usefulness of FP. In a way, it would be surprising if the empirical commitments of FP – if there are any – did not, at least to some extent, turn out to be false. Science has already revealed how our common sense gets things wrong in the context of our everyday understanding of the physical world. Some think, however, that FP should not be viewed as making empirical commitments. The chapter tackles issues pertaining to folk psychology which are specific to law as well. The considerations carried out in the chapter indicate how the practical nature of law influences the debate about folk psychology, law and cognitive science. Those dubious as to the usefulness of FP for legal purposes should propose how FP could be replaced, for if our legal practices are rooted in FP, these legal practices would be crippled without it and completely replacing it would not be an easy task. Some would even argue that the elimination of FP would be the greatest intellectual tragedy in the history of our species. As we can see, the topic raises some emotions. Finally, the discussion carried out in the chapter covers the three dominant outlooks on the relationship between folk-psychological underpinnings of law and cognitive science: autonomy, revision and integration." | |
| 2021 | Law and the Cognitive Science of Ordinary Concepts | Kevin Tobia | , in Law and Mind: A Survey of Law and the Cognitive Sciences 86, 86-96 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This chapter introduces the ‘folk law thesis’, the claim that ordinary concepts are at the heart of central legal concepts. It presents recent empirical work suggesting that a number of subtle and surprising features of ordinary concepts are also shared by the corresponding legal concept – including features of INTENT, KNOWLEDGE, CONSENT, REASONABLENESS, and CAUSATION. This approach to law opens up a range of new and promising empirical research questions: For each legal concept, what are the features of the corresponding ordinary concept – and what, if any, are the distinctive features of that legal concept? It also opens up an equally vast range of new normative questions: For each feature of the relevant ordinary concept, we can – and should – ask a corresponding normative question: should the legal concept have this or that feature? In this way, the cognitive science of ordinary concepts is not only a useful part of legal psychology, but also a critical part of legal theory and jurisprudence." | |
| 2021 | Cognitive Science and the Nature of Law | Corrado Roversi | , in Law and Mind: A Survey of Law and the Cognitive Sciences 99, 99-137 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "Law is not simply a matter of rules: it is also a domain of facts and objects, and explaining these facts – their nature and structure, and more in general the nature of law – is a crucial problem of jurisprudence. There is a relevant and quite intuitive sense in which social facts can be assumed to depend on the mental states of individuals. The features of this dependence, and the kinds of mental states involved, are two separate questions – the first metaphysical, the second psychological – which are, however, deeply intertwined. For this reason, legal metaphysics is inevitably an interdisciplinary research connected with cognitive psychology: it is not possible to have a clear idea of the nature of legal facts without understanding the cognitive underpinnings of the mental states those facts depend on. In this chapter, I will adopt this interdisciplinary approach and try to outline a picture, however tentative and incomplete, of the psychological problems and findings that are relevant for research in the metaphysics of law. The chapter is based on two separate assumptions, which I will put forward as my analytical framework. The first assumption is that legal facts are a subset of social fact: hence, legal metaphysics is a subset of social metaphysics. The second assumption is that legal institutions are peculiar social institutions that put in place a framework consisting of sanctions, along with the authority to define, apply, and enforce shared rules of conduct in a formal way. The analytical framework that I derive from these two assumptions will make it possible to distinguish two aspects of law: one is the law’s root in collective acceptance, the other is its structure, namely, a framework of sanctions and power/authority. Both these aspects ultimately trace back to cognitive mechanisms. The discussion is organized accordingly. I will first deal with the root of law, then with its structure, and for each aspect I will first present its conceptual and theoretical background and then describe the connected cognitive-psychological studies and topics of research." | |
| 2021 | The Architecture of the Legal Mind | Bartosz Brożek | , in Law and Mind: A Survey of Law and the Cognitive Sciences 138, 138-64 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This chapter aims at substantiating three claims: (1) that legal thinking consists in the interaction between three mental mechanisms: intuition (unconscious decision making), imagination (mental simulation), and thinking in language (theory-construction); (2) that legal epistemology has largely neglected the role of imagination in legal thinking, while it is imagination that provides ‘the missing link’ between unconscious decision making and thinking in language; and (3) that the picture of the legal mind which embraces intuition, imagination and language provides an explanation of the enduring and seemingly inconsistent threads in legal epistemology. I begin with a general overview of the existing theories in legal epistemology, distinguishing between formalism, dialecticism, coherentism and intuitivism. Along the way, I highlight the fact that these four philosophical stances offer different and sometimes mutually inconsistent perspectives on legal thinking. Subsequently, I analyse the three mechanisms at play in all types of reflection, including legal thinking: intuition, imagination and thinking in language. I try to explain what stands behind these labels, and argue that a lawyer cannot limit themselves to only some of these mechanisms in their cognitive efforts. Moreover, I venture to depict how the mechanisms in question interact in, and what they contribute to, legal decision making. In this context, I put special emphasis on the role of imagination, explaining how it provides a link between intuition and language." | |
| 2021 | The Psychology of the Trial Judge | Morris B. Hoffman | , in Law and Mind: A Survey of Law and the Cognitive Sciences 165, 165-92 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "The chapter on the psychology of the trial consists of three sections. The first section examines the question of whether the general insights of psychology and behavioral economics can be applied to trial judges, or whether, by virtue of their special training and experience or some other reason, trial judges are different. The second section surveys the relatively scant behavioral literature on judging and places it in the larger context of non-judge decision making. It does so by considering four well-studied “heuristics,” or cognitive shortcuts that allow people to make quick, intuitive decisions with little or no deliberation, but that can sometimes also result in errors in reasoning. The four heuristics considered are: anchoring, hindsight, compromise and contrast, and representativeness. The third section finishes the chapter with a series of reflections about specific challenges the author has thought about over the twenty-nine years that he has been a trial judge, coupled with a few suggestions about how the system might better accommodate some of those challenges." | |
| 2021 | Institutional Design and the Psychology of the Trial Judge | Adi Leibovitch | , in Law and Mind: A Survey of Law and the Cognitive Sciences 193, 193-206 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This chapter discusses the ways in which the psychology of judicial decision making may be intertwined with wider institutional design aspects. It is commonly recognized that decision-making processes are susceptible to various cognitive biases, and judicial decisions are no exception. Extending the focus from the individual trial judge to the characteristics of the court in which a judge operates, this chapter’s aim is to highlight the possible role of procedures and institutions in perpetuating, exacerbating or creating cognitive biases in judicial decisions. These cognitive biases and heuristics are of particular interest as they can not only lead to transient effects on decisions but can also affect judgements in more systematic and prolonged ways. The expertise and repeat experience that characterize judges can lead to the creation of schemas and baselines which judges employ in individual cases. The institutional capacity of the courts and the applicable rules of procedure and evidence can foster different decision-making environments, thereby changing the schemas created and pushing judicial decisions in a particular direction. This chapter reviews this connection between institutional design and the psychology of judging through three prominent examples. The first section discusses how due to context-dependent decision making, case assignment across courts can change the relative within-docket evaluation of particular cases, thus altering the substantive outcomes reached by the courts. The second section draws attention to the tension between the human tendency to retributivism and the rehabilitative goals set by problem-solving or treatment-oriented courts, and how this tendency may be responsible for some unintended consequences of specialized courts. The third section reviews the accumulating findings regarding the difficulty of disregarding irrelevant or inadmissible evidence, and discusses how these could inform the applicable rules of evidence governing trials." | |
| 2021 | Bias at the Surface or the Core? A Comment on the Psychology of the Trial Judge | Eyal Aharoni | , in Law and Mind: A Survey of Law and the Cognitive Sciences 207, 207-14 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This commentary examines the issue of judicial bias in response to the chapter, “The Psychology of the Trial Judge,” by Morris Hoffman. With a focus on retributive punishment judgments, it questions whether human decision makers, including judges, can rely on their powers of rationality, or whether such judgments are fundamentally emotional and intuitive. I begin with the observation that we, as a society, do not have a clear conceptual understanding of why we punish criminals. Further, there are good reasons to think that retributive attitudes might be the expression of psychological biases, and this poses problems for the prospect of rational punishment. At the least, a coherent justification for punishment should be informed by an empirical understanding of the causes of these psychological biases, including their evolutionary origins. Evolutionary scholarship suggests that retributive attitudes evolved to generate consequentialist outcomes like deterrence, but they did so to achieve a competitive advantage between individuals, not to protect society as a whole. Such findings suggest that our retributive attitudes today might not always function in ways that are best for society. Thus, through understanding why our punishment psychology evolved in the ways that it did, we as a society can more cogently evaluate whether we embrace those reasons or reject them. An appreciation of our evolved psychology of punishment can also provide a framework for unifying the rival legal justifications for punishment. From this perspective, retributive and consequentialist motives for punishment are not completely incompatible. Rather, they are different levels of analysis for describing our universal punishment psychology." | |
| 2021 | Private Law and Cognitive Science | Przemysław Pałka | , in Law and Mind: A Survey of Law and the Cognitive Sciences 217, 217-48 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This article explores how cognitive science can inform the theory and practice of private law. In the light of the findings about human mind and behavior, it scrutinizes the assumptions private law makes about what human beings are and what they do. Further, it shows that cognitive science can help lawyers not only to understand the world better, but also to more effectively draft rules governing it. The image of a human presupposed by private law – homo legalis privatus – is someone having free will and consciously directing their behavior to align with adopted goals and intentions; someone who understands the consequences of their actions and might be held responsible for the concluded contracts and the committed torts. Cognitive science does not compel us to deem any of these assumptions untrue or incorrect, but it does invite more caution when adopting strong binaries and assuming that humans always perform at the peak of their capacity. How to assess these presuppositions will depend on one’s normative view of the role of private law in our societies. The chapter compares the roles assumptions play in the behavior-guiding and deontological theories of private law, and argues that for the former what matters is usefulness, while the latter focuses on truth. Which approach to take, however, is not a scientific or legal choice, but a political one. Further, cognitive science can help lawyers understand the changing nature of the private law society in the digitally mediated, cognitively driven marketplace. Private law presupposes not only certain features of natural persons, but also the types of actions they undertake, types of relations they engage in, and types of objects they control. These elements, in turn, are contingent upon the state of technology, culture, and science. Currently, new types of activities occur, like micro-targeted behavioral advertising; and new types of commodities, like humans’ attention and future conduct form objects of private law relations. These transformations result directly from the application of cognitive insights by corporations, and their will to develop new knowledge about people’s preferences and behavior. The chapter takes a closer look at the emergence of this novel phenomenon – “private cognitive science” – partly caused by, and partly demanding a response from, private law." | |
| 2021 | Private Law and Cognitive Science: A Methodological Commentary | Bartosz Brożek & Marek Jakubiec | , in Law and Mind: A Survey of Law and the Cognitive Sciences 249, 249-54 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "The paper is a commentary to Przemyslaw Palka’s analysis of the multidimensional relation between private law and cognitive science. One particular problem touched upon by Palka is further elaborated: the descriptive layer of the private law and its relation to the cognitive sciences. The emphasis is placed on two interrelated issues: presuppositions of the legal norms and the relationship between legal and scientific “images of man.”" | |
| 2021 | Responsibility, Liability, and Retribution | Jaap Hage & Antonia Waltermann | , in Law and Mind: A Survey of Law and the Cognitive Sciences 255, 255-88 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This chapter focuses on the relationship between liability in (criminal) law, responsibility, and retribution. It addresses the question of whether law – in particular criminal law – should base liability on responsibility and whether responsibility should be based on retributivism. In examining these questions, the aim of the chapter is to present the main lines of the debates surrounding them and to examine whether – and if so, how – compatibilism is a means to reconcile the different positions within those debates. A central role in this regard is reserved for a social practice we call ‘the practice of agency’ and the tension between two different ways of looking at the world around us, namely the phenomenological and the realist way. Criminal liability can be justified by reference to consequentialism or retributivism. The latter fits into a view of the world that includes free will libertarianism; the phenomenological view of the world. This view includes agents with free will who are responsible for their actions and deserve liability on those grounds. It can be contrasted with the realist view, which denies the existence of free will and the possibility of responsibility or liability based on desert. Compatibilism suggests that these two views of the world can co-exist because our actual social practice of agency does not depend on any philosophical position. We argue that for compatibilism to be successful in this regard, it needs to be shown that (a) the two views of the world are about the same thing, and (b) that it is desirable for both views of the world to co-exist. The cognitive sciences are relevant for both of these claims." | |
| 2021 | Guilt in Criminal Law: Guilt in Us or in the Stars? | Mikołaj Małecki & Marek Sławiński | , in Law and Mind: A Survey of Law and the Cognitive Sciences 289, 289-316 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This article explores the notion of guilt understood as one of the conditions required to attribute criminal liability to a perpetrator of a prohibited act. We narrow our considerations only to the theories developed by continental law scholars. As a guiding schema for our presentation, we take the famous quote from Shakespeare, ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ Our point of departure are the psychological theories that locate guilt in us, therefore explaining it as a perpetrator’s state of mind. With the critiques of this approach, we move to the normative theories which search for guilt outside the agent. Guilt is understood here as a charge that a perpetrator did not act in accordance with their legal obligations. Next, we present the imputative theory, which tries to return from distant stars to a perpetrator in defining what guilt is. In our final remarks, we offer the assessment of guilt as a principle of criminal liability and of its importance to the standard of human rights. Along the way, we also point to various problems that arise on the basis of each one of the discussed theories and that are interesting from the perspective of cognitive science, such as the problems of naïve psychology or the assumption of free will." | |
| 2021 | The Insanity Defense | Gerben Meynen | , in Law and Mind: A Survey of Law and the Cognitive Sciences 317, 317-41 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "Legal insanity is an element of many legal systems, and it has often stirred debate. It appears that many are intrigued by this defense, which touches upon a variety of enigmatic subjects, such as severe crimes, fairness, free will, retribution, and the reliability of expert testimony. In this chapter, key questions regarding the insanity defense will be considered. Why should insanity be part of our legal system? What should be the criteria for legal insanity? Can neuroscience help to assess a defendant’s sanity? Since legal insanity lies at the interface of law and psychiatry, we will have to consider both legal and psychiatric matters. As we are interested in the foundations of legal insanity, we will take moral philosophy into account as well. First, we consider some arguments pro and con the insanity defense. This implies addressing certain challenges regarding psychiatric assessments, such as the fact that it concerns a past mental state, and the risk that defendants will malinger (faking bad) or hide their symptoms (faking good). Second, we will examine the components of several legal standards for insanity such as the M’Naghten Rule and the Model Penal Code test. Third, the idea that the defense relies on the possibility that a mental illness may compromise a person’s free will will be discussed. I will conclude that the notion of “free will” provides at best a partial justification for legal insanity. Many legal systems define a specific threshold of proof for insanity, for instance, “by a preponderance of the evidence.” We concisely consider the burden of proof, in particular the threshold of proof. Next, the ethics of forensic psychiatric assessment and testimony about a defendant’s insanity will be discussed. Since forensic psychiatric evaluations of defendants do not take place in a therapeutic doctor–patient relationship, the ethical context is also different from the standard healthcare setting. Finally, the role of neuroimaging in insanity evaluations will be considered." | |
| 2021 | Thoughts on the Insanity Defence | Lisa Claydon & Paul Catley | , in Law and Mind: A Survey of Law and the Cognitive Sciences 342, 342-50 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "The comments by Claydon and Catley on the contribution of Meynen about the insanity defence concentrate on the attributions the law makes concerning responsibility, and consider the basis of insanity in Anglo-American jurisprudence. Over time, definitions of legal insanity have developed to reflect changes in medical understading and societal attitudes to mental health. The starting point is taken in the legal definition of insanity and in Anglo-American understandings of this law with its foundation in M’Naghten’s Case. The M’Naghten Rules are not set out in case law, but arose through the questioning of the puisne judges by Parliament. The judges were asked to justify their decision to find M’Naghten insane. These circumstances highlight that from the beginning the insanity defence was politically charged. Thus the rules are, in a sense, a defensive response to the question posed by the legislature as to why Daniel M’Naghten deserved to be excused criminal liability. Having considered the structure of the insanity defence and its development and review post M’Naghten, the authors look at the question of the burden and threshold of proof, before concluding by addressing two relevant questions. Firstly, why would anyone think that neuroscience would provide a total answer to questions of criminal responsibility in cases of legal insanity? Secondly, why would anyone think that neuroscience would not be relevant to deliberations concerning criminal insanity?" | |
| 2021 | Implications of Neurotechnology: Brain Recording and Intervention | Pim Haselager | , in Law and Mind: A Survey of Law and the Cognitive Sciences 353, 353-69 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "Progress in cognitive neuroscience has led to the development of a variety of neurotechnologies that enable the recording and/or stimulation of brain processes. In this chapter the author examines various examples of neurotechnology, and indicates some of their potential effects on a user’s sense, and on society’s attribution, of agency, identity and responsibility. He focuses on neurotechnology that: (1) measures brain activity to drive applications in order to perform actions; (2) stimulates brains in order to change, restore or improve aspects of cognition; or (3) combines recording and stimulation to enable informational loops within or between brains." | |
| 2021 | Neuroimaging Evidence in US Courts | Jane Campbell Moriarty | , in Law and Mind: A Survey of Law and the Cognitive Sciences 370, 370-411 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This chapter provides a detailed consideration of neuroscience and neuroimaging evidence (collectively termed “neuroimaging evidence”) in US federal and state courts. While essentially an explanation of the law and science, the chapter also details ongoing concerns about neuroimaging evidence: issues related to the quality of the underlying science; the potential for an inferential leap from data to courtroom evidence; the lack of recognized clinical use of some neuroimaging technologies; and the problems of appropriate expertise. The chapter includes several sections. First, it explains the types of neuroimaging that have been used (or excluded) in court, highlighting the foundational concerns about the studies in general and as applied. Second, it addresses the relevant rules of evidence and critical cases that shape courts’ approach to neuroscience evidence. Substantively, the chapter reviews a variety of criminal and, to a lesser extent, civil matters related to neuroimaging evidence. With respect to criminal law, the chapter explores questions of legal competency, insanity and legal responsibility, sentencing, psychopathy, claims of ineffective assistance of counsel, and neuroscience lie detection. In addition, the chapter examines the special role that neuroscience has played in the development of juvenile sentencing law. The civil section addresses neuroimaging in relationship to traumatic brain injury. Finally, the chapter considers some of the overarching concerns and potential promises about neuroimaging evidence, urging that more co-creation of standards between scientists and the legal profession take place in order to improve the quality of the neuroimaging evidence in court." | |
| 2021 | Neuroscientific Evidence in Context | Deborah W. Denno | , in Law and Mind: A Survey of Law and the Cognitive Sciences 412, 412-20 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "In her commentary on Moriarty’s contribution about neuroscientific evidence, Denno examines the scientific environment in which neuroscientific evidence took hold, as well as the complexities that can arise when attempting to decipher the influence of such evidence in the much broader framework of a criminal case that involves hundreds of factors, with neuroimaging tests simply being one component. In this connection, she first discusses the conceptual distance between the evidence that neurosciences can contribute and the legal question that need to be answered. Second, she addresses the historical development of the use of neuroscientific evidence. The comments are concluded by a brief discussion of the different evidentiary standards and their influence on the usability of neuroscientific evidence." | |
| 2021 | Some Issues in Interpreting Neuroscientific Evidence | Bartłomiej Kucharzyk | , in Law and Mind: A Survey of Law and the Cognitive Sciences 421, 421-30 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This paper comments on Jane Moriarty’s chapter on neuroimaging evidence in the US courts by presenting a couple of inferential pitfalls one may encounter in interpreting neuroscientific evidence in the context of law and trial. First, a general issue of heterogeneity of neuroscientific data (structural vs. functional, individual vs. group) is discussed, which gives the background for revealing other problems. Secondly, an example of the multiplicity (cascade) of assumptions and inferences entangled in interpreting a simple CT scan in the legal context is presented. Finally, some specific inferential pitfalls are described (primarily the reverse inference issue, the group-to-individual problem, and the lingua franca problem) and a few more are briefly mentioned. The paper suggests that, for now, the possibilities that neuroscience offers fact-finders are quite modest, and interpreting neuroscientific evidence in the context of law is a difficult business." | |
| 2021 | Explanation-Based Approaches to Reasoning about Evidence and Proof in Criminal Trials | Anne Ruth Mackor, Hylke Jellema & Peter J. van Koppen | , in Law and Mind: A Survey of Law and the Cognitive Sciences 431, 431-70 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "In this chapter the authors discuss explanation-based theories on reasoning about evidence and on proof in criminal trials that view such reasoning in terms of evaluating competing explanations. These theories are all grounded in the cognitive psychology of decision making. They aim to describe how people actually reason when they have to make sense of a great deal of evidence in, for example, criminal trials. According to these theories, people in such contexts typically construct one or more causal explanations for the evidence. The explanation-based theories discussed in this chapter extend these empirical findings by developing theories that are, in varying degrees, normative. These theories are about the extent to which people actually reason in a rational manner, but also the extent to which they should change their manners. In particular, we discuss three theories, namely Allen and Pardo’s relative plausibility theory, Amaya’s theory of inference to the most coherent explanation and Van Koppen’s theory of anchored narratives or, as it has also been called, the scenario theory. These three theories share three characteristics, namely that causal explanation, more specifically inference to the best explanation (IBE), is at their heart; that coherence is a core criterion to assess the quality of explanations; and that, as normative theories, they try to stay close to how people actually reason, both in everyday life and in criminal trials. In the literature about evidence and proof in criminal law, explanation-based approaches are generally contrasted with probabilistic, more specifically Bayesian, approaches. Therefore, we discuss both Bayesian critiques of explanation-based approaches and explanation-based critiques of Bayesian approaches. We also discuss the question of whether a productive partnership between explanation-based and probabilistic approaches is possible." | |
| 2021 | A Non-Naturalist Account of Law’s Place in Reality | George Pavlakos | , in Law and Mind: A Survey of Law and the Cognitive Sciences 473, 473-89 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This chapter aims to outline the contours of a non-naturalist account of legal phenomena. Although it does not address the relevance of cognitive sciences to law specifically, the argument developed here aims to demonstrate that the said relevance depends on the antecedent question about the requirements of explanation of legal phenomena in terms of non-legal, more basic facts. By demonstrating the failure of naturalistic facts to meet the requirements of explanation, the chapter calls into question the relevance of cognitive science to law. In the first section I propose to understand naturalism in law as an explanatory claim about the (metaphysical) determinants of legal facts. Then I explore a family of objections against physicalism in the philosophy of mind (epistemic gap arguments) and argue that they apply equally to naturalistic explanations in the legal domain. But there is a key disanalogy between the two domains: while in the philosophy of mind explanatory gap arguments show that mental phenomena involve fundamental, non-physical facts, which are explanatorily basic, in the legal domain explanatory gap arguments show that the explanation of legal facts requires us to appeal to additional non-naturalistic facts which can bridge the gap of explanation between the legal facts and their non-legal determinants. I discuss briefly two versions of legal non-naturalism, and proceed to develop the one that is based on Kelsen’s account of legal cognition which, as it turns out, is surprisingly compatible with the ground-theoretic debates in contemporary metaphysics." | |
| 2021 | The Law and Cognitive Sciences Enterprise: A Few Analytic Notes | Pierluigi Chiassoni | , in Law and Mind: A Survey of Law and the Cognitive Sciences 490, 490-506 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "The Law and Cognitive Sciences Enterprise (L&CSE) is a further and relatively recent line of interdisciplinary inquiry inside of contemporary legal culture. Like its ‘Law & …’ sisters, the L&CSE aims at satisfying the call, which is deeply felt among jurists and legal philosophers, to enrich law and legal scholarship with the secure benefits that flow from foreign disciplines in the social or natural sciences. In the case of the L&CSE, as the authors of the essays in the present collection make clear, the purpose consists in bringing to the fore the many ways in which the outputs of the several branches of learning exploring the functioning of the human mind can be put to work in view of carrying over a sweeping renovation of law and legal thinking. In this chapter, assuming the external standpoint of an analytic legal philosopher, I will consider four issues in turn, corresponding to as many claims made and argued for in support of the L&CSE: first, the relevance issue (are the cognitive sciences really relevant for the law?); second, the metaphysics of law issue (do we need cognitive sciences in view of a renewed ‘metaphysics of law’?); third, the Hume’s law issue (are the cognitive sciences really undermining the so-called Hume’s guillotine?); fourth, and finally, the psychological theory of legal interpretation and legal reasoning issue (are the cognitive sciences useful in working out an adequate model of legal interpretation and legal reasoning?). In so doing, I purport to cast a disenchanted glance on a few of the basic claims advanced by L&CSE supporters, in view of bringing to the fore where it really enjoys of a competitive advantage over traditional legal disciplines, and where, contrariwise, its proposals make no substantive improvement in our understanding of law as a social phenomenon." | |
| 2021 | The Cognitive Approach in Legal Science and Practice: A History of Four Revolutions | Jerzy Stelmach | , in Law and Mind: A Survey of Law and the Cognitive Sciences 507, 507-520 (Bartosz Brożek, Jaap Hage & Nicole A. Vincent eds., 2021) | "This chapter addresses the issue of cognitive revolutions within law. The cognitive revolutions in question consist of a systematized attempt to apply the methods or findings of natural sciences to legal research and practice. The impact of cognitive science on law is only the most recent example of such a development. The first cognitive revolution identified in the chapter arose in opposition to the idea of the ‘science of understanding’ (Verstehenswissenschaft). This cognitive revolution was grounded in the philosophy of logical empiricism, prominent in the twentieth century, and it resulted in various realist conceptions of law. The second cognitive revolution pertained to problems such as the existence of moral norms and legal rules, the nature of normativity, the interpretation of concepts such as necessity, obligation and entitlement and, finally, normative meaning. The consequence of this revolution were numerous analytical conceptions in legal philosophy which adopted a naturalistic understanding of cognition. The third cognitive revolution no longer appealed directly to naturalism but rather to the issue of interdisciplinarity. The project of making at least part of the humanities and social sciences more scientific was meant to be carried out by opening them to other disciplines that met scientific criteria, particularly psychology, sociology and economics. On the one hand, contemporary applications of the cognitive science to the law – the fourth cognitive revolution – are certainly influenced by the above-mentioned earlier developments. On the other hand, however, the proponents of the fourth cognitive revolution are somewhat distanced from those earlier discussions, putting forward not only their own conception of cognition but also their own vision for the reconstruction of the humanities and social sciences in general and legal sciences in particular. Adopting this historical perspective, the chapter tackles the issue of what contemporary cognitive science can offer legal science and practice. Several potential consequences of the fourth cognitive revolution are discussed, which include a redefinition of some legal concepts related to cognition, such as guilt, responsibility, will, intent, error, consciousness and liability." | |
| 2022 | Minding Negligence | Craig K. Agule | 16 Crim. L. & Phil. 231, 231-51 (2022) | "The counterfactual mental state of negligent criminal activity invites skepticism from those who see mental states as essential to responsibility. Here, I offer a revision of the mental state of criminal negligence, one where the mental state at issue is actual and not merely counterfactual. This revision dissolves the worry raised by the skeptic and helps to explain negligence's comparatively reduced culpability." | |
| 2022 | We Are More than Our Executive Functions: On the Emotional and Situational Aspects of Criminal Responsibility and Punishment | Federica Coppola | 16 Crim. L. & Phil. 253, 253-66 (2022) | "In Responsible Brains (MIT Press, 2018), Hirstein, Sifferd and Fagan apply the language of cognitive neuroscience to dominant understandings of criminal responsibility in criminal law theory. The Authors make a compelling case that, under such dominant understandings, criminal responsibility eventually ‘translates' into a minimal working set of executive functions (MWS) that are primarily mediated by the frontal lobes of the brain. In so arguing, the Authors seem to unquestioningly accept the law's view of the “responsible person” as a mixture of cognitive capacities and mechanisms--thereby leaving aside other fundamental aspects of individuals' human agency. This commentary article offers a critique of the Authors' rationalist and individualist approach. The critique can be summarized through the following claim: We humans, as responsible beings, are more than our executive functions. This claim articulates through four main points of discussion: (1) role of emotions in moral judgments and behavior; (2) executive functions and normative criteria for legal insanity; (3) impact of adverse situational factors on executive functions; (4) Authors' account of punishment and, especially, rehabilitation." | |
| 2022 | The Objective(s) of Responsible Brains | Douglas Husak | 16 Crim. L. & Phil. 267, 267-81 (2022) | "William Hirstein, Katrina Sifferd, and Tyler Fagan (henceforth “the Authors”) offer a number of somewhat different descriptions of their primary objective in their remarkable and highly readable Responsible Brains. I gather that each of these accounts is designed to express more or less the same goal by using terms that are nearly equivalent or provide more detail by embellishing the themes introduced elsewhere. I begin by quoting a few of the several places in which the Authors describe their project." | |
| 2022 | Relating Neuroscience to Responsibility: Comments on Hirstein, Sifferd, and Fagan's Responsible Brains | Michael S. Moore | 16 Crim. L. & Phil. 283, 283-98 (2022) | "The article explores the agreements and disagreements between the author and the authors of Responsible Brains on howneuroscience relates to moral responsibility. The agreements are fundamental: neuroscience is not the harbinger of revolutionary revision of our views of when persons are morally responsible for the harms that they cause. The disagreements are in the details of what is needed for neuroscience to be the helper(rather than the challeger) of the moral sciences." | |
| 2022 | Is Executive Function the Universal Acid? | Stephen J. Morse | 16 Crim. L. & Phil. 299, 299-318 (2022) | "This essay responds to Hirstein, Sifferd and Fagan's book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our understanding of it. Then it addresses moral and legal responsibility generally, and specific doctrines. Executive function is seldom found to be the most perspicuous approach to any of the general or specific moral and legal questions." | |
| 2022 | Inert | Dennis Patterson | 16 Crim. L. & Phil. 319, 319-24 (2022) | "In The Normative Insignificance of Neuroscience, Selim Berker argued that neuroscientific data have no normative consequences. While the context for Berker's argument was the work of Joshua Greene, the criticism is arguably not limited to that particular context. His central claim is simple: facts about the brain have no obvious normative implications. In their book, Responsible Brains (MIT Press, 2018), Hirstein, Sifferd and Fagan (hereafter HSF) make no mention of Berker's arguments. Perhaps they think Berker's claims have no purchase on their project. I worry that HSF believe that the brain can inform our judgments of responsibility for action. I begin by detailing why I think this is the case. I then argue that they have not made a case for facts about the brain (specifically MWS executive functions) informing our conceptions of responsibility. In short, facts about the brain are inert when it comes to generating a proper account of responsibility." | |
| 2022 | Neuroscience and Normativity: How Knowledge of the Brain Offers a Deeper Understanding of Moral and Legal Responsibility | William Hirstein | 16 Crim. L. & Phil. 327, 327-51 (2022) | "Neuroscience can relate to ethics and normative issues via the brain's cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is at the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls men rea--a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person's mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave--i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person's mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place." | |
| 2022 | Author's Reply: Negligence and Normative Import | Katrina L. Sifferd & Tyler K. Fagan | 16 Crim. L. & Phil. 353, 353-71 (2022) | "In this paper we attempt to reply to the thoughtful comments made on our book, Responsible Brains, by a stellar group of scholars. Our reply focuses on two topics discussed in the commenting papers: first, the issue of responsibility for negligent behavior; and second, the broad claim that facts about brain function are normatively inert. In response to worries that our theory lacks normative implications, we will concentrate on an area where our theory has clear relevance to law and legal policy: juvenile responsibility." | |
| 2022 | The Expressivist Objection to Nonconsensual Neurocorrectives | Gabriel De Marco & Thomas Douglas | 16 Crim. L. & Phil. 373, 373-93 (2022) | "Neurointerventions--interventions that physically or chemically modulate brain states--are sometimes imposed on criminal offenders for the purposes of diminishing the risk that they will recidivate, or, more generally, of facilitating their rehabilitation. One objection to the nonconsensual implementation of such interventions holds that this expresses a disrespectful message, and is thus impermissible. In this paper, we respond to this objection, focusing on the most developed version of it--that presented by Elizabeth Shaw. We consider a variety of messages that might be expressed by nonconsensual neurointerventions. Depending on the message, we argue either that such interventions do not invariably express this message, that expressing this message is not invariably disrespectful, or that the appeal to disrespect is redundant." | |
| 2022 | Justice for Emerging Adults after Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older | Francis X. Shen, Fenella McLuskie, Erin Shortell, Mariah Bellamoroso, Elizabeth Escalante, Brenna Evans, Ian Hayes, Clarissa Kimmey, Sarah Lagan, Madeleine Muller, Jennifer Near, Kailey Nicholson, Job Okeri, Ifeoma Okoli, Emily Rehmet, Nancy Gertner & Robert Kinscherff | 97 NYU L. Rev. 101, 101-26 (2022) | "Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience." | |
| 2022 | Intellectual Property and the Brain: How Neuroscience Will Reshape Legal Protection for Creations of the Mind | Mark Bartholomew | 2022 | "Although legal scholars have begun to explore the implications of neuroscientific research for criminal law, the field has yet to assess the potential of such research for intellectual property law – a legal regime governing over one-third of the US economy. Intellectual Property and the Brain addresses this gap by showing how tools meant to improve our understanding of human behavior inevitably shape the balance of power between artists and copyists, businesses and consumers. This first of its kind book demonstrates how neuroscience can improve our flawed approach to regulating creative conduct and commercial communications when applied with careful attention to the reasons that our system of intellectual property law exists. With a host of real-life examples of art, design, and advertising, the book charts a path forward for legal actors seeking reforms that will unlock artistic innovation, elevate economic productivity, and promote consumer welfare." | |
| 2021 | Conviction: The Making and Unmaking of the Violent Brain | Oliver Rollins | 2021 | "Exposing ethical dilemmas of neuroscientific research on violence, this book warns against a dystopian future in which behavior is narrowly defined in relation to our biological makeup. Biological explanations for violence have existed for centuries, as has criticism of this kind of deterministic science, haunted by a long history of horrific abuse. Yet, this program has endured because of, and not despite, its notorious legacy. Today's scientists are well beyond the nature versus nurture debate. Instead, they contend that scientific progress has led to a nature and nurture, biological and social, stance that allows it to avoid the pitfalls of the past. In Conviction Oliver Rollins cautions against this optimism, arguing that the way these categories are imagined belies a dangerous continuity between past and present. The late 1980s ushered in a wave of techno-scientific advancements in the genetic and brain sciences. Rollins focuses on an often-ignored strand of research, the neuroscience of violence, which he argues became a key player in the larger conversation about the biological origins of criminal, violent behavior. Using powerful technologies, neuroscientists have rationalized an idea of the violent brain—or a brain that bears the marks of predisposition toward "dangerousness." Drawing on extensive analysis of neurobiological research, interviews with neuroscientists, and participant observation, Rollins finds that this construct of the brain is ill-equipped to deal with the complexities and contradictions of the social world, much less the ethical implications of informing treatment based on such simplified definitions. Rollins warns of the potentially devastating effects of a science that promises to "predict" criminals before the crime is committed, in a world that already understands violence largely through a politic of inequality." | |
| 2022 | Book Review | Ernest K. Chavez | 56 Law & Soc'y Rev. 318, 318-19 (2022) | "Oliver Rollins' Conviction offers a careful analysis of the neuroscience of violence, or what he calls “the violent brain model.” The book's argument is twofold. On the one hand, much of neuroscience's engagement with abnormal brain function is fundamentally motivated by a desire to identify criminal propensity and the future risk for violent behavior. This research program and its predictive logics operate through a medical model in which pathology is identified by neurological biomarkers rendered legible through brain imaging techniques and organized alongside the Diagnostic and Statistical Manual of Mental Disorders. On the other hand, situating the propensity for violence as abnormal neurological function inevitably reifies normative frameworks. For Rollins, these normative ideologies are racialized and gendered: “Memorialized within the categorization of violence is a contested history, an expressly gendered and racialized politic that often reinforces normatively hierarchical social arrangements based upon these powerful social practices” (44). Conviction, then, traces how violence risk prediction is shaped by racialized notions of normativity. In this way, the book reads as a sustained critique of the social construction of violence." | |
| 2022 | Neurorights: The Debate about New Legal Safeguards to Protect the Mind | Timo Istace | 37 Issues L. & Med. 95, 95-109 (2022) | "Unprecedented efforts are made to research and develop technologies that are directly connected to the brain and allow us to access, monitor, investigate, assess, manipulate or stimulate neural processes. This exciting development holds many valuable prospects in the medical context and in other fields of daily life such as entertainment, security or criminal justice. However, it also raises major concerns among ethicists and human rights advocates, who argue that fundamental interests are put at risk as these neurotechnologies result in a growing accessibility and influenceability of the mind. In this article, I will describe how neurotechnologies may affect fundamental interests and how this concern led to the emergence of the concept of neurorights within human rights doctrine and policy. I will first outline the current state of the art and the prospects of neurotechnology, and discuss how this technology impacts the mind. Second, I will examine how this in turn may impact our mental privacy, autonomy, authenticity, personal identity, the self, and non-discrimination. Finally, I will show how these concerns prompted initiatives to establish neurorights as new human rights offering appropriate legal safeguards that protect the human mind against unwanted interference by neurotechnology." | |
| 2022 | The Inscrutability Problem: From First-Generation Forensic Science to Neuroimaging Evidence | Jane Campbell Moriarty | 60 Duq. L. Rev. 227, 227-45 (2022) | "Expert testimony continues to turn away from human-based skills to embrace machine-based evidence. Technology is used to identify and locate individuals, unlock encrypted devices, and even to evaluate criminal responsibility. Perhaps this is a positive change. The shortcomings of first-generation forensic identification specialties are substantial and include the inscrutability of its subjective comparisons. As such, this newer generation of evidence may well be an improvement. Yet the inscrutability problem adopts many forms. Machine-based evidence relies on hardware, software, algorithms, statistics, and engineering to reach results--ones created and interpreted by humans subject to bias and cognitive error; results the justice system often does not fully appreciate. Taking one example of machine evidence--neuroimaging--this Article examines its foundational reliability and complexity, explaining why such evidence is often inscrutable to courts and what might help courts to be better gatekeepers of such evidence." | |
| 2022 | Designing an Americans with Abilities Act: Consciousness, Capabilities, and Civil Rights | Zachary E. Shapiro, Allison Rabkin Golden, Gregory E. Antill, Katherine Fang, Chaarushena Deb, Elizabeth Clarke, Alexis Kallen, Hanya M. Qureshi, Kai Shulman, Caroline V. Lawrence, Laura C. Hoffman, Megan S. Wright & Joseph J. Fins | 63 B.C. L. Rev. 1729, 1729-96 (2022) | "The Americans with Disabilities Act (ADA) is a seminal piece of legislation aimed at protecting those with disabilities from discrimination. The ADA, however, has not been consistently able to integrate people with disabilities successfully into society. With a specific focus on individuals with serious brain injuries, this Article aims to provide insight into the shortcomings of the ADA, specifically focusing on lackluster enforcement of the legislation and its failure to incorporate promising new technologies. These limitations of the ADA are made even more clear in light of the evolution occurring in the understanding of rights and capabilities. As such, the time has come for a new piece of legislation that fully incorporates the advanced technology available to individuals, while promoting a more positive understanding of advancing rights and capabilities. The proposed Americans with Abilities Act (AWAA) will correct the deficiencies in the ADA, ultimately allowing individuals with disabilities to integrate more fully into society." | |
| 2022 | The Future of Criminal Culpability: Posttraumatic Stress Disorder's (“PTSD”) Effect on a Defendant's Actions and State of Mind | Amin R. Yacoub & Becky Briggs | 56 U.S.F. L. Rev. 425, 425-68 (2022) | "On September 23, 2021, Ms. Spinuzzi pled guilty in a Colorado state district court to one count of an accessory after the fact to a first-degree murder committed by her abusive boyfriend. Initially, she was charged with child abuse and accessory after the fact to a first-degree murder committed by her boyfriend who murdered an eighteen-month-old foster child in her care. Her plea agreement dismissed the child abuse charge. She obtained this plea agreement after she confessed that she hid information in an attempt to protect her boyfriend after he caused the death of the foster child. In the past, her boyfriend was arrested for domestic violence against her, leading to the court placing an immediate protective order for Ms. Spinuzzi and the foster child. Nonetheless, the boyfriend disobeyed the court order and returned home; eventually, this action led to the first-degree murder of the foster child and Ms. Spinuzzi being charged with two felonies. The relevant question here is: How can a victim to domestic violence who suffers from PTSD in the form of Battered Woman Syndrome (“BWS”) have the requisite mental state for a child abuse murder count and the accessory after the fact to the first-degree murder committed by her abusive boyfriend? In a domestic violence relationship where the woman is abused, the room for her to have any choice is extremely narrow. For criminal culpability, criminal law requires a voluntary act (“actus reus”) and a state of mind (“mens rea”). Mens rea presupposes the existence of sound mind with free autonomy to make a choice before determining the criminal culpability of the defendant. Here, where is Ms. Spinuzzi's autonomy or choice--as a battered woman subject to domestic violence--included in the story to hold her culpable? She suffered from a mental health condition due to domestic violence that deprived her of the ability to make autonomous choices, yet she is about to serve many years in prison for what may be an involuntary act. Ms. Spinuzzi's case does not exist in isolation. In another case decided by the Eleventh Circuit Court of Appeals, the defendant--who was charged with cocaine-related offenses--contended that she was diagnosed with PTSD as a result of her cocaine dealer spouse's frequent abuse. The defendant argued that her PTSD impeded her ability to meet the requirements of the requisite mens rea for the charged crime. Although the court admitted expert witness testimony to support the defendant's argument, the jury found her guilty. The same question posed above is asked here: Where is the defendant's choice--as a PTSD patient--in the cocaine-related offenses for which she was charged? Did she have sufficient mens rea to hold her criminally culpable?" | |
| 2022 | Demystifying Mindreading for the Law | Teneille R. Brown | 2022 Wis. L. Rev. Forward 1, 1-11 (2022) | "A few summers ago, I was playing in the yard with my kids. I noticed my 3-year-old son pinching the tops off the red lilies we had planted, which were just starting to bloom. I told him to stop. He immediately froze and blurted out “it was an accident!” I surveyed the scene. There were eight decapitated lilies in a row. Eight. I pressed him. “So, you are saying it was an accident, eight times?” He looked down, and then off into the horizon. The jig was up. He furrowed his brow--wondering how I could possibly know it had been intentional. I told him that we generally do not repeat the same movement, accidentally, eight times. He was mystified that I could have known his private thoughts. I told him that he was already developing the ability to read other people's minds, and it would improve as he got older. He looked at me in awe, as if I had some superpower. But it's one of the most basic things we humans do. This sort of mindreading--where we look beyond the actual words spoken, to discern someone's true thoughts through their eye gaze, affect, expressions, character, demeanor, and any other cues--is an essential part of our social lives. By aggregating lots of information about other people's mental states, past behavior, character (and unfair stereotypes), we decide whether they should be praised, condemned, or forgiven. Our marvelous human brains have evolved to read minds in a way few species can. We learn by about age four that people have access to different information from us, which allows us to conceal our thoughts and attempt to interpret theirs. In psychology mindreading is called “theory of mind” and we humans spend a lot of time employing it. It allows us to engage in meta-cognition--or thinking about thinking--interpreting our own and others' mental states, thoughts, emotions, beliefs, perceptions, desires, knowledge, and decisions. For our ancestors, just as for us, being able to infer whether someone tripped or intentionally kicked us was vital for determining whether they were trustworthy and would make good allies, or untrustworthy and should be condemned. Mindreading is necessary for building complex societies, because it is critical for cooperating and detecting deception. As one team put it, “mind perception is the essence of morality. The thesis of this article is that mindreading--based on all kinds of stereotypes and cues--is far from magical. It is ordinary and ubiquitous and pervades every area of the law. Because we reflexively read minds, it is difficult to imagine that it can be completely mitigated through formal legal rules. But many of our legal doctrines assume that it can. One example I have recently written about is when we tell jurors to focus only on the defendant's conduct when assessing negligence liability, and not attend to mental states. We also assume that evidence rules can limit the kinds of inferences that jurors draw about an accused's character, even though these mental state inferences are tightly linked with character and are spontaneously made. Much of our magical-thinking about jurors ignores that they are humans first, and jurors second." | |
| 2022 | Why the Future of Design Patent Protections Will Rely on Modern Neuroscience, Not Constitutional and Legal Reversionism | Charles L. Mauro & Christopher Morley | 36 Berkeley Tech. L.J. 277, 277-304 (2022) | "Our academic colleagues describe the current design patent protections system as a muddle, which the Oxford English Dictionary defines as “a state of disorder or . . . confusion.” We would posit that the current design patent system is not in a state of disorder or confusion. Rather, the system is suffering from large-scale variability in critical legal decision-making by the finders of fact, be they judges or juries. The ability to protect design rights grows increasingly unreliable for design patent owners. Litigation to protect highly valued design assets in an increasingly competitive marketplace has become costly, time-consuming, and unpredictable. There are two proposed approaches to solving this problem: 1) turn to outdated and unproven legal tests and methods from other intellectual property (IP) domains in the hope that new case law and methods will solve the problem or 2) turn to science to better understand the problem related to inconsistent outcomes and develop methods that objectively solve the problems impacting design IP litigation outcomes. We urge adoption of the second approach to push design patent litigation forward through the application of science and empiricism, not backward based on application of outdated and structurally flawed legal precedents. The problem we face is one of decision variability, not basic structural mechanics related to how one actually determines infringement or non-infringement." | |
| 2022 | Neuroethics Guidance Documents: Principles, Analysis, and Implementation Strategies | Matthew R. O’Shaughnessy, Walter G. Johnson, Lucille Nalbach Tournas, Christopher J. Rozell & Karen S. Rommelfanger | SSRN (Feb. 16, 2022) | "Innovations in neurotechnologies have ignited conversations about ethics around the world, with implications for researchers, policymakers, and the private sector. The human rights impacts of neurotechnologies have drawn the attention of United Nations bodies; nearly 40 states are tasked with implementing the Organization for Economic Co-operation and Development's principles for responsible innovation in neurotechnology; and the United States is considering placing export controls on brain-computer interfaces. Against this backdrop, we offer the first review and analysis of neuroethics guidance documents recently issued by prominent government, private, and academic groups, focusing on commonalities and divergences in articulated goals; envisioned roles and responsibilities of different stakeholder groups; and the suggested role of the public. Drawing on lessons from the governance of other emerging technologies, we suggest implementation and evaluation strategies to guide practitioners and policymakers in operationalizing these ethical norms in research, business, and policy settings." | |
| 2022 | The Empathetic Divide in Capital Trials: Possibilities for Social Neuroscientific Research | Emily Hughes | 2011 Mich. St. L. Rev. 541, 541-71 (2022) | "This article proposes that social neuroscientific research may help lawyers better understand the empathic divide that exists between capital jurors and capital defendants. Craig Haney, Laura Sweeney, and Mona Lynch have expertly researched the empathic divide in capital trials—including the ways race influences how African American capital defendants experience a wider empathic divide than do white capital defendants. This article proposes that researchers examine the degree to which neuroimaging research might provide even more information about the depth and impasse of the empathic divide. Specifically, this article discusses how the social neuro-imaging research of Professors Lasana T. Harris and Susan T. Fiske may help understand how the thinking process that certain jurors undertake when they are considering capital defendants is less humanizing than the thinking process those same jurors undertake when they think about other people. If it is true that certain jurors cannot see capital defendants as human—that those jurors engage in less humanizing processes when reacting to capital defendants—then such jurors would be incapable of making an individualized assessment of the appropriateness of the death penalty for defendants whom they cannot see as human and, therefore, they should not be allowed to sit as jurors. Furthermore, if jurors are unable to view some capital defendants as human, then additional studies are needed to explore whether mitigating evidence introduced at trial on behalf of a capital defendant can enable a juror to see the defendant as human in order to make an individualized assessment about the appropriateness of the death penalty for that particular capital defendant." | |
| 2022 | The Neuroscience of Qualified Immunity | Gary S. Gildin | 126 Dick. L. Rev. 769, 769-826 (2022) | "Qualified immunity not only absolves public officials from accountability for the damages caused when they deprive a citizen of their constitutional rights; by virtue of companion doctrines shielding governmental entities from liability, conferral of immunity leaves the victim to bear the loss. Therefore, it is essential that the contours of immunity be carefully calibrated to align with its intended purposes. The United States Supreme Court has continuously expanded immunity to protect the exercise of discretion where, albeit acting in violation of constitutional norms, the official could have reasonably believed their conduct was constitutional. This Article exposes the implicit assumptions as to the operation of the brain that underpin the evolution of the Court’s immunity jurisprudence. It then explains how the Court’s suppositions are refuted by recent findings in the field of neuroscience and proposes reforms that would harmonize immunity with the true workings of the minds of government officials." | |
| 2022 | Do Criminal Offenders Have a Right to Neurorehabilitation? | Emma Dore-Horgan | Crim. L. & Phil. (Mar. 29, 2022) | "Soon it may be possible to promote the rehabilitation of criminal offenders through neurointerventions (interventions which exert direct physical, chemical or biological effects on the brain). Some jurisdictions already utilise neurointerventions to diminish the risk of sexual or drug-related reoffending. And investigation is underway into several other neurointerventions that might also have rehabilitative applications within criminal justice—for example, pharmacotherapy to reduce aggression or impulsivity. Ethical debate on the use of neurointerventions to facilitate rehabilitation—henceforth ‘neurorehabilitation’—has proceeded on two assumptions: that we have instrumental reasons for employing neurorehabilitation (e.g. because it helps protect the public from crime); and that its permissibility depends upon whether its use unjustifiably infringes offenders’ rights. This paper defends a different, hitherto neglected thought. I argue we have rights-based reasons to offer neurorehabilitation to offenders—in other words, that offenders have a moral right to neurorehabilitation. I identify three considerations which support a moral right to conventional rehabilitative interventions—(1) as a countermeasure to the debilitating side-effects of punishment; (2) as a derivative right of the right to hope for renewed liberty; and (3) as compensation for structural injustice. I argue these considerations extend to support a moral right to neurorehabilitation in the following instance: when neurorehabilitation would be part of the most effective package for facilitating rehabilitation, and can be carried out at reasonable cost. I then defend my argument against potential objections, including the objection that neurorehabilitation is a bad option for offenders to have and the charge of over-medicalisation." | |
| 2022 | Contextual and Cultural Perspectives on Neurorights: Reflections Toward an International Consensus | Karen Herrera-Ferrá, José M. Muñoz, Humberto Nicolini, Garbiñe Saruwatari Zavala & Víctor Manuel Martínez Bullé Goyri | AJOB Neurosci. (Mar. 27, 2022) | "The development and use of advanced and innovative neuroscience, neurotechnology and some forms of artificial intelligence have exposed potential threats to the human condition, including human rights. As a result, reconceptualizing or creating human rights (i.e. neurorights) has been proposed to address specific brain and mind issues like free will, personal identity and cognitive liberty. However, perceptions, interpretations and meanings of these issues—and of neurorights—may vary between countries, contexts and cultures, all relevant for an international-consensus definition and implementation of neurorights. Thus, we encourage reflecting on the proactive inclusion of transnational, cross-cultural and contextual considerations and concerns to contribute to the global discourse. This inclusion does not mean endorsing ethical relativism but rather a call to foster a universal understanding of key concepts and concerns. Including contextual and cultural perspectives may truly anticipate global concerns which could be addressed while developing and implementing neurorights. Consequently, any ethical and/or legal regulatory framework(s) for the translational and transnational use of advanced neuroscience, neurotechnology and some forms of artificial intelligence intended to protect and safeguard human dignity should be contextually and culturally mindful, responsible, respectful and inclusive of not only human rights and fundamental freedoms but also of neurocognitive cultural diversity." | |
| 2022 | Contribution of Brain Cortical Features to the Psychological Risk Profile of Juvenile Offenders | Iván Padrón, Daylin Góngora, Iván Moreno, María José Rodrigo & Ana M. Martín | 14 Eur. J. Psych. Applied Legal Context 93, 93-103 (2022) | "This study contributes to the neuroscience of offending behavior by addressing two aims: a) to examine differences in the cortical features in a group of male serious juvenile offenders (21 OG), versus controls (28 CG), both ranging from 18 to 21 years old; and b) to determine to what extent the differential cortical features and the risk psychological profile discriminate between the two groups. Method: Besides cortical measures, demographics, executive functioning, childhood trauma, psychopathic traits, psychopathological symptoms, and antisocial and delinquent behavior were assessed. Results: Whole-brain analysis of the cortical mantle identified increased cortical thickness in the cluster comprising the right middle temporal gyrus and a smaller surface area in the lateral orbitofrontal cortex for the OG compared to the CG. The discriminant function correctly classified 100% of cases of the CG and 94.7% of the OG. Right temporal cluster, childhood trauma, callousness and symptoms of interpersonal sensitivity, psychoticism, depression, phobic anxiety, and obsessive-compulsive behavior contributed to the OG. In turn, the lateral orbitofrontal cluster, psychopathic traits of grandiosity, unemotionality, and thrill seeking, and working memory contributed to the CG. Conclusions: The increased right middle temporal gyrus of the OG could be indicative of impaired brain development in social cognition processes since it appeared in combination with the higher risk profile. The reduced orbitofrontal cortex could be indicative of immature brain development in emotional control processes since it appeared in combination with the normative psychological profile in adolescence. Based on these novel findings, areas of potential improvement for research and intervention are suggested." | |
| 2022 | Cognitively Enhanced Humans as Both Warfighters and Weapons of War | Carolyn Sharp | 32 U. Fla. J.L. & Pub. Pol'y 317, 317-37 (2022) | "With the advent of neuromorphic computing, artificial intelligence and machine learning can now behave in a human-like manner by analyzing information and responding with subjective reasoning. And when this informed decision-making process is combined with brain-computer interfaces (BCIs), not only could a neuromorphic BCI take direction from the brain, but it could also observe its complexity and use that information to incorporate new knowledge and capabilities into the brain itself as it exploits the plasticity, or adaptability, of the brain. This combination of biological and technological intelligence could lead to the development and delivery of thoughts/outputs that are powerful enough to classify this merger as a weapon capable of delivering an armed attack. The intelligent powers of this weapon would be unrivaled. Because defensive and offensive measures against the weapon would be largely ineffective, States would be justified to act in self-defense under Article 51 in the Charter of the United Nations to prevent the production of this weapon." | |
| 2021 | A Just Standard: The Ethical Management of Incidental Findings in Brain Imaging Research | Mackenzie Graham, Nina Hallowell & Julian Savulescu | 49 J.L. Med. & Ethics 269, 269-80 (2021) | "Neuroimaging research regularly yields “incidental findings”: observations of potential clinical significance in healthy volunteers or patients, but which are unrelated to the purpose or variables of the study. Neuroimaging scans taken in the course of research regularly yield “incidental findings”: observations of potential clinical significance in healthy volunteers or patients, which are unrelated to the purpose or variables of the study. As the number of research studies using neuroimaging--particularly MRI (magnetic resonance imaging) but also CT (computed tomography), and PET-CT (positron emission tomography-computed tomography)--has grown, the sheer volume of scans being generated means that incidental findings have become increasingly common. How these findings should be dealt with is a source of continuing debate amongst neuroimaging researchers and bioethicists. Two related questions dominate the discussion: to what extent should neuroimaging researchers look for incidental findings, and what should be disclosed to participants when an incidental finding is discovered. Various arguments have been presented attempting to justify an obligation to look for incidental findings and to disclose them to participants, including the researcher's ancillary care obligations, the participant's right to control information about themselves, and more general concerns of beneficence and autonomy. Conversely, opposition to disclosure has tended to focus on the burden this would place on researchers and the health system, and the risks of unnecessary harm that disclosure places on participants. While these positions have been well-articulated in the literature, little progress has been made in resolving this debate. In this paper, we take a different approach to addressing the problem of how best to manage incidental findings. Rather than focussing on whether disclosure is or is not consistent with the interests of participants, we consider what participants are owed as a matter of distributive justice. While considerations of autonomy and beneficence are certainly relevant to this discussion, they offer only limited practical guidance. Essentially, beneficence requires that researchers look for incidental findings--and subsequently disclose them--when doing so is likely to be beneficial to the participant, and the costs are easily bearable relative to the potential benefit. For some incidental findings, it is relatively straightforward to determine when this requirement is met (e.g., when a researcher is highly confident that the finding represents a brain tumor). But in many cases, the clinical significance of an incidental finding is unknown. It will not always be obvious whether disclosure will provide a benefit, and thus, whether looking for incidental findings is likely to be beneficial. Similarly, not all instances of disclosure will promote participant autonomy, and identifying these cases can be difficult. We argue that researchers have an obligation to look for and disclose incidental findings to participants only insofar as doing so is required by distributive justice. As citizens, research participants are entitled to a certain level of basic care, which the state has an obligation to provide. Researchers working in publicly funded institutions, or whose research is funded at least in part by the state, must carry out their research in a way that is consistent with this obligation, and not deprive research participants of the care to which they would normally be entitled outside the context of research. Accordingly, this paper will focus primarily on neuroimaging research being conducted in institutions that are at least partially publicly funded, within a broader health-care context in which imaging is available. As we will show, looking for incidental findings--and subsequently disclosing them--is in many cases not required to meet this obligation of basic care. In these cases, researchers are not obligated to provide them. Appealing to considerations of distributive justice thus has an advantage over beneficence and autonomy in that determining the requirements of justice does not require making a potentially under-informed judgement about whether a participant will or will not be benefitted (or have their autonomy promoted) through disclosure." | |
| 2020 | A Behavioral Addiction Model of Revenge, Violence, and Gun Abuse | James Kimmel, Jr. & Michael Rowe | 48 J.L. Med. & Ethics 172, 172-76 (2020) | "Criminological and public health data show that most individuals who commit acts of violence do so in accord with a personal grievance or perception of having been treated unjustly. Grievances that lead to violence include romantic rejection or betrayal, loss of a job, loss of custody of a child, verbal provocation, physical aggression, and bullying. A recent FBI study of the pre-attack behaviors of active shooters in the U.S noted that such grievances may result “in a grossly distorted preoccupation with a sense of injustice” that can “spark an overwhelming desire to ‘right the wrong’ and achieve a measure of satisfaction and/or revenge.” Why grievances lead to violence is not well understood, but neuroscience research provides clues that might lead to new approaches for preventing violence and saving lives. Brain imaging studies show that grievances spur a desire for revenge that activates the same neural reward-processing circuitry as that of substance addiction. In substance addiction, environmental stimuli or cues--locations where a drug is taken, mental state before it is taken--trigger craving for the drug in anticipation of experiencing pleasure, or relief from dysphoria through intoxication. With violence, the environmental stimulus appears to be a grievance that triggers a craving for revenge in anticipation of experiencing pleasure or relief from the distress caused by the injustice. This craving is gratified through inflicting harm upon the perpetrator of the injustice or their proxies. These findings suggest that a behavioral addiction framework might be appropriate for understanding and addressing violent behavior, including firearm violence, across most populations and subgroups. Although more research is needed, such a framework could yield significant benefits. The brain disease model of addiction has led to effective scientific and public health-oriented approaches for preventing and treating drug abuse. Similarly, a behavioral addiction model of revenge-seeking and violence that is responsive to socioeconomic conditions, disparities, and discrimination which drive grievances, might lead to similarly effective approaches for preventing and treating “gun abuse”--abusing firearms to gratify the desire for revenge. What might this look like? In recent decades, medical, behavioral, educational, self-help, community, and faith-based systems in the U.S. have been mobilized to develop interventions and supports to combat the devastating effects of substance addiction, including more than 60,000 drug overdose deaths annually. Leveraging these public and private investments, new approaches aimed at developing interventions and supports to mitigate brain-biological-social craving to seek revenge in response to grievances might help free individuals and communities of the catastrophic consequences of firearm and other forms of violence, including more than 16,000 homicides and 6,000,000 reported violent victimizations in the U.S. each year. Focusing prevention and treatment approaches on grievances and revenge-cravings would avoid stigmatizing as violent individuals diagnosed with mental illnesses. It would also acknowledge the social and cultural factors contributing to violence in the U.S. and support and empower individuals and communities burdened by violence, including those that experience poverty and lack of access to adequate health care and economic opportunities. An example of a promising behavioral motive control intervention that has been shown to have preliminary efficacy in reducing revenge cravings will be discussed in this article." | |
| 2020 | Targeting Mr. Roboto: Distinguishing Humanity in Brain-Computer Interfaces | Guy W. Eden | 228 Mil. L. Rev. 1, 1-51 (2020) | "Militaries have long recognized the importance of influencing human perception and decision making in warfare. These activities, categorized as information warfare under current United States (U.S.) military doctrine, aim in part at affecting the cognitive processes within the human mind. Yet, activities in information warfare are limited in their ability to have a direct effect on the human brain; instead information warfare aims to influence or manipulate the information environment or cyberspace with the goal of having an impact on the human end user. But consider a situation where the intermediary technology between the influencer and the human consumer allows for direct access to the consumer's brain and cognitive process. Here, information warfare could be conducted directly on the human target. Going a step further, if there was a direct interface between man and machine, would it be possible to do more than simply manipulate information or perception? What if it were possible to cause physical harm, or even kill, through the information environment? One piece of science fiction-feeling technology in existence today that could make this possible is the brain-computer interface (BCI), which enables the human brain to directly interact with a computer or information system." | |
| 2022 | It's All in Your Head: How Neuroscience Can Change the Taxability of Damage Awards for Emotional Injury | Virginia Pilgrim | 94 Temp. L. Rev. Online 1, 1-22 (2022) | "Imagine a woman is driving down the street when a car from oncoming traffic swerves into her lane, barreling straight toward her. The woman is able to swerve out of the way but hits a tree, suffering a concussion and a broken arm. The police find the individual who caused the accident, and the woman sues him for the cost of her medical bills. She recovers these damages, but she will not need to include these damages in her gross income, meaning that they will not be taxed. Now imagine a modified scenario where, instead of hitting a tree, the woman jumps the curb to avoid a two-car collision. She suffers no bodily injuries but develops severe anxiety as a result of the accident. In addition to no longer being able to drive, the woman suffers insomnia and develops an eating disorder. She sues the man who caused the accident and recovers damages for the costs of treating her psychiatric issues. However, in this situation, the woman must include her damage award in her gross income. Those damages will be taxed. The root of this disparate treatment can be found in the Internal Revenue Code and U.S. Treasury regulations, which allow a taxpayer to exclude damages from gross income only if they are awarded for “personal physical injury.” Therefore, taxpayers who suffer from and recover damages for mental and emotional distress are required to include those damage awards in their gross income, but those taxpayers who have bodily injuries may exclude them. However, advancements in neuroscience have established that emotional injuries cause measurable changes in the brain, demonstrating that emotional harm affects the physical body. Because emotional injuries are inherently physical at the physiological level, they are “personal physical injuries” as defined by Section 104(a)(2) of the Internal Revenue Code. Therefore, in order for tax law to reflect a modern, scientific understanding of the brain, damages awarded on account of emotional injury should be excludable from gross income under Section 104(a)(2). This Comment proceeds in two Sections. Section II of this Comment first provides a history of the personal injury exclusion. It then discusses the neuroscience underlying emotional harm, concluding with a discussion of judicial and legislative approaches to mental and emotional injury. Section III of this Comment recommends expanding the personal injury exclusion to include emotional injuries; it concludes by proposing a new method for determining the taxability of damages awarded on account of emotional harm." | |
| 2022 | Young Adults and Criminal Culpability | Amber Venturelli | 23 U. Pa. J. Const. L. 1142, 1142-90 (2022) | "Deeply rooted in American history is the understanding that children are different. Transcending cultural, social, and legal norms, attitudes about kids have been largely consistent across time. Long before criminologists and legal scholars could point to neuroscientific evidence or behavioral studies to explain why children are different, society generally believed children deserved a second chance and that they could be “saved” from a life of crime. As research developed in the twentieth century, commonsense explanations of juvenile criminal responsibility that underpinned juvenile justice in America were largely substantiated by groundbreaking behavioral and developmental science. While these studies clearly influenced public opinion, they also prompted the U.S. Supreme Court to establish procedural and substantive rules for juvenile adjudications and sentencings. The findings of these studies not only confirmed existing views on juvenile culpability, but further research also revealed that young adults are more similarly situated to juveniles than adults when weighing criminal responsibility. This Comment will consider whether the growing scholarship on the culpability of young adults should influence how courts and society blame and punish persons that commit crimes while between the ages of eighteen and twenty-four. This Comment makes the assumption that “desert based on moral fault is at least a necessary pre-condition for just punishment.” That is, whether a young adult is punished like a juvenile or an adult is, in part, dependent on his or her moral blameworthiness. This Comment explores the evidence that indicates that young adults are more similarly situated to juveniles than adults with regard to their moral blameworthiness and how, if it all, this will impact criminal punishment for young adults. Part I will provide a comprehensive overview on the history of juvenile justice in order to provide context on the philosophical attitudes and jurisprudence over time. Part II will examine findings from scientific research on the blameworthiness of juveniles and young adults. This section will also consider the scientific evidence cited by the U.S. Supreme Court in its recent decisions on juvenile culpability. Part III will evaluate possible responses to addressing the diminished criminal culpability of young adults. Specifically, this section reviews young adult court, a problem-solving court that is gaining popularity across the United States, and constitutional arguments that seek to extend juvenile sentencing philosophies to young adults. This Comment will argue that, despite the neurological and behavioral similarities between young adults and juveniles, the courts will not interfere in any meaningful way to change the relationship between young adults and the criminal justice system because young adults do not invoke the same deep-rooted historical attitudes that exist towards juveniles." | |
| 2008 | The Law of Incidental Findings in Human Subjects Research: Estblishing Researchers' Duties | Susan M. Wolf, Jordan Paradise & Charlisse Caga-anan | 36 J.L. Med. & Ethics 361, 361-79 (2008) | "Technology has outpaced the capacity of researchers performing research on human participants to interpret all data generated and handle those data responsibly. This poses a critical challenge to existing rules governing human subjects research. The technologies used in research to generate images, scans, and data can now produce so much information that there is significant potential for incidental findings (IFs), findings generated in the course of research but beyond the aims of the study. Neuroimaging scans may visualize the entire brain and even the entire head; computed tomography (CT) colonography research may visualize the entire torso, from the base of the lungs to the pubis; genetics studies may reveal “extra” and sometimes unwanted information about the family, such as misattributed paternity and undisclosed adoption; and genomic microarray research increasingly involves whole-genome analysis (WGA) revealing an individual's complete genotype, with enormous potential for uncovering unexpected information about an individual's genetics and risks of developing future conditions." | |
| 2014 | Brain Science in the 21st Century: Clinical Controversies and Ethical and Legal Implications | Robert M. Sade | 42 J.L. Med. & Ethics 124, 124-26 (2014) | "This symposium issue consists of papers presented at the 19th Annual Thomas A. Pitts Memorial Lectureship, October 26-27, 2012. The endowed lectureship, held annually since 1993, is funded by the Medical University of South Carolina Foundation through a bequest from Dr. Pitts, who served on MUSC's Board of Trustees for 36 years, including 25 years as its chair. The conference was presented by the Medical University of South Carolina, the Institute of Human Values in Health Care, and the South Carolina Clinical and Translational Research Institute." | |
| 2014 | The Role of PTSD in Adjudicating Violent Crimes | Mark B. Hamner | 42 J.L. Med. & Ethics 155, 155-59 (2014) | "There are a number of considerations, including ethical and clinical or diagnostic factors, in utilizing the diagnosis of posttraumatic stress disorder (PTSD) in criminal proceedings. The reliability and validity of the diagnosis may be questioned. Legal precedent may consider extant diagnostic criteria for PTSD and comorbid diagnoses. However, these diagnostic criteria are often in flux considering new research findings. For example, the introduction of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association, includes some changes in the PTSD diagnostic criteria. How will this affect interpretation of past legal judgments? Moreover, PTSD has significant psychiatric comorbidity, e.g., substance abuse, which in itself may influence violent behavior and its consequences. Some of these comorbid diagnoses also have changes in their diagnostic criteria. The introduction of biological tests in the assessment of PTSD will likely facilitate more objective diagnosis. Advances in the neurosciences will lead to better understanding of the neurobiological substrates of violence in general. This may eventually complement the use of categorical psychiatric diagnoses. However, biological measures are not yet utilized in the PTSD diagnostic criteria. Finally, the effect of psychiatric diagnoses, including PTSD, on the ability to discriminate right from wrong is often at the core of criminal proceedings. This paper summarizes some of the relevant considerations in utilizing the diagnosis of PTSD for adjudicating violent crimes." | |
| 2010 | "Willful Modulation of Brain Activity in Disorders of Consciousness": Legal and Ethical Ramifications | Jeremy O. Bressman & Jay S. Reidler | 38 J.L. Med. & Ethics 713, 713-16 (2010) | "End-of-life care has long been the subject of intense ethical and legal deliberation, and a recent studyay introduce a new level of complexity to the discussion. The study, published in the New England Journal of Medicine, found that a fraction of patients in vegetative or minimally conscious states exhibit brain activity that reveals signs of cognition or awareness. Using functional magnetic resonance imaging (fMRI), researchers monitored brain activity of 54 unresponsive or minimally responsive patients as they were instructed to imagine one of two possible scenarios that engage different areas of the brain (i.e., hitting a tennis ball or navigating a familiar location). They identified five patients who could willfully modulate their brain activity upon request. One patient even succeeded in using this technique to communicate correct answers to “yes or no” questions, but remained completely incapable of communicating at the bedside. These findings challenge our clinical understandings of disorders of consciousness, and raise profound legal and ethical questions regarding the treatment of patients in persistent vegetative or minimally conscious states. As noted by the authors of the study, this technology could potentially be used to communicate with such patients about the levels of pain they are experiencing so that physicians can adjust analgesia accordingly. But, if it is developed further, could we rely on this technology to have such patients relay autonomous decisions about questions such as whether they would like to prolong life-sustaining treatments?" | |
| 2021 | A Decarceral Cadence: Neurologic Music Therapy as an Abolitionist Project | Richard A. Kirby & Mallori D. Thompson | 53 Conn. L. Rev. 1, 1-13 (2021) | "Because police and prison abolition must be approached while simultaneously improving quality of life, and thus reducing harm, abolitionist discourse should include health policies that regard the (de)regulation, use, and culture of addictive substances. This Essay calls for research into neurologic music therapy as a response to addiction, improving quality of life and paving the way for police and prison abolition." | |
| 2021 | Treating Addiction in the Clinic, Not the Courtroom: Using Neuroscience and Genetics to Abandon the Failed War on Drugs, | Teneille R. Brown | 54 Ind. L. Rev. 29, 29-77 (2021) | "The opioid addiction epidemic has been one of the most overwhelming public health crises our country has faced. It has also created a legal crisis, as its aftermath spills over into the criminal, civil, and family courts. One estimate puts its cost to the U.S. economy at over $500 billion in 2015. More than a hundred people die every day from an opioid overdose, with that number likely increasing during the COVID-19 pandemic. The pressure on law enforcement, emergency responders, behavioral health services, and jails is crippling our cities and counties. This Article is an attempt to relieve some of that pressure by doing something we should have done a long time ago: change the way we think about and treat addiction. At least 2.3 million people in the United States have opioid use disorder (OUD), yet over 60% do not have access to evidence-based treatment. Of the over 14,000 drug treatment programs in the country, most are not staffed with a single licensed medical practitioner. Close your eyes and try to imagine 60% of people with lung cancer not having access to chemotherapy or radiation, or sending your mother to a cancer clinic that was not staffed with a single oncologist. This is no way to treat such a serious disease. Yet this is where we are with addiction. This Article advocates for federal funding of local public health campaigns based upon a disease model of addiction that incorporates findings from neuroscience, genetics, and public health. Rather than endorsing the idea that addiction stems from either immoral choices (the moral choice model) or a “hijacked” brain (the brain disease model), this Article offers a nuanced model that reflects its multifaceted etiology. I refer to this model as the “integrated disease model,” or IDM, as it explains addiction as a neurogenetic phenomenon but does not locate addiction entirely in the brain. The IDM recognizes that neurobiological vulnerabilities can lead to addiction, as opposed to just flow from it. But it situates the brain inside a human being, who has been exposed to various environmental stressors and responds differently to drug use. Simply put, the IDM places addiction on equal footing with other chronic diseases, such as lung cancer or diabetes, each of which has significant genetic, behavioral, and environmental causes. Early research demonstrates that by explaining addiction as a disease that can successfully be treated (and it is worth noting: most people with opioid use disorder who receive adequately dosed medication achieve recovery), we can reduce the stigma of addiction and get more people into treatment. Stigma leads many to avoid seeking treatment until their disease is too far gone, as they cannot bear to adopt the label of “addict.” The stigma surrounding addiction fuels, and is significantly fueled by, its criminalization. To combat our devastating opioid crisis, we need to put our collective legislative and public health efforts into explaining addiction as a disease--a disease that must be treated in the clinic, and not the courtroom." | |
| 2021 | Trauma and Memory in the Prosecution of Sexual Assault | Cynthia V. Ward | 45 L. & Psych. Rev. 87, 87-154 (2021) | "What is sexual trauma, and how accurately do victims remember it? For the criminal law, whose job is to investigate and adjudicate cases of sexual assault, sound answers to those questions are both essential and elusive. The phenomenon of emotional trauma is an import from psychiatry where for more than a century it has defied precise description. Pressed into the service of reforming the law of sexual assault, it does not translate well. And the vagaries of memory, even when not burdened with the stress of traumatic reaction, impose significant obstacles to the accurate retrieval and reporting of life events. The best science now tells us that memory is impressionistic rather than objective; is filtered through a person's individual experience and view of the world; is vulnerable to distortion and reconstruction based on subsequent experience; and generally deteriorates over time. With respect to the specific issue of memory for traumatic events, the complexities multiply. Some experts claim that memory of trauma is especially accurate; others claim that it is routinely disarranged by reactions to extreme stress. Some argue that memories which have been fragmented by trauma can be accurately retrieved under supportive questioning, while others are skeptical about the retrieval process and dubious about its results. Some experts believe that evidence from neuroscience adds important dimensions to knowledge about traumatic memory in cases of sexual assault; others, that the “neurobiology of sexual assault,” as currently presented in trauma-informed training materials, adds little, if anything, that is useful. In short, the available evidence suggests that the science of traumatic memory may not lend itself to easy deployment by the criminal law." | |
| 2021 | Regulating the Sixth Sense: The Growing Need for Forward-Looking Data Privacy and Device Security Policy as Illustrated by Brain-Computer Interfaces | Hannah Gallagher | 66 Wash. U. J.L. & Pol'y 157, 157-83 (2021) | "Although it may not be top-of-mind, many consumers have begun to suspect that technology companies may know a little too much about them for comfort. Journalist, Dylan Curran, decided to investigate and found that Google alone had compiled 5.5 GB (approximately 3 million Word documents) worth of data containing much more invasive information than just his search history. Tech companies use artificial intelligence (AI) to scan users' private emails and continue tracking users' locations even after location settings have been turned off. Companies like Comcast might even soon be able to monitor customers' movement patterns in their homes using Wi-Fi wave signals. Big data is rife with examples of information that could be compromised or abused for surveillance purposes, and the data being collected is only becoming more invasive as technology progresses. Devices like smartphones have been tracking users' daily activities for years, but recent advances in health technology are illustrating just how personal the data can become. Wearable fitness trackers, iPhone's Health application, and direct-to-consumer genetic testing companies are just a few examples. Developments like these have drawn their fair share of scrutiny regarding privacy and device security, and while these concerns continue unresolved, even more invasive technology is under development. An example of this is brain-computer interfaces (“BCI”), a biotechnology theoretically capable of augmenting the human brain." | |
| 2022 | Brains without Money: Poverty as Disabling | Emily R. Murphy | 54 Conn. L. Rev. 699, 699-771 (2022) | "The United States has long treated poverty and disability as separate legal and social categories, a division grounded in widespread assumptions about the “deserving” and “undeserving” poor. In the case of disability, individuals generally are not thought to be morally responsible for their disadvantage, whereas in the case of poverty, individuals are assumed to be at fault for their disadvantage and are therefore less deserving of aid. This Article argues that recent advances in brain and behavioral science undermine the factual basis for those assumptions. Poverty inhibits brain development during childhood and, later in life, adversely affects cognitive capacities that are key to decision-making and long-term planning. The science of scarcity is complex and ongoing, but its most basic finding is quickly approaching consensus: poverty’s effects in the brain can be disabling. This Article argues that understanding poverty as disabling has potentially significant implications for policy and doctrine. Viewing poverty as disabling would provide support for poverty programs with less sludge and more money: proposals such as universal basic income, negative income tax, child grants, and greatly simplified benefits determinations. It also reanimates insertion of social welfare concerns into the dominant civil rights framework for disability policy, and it could resolve longstanding tensions between disjointed federal disability laws. In addition, brain and behavioral science may support litigation strategies to compel accessibility to existing systems and potentially help promote a new public understanding of the causes of poverty. The Article concludes by considering the potential (and significant) downsides of using the lens of science in service of policy: backlash, misunderstanding, and the fragility of relying on nascent science to support fundamentally normative policy goals. One necessary mitigation strategy involves the careful translation of science, including its limitations and residual uncertainties, into legal scholarship, an approach this Article attempts to both articulate and model." | |
| 2001 | An fMRI Investigation of Emotional Engagement in Moral Judgment | Joshua D. Greener, R. Brian Sommerville, Leigh E. Nystrom, John M. Darley & Jonathan D. Cohen | 293 Science 2105, 2105-08 (2001) | "The long-standing rationalist tradition in moral psychology emphasizes the role of reason in moral judgment. A more recent trend places increased emphasis on emotion. Although both reason and emotion are likely to play important roles in moral judgment, relatively little is known about their neural correlates, the nature of their interaction, and the factors that modulate their respective behavioral influences in the context of moral judgment. In two functional magnetic resonance imaging (fMRI) studies using moral dilemmas as probes, we apply the methods of cognitive neuroscience to the study of moral judgment. We argue that moral dilemmas vary systematically in the extent to which they engage emotional processing and that these variations in emotional engagement influence moral judgment. These results may shed light on some puzzling patterns in moral judgment observed by contemporary philosophers." | |
| 2004 | The Neural Bases of Cognitive Conflict and Control in Moral Judgment | Joshua D. Greene, Leigh E. Nystrom, Andrew D. Engell, John M. Darley & Jonathan D. Cohen | 44 Neuron 389, 389-400 | "Traditional theories of moral psychology emphasize reasoning and "higher cognition," while more recent work emphasizes the role of emotion. The present fMRI data support a theory of moral judgment according to which both "cognitive" and emotional processes play crucial and sometimes mutually competitive roles. The present results indicate that brain regions associated with abstract reasoning and cognitive control (including dorsolateral prefrontal cortex and anterior cingulate cortex) are recruited to resolve difficult personal moral dilemmas in which utilitarian values require "personal" moral violations, violations that have previously been associated with increased activity in emotion-related brain regions. Several regions of frontal and parietal cortex predict intertrial differences in moral judgment behavior, exhibiting greater activity for utilitarian judgments. We speculate that the controversy surrounding utilitarian moral philosophy reflects an underlying tension between competing subsystems in the brain." | |
| 2003 | An fMRI Study of Simple Ethical Decision-Making | Hauke R. Heekeren, Isabell Wartenburger, Helge Schmidt, Hans-Peter Schwintowski & Arno Villringer | 14 NeuroReport 1215, 1215-19 | "Recent functional neuroimaging studies suggest that ventromedial prefrontal cortex (vmPFC), left posterior superior temporal sulcus (pSTS) and posterior cingulate cortex are engaged during moral decision-making on complex dilemmatic or salient emotional stimuli. In this fMRI study we investigated which of these brain regions are activated during simple ethical decision-making about unambiguous scenarios not containing direct bodily harm or violence. Simple moral decisions compared to semantic decisions resulted in activation of left pSTS and middle temporal gyrus, bilateral temporal poles, left lateral PFC and bilateral vmPFC. These results suggest that pSTS and vmPFC are a common neuronal substrate of decision-making about complex ethical dilemmas, processing material evocative of moral emotions and simple ethical decision-making about scenarios devoid of violence and direct bodily harm." | |
| 2005 | Influence of Bodily Harm on Neural Correlates of Semantic and Moral Decision-Making | Hauke R. Heekeren, Isabell Wartenburger, Helge Schmidt, Kristin Prehn, Hans-Peter Schwintowski & Arno Villringer | 24 NeuroImage 887, 887-97 (2005) | "Moral decision-making is central to everyday social life because the evaluation of the actions of another agent or our own actions made with respect to the norms and values guides our behavior in a community. There is previous evidence that the presence of bodily harm--even if irrelevant for a decision--may affect the decision-making process. While recent neuroimaging studies found a common neural substrate of moral decision-making, the role of bodily harm has not been systematically studied so far. Here we used event-related functional magnetic resonance imaging (fMRI) to investigate how behavioral and neural correlates of semantic and moral decision-making processes are modulated by the presence of direct bodily harm or violence in the stimuli. Twelve participants made moral and semantic decisions about sentences describing actions of agents that either contained bodily harm or not and that could easily be judged as being good or bad or correct/incorrect, respectively. During moral and semantic decision-making, the presence of bodily harm resulted in faster response times (RT) and weaker activity in the temporal poles relative to trials devoid of bodily harm/violence, indicating a processing advantage and reduced processing depth for violence-related linguistic stimuli. Notably, there was no increase in activity in the amygdala and the posterior cingulate cortex (PCC) in response to trials containing bodily harm. These findings might be a correlate of limited generation of the semantic and emotional context in the anterior temporal poles during the evaluation of actions of another agent related to violence that is made with respect to the norms and values guiding our behavior in a community." | |
| 2006 | The Neural Basis of Implicit Moral Attitude--an IAT Study Using Event-Related fMRI | Qian Luo, Marina Nakic, Thalia Wheatley, Rebecca Richell, Alex Martin & R. James R. Blair | 30 NeuroImage 1449, 1449-57 (2006) | "Recent models of morality have suggested the importance of affect-based automatic moral attitudes in moral reasoning. However, previous investigations of moral reasoning have frequently relied upon explicit measures that are susceptible to voluntary control. To investigate participant's automatic moral attitudes, we used a morality Implicit Association Test (IAT). Participants rated the legality of visually depicted legal and illegal behaviors of two different intensity levels (e.g., high intensity illegal = interpersonal violence; low intensity illegal = vandalism) both when the target concept (e.g., illegal) was behaviorally paired with an associated attribute (e.g., bad; congruent condition) or an unassociated attribute (e.g., good; incongruent condition). Behaviorally, an IAT effect was shown; RTs were faster in the congruent rather than incongruent conditions. At the neural level, implicit moral attitude, as indexed by increased BOLD response as a function of stimulus intensity, was associated with increased activation in the right amygdala and the ventromedial orbitofrontal cortex. In addition, performance on incongruent trials relative to congruent trials was associated with increased activity in the right ventrolateral prefrontal cortex (BA 47), left subgenual cingulate gyrus (BA 25), bilateral premotor cortex (BA 6) and the left caudate. The functional contributions of these regions in moral reasoning are discussed." | |
| 2002 | The Neural Correlates of Moral Sensitivity: A Functional Magnetic Resonance Imaging Investigation of Basic and Moral Emotions | Jorge Moll, Ricardo de Oliveira-Souza, Paul J. Eslinger, Ivanei E. Bramati, Janaína Mourão-Miranda, Pedro Angelo Andreiuolo & Luiz Pessoa | 22 J. Neurosci. 2730, 2730-36 (2002) | "Humans are endowed with a natural sense of fairness that permeates social perceptions and interactions. This moral stance is so ubiquitous that we may not notice it as a fundamental component of daily decision making and in the workings of many legal, political, and social systems. Emotion plays a pivotal role in moral experience by assigning human values to events, objects, and actions. Although the brain correlates of basic emotions have been explored, the neural organization of "moral emotions" in the human brain remains poorly understood. Using functional magnetic resonance imaging and a passive visual task, we show that both basic and moral emotions activate the amygdala, thalamus, and upper midbrain. The orbital and medial prefrontal cortex and the superior temporal sulcus are also recruited by viewing scenes evocative of moral emotions. Our results indicate that the orbital and medial sectors of the prefrontal cortex and the superior temporal sulcus region, which are critical regions for social behavior and perception, play a central role in moral appraisals. We suggest that the automatic tagging of ordinary social events with moral values may be an important mechanism for implicit social behaviors in humans." | |
| 2003 | Morals and the Human Brain: A Working Model | Jorge Moll, Ricardo de Oliveira-Souza & Paul J. Eslinger | 14 NeuroReport 299, 299-305 (2003) | "Morality has been at the center of informal talks and metaphysical discussions since the beginning of history. Recently, converging lines of evidence from evolutionary biology, neuroscience and experimental psychology have shown that morality is grounded in the brain. This article reviews the main lines of investigation indicating that moral behavior is a product of evolutionary pressures that shaped the neurobehavioral processes related to the selective perception of social cues, the experience of moral emotions and the adaptation of behavioral responses to the social milieu. These processes draw upon specific cortical-subcortical loops that organize social cognition, emotion and motivation into uniquely human forms of experience and behavior. We put forth a model of brain-behavior relationships underlying moral reasoning and emotion that accommodates the impairments of moral behavior observed in neuropsychiatric disorders. This model provides a framework for empirical testing with current methods of neurobehavioral analysis." | |
| 2004 | The Neural Basis of Altruistic Punishment | Dominique J.-F. de Quervain, Urs Fischbacher, Valerie Treyer, Melanie Schellhammer, Ulrich Schnyder, Alfred Buck & Ernst Fehr | 305 Science 1254, 1254-58 (2004) | "Many people voluntarily incur costs to punish violations of social norms. Evolutionary models and empirical evidence indicate that such altruistic punishment has been a decisive force in the evolution of human cooperation. We used H2 15O positron emission tomography to examine the neural basis for altruistic punishment of defectors in an economic exchange. Subjects could punish defection either symbolically or effectively. Symbolic punishment did not reduce the defector's economic payoff, whereas effective punishment did reduce the payoff. We scanned the subjects' brains while they learned about the defector's abuse of trust and determined the punishment. Effective punishment, as compared with symbolic punishment, activated the dorsal striatum, which has been implicated in the processing of rewards that accrue as a result of goal-directed actions. Moreover, subjects with stronger activations in the dorsal striatum were willing to incur greater costs in order to punish. Our findings support the hypothesis that people derive satisfaction from punishing norm violations and that the activation in the dorsal striatum reflects the anticipated satisfaction from punishing defectors." | |
| Jwa | 2022 | Addressing Privacy Risk in Neuroscience Data: From Data Protection to Harm Prevention | Anita S. Jwa & Russell A Poldrack | J.L. & Biosciences, July–Dec. 2022, at 1, 1-25 | "A recent increase in the amount and availability of neuroscience data within and outside of research and clinical contexts will enhance reproducibility of neuroscience research leading to new discoveries on the mechanisms of brain function in healthy and disease states. However, the uniquely sensitive nature of neuroscience data raises critical concerns regarding data privacy. In response to these concerns, various policy and regulatory approaches have been proposed to control access to and disclosure of neuroscience data, but excessive restriction may hamper open science practice in the field. This article argues that it may now be time to expand the scope of regulatory discourse beyond protection of neuroscience data and to begin contemplating how to prevent potential harm. Legal prohibition of harmful use of neuroscience data could provide an ultimate safeguard against privacy risks and would help us chart a path toward protecting data subjects without unduly limiting the benefits of open science practice. Here we take the Genetic Information Non-Discrimination Act (GINA) as a reference for this new legislation and search for answers to the core regulatory questions based on what we have learned from the enactment of the GINA and the merits and weaknesses of the protection it provides." |
| Ligthart | 2022 | Coercive Brain-Reading in Criminal Justice | Sjors Ligthart | 2022 | "Emerging neurotechnology offers increasingly individualised brain information, enabling researchers to identify mental states and content. When accurate and valid, these brain-reading technologies also provide data that could be useful in criminal legal procedures, such as memory detection with EEG and the prediction of recidivism with fMRI. Yet, unlike in medicine, individuals involved in criminal cases will often be reluctant to undergo brain-reading procedures. This raises the question of whether coercive brain-reading could be permissible in criminal law. Coercive Brain-Reading in Criminal Justice examines this question in view of European human rights: the prohibition of ill-treatment, the right to privacy, freedom of thought, freedom of expression, and the privilege against self-incrimination. The book argues that, at present, the established framework of human rights does not exclude coercive brain-reading. It does, however, delimit the permissible use of forensic brain-reading without valid consent. This cautionary, cutting-edge book lays a crucial foundation for understanding the future of criminal legal proceedings in a world of ever-advancing neurotechnology." |
| McCay | 2022 | Neurotechnology, Law and the Legal Profession | Allan McCay | 2022 | ""We are now in a world in which some people can control a cursor, type text and interact with social media by thought alone rather than by a traditional bodily action. Individuals can control drones in a similar manner, and others manage their epilepsy with a device that monitors their brain and periodically intervenes to stimulate it. As these uses expand and accelerate we need to consider how such technological development might affect the law and the legal profession.When considering the possible impact of neurotechnology on law and the legal profession it is worth noting that this is certainly not the first time that law and the profession have been challenged by technological developments. Some readers will remember when the internet started to raise legal questions. We might also note that there was a time when the idea of artificial intelligence (a technology that is integral to much emerging neurotechnology) having an influence on law and the legal profession seemed to be a remote possibility, almost one best left to science fiction writers. However, the internet is now a mainstream factor for the legal profession, both raising substantive legal issues and affecting the way lawyers work. The idea that AI might shake things up no longer seems radical – in fact estimations of the likely impact of artificial intelligence now seem to be an important consideration in the strategic planning of some law firms and these technologies are starting to generate interesting challenges for the courts. This report contends that the law will have to deal with ripples from a related field - that of neurotechnology. Whilst it is clear there will be impact, the extent and nature of that impact remains to be seen."" |
| Virtue | 2022 | Trademarks and the Brain: Neuroscience and the Processing of Non-Literal Language | Sandra M. Virtue & Darren S. Cahr | 112 Trademark Rep. 695, 695-705 (2022) | ""Courts, Congress, and academics have long struggled with inferences about consumer perception necessary to justify much of modern trademark law. Originating as a form of consumer protection, the existence of trademark rights in the United States has ultimately been defined by the perceptions of an aggregate of relevant individuals. Collectively, the experiences of these consumers, not only the trademark itself, give meaning as to what a trademark actually “is.” While the registration processes offered by the Lanham Act (and, historically, by statute in individual states) play an important role in establishing the scope of rights in source designations from an administrative and procedural perspective, the existence and strength of a trademark has long been determined by external conclusions about the cognitive processing of individual consumers. A trademark is not necessarily what the trademark claimant decides it to be; it is what the consumer purportedly experiences, as interpreted, in turn, by others. So how do we know whether a consumer experiences something as a trademark or as just another word? Our inquiry, filtered through the perspectives of both a researcher who focuses on the neural processing of text and non-literal language, and a trademark practitioner, is simple: can recent advances in neuroscience provide us with a more meaningful understanding of trademarks and how they function, beyond the results of self-reported consumer surveys and linguistic analyses? We strongly agree with one author who stated that neuroscience “holds the potential for new insights into how human beings perceive and make decisions about commercial symbols, something at the heart of trademark law.”"" |
| Ienca | 2022 | Mental Data Protection and the GDPR | Marcello Ienca & Gianclaudio Malgieri | J.L. & Biosciences, Jan.–June 2022, at 1, 1-19 | "Although decoding the content of mental states is currently unachievable, technologies such as neural interfaces, affective computing systems, and digital behavioral technologies enable increasingly reliable statistical associations between certain data patterns and mental activities such as memories, intentions, and emotions. Furthermore, Artificial Intelligence enables the exploration of these activities not just retrospectively but also in a real-time and predictive manner. In this article, we introduce the notion of ‘mental data’, defined as any data that can be organized and processed to make inferences about the mental states of a person, including their cognitive, affective and conative states. Further, we analyze existing legal protections for mental data by considering the lawfulness of their processing in light of different legal bases and purposes, with special focus on the EU General Data Protection Regulation (GDPR). We argue that the GDPR is an adequate tool to mitigate risks related to mental data processing. However, we recommend that interpreters focus on processing characteristics, rather than merely on the category of data at issue. Finally, we call for a ‘Mental Data Protection Impact Assessment’, a specific data protection impact assessment designed to better assess and mitigate the risks to fundamental rights and freedoms associated with the processing of mental data." |
| Kuersten | 2022 | Michael S. Moore, Mechanical Choices: The Responsibility of the Human Machine | Andreas Kuersten | 19 J. Moral Phil. 415, 415-19 (2022) | ""Available scientific evidence supports homo sapiens, like all lifeforms, being compositions of matter molded entirely by biology and environments. Human thought and conduct, in turn, also seem products of these influences. Contemporary neuroscience in particular has furnished unique and striking data in this regard, conspicuously connecting mental states and actions to evidently causal physical substrates. Accordingly, scholars in philosophy, law, and neuroscience consistently argue that neuroscience findings have important implications for moral responsibility and criminal law because they vividly demonstrate humans’ lack of consequential agency. Since moral responsibility is premised on humans meaningfully originating mental states and actions, this ascription and existing penal regimes, which implement moral responsibility and retributive principles, are often deemed inappropriate and cruel. Michael Moore, however, is one of many who contest such arguments. An avowed moral realist and compatibilist, he does not believe that modern sci-ence militates against moral responsibility and the criminal law it buttresses. In Mechanical Choices, Moore seeks to assess “the relationship between neu-roscience and the criminal law” and confront “the grander claims often made by or on behalf of neuroscientists ... that challenge criminal law at its most foundational level” (pp. 1, 2). He does this in seven parts over thirteen chapters which (except the introduction) comprise previously published works."" |
| Derik-Ferdinand | 2022 | Admissibility of Evidence Based on Findings of Neuroscience: Implications for Criminal Justice in Nigeria | O. I. Derik-Ferdinand | 3 Int’l J. L. & Clinical Legal Educ. 114, 114-20 (2022) | ""Nigeria operates adversarial system of litigation in both civil and criminal proceedings. It therefore follows that allegation of facts can never be established without leading credible, reliable and admissible evidence. Consequently, the leading of compelling and admissible evidence by a qualified witness to sway the mind of the court is inevitable under the accusatorial system of litigation practiced in Nigeria. The strict rules of evidence are fundamentally regulated by the provisions of the Nigerian Evidence Act 2011. Therefore, the broad aim of this scholarly investigation is to explore the contemporary advancements in the fields of neuroscience and determinism as the bases for determination of criminal responsibility. Hence, the principal objective of the scholarly appreciation is to examine the legal possibilities of using the knowledge derived from the scientific domains of neuroscience and determinism within the context of admissibility under the extant laws and rules of evidence in Nigeria. The paper employs doctrinal research method as a tool to analyse how the advancements of the knowledge industry and the advocacy in the fields of neuroscience and determinism may be integrated into the rules and dynamics of the law of evidence in Nigeria."" |
| Gulyaeva | 2022 | Human Neuro-Rights | Elena Evgenyevna Gulyaeva & Favio Farinella | 15 Quaestio Iuris 278, 278-99 (2022) | "The invasion of the rights to privacy and intimacy, a result of massiveness achieved by the new information and communication technologies, becomes today a greater threat with the possibility that third parties access our thoughts and manipulate our memory. Technology applied to neuroscience may make this possible in the near future. Although at present the legal regulation of the use of neurotechnologies seems unnecessary, the question becomes relevant when they are used to map and modify the activity of the human brain. The future possibilities of the use of neurotechnologies will affect not only our lifestyle, but the very nature of what we understand today as the human being. In this first article we present the intersections between neurotechnology and law, which generates a new field called Neuro-Law. Along the current legal disruption taking place, we describe the basic characteristics of the proposal to affirm entirely new human rights based on new technologies applied to Neuroscience." |
| Rothermich | 2022 | Mind Games: How Robots Can Help Regulate Brain-Computer Interfaces | Elle Rothermich | 7 U. Pa. J. L. & Pub. Affs. 391, 391-431 (2022) | "This comment explores the application of Casey and Lemley's thesis to the definitional problem that devices described above present. Part I surveys recent developments in BCI technology, the limits of currently available consumer BCIs, and the challenges of regulating emergent technologies. It concludes with an overview of growing concerns about the privacy risks of BCIs--a “privacy narrative”--that whether true, exaggerated, or somewhere in between is a big reason why defining “BCI” for regulatory purposes is difficult. Part II delves into You Might Be A Robot and makes the case for treating BCIs the way Casey and Lemley propose robots should be treated. It also adds “affect” to Casey and Lemley's list of suggested functional criteria for robot regulation. Affect is a consideration of the way that people are likely to react to a given technology, such as a robot police dog or a BCI device. Because affect can differ significantly from “agenda”--that is, what a technology is actually meant to do--it may be a useful tool for effectively regulating new technologies like BCIs." |
| Crespo | 2022 | Criminal Law and Human Behavior: Advances from Neuroscience and Artificial Intelligence (full text in Spanish) | Eduardo Demetrio Crespo | Eduardo Demetrio Crespo ed., 2022 | "Esta obra ofrece al lector perspectivas de análisis para adentrarse en un tema apasionante a la vez que extraordinariamente complejo. Se trata de abordar aspectos clave de los fundamentos del Derecho penal a propósito de su relación con el comportamiento humano desde la óptica interdisciplinar que aportan los avances científicos. El vertiginoso desarrollo que han experimentado las neurotecnologías de la mano de la inteligencia artificial obliga a afrontar un desafío epistémico ?de dimensiones desconocidas hasta la fecha? que se proyecta sobre el sistema penal en su conjunto, en el que las ciencias de la conducta y forenses están llamadas a cumplir un papel decisivo. No solo se ven afectadas las bases de la teoría del delito, sino que se propicia así un amplio debate técnico-jurídico ?tanto en el campo sustantivo como procesal? que concierne en primera línea a la posible afectación de Derechos Fundamentales y de las garantías individuales como consecuencia de la aplicación del paradigma predictivo. Las repercusiones en campos específicos como el del Derecho penal económico son también tenidas en cuentas en este volumen que, no por casualidad, se cierra con un último bloque destinado a los llamados Neuroderechos Humanos." |
| Wannyn | 2021 | The “Immature” Brain: Genesis and Diffusion of a New Social Discourse on Young Offenders in the United States (full text in French) | William Wannyn | (August 2021) (Ph.D. dissertation, Université de Montréal) | ""Cette thèse prend pour objet la place des savoirs neuroscientifiques sur le cerveau adolescent dans les mutations contemporaines du champ de la justice des mineurs aux États-Unis. Plus spécifiquement, elle analyse les logiques sociohistoriques ayant conduit la théorie de l’immaturité cérébrale des adolescents à jouer un rôle clé dans trois arrêts de la Cour Suprême qui, entre 2005 et 2012, ont rendu la peine de mort et la prison à vie inconstitutionnelles pour les délinquants mineurs. Située au croisement de la sociologie des sciences et de la sociologie du champ pénal, cette recherche propose de saisir ce « triptyque juridique » à la lumière de l’histoire longue du traitement pénal des mineurs aux États-Unis. Elle analyse les débats contemporains entourant l’âge de la majorité pénale à l’aune des luttes symboliques qui se sont historiquement nouées autour de la définition du « problème » de la délinquance juvénile. Suivant un regard sociohistorique, cette thèse retrace les oppositions et les alliances entre scientifiques, fondations philanthropiques, sociétés savantes, agences gouvernementales, élus politiques et acteurs juridiques qui ont façonné la trajectoire du champ de la justice des mineurs états-unienne. Cette recherche s’intéresse particulièrement au « travail de manipulation symbolique » (Bourdieu, 2001) des « nouveaux réformateurs », une alliance hétérogène d’agents appartenant à la classe dominante, qui au tournant du 21e siècle ont construit et diffusé un nouveau discours social situant les causes de la délinquance juvénile dans le cerveau des adolescents. Elle formule une critique des fondements épistémologiques et des usages politiques de ce discours, et rend compte des rapports de pouvoir, notamment d’âge, de classe et de race, qu’il participe àrenforcer, malgré les ambitions progressistes de ses promoteurs. Les analyses présentées dans cette recherche s’appuient sur un matériau hétéroclite combinant des archives judiciaires, des articles scientifiques, de la littérature grise et 37 entretiens semi-directifs réalisés auprès de chercheurs, de juges, de membres de fondations philanthropiques, d’associations militantes et d’agences gouvernementales. L’hétérogénéité de ce matériau offre un moyen de suivre les déplacements du discours de l’immaturité du laboratoire vers le tribunal ou du Congrès des États-Unis vers les institutions correctionnelles. Elle permet de rendre raison des logiques spécifiques de champ qui génèrent l’action de ces agents, ainsi que des logiques transversales qui les conduisent à s’allier pour agir politiquement afin de « sauver » les jeunes délinquants."" |
| Hemingway | 2023 | Effects of Neuroimaging on Juror Decisions in a Capital Trial | Samantha L. Hemingway | (2023) (Ph.D. dissertation, Fielding Graduate University) | ""Driven by advances in neuroscience and brain imaging technologies, neuroimaging has become an increasingly common form of evidence in criminal trials. In capital cases, in which defense counsel is required by law to provide jurors with all mitigating evidence that might support a punishment less than death, neuroimaging has found purchase as a potential neurobiological explanation of criminal behavior used to bolster arguments for a defendant’s diminished moral culpability. Indeed, jury decision-making research assessing the effects of neuroimaging evidence on death penalty sentencing has shown that neuroimages can influence jurors’ capital decisions. However, prior research has exclusively examined neuroimaging as a case-level aggravating or mitigating factor without exploration of the effects of variations in neuroimages themselves. As a result, we know little about how imaging-level factors influence juror decisions. The present study extends the literature by exploring the influence of area of neuroanatomical damage and obviousness of neuroanatomical damage on jurors’ decisions in a capital case. This investigation is warranted as understanding potential sources of juror and evidentiary bias is a critical aspect of improving courtroom practice and upholding the overall fairness of the court system."" |
| Castrellon | 2022 | Neural Support for Contributions of Utility and Narrative Processing of Evidence in Juror Decision Making | Jaime J. Castrellon, Shabnam Hakimi, Jacob M. Parelman, Lun Yin, Jonathan R. Law, Jesse A. G. Skene, David A. Ball, Artemis Malekpour, Donald H. Beskind, Neil Vidmar, John M. Pearson, R. McKell Carter & J. H. Pate Skene | 42 J. Neuroscience 7624, 7624–33 (2022) | "Efforts to explain complex human decisions have focused on competing theories emphasizing utility and narrative mechanisms. These are difficult to distinguish using behavior alone. Both narrative and utility theories have been proposed to explain juror decisions, which are among the most consequential complex decisions made in a modern society. Here, we asked jury-eligible male and female subjects to rate the strength of a series of criminal cases while recording the resulting patterns of brain activation. We compared patterns of brain activation associated with evidence accumulation to patterns of brain activation derived from a large neuroimaging database to look for signatures of the cognitive processes associated with different models of juror decision-making. Evidence accumulation correlated with multiple narrative processes, including reading and recall. Of the cognitive processes traditionally viewed as components of utility, activation patterns associated with uncertainty, but not value, were more active with stronger evidence. Independent of utility and narrative, activations linked to reasoning and relational logic also correlated with increasing evidence. Hierarchical modeling of cognitive processes associated with evidence accumulation supported a more prominent role for narrative in weighing evidence in complex decisions. However, utility processes were also associated with evidence accumulation. These complementary findings support an emerging view that integrates utility and narrative processes in complex decisions." |
| Asamizuya | 2022 | Effective Connectivity and Criminal Sentencing Decisions: Dynamic Causal Models in Laypersons and Legal Experts | Takeshi Asamizuya, Hiroharu Saito, Ryosuke Higuchi, Go Naruse, Shozo Ota & Junko Kato | 32 Cerebral Cortex 4304, 4304–16 (2022) | "This magnetic resonance imaging study is designed to obtain relevant implications for criminal justice and explores the effective connectivity underlying expertise. Laypersons and experts considered sentences for remorseful and remorseless defendants, respectively, with and without mitigation, in hypothetical murder cases. Two groups revealed no differential activation. However, dynamic causal modeling analysis found distinct patterns of connectivity associated with subjects' expertise and mitigating factors. In sentencing for remorseful defendants, laypersons showed increased strength in all bidirectional connections among activated regions of Brodmann area (BA) 32, BA23, the right posterior insula, and the precuneus. In contrast, legal experts sentenced based on mitigation reasoning, showed increased strength only in the bidirectional connection between the insula and the precuneus. When sentencing for remorseless ones without mitigation, both laypersons and experts increased the connection strength, but with reverse directionality, between regions; legal experts strengthened connectivity from BA10 to other regions, that is, the right anterior insula and BA23, but the directionality was reversed in laypersons. In addition, the strength of connection to BA32 and BA10 was correlated with changes in punishments by mitigating factors. This is a crucial result that establishes the validity of the connectivity estimates, which were uninformed by the independent (behavioral) differences in the severity of punishment." |
| Padróna | 2022 | Contribution of Brain Cortical Features to the Psychological Risk Profile of Juvenile Offenders | Iván Padróna, Daylin Góngorac, Iván Morenod, María José Rodrigoa & Ana M. Martíne | 14 Eur. J. Psych. Applied to Legal Context 93, 93–103 (2022) | ""Objectives: This study contributes to the neuroscience of offending behavior by addressing two aims: a) to examine differences in the cortical features in a group of male serious juvenile offenders (21 OG), versus controls (28 CG), both ranging from 18 to 21 years old; and b) to determine to what extent the differential cortical features and the risk psychological profile discriminate between the two groups. Method: Besides cortical measures, demographics, executive functioning, childhood trauma, psychopathic traits, psychopathological symptoms, and antisocial and delinquent behavior were assessed. Results: Whole-brain analysis of the cortical mantle identified increased cortical thickness in the cluster comprising the right middle temporal gyrus and a smaller surface area in the lateral orbitofrontal cortex for the OG compared to the CG. The discriminant function correctly classified 100% of cases of the CG and 94.7% of the OG. Right temporal cluster, childhood trauma, callousness and symptoms of interpersonal sensitivity, psychoticism, depression, phobic anxiety, and obsessive-compulsive behavior contributed to the OG. In turn, the lateral orbitofrontal cluster, psychopathic traits of grandiosity, unemotionality, and thrill seeking, and working memory contributed to the CG. Conclusions: The increased right middle temporal gyrus of the OG could be indicative of impaired brain development in social cognition processes since it appeared in combination with the higher risk profile. The reduced orbitofrontal cortex could be indicative of immature brain development in emotional control processes since it appeared in combination with the normative psychological profile in adolescence. Based on these novel findings, areas of potential improvement for research and intervention are suggested."" |
| Marks | 2022 | Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information | Mason Marks | (Sept. 10, 2022) (Available at SSRN) | ""In the sci-fi television series Severance, employees of Lumon Industries receive brain implants that segment their memories of work and home life. When they arrive each morning, implants suppress employees’ access to memories of the outside world, including those regarding friends, family, and society. They can retrieve only work-related memories formed within the building. When employees leave work for the day, their implants restore access to memories of the outside world while restricting work-related content. This article presents a novel information-based theory of mind and describes Lumon’s actions as ""cognitive content moderation."" This practice regulates the internal flow of mental information and influences thought and behavior. Lumon is a fictional corporation, but emerging neuro-technologies like brain-computer interfaces will make cognitive content moderation a reality. Governments already regulate mental processes. For instance, the federal Controlled Substances Act prohibits consuming psychedelic substances that alter the flow of subconscious information and reveal useful insights (after consuming these substances, people often report receiving helpful messages from ancestors, God, nature, or entities from other dimensions). By limiting the use of psychedelics such as psilocybin and dimethyltryptamine, the government engages in cognitive content moderation. Other emerging neuro-technologies, like Neuralink and Synchron's brain implants, will expand the public and private sector's ability to influence internal communications and regulate memory, thought, emotion, and behavior. Most of the brain’s activity occurs subconsciously, and cognitive content moderation primarily affects the flow of subconscious information exchanged between brain modules and sub-regions. Accordingly, the article defines a First Amendment right to receive subconscious information, which limits the government’s ability to regulate cognitive processes by altering or interrupting that flow. This right is supported by existing theory and doctrine that define related rights, including the right to receive information and ideas, to freely operate one’s mind, and to create knowledge. By framing thought and other mental processes in terms of internal information flow, the article attempts to bridge the divide between existing First Amendment theory and doctrine regarding thought, which are relatively underdeveloped and underutilized, and current free speech theory and doctrine, which are robust and expansive. It claims that in addition to influencing the flow of subconscious information, nascent neuro-technologies can render cognitive processes expressive, bringing them further within the First Amendment’s scope. The article concludes by defining the scope and limits of the right to receive subconscious information, addressing likely criticisms, and exploring potential applications."" |
| Loizidou | 2022 | The State of Florida v. Kelvin Lee Coleman Jr.: the Implications of Neuroscience in the Courtroom through a Case Study | Panagiota Loizidou, Rory E. Wieczorek-Flynn & Joseph C. Wu | Psych, Crime & L. 1, 1–22 (2022) | "Neuroscience can provide evidence in some cases of legal matters, despite its tenuous nature. Among others, arguing for diminished capacity, insanity, or pleading for mitigation is the most frequent use of neurological evidence in the courtroom. While there is a plethora of studies discussing the moral and legal matters of the practice, there is a lack of studies examining specific cases and the subsequent applications of brain knowledge. This study details the capital punishment trial of Kelvin Lee Coleman Jr., charged in 2013 with double murder in Tampa, Florida, to illustrate the extent that expert opinions – based on neuroimaging, neurological, and neuropsychiatric examinations – had an impact on the court’s decisions. The defendant was sentenced to life imprisonment without the possibility of parole. According to the comments of the trial’s jury, the most influential reason for not sentencing the defendant to death is the fact that during the incident was that he was under extreme mental and emotional disturbance. Other reasons were evidence of brain abnormalities resulting from neurological insult, fetal alcohol syndrome, and orbitofrontal syndrome contributing to severely abnormal behavior and lack of impulse control." |
| Filipova | 2022 | Neurotechnologies in Law and Law Enforcement: Past, Present And Future | Irina A. Filipova | 6 L. Enf’t Rev. 32, 32–49 (2022) | ""The scope of the research is the necessity for legal regulation of the use of neurotechnologies in various sectors of human activity and the possibility of their application in jurisprudence. Neurotechnology is based on advances in neuroscience that allow us to understand the structure of the brain. The advances in neuroscience are driving the rapid development of neurotechnologies and their spread in modern society. The special importance of neurotechnologiesis explained by the fact that, on the one hand, they contribute to the enhancement of artificial intelligence, significantly increasing the amount of data necessary for artificial intelligence for learning, on the other hand, with the help of neurotechnologies, people can increase their capabilities, both physical and mental. The purpose of the article is to analyze the development of the application of neurotechnologies in practical use and assess the degree of necessity for the right to respond to the use of various neurodevices by people, as well as to study the risks of using solutions based on neurotechnologiesin law enforcement. The methods of conducting this research include the formal logical method, historical and comparative legal methods, the method of systems analysis, the method of abstraction and the method of legal forecasting. The main scientific results. Taking into consideration the available foreign experience, the history of the use of neurotechnologies in law enforcement to the present day is systematized, the origins of the formation of neuro-law are considered. The level of neurotechnologies achieved today is assessed, the main issuesthat the development of neurotechnologies pose to law, and the questions that arise in connection with the growing use of neurotechnologies in law enforcement in the world are listed. Analyzed the legal acts and international documents (soft law) aimed at the regulation of neurotechnology nowadays. The short-term prospects for the use of neurotechnologies in law enforcement are formulated and the related needs for changing legal regulation, in particular, the need to recognize a new group of neuro-rights for a person are highlighted. Conclusions. The further development of neurotechnologies, declared as one of the state priorities in Russia, inevitably intensifies the penetration of neurotechnologies into various sectors of public and state life, including the activities of law enforcement agencies. Therefore, it is necessary to prepare the legal basis for this already today, implementing the relevant provisions into the Constitution of the Russian Federation, criminal, civil, administrative, labor and procedural legislation."" |
| Smith | 2022 | Age Is Nothing but a Number: Raising the Age on the Prohibition of Mandatory Juvenile Life without Parole in Light of Miller v. Alabama | Hayden A. Smith | 6 How. Hum. & Civ. Rts. L. Rev. 129, 129–58 (2022) | "In the 2012 seminal case of Miller v. Alabama, the Supreme Court held that a state may not sentence a juvenile, or someone under the age of eighteen years old under U.S. law, to mandatory life imprisonment without the possibility of parole (“LWOP”), concluding that such a sentence is unconstitutional and in violation of the Eighth Amendment's Cruel and Unusual Punishment Clause. The rationale provided by the Court--one that relied almost exclusively on now outdated neuroscience and psychology--focused on the ideas that juveniles cannot be held legally culpable as an adult because they lack a sense of maturity due to brain development, and juveniles have a greater chance of rehabilitation than adults. However, due to advances in modern science, evidence demonstrates that (1) young adults beyond the age of eighteen also lack maturity as the brain continues to develop until age twenty-five, and (2) young adults also have a high chance of rehabilitation when provided with positive stimuli while incarcerated, such as education and job training programs. Therefore, in order to remain consistent with its conclusion and rationale in Miller, the Court should consider raising the age of prohibiting mandatory LWOP to twenty-five years old, or in the alternative, consider abolishing mandatory LWOP in its entirety as a violation of the Eighth Amendment." |
| Watt | 2022 | “Crossover Young Adults”: The Case for a Neurodevelopmentally-Aware, Trauma-Informed Approach to Sentencing Young Adults with Criminal Justice and Care and Protection Involvement ( | Sarah Watt | (2022) (Masters thesis, University of Auckland) | ""“Crossover young adults”, that is, 18 to 25 year olds with criminal justice and care and protection involvement, are overlooked in research and policy. There is general acceptance that “crossover youth” up to 17 years with care and youth justice involvement are a complex group facing multiple challenges often rooted in childhood trauma. They are the most likely group to offend as adults. However, beyond the youth justice stage, limited attention is paid to the care-crime connection. Young adults in the criminal justice system more broadly are increasingly acknowledged as a distinct group given their developmental stage. Neuroscience shows that the human brain develops into the mid-twenties. Notably neuroscience also shows that childhood trauma disrupts development. Accordingly, considering crossover young adults from a purely age-related perspective leaves a gap in understanding. The aim of this thesis is to draw upon neurodevelopmental and trauma research to critique the current approach to sentencing crossover young adults in Aotearoa New Zealand and to pave the way towards more effective, fair and just outcomes for this vulnerable group. Neuroscience shows childhood trauma can cause significant maladaptation, including reactive behaviours which amount to offending. Importantly, childhood trauma can be resolved through positive experiences and relationships. Young adulthood offers an “age of opportunity” for healing and intercepting the care to custody pipeline given heightened neuroplasticity and susceptibility to change. Sentencing for crossover young adults currently fails to reflect these insights. An offence-focused approach responds to behavioural manifestations of trauma rather than underlying causes. Acknowledgement of distinctions of crossover young adults is limited to deficit-based sentencing discounts. By drawing on trauma-informed practice, a values-based approach for service delivery, this thesis provides four guiding principles and four proposals for neurodevelopmentally-aware, trauma-informed sentencing for crossover young adults. Sentencing must be grounded in an understanding of the prevalence of childhood trauma amongst crossover young adults and its neurodevelopmental impacts. Responses must be strengths-based and healingfocused, prioritising safety and connections. Education ought to support the necessary shift in perspective. At sentencing, rehabilitation must be prioritised, consideration of trauma must be mandated and imprisonment must be a measure of last resort."" |
| Allen | 2022 | Hemodynamic Activity in the Limbic System Predicts Reoffending in Women | Corey H. Allen, Eyal Aharoni, Aparna R. Gullapalli, Bethany G. Edwards, Carla L. Harenski, Keith A. Harenski & Kent A. Kiehl | 36 NeuroImage: Clinical Article 103238, 1–8 (2022) | "Previous research (Aharoni et al., 2013, 2014) found that hemodynamic activity in the dorsal anterior cingulate cortex (dACC) during error monitoring predicted non-violent felony rearrest in men released from prison. This article reports an extension of the Aharoni et al. (2013, 2014) model in a sample of women released from state prison (n = 248). Replicating aspects of prior work, error monitoring activity in the dACC, as well as psychopathy scores and age at release, predicted non-violent felony rearrest in women. Sex differences in the directionality of dACC activity were observed—high error monitoring activity predicted rearrest in women, whereas prior work found low error monitoring activity predicted rearrest in men. As in prior analyses, the ability of the dACC to predict rearrest outcomes declines with more generalized outcomes (i.e., general felony). Implications for future research and clinical and forensic risk assessment are discussed." |
| Enright | 2021 | Qualified Immunity and the Colorblindness Fallacy: Why “Black Lives [Don't] Matter” to the Country's High Court | Katherine Enright & Amanda Geary | 13 Geo. J. L. & Mod. Critical Race Persps. 135, 135–86 (2021) | "This article first discusses the origins of Section 1983, the Civil Rights Act, and its statutory purpose of protecting individuals from discrimination by state actors. The authors explore how, shortly after the law's codification, the Court embarked on a decades-long quest to diminish its efficacy. The largely conservative, all male, all white Court obscured the Act's purpose from its inception. In analyzing qualified immunity through the lens of the jurists who interpreted the doctrine, the authors demonstrate that the makeup of the country's highest Court defines the scope of protection afforded to police brutality victims. In its present-day application, the authors discuss the pain-staking academic exercise required to apply qualified immunity. The authors also emphasize that, absent concrete and uniform standards for applying qualified immunity in Section 1983 cases, judicial decision-making remains inconsistent. Indeed, a victim's right to recover for an officer's abuse depends on where they file suit, and whether there has been a previous victim of police brutality who suffered a fate similar enough to “clearly establish” the officer's wrongdoing. Through their articulation of the doctrine's history, the authors illustrate that the modern framework of qualified immunity is irreconcilable with Section 1983's remedial purpose. In their analysis, the authors posit that the United States' long history of racism and anti-Blackness, and its present denial and minimization of the same, is unavoidably and inextricably enshrined in the doctrine of qualified immunity. The authors evince how messaging in U.S. culture has shaped the “objective” lens through which the judiciary determines whether an officer's use of force was “reasonable.” Based on scientific evidence of the brain's response to perceived threats, and the messaging surrounding Black people in U.S. culture and jurisprudence, the authors posit that objectivity is impossible, and, at a minimum, not race neutral. From this premise, the article outlines potential solutions. First, it highlights that policing in the U.S. is militarized, and precincts are often disconnected from the populations they serve. Thus, the authors suggest that reform begin with the underlying conduct that begets application of qualified immunity--police brutality, and the unnecessary and disproportionate use of force on Black people. The article likewise proposes judicial reform. It emphasizes how the size and historical composition of the Court, in combination with the common law judicial system, has resulted in a modern framework of qualified immunity that is rife with problematic assumptions, thin rationalizations, discriminatory ranking of interests, and white supremacy. The authors contend that the judiciary endorses racist police practices by cloaking officers' criminality in immunity while insisting that the Court and the doctrine are “colorblind.” The authors conclude that underlying notions of anti-Blackness in U.S. law and culture are deeply entrenched in both the judiciary and policing, rendering it impossible to equitably apply an “objective” qualified immunity standard. As a result, the authors propose that the only realistic mechanism to lessen the abuse of Black people at the hands of police is to employ less policing and more healing. In addition, the authors assert that adding Justices to the Court will allow the system more easily to “self-correct”--based on the notion that more minds are less likely to coalesce into one problematic understanding of “reasonableness” or “objectivity,” and instead will present a more representative “collective subjective.” These solutions, the authors explain, are based on the perspective that racism is part of U.S. culture and law. Thus, to lessen the prejudicial impact, we must remedy our own systemic racial biases both in policing and applying law." |
| Guillard | 2019 | The Neuroscience of Dehumanization and Its Implications for Political Violence | Celia Guillard & Lasana T. Harris | in Propaganda and International Criminal Law (Predrag Dojčinović ed., 2019) | "Dehumanization is a pervasive force in society that can be observed in a range of behaviors from small interactions to large-scale, systematic violence during conflicts. Understanding the fundamental science behind our ability to dehumanize is essential in the practice of human rights law and the prosecution of mass atrocity crimes. Celia Guillard and Lasana Harris show how decades of empirical social psychology and neuroscience research has established that all people have the capacity to dehumanize as a consequence of social context. While emphasizing the cognitive role of language in the process of dehumanization, this chapter draws on previous research to establish how social contexts facilitate dehumanization, which neural pathways might allow atrocities to occur and how we can prevent this behavior in the future. The chapter examines the implications of these findings within the broader context of serious violations of human rights, including some of the specific cases documented through international criminal trials. Most importantly, the expert evidence offered by Guillard and Harris can assist all parties – the prosecution, the defense and the judges – engaged in fact- and truth-finding procedures as instituted through international criminal trials." |
| Perricone | 2022 | The Effect of Neuroscientific Evidence on Sentencing Depends on How One Conceives of Reasons for Incarceration | Annalise Perricone, Arielle Baskin-Sommers & Woo-Kyoung Ahn | 17 PLoS ONE 1, 1–17 (2022) | "Neuroscientific evidence is increasingly utilized in criminal legal proceedings, prompting discussions about how such evidence might influence legal decisions. The effect of neuroscientific testimony on legal decisions remains uncertain, with some studies finding no effect, others reporting that neuroscience has a mitigating impact, and some indicating neuroscience evidence has an aggravating effect. The present study attempts to explain these divergent findings by showing that the effect of neuroscience evidence on sentencing interacts with beliefs about the goals of the criminal legal system. Using a between-subjects design, participants (N = 784) were asked to assume different rationales for imprisonment, before receiving neuroscientific evidence about antisocial behavior and its potential relation to the defendant. Participants recommended a sentence for the defendant prior to and after reading the neuroscientific evidence. Participants who were given the rationale of retribution as the primary goal of imprisonment significantly decreased their sentencing recommendations. When the goal of imprisonment was to protect the public from dangerous people, participants provided longer post-testimony sentences. Lastly, when the goal was to rehabilitate wrongdoers, participants also increased sentences from pre to post. Thus, the impact of neuroscientific evidence is not monolithic, but can lead to either mitigated or aggravated sentences by interacting with penal philosophy." |
| Eggen | 2015 | Mental Disabilities and Duty in Negligence Law: Will Neuroscience Reform Tort Doctrine? | Jean Macchiaroli Eggen | 12 Ind. Health L. Rev. 591, 591–650 (2015) | "Tort law is entrenched in the tradition of the common law and has been slow to reflect contemporary advancements and social patterns. Thus, resistance to change is to be expected, and change can only come about jurisdiction by jurisdiction and issue by issue. This Article takes the position that it is time to begin a reasoned discourse about the possibility of integrating new developments in neuroscience into tort law in ways that can ameliorate, augment, and ultimately transform tort doctrine. The bifurcated rule presents a logical point to initiate this discourse. As neuroscience provides increasing information about the basis of mental illness and other causes of mental disabilities, the traditional bifurcated rule has become an anachronism. Ongoing advancements in neuroscience may have the ability to clarify the factual bases underlying the traditional rule and determine whether the rule continues to be justified. In this way, neuroscience may be a useful tool to influence the development of substantive tort doctrine. This Article begins in Part II with an overview of the role of mental states in intentional torts and negligence. This section first discusses the basic asymmetry between intentional torts and negligence, with intentional torts employing a subjective mental state rule for all adults and children, but with the law of negligence imposing an objective rule for adults with mental disabilities while maintaining a subjective rule for children. This section proceeds to focus on the bifurcated rule in negligence, which establishes a subjective rule for persons with physical disabilities but an objective rule for those with mental disabilities. Attention is given to some judicial exceptions that suggest a path toward transforming the traditional doctrine. Part III then examines the role that neuroscience may be able to play in understanding mental disabilities and, ultimately, duty in tort law. Part IV takes a closer look at some of the global challenges to using neuroscience in tort actions and as a vehicle for transforming tort doctrine. This part focuses separately on the law-science distinction, the ethical considerations of using neuroscience in the law, and the evidentiary challenges of moving neuroscience into the courtroom. Finally, in Part V this Article offers a modest proposal for understanding how neuroscience may contribute to eliminating the bifurcated rule in tort law. This proposal is intended as a means to initiate a broader discourse about neuroscience and other aspects of tort doctrine. This Article concludes that on balance the bifurcated rule is no longer tenable in the era of neuroscience, and that with appropriate caution neuroscience may play a key role in transforming tort doctrine to allow mental disabilities of all people to be a factor in determining tort liability." |
| Dang | 2022 | Perceiving Social Injustice during Arrests of Black and White Civilians by White Police Officers: An fMRI Investigation | Tzipporah P. Dang, Bradley D. Mattan, Denise M. Bartha, Grace Handley, Jasmin Cloutier & Jennifer T. Kubota | 255 NeuroImage Article 119153, 1-14 (2022) | "From social media to courts of law, recordings of interracial police officer-civilian interactions are now widespread and publicly available. People may be motivated to preferentially understand the dynamics of these interactions when they perceive injustice towards those whose communities experience disproportionate policing relative to others (e.g., non-White racial/ethnic groups). To explore these questions, two studies were conducted (study 1 neuroimaging n = 69 and study 2 behavioral n = 58). The fMRI study examined White participants’ neural activity when viewing real-world videos with varying degrees of aggression or conflict of White officers arresting a Black or White civilian. Activity in brain regions supporting social cognition was greater when viewing Black (vs. White) civilians involved in more aggressive police encounters. Additionally, although an independent sample of perceivers rated videos featuring Black and White civilians as similar in overall levels of aggression when civilian race was obscured, participants in the fMRI study (where race was not obscured) rated officers as more aggressive and their use of force as less legitimate when the civilian was Black. In study 2, participants who had not viewed the videos also reported that they believe police are generally more unjustly aggressive towards Black compared with White civilians. These findings inform our understanding of how perceptions of conflict with the potential for injustice shape social cognitive engagement when viewing arrests of Black and White individuals by White police officers." |
| Sundby | 2023 | The Right to Personality: Navigating the Brave New World of Personality-Altering Interventions | Christopher S. Sundby | 55 Conn. L. Rev. 289, 289–318 (2023) | "As neuroscience progresses, policy makers will have an increasing arsenal of behavior-modifying interventions at their disposal to deploy in the hopes of reducing recidivism and making the criminal justice system more rehabilitative. While these interventions are promising, they also can pose grave risks to individual liberty interests that are insufficiently acknowledged, much less protected, by current jurisprudence. Specifically, the current legal regimes and proposed alternatives either fail to identify the nature of the liberty at stake by overly focusing on physical side effects to the exclusion of thought-and personality-altering side effects, reject completely the potential for these interventions to improve the justice system, or inadvertently invite the medicalization of crime. This Article proposes a balancing test centered around the Fifth and Fourteenth Amendment liberty interest in “personality integrity.” This liberty interest has roots in the “intellectual prong” of the liberty interest referenced in the Supreme Court's forced medication jurisprudence. This approach allows for the adoption of some beneficial interventions as technology progresses, avoids subjective assessments of “good” or “bad” personality traits, and properly protects against the coercive alteration of the core identity of the individual." |
| Strubakos | 2022 | Forming a 'Brain Print:' Using Cognitive Neuroscience and Brain Imaging as an Objective Measure of Criminal Insanity | Christos D. Strubakos | 10 Lincoln Mem’l U. L. Rev. 92, 92–145 (2022) | "Criminal insanity has been popularized by fiction. Yet, despite its popularity in the virtual world, it is rarely used in real life. The reasons for this are many, but chief among them is that mental disorders that may inhibit a defendant's ability to form reasonable cognitive representations of reality often do not impact his ability to form the requisite mental state that is an element of the crime. Thus, the legal definition of criminal insanity refers to a mental defect that affects a defendant's ability to appreciate her actions at the time of the crime or to understand that her actions are wrong. Further complicating matters is how these internal states can be proven in a court beyond a reasonable doubt, especially since mental health professionals disagree about which psychometric measure to apply in evaluating insanity. This paper seeks to shed new light on the mental categories in criminal law using modern cognitive neuroscience and neurophysiology. I argue that mathematical modeling and functional neuroimaging of brain networks in normal and diseased minds can help form a brain print such that disruptions in the network lead to objectively measurable cognitive dysfunctions in the kinds of mental disorders that arise in criminal insanity." |
| Soto | 2022 | Neurorights vs. Neuroprediction and Lie Detection: The Imperative Limits to Criminal Law | José Manuel Díaz Soto & Diego Borbón | Frontiers Psych. 1, 1–5 (Dec. 8, 2022) | "This paper analyzes the suitability of neurorights to limit the use of neuroprediction and lie detection neurotechnologies. We argue that some of their applications in criminal proceedings should be prohibited as they are severely intrusive to mental privacy and contrary to the dignity of the person. In that sense, we discuss whether neurorights can offer greater protection than current fundamental rights. We suggest that, as they have been conceived, neurorights may offer reduced protection and they should be framed to offer a true limit to the substantial barrier that is our mind and dignity. On the other hand, current human rights should be interpreted in such a way as to respect the dignity of the accused in criminal proceedings." |
| Perelló | 2022 | Natural and Artificial Neural Networks: The Chilean Legal Framework | Carlos Amunátegui Perelló | J. Civ. L. Stud. 355, 355–66 (2022) | "Neuro-law and neuro-rights are emerging legal fields in the intersection of law, ethics, and technology. The aim of this study is to present the legal and scientific foundations of the matter, highlighting the Chilean regulation model on the problem." |
| Rainey | 2023 | Neurorights as Hohfeldian Privileges | Stephen Rainey | 16 Neuroethics 1, 1–12 (2023) | "This paper argues that calls for neurorights propose an overcomplicated approach. It does this through analysis of ‘rights’ using the influential framework provided by Wesley Hohfeld, whose analytic jurisprudence is still well regarded in its clarificatory approach to discussions of rights. Having disentangled some unclarities in talk about rights, the paper proposes the idea of ‘novel human rights’ is not appropriate for what is deemed worth protecting in terms of mental integrity and cognitive liberty. That is best thought of in terms of Hohfeld’s account of ‘right’ as privilege. It goes on to argue that as privileges, legal protections are not well suited to these cases. As such, they cannot be ‘novel human rights’. Instead, protections for mental integrity and cognitive liberty are best accounted for in terms of familiar and established rational and discursive norms. Mental integrity is best thought of as evaluable in terms of familiar rational norms, and cognitive freedom is constrained by appraisals of sense-making. Concerns about how neurotechnologies might pose particular challenges to mental integrity and cognitive liberty are best protected through careful use of existing legislation on data protection, not novel rights, as it is via data that risks to integrity and liberty are manifested." |
| Rus | 2022 | Implications of Neuroscience on Criminal Law | Ana-Marija Rus | 30 Supremo Amicus 538, 538–44 (2022) | "The human mind is crucially dependent on its biological basis, the brain, and considering our moral judgments are fixed on our decisions and actions, one would expect that information concerning the neural footings of the human decision-making process and action to have a significant implication on our legal judgments and therefore law. The relationship between law and neuroscience, with the brain lying in as the correlative factor, is therefore somewhat apparent, as it possibly offers a more comprehensive and accurate approach to the legal phenomena and possibly puts forward more conclusive evidence for the legal process, thus granting a fairer justice system." |
| Stevens | 2022 | Dangerous Brains: Predicting Future Dangerousness in Dangerous Criminals. Can Neuroscience Assist? | Philip Stevens | 85 THRHR 534, 534–48 (2022) | "Traditionally, whenever the mental state of an accused person is assessed, either for purposes of assessing criminal responsibility or in terms of the possible mitigation or aggravation of punishment, law has turned to forensic psychiatry for answers. Recently, science, and more specifically neuroscience, has made significant advancements in better understanding the brain and is becoming increasingly useful in advancing comprehension of the neural correlates of human behaviour, cognition, and emotion, and could become highly relevant in criminal proceedings." |
| Insel | 2022 | White Paper on the Science of Late Adolescence: A Guide For Judges, Attorneys, and Policy Makers | Catherine Insel, Stephanie Tabashneck, Francis X. Shen, Judith G. Edersheim & Robert T. Kinscherff | 2022 | "Neuroscience continues to be a rapidly evolving domain of research. This document reflects at the time it was produced the mainstream of developmental neuroscience of adolescence, late adolescence, and emerging young adulthood." |
| Rubien-Thomas | 2023 | Uncertain Threat is Associated with Greater Impuslive Actions and Neural Dissimilarity to Black versus White Faces | Estée Rubien-Thomas, Nia Berrian, Kristina M. Rapuano, Lena J. Skalaban, Alessandra Cervera, Binyam Nardos, Alexandra O. Cohen, Ariel Lowrey, Natalie M. Daumeyer, Richard Watts, Nicholas P. Camp, Brent L. Hughes, Jennifer L. Eberhardt, Kim A. Taylor-Thompson, Damien A. Fair, Jennifer A. Richeson & B. J. Casey | Cognitive, Affective, & Behav. Neurosci. (Feb. 2, 2023). | "Race is a social construct that contributes to group membership and heightens emotional arousal in intergroup contexts. Little is known about how emotional arousal, specifically uncertain threat, influences behavior and brain processes in response to race information. We investigated the effects of experimentally manipulated uncertain threat on impulsive actions to Black versus White faces in a community sample (n = 106) of Black and White adults. While undergoing fMRI, participants performed an emotional go/no-go task under three conditions of uncertainty: 1) anticipation of an uncertain threat (i.e., unpredictable loud aversive sound); 2) anticipation of an uncertain reward (i.e., unpredictable receipt of money); and 3) no anticipation of an uncertain event. Representational similarity analysis was used to examine the neural representations of race information across functional brain networks between conditions of uncertainty. Participants—regardless of their own race—showed greater impulsivity and neural dissimilarity in response to Black versus White faces across all functional brain networks in conditions of uncertain threat relative to other conditions. This pattern of greater neural dissimilarity under threat was enhanced in individuals with high implicit racial bias. Our results illustrate the distinct and important influence of uncertain threat on global differentiation in how race information is represented in the brain, which may contribute to racially biased behavior." |
| Zhang | 2023 | From Scanner to Court: A Neuroscientifically Informal "Reasonable Person" Test of. Trademark Infringement | Zhihao Zhang, Maxwell Good, Vera Kulikov, Femke van Horen, Mark Bartholomew, Andrew S. Kayser & Ming Hsu | 9 Sci. Advances 1, 1–12 (2023). | "Many legal decisions center on the thoughts or perceptions of some idealized group of individuals, referred to variously as the “average person,” “the typical consumer,” or the “reasonable person.” Substantial concerns exist, however, regarding the subjectivity and vulnerability to biases inherent in conventional means of assessing such responses, particularly the use of self-report evidence. Here, we addressed these concerns by complementing self-report evidence with neural data to inform the mental representations in question. Using an example from intellectual property law, we demonstrate that it is possible to construct a parsimonious neural index of visual similarity that can inform the reasonable person test of trademark infringement. Moreover, when aggregated across multiple participants, this index was able to detect experimenter-induced biases in self-report surveys in a sensitive and replicable fashion. Together, these findings potentially broaden the possibilities for neuroscientific data to inform legal decision-making across a range of settings." |
| MacIntyre | 2023 | Late-Onset Sex Offending and the Assessment of Behavioral Variant Frontotemporal Dementia (byFTD) | Michael R. MacIntyre, Manish A. Fozdar & Mohan Nair | 51 J. Am. Acad. Psychiatry & L. 1, 1–11 (2023). | "Behavioral variant frontotemporal dementia (bvFTD) is a common neuropsychiatric disorder, which is often missed or misdiagnosed by both neurologists and psychiatrists as a cause of emotional and behavioral problems. Inappropriate emotional responses and maladaptive behavior, including criminal behaviors, may be the first obvious expression of bvFTD caused by altered moral feelings, loss of empathy, disinhibition, and compulsive behavior. New onset sex offenses, including indecent exposure, sexually inappropriate comments, and unwanted sexual advances have been documented in early bvFTD. These behaviors may escalate with progressive disease and lead to harsh penalties. The presence of inappropriate sexual behaviors in older individuals with no prior history should raise concern about the presence of bvFTD in forensic examinations. In addition to the forensic examination, diagnostic evaluation requires psychological testing (including tests of social and affective cognition) and imaging studies. In sex offenders, a diagnosis of bvFTD has significant implications for risk assessments, requirements regarding supervision and management, and as evidence for mitigation. In this article, we review the neuropsychiatry of bvFTD, how the pathophysiology may contribute to sex offenses, and important psycholegal considerations for the forensic psychiatrist when evaluating bvFTD." |
| Darby | 2023 | In the Courts: Ethical and Legal Implications of Emerging Neuroscience Technologies Used for Forensic Purposes | W. Connor Darby, Michael MacIntyre, Richard G. Cockerill, Dustin B. Stephens, Robert Weinstock & R. Ryan Darby | Ethics & Clinical Neuroinnovation 173, 173–93 (2023) | "Dramatic advances in neuroscience have improved physicians’ abilities to diagnose and manage neurological and psychiatric disorders for their patients. Alongside established modalities such as computed tomography (CT), magnetic resonance imaging (MRI), and functional MRI (fMRI), advanced neuroimaging technologies provide new tools for understanding normal human behavior and diagnosing neuropsychiatric disorders impacting human behavior. But the application of these novel technologies, designed to help patients in the treatment setting, to the forensic setting presents unique ethics challenges. Forensic psychiatry is a subspecialty in which scientific and clinical expertise is applied in legal contexts, and in specialized clinical consultations in areas such as risk assessment or employment. In contrast to the treatment setting where advancing the patient’s welfare is primary, the primary duty in forensic settings is to foster truth. Thus, an honest forensic opinion based on good science and evidence may not necessarily benefit the person being evaluated and could cause that person harm. Similarly, artificial intelligence (AI) and machine learning technology are applied to a growing number of clinical and forensic settings, bringing potential to transform how psychiatrists assess an individual’s risk for violence and risk for suicide. Despite this promise, however, these emerging technological advances present significant ethical dilemmas, medico-legal limitations, and the risk of misuse if applied unethically. In this chapter, recent neuroscientific advances in the fields of functional neuroimaging and AI “deep learning” algorithms are reviewed in detail along with the relevant legal and ethical framework, advantages, and potential drawbacks." |
| Spranger | 2023 | Brain Patents as a Legal or Societal Challenge? | Tade Matthias Spranger | 54 Int’l Rev. Intell. Prop. & Competition L. 268, 268–75 (2023) | "Patents relating to the human brain and its functions regularly fulfil the general patent requirements. In some cases, however, the inventions in question reveal considerable risks for the rights of individuals, but also for society as such, which have a hitherto unknown dimension and which have not been discussed so far. Due to the limited scope of application of the ordre public clause, patent law is fundamentally not in a position to respond adequately to the challenges that exist here. The ratio of patent law and the lack of resources and also, above all, competence of the patent offices for a more extensive ethico-legal analysis mean that patent law is not the right setting for dealing with the existing challenges. Instead, the international organisations responsible for the protection of human rights and their relevant bodies are in particular demand here, although they have so far been unaware of the difficulties that are evident in the area of brain patents. What is needed is the development and establishment of mechanisms that enable the flagging and communication of critical patents, so that the responsible bodies are enabled to fulfil their tasks." |
| Johnson | 2022 | Explaining the Invidious: How Race Influences Capital Punishment in America | Sheri Lynn Johnson | 107 Cornell L. Rev. 1513, 1513–63 (2022) | "McCleskey v. Kemp upheld the death penalty against extraordinary statistical evidence of racial bias in its imposition. With its lofty statement, “[W]e decline to assume that what is unexplained is invidious,” the majority also dashed almost all hope that the death penalty would be declared unconstitutional because it is racially biased. Even when made, this statement had a patently ridiculous premise: That the statistical correlation between race and the imposition of the death penalty was anomalous, unexpected, unexplained. If a study established that the day of the week on which a defendant had been born and the day of the week on which his victim had been born were correlated with the likelihood of a death sentence, that statistical disparity reasonably might be characterized as “unexplained.” If the correlation were strong, the sample size large, and the study controlled for potential confounders, the possibility that the correlation was spurious still could not be disregarded. Why? First, because the day of defendant and victim birth is not known--let alone salient--to decision makers, including decision makers in capital cases. And second, because there is no known history of discrimination based on that characteristic. Put differently, neither opportunity nor motive to discriminate on the basis of day-of-the-week-of-birth is present. Race, however, is different in both respects. Race is almost always both known and salient to the relevant decision makers. Equally importantly, the entire history of race in this country, and in particular, the history of race and the death penalty in this country, as Furman v. Georgia3 recognized, reek of motive to do racialized harm,4 and made it entirely predictable that race did and will influence capital sentencing." |
| Scott | 2022 | Substance Use Disorder's (SUD) Impact on Criminal Decision-Making and Role in Federal Sentencing Jurisprudence: Arguign for Culpability-Based SUD Mitigation | Leslie E. Scott | 19 Ohio St. J. Crim. L. 471, 471–526 (2022) | "The United States--home to less than five percent of the world's population but almost twenty-five percent of its incarcerated population--currently incarcerates almost two million people, making it number one in the world in total population behind bars. A significant percentage of this population suffers from a substance use disorder (SUD). Many individuals commit their offenses to support a drug habit, and do so while under the influence of drugs or alcohol. Federal sentencing law instructs courts to consider an individual's history and characteristics, along with factors related to the offense, to arrive at a fair sentence. In other words, the sentence should fairly reflect the individual's level of personal culpability, or moral blameworthiness, and not just the social harm brought about by the offense. In this article, I argue that, in many cases, SUD--what neurobiology experts characterize as a brain disease--mitigates culpability and punishment. I also respond to scholars who disagree. Namely, the long-term use of drugs leads to physical changes in areas of the brain critical to judgment, decision-making, and voluntary control. At least one federal judge was compelled by this neuroscience to grant a downward variance in a gun case, concluding that the defendant's addiction reduced his culpability, and thus, the need for retribution. In surveys, while nearly half of federal judge respondents recognize drug or alcohol dependence as a mitigating factor at sentencing, data collected by the United States Sentencing Commission suggests that federal judges rarely grant downward sentencing adjustments to account for drug or alcohol dependence. Federal Sentencing Guideline policy statements counseling against the use of substance involvement as a basis for downward adjustment likely contribute to this seeming contradiction but do not offer a complete or satisfactory explanation. I examine these, and other possible causes of the apparent inconsistency, and make the case for granting a culpability-based SUD discount at sentencing in cases where substance abuse is correlated to commission of the offense. This could go a long way toward improving this country's unconscionable incarceration rates." |
| Du | 2022 | The Effect of Defendant Gender on Jurors' Decision-Making | Yu Du | 52 U. Balt. L. Rev 1, 1–31 (2022) | "Gender matters. It is a basic social construction that categorizes people and influences their interactions. Gender makes for a compelling topic: “[T]o focus on gender is to question everything.” Historically and contemporarily, females are less likely to be perceived as offenders or be linked to the criminal justice system. However, between 1980 and 2020, the number of incarcerated females in the United States increased by more than 475%, with 38% of female inmates being convicted of violent crimes. In fiscal year 2019, more than 9,300 of federal cases involved female offenders. By linking county-level data from the 2007 Census of Public Defender Offices to individualized level data from the 2006 and 2009 State Court Processing Statistics, Aaron Gottlieb and Kelsey Arnold calculated that more than sixteen percent of their sample--which consisted of more than 5,000 felony defendants in eleven large urban counties located in four states--was female. As more female defendants enter the criminal justice system, legal researchers have begun to examine with greater scrutiny the influence of the defendant's gender in legal contexts during the past decade, especially in courtroom settings." |
| Barkes | 2023 | Helping Family Law Clients through Conflict: Neuroscience & ADR Tools | Carol Barkes & Colby Jones | 66 Advoc. (Idaho) 30, 30–32 (Jan. 2023) | "Attorneys are tasked with zealously representing their clients' positions, and in the courtroom, this principle is second to none. However, particularly in family matters, attorneys take on the role of advisor, which contemplates incorporation of extralegal considerations into the advice provided to clients. Advisors more holistically account for a client's circumstances and future well-being. Guiding families through their legal crisis often entails making recommendations to use alternative dispute resolution as a means to resolve conflict." |
| Casper | 2023 | What Family Lawyers Should Know about Brain Injury | Stewart M. Casper | 45 Fam. Advoc. 13, 13–17 (Winter 2023) | "Early in my career, I did some work in the family law arena, and I've been asked to provide some insight to the family bar about issues relating to brain injury. Most of my practice involves traumatic brain injury (TBI); some includes medical malpractice related brain injury. Traumatic brain injury can implicate issues of neurodegenerative sequelae or consequences of trauma. Also, there are a host of atraumatic neurological conditions that for the family bar may have implications similar to those in TBI. Those conditions include but are not limited to hemorrhagic stroke (think “burst”), ischemic stroke (think “clot”), Alzheimer's disease, dementia, multiple sclerosis (MS), and Parkinson's disease (PD). |
| Strubakos | 2022 | In What Furnace Was Thy Brain? Redefining Ethics, Cognition and Tort Duty for Medical Artifical Intelligence | Christos D. Strubakos | 100 U. Det. Mercy L. Rev. 177, 177–221 (2022) | "Imagine a scenario where a patient enters the hospital with strange abdominal pain in the upper right quadrant that radiates to her back. She feels nauseous, and her pain comes in waves. The pain began suddenly after the patient ate a rich meal, and she feared that it could be a heart attack. She enters the Emergency Room, and the triage nurse warmly greets her, takes her basic information, and then sends her to a room where she meets a technician. The technician's job is to mediate between the patient and a large computer monitor named Dr. House. House is the most state-of-the-art artificial intelligence platform. The hospital paid significant money for it. However, House is a worthy investment in the hospital's estimation because the software is accurate over ninety-eight percent of the time." |
| Blitzman | 2022 | Let's Follow the Science on Late Adolescence | Jay D. Blitzman | 37 Crim. Just. 12, 12–17 (2022) | "The Supreme Court has established what the founders of the juvenile court system intuited at the dawn of the 20th century--from a constitutional perspective, children are not little adults. Relying in part on psychological research regarding the maturational arc of adolescence and fueled by the science of brain imaging, the Court has abolished the juvenile death penalty (Roper v. Simmons, 543 U.S. 1, 551 (2005)), juvenile life without parole in nonmurder cases (Graham v. Florida, 560 U.S. 48 (2010)), and mandatory juvenile life without parole in murder cases (Miller v. Alabama, 567 U.S. 460 (2012)) and has decreed that age is a key factor in juvenile interrogations (J.D.B. v. North Carolina, 564 U.S. 261 (2011)). In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court applied Miller retroactively. But applying developmental science and the mantra that children are not little adults to practice is the challenge." |
| Brown | 2023 | Minding Accidents | Teneille R. Brown | 94 U. Colo. L. Rev. 89 (2023). | "Tort doctrine states that breach is all about conduct. Unlike in the criminal law context, where jurors must engage in amateur mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at the defendant's external behavior. But this is false. Here I explain why, by incorporating the psychology of foresight. Foreseeability is at the heart of negligence--appearing as the primary test for duty, breach, and proximate cause. And yet, it has been called a “vexing morass” and a “malleable standard” because it is so poorly understood. This Article refines and advances the construct of foresight by describing it as an epistemic mental state--similar to intent, knowledge, or recklessness. We cannot ask whether a defendant should have foreseen a risk without interrogating what they subjectively perceived, realized, or remembered at the time. Indeed, the focus on actions in negligence is misleading because unreasonable actions are not necessary for negligence liability, while a negligent mental state is. It is time for negligence doctrine to “mind” accidents." |
| Vidal | 2023 | The Next Step for Social Justice: Amending the Insanity Defense | Carline Vidal | 26 Quinnipiac Health L.J. 219 (2023). | "Trauma creates trauma. In some cases it can trigger a mental illness. Unfortunately, the traditional criminal defense model is not capable of effectively assessing the needs of individuals with mental illness. Several sources report that eighty-five to ninety percent of women who are incarcerated or under community corrections in the United States have a history of being victims of domestic violence and sexual abuse, and suffer from substance abuse disorder as a result. In addition, according to the Bureau of Justice Statistics (“the Bureau”), more than half of all inmates, including fifty-six percent of state prisoners and sixty-four percent of local jail inmates, are affected by mental health problems and disorders. In 2016, the Bureau reported that more than forty percent of all jail inmates suffered from manic depression, bipolar disorder, schizophrenia, or anxiety. Also, many individuals are affected by more than one mental illness at any given time. Nearly half of persons with mental health problems meet the criteria for two or more disorders, as the severity of the disorder is strongly correlated to dual diagnosis. Unfortunately, only a relatively small portion of the numerous prisoners with mental health problems receive treatment during incarceration." |
| Rossbach | 2023 | Innocent Until Predicted Guilty: How Premature Predictive Policing Can Lead A Self-Fulfilling Prophecy of Juvenile Delinquency | Nadia Rossbach | 75 Fla. L. Rev. 167 (2023). | "Predictive policing is an innovative, evolving approach to crime prevention that law enforcement has recently embraced. These programs are designed to detect crime patterns by employing machine-learned algorithms to identify high-crime areas as well as likely offenders. In doing so, law enforcement hopes to implement a proactive approach in which officers will be able to prevent crime rather than merely respond to it. However, these programs can be plagued with inaccuracies and racial and socio-economic bias. With juveniles, in particular, the programs impress far too great of consequences while failing to accurately predict adolescents' future criminality. The impressionable and developing nature of children causes them to be less predictable than adults and more vulnerable to outside influences. Because the identification of juveniles as future criminals drastically changes the way police interact with them, the actions of police officers toward targeted children may motivate a child's distrust for police, disassoCitation from society, and inclination toward criminal behavior. This creates a self-fulfilling prophecy where labeling children as likely offenders makes them more likely to become offenders. There are several methods to move the program toward a more constitutional and effective approach; however, juvenile predictive policing, as it stands now, is not substantially related to the state's interest in increasing public safety or helping the best interest of the child, and thus is unconstitutional." |
| Du | 2022 | The Effect of Neuro-Evidence on Jurors' Decision Making | Yu Du | 20 Rutgers J.L. & Pub. Pol'y 174 (2022). | "Neuro-evidence has played a prominent role in criminal trials where it has potential for considerable impact on jurors' decision making. Yet, research has shown inconsistent effects of neuroscientific evidence on jurors' decisions, with some research showing a mitigating effect, some showing an aggravating effect, and other research showing a null effect. This article exclusively focuses on the influence of neuro-evidence on jurors' verdict decisions and perceptions of the defendant by reviewing a variety of experimental studies with different methodologies and criminal scenarios. My study results - which are both consistent and contradictory with previous studies - raise complicated issues for researchers and practitioners in courts. I found that neuro-evidence did not influence affect jurors' verdicts, likelihood of guilt, and perceptions of the defendant regardless of the defendant's gender and crime severity. However, believability in neuro-evidence in courts significantly influenced jurors' own evaluations on the effect of neuro-evidence on their verdicts. When facing neuro-evidence, the majority of the jurors were able to apply legal standards properly in their decision-making processes. Juror's race, educational level, political orientation, and attitudes toward death penalty significantly impacted jurors' decisions and perceptions, with attitudes toward death penalty generally having the largest effect. Theoretical and practical implications were discussed." |
| Moulin | 2022 | I Will Control Your Mind': The International Regulation of Brain-Hacking | Thibault Moulin | 24 San Diego Int'l L.J. 65 (2022). | "In the near future, the use of neurotechnologies--like brain-computer interfaces and brain stimulation--could become widespread. It will not only be used to help persons with disabilities or illness, but also by members of the armed forces and in everyday life (e.g., for entertainment and gaming). However, recent studies suggested that it is possible to hack into neural devices to obtain information, inflict pain, induce mood change, or influence movements. This Article anticipates three scenarios which may be challenging in the future--i.e., brain hacking for the purpose of reading thoughts, remotely controlling someone, and inflicting pain or death--and assesses their compliance with international human rights law (i.e., the International Covenant on Civil and Political Rights and the European Convention on Human Rights) and international humanitarian law (Geneva Conventions III and IV, and the First Additional Protocol)." |
| Wray-Lake | 2022 | Using Developmental Science to Inform Voting Age Policy | Laura Wray-Lake, Benjamin Oosterhoff | 74 Rutgers U.L. Rev. 1911 (2022). | "This article considers the evidentiary basis for lowering the voting age to sixteen based on research and perspectives from developmental science. The Twenty-Sixth Amendment lowered the voting age from twenty-one to eighteen based on logic and sentiment but was not informed by scientific evidence. The field of developmental science is capable of offering a cohesive set of guidelines about age-appropriate rights and responsibilities, given decades of research on the social, cognitive, and civic capabilities of adolescents. This article, in reviewing the evidence, argues that sixteen-year-olds should be granted the right to vote. The argument has three main parts. Part I explains how developmental scientific evidence offers nuanced age-based policy recommendations based on the context and demands of a given right or responsibility. Voting is an autonomy-rights issue, in which behaviors draw on reasoned decision-making, and evidence demonstrates that these capacities are solidified by age sixteen. In contrast, for protection rights issues, in which behaviors are made impulsively in emotionally charged and socially pressured situations, evidence favors policies that offer protections to adolescents and young adults. Part II argues that there is insufficient evidence to deny sixteen-year-olds the right to vote based on their demonstrated capacities for political knowledge, interest, and independence. In fact, considerable evidence exists to celebrate these capacities. Part III demonstrates that enfranchising sixteen- and seventeen-year-olds increases political interest and participation over the short and long term. The period of adolescence, where youth are more connected to home, school, and community, may be a better time to introduce voting rights, compared to ages eighteen to twenty, for both youth and their parents. The article concludes with several considerations for the future of voting age policy." |
| Dorfman | 2022 | Disability As Metaphor in American Law | Doron Dorfman | 170 U. Pa. L. Rev. 1757 (2022). | "In recent decades, the term disability has become associated with the legally protected minority group of people living with impairments and the social oppression directed at this group. Yet in the legal realm, the term disability has also been used as a metaphor that carries meaning beyond the scope defined in disability law. This Article identifies such use of disability as metaphor in two legal contexts. The first is the linguistic use of disability as metaphor for disadvantage: inability and impediment generally. I show how courts and legislators use the term to describe the inability to file a claim, the inability to continue in a legal role, and the disadvantages inflicted by state action in equal protection jurisprudence. The second context is what I call “disability frame advocacy”: when scholars and advocates use disability rights frameworks and disability as metaphor to advocate for resources, recognition, and redress for members of oppressed groups who do not live with disabilities." |
| Jalava | 2023 | How to Keep Unreproducible Neuroimaging Evidence Out of Court: A Case Study in Fmri and Psychopathy | Jarkko Jalava, Stephanie Griffiths & Rasmus Rosenberg Larsen | 29 Psychol. Pub. Pol'y & L. 1 (2023). | "The amount of neuroimaging evidence introduced in courts continues to increase. Meanwhile, neuroimaging research is in the midst of a reproducibility crisis, as many published findings appear to be false positives. The problem is mostly due to small sample sizes, lack of direct replications, and questionable research practices. There are concerns that a significant proportion of neuroimaging evidence introduced in court may therefore be unreliable. Guidelines governing the admissibility of scientific evidence—Frye and Daubert—are not designed to weed out such data. We propose supplementing Frye and Daubert with minimal reproducibility criteria that allow judges to make informed admissibility decisions about neuroimaging research. To demonstrate how this could work, we subjected functional magnetic resonance imaging (fMRI) findings on psychopathy—evidence that has been admitted in court—to a minimal reproducibility test. A systematic PRISMA search found 64 relevant studies but no sufficiently powered, directly replicated evidence of a psychopathy-related neurobiological profile. This illustrates two things: (a) the probability of false positives in this data set is likely to be unacceptably high and (b) the reproducibility of similar neuroimaging evidence can be evaluated in a straightforward way. Our findings suggest an urgent need to modify admissibility guidelines to exclude low-quality neuroimaging data." |
| Farahany | 2023 | The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology | Nita A. Farahany | 2023 | "Imagine a world where your brain can be interrogated to learn your political beliefs, your thoughts can be used as evidence of a crime, and your own feelings can be held against you. A world where people who suffer from epilepsy receive alerts moments before a seizure, and the average person can peer into their own mind to eliminate painful memories or cure addictions. Neuroscience has already made all of this possible today, and neurotechnology will soon become the “universal controller” for all of our interactions with technology. This can benefit humanity immensely, but without safeguards, it can seriously threaten our fundamental human rights to privacy, freedom of thought, and self-determination. From one of the world’s foremost experts on the ethics of neuroscience, The Battle for Your Brain offers a path forward to navigate the complex legal and ethical dilemmas that will fundamentally impact our freedom to understand, shape, and define ourselves." |
| Lavi | 2023 | Manipulating, Lying and Engineering the Future | Michal Lavi | 33 Fordham Intell. Prop. Media & Ent. L.J. 221 (2023). | "Decision-making should reflect personal autonomy. Yet, it is not entirely an autonomous process. Influencing individuals' decision-making is not new. It is and always has been the engine that drives markets, politics, and debates. However, in the digital marketplace of ideas the nature of influence is different in scale, scope, and depth. The asymmetry of information shapes a new model of surveillance capitalism. This model promises profits gained by behavioral information collected from consumers and personal targeting. The Internet of Things, Big Data and Artificial Intelligence open a new dimension for manipulation. In the age of Metaverse that would be mediated through virtual spaces and augmented reality manipulation is expected to get stronger. Such manipulation could be performed by either commercial corporations or governments, though this Article primarily focuses on the former, rather than the latter." |
| Bartholomew | 2023 | Nonobvious Design | Mark Bartholomew | 108 Iowa L. Rev. 601 (2023). | "To earn patent protection, a claimed product design must be “nonobvious.” Yet while nonobviousness has been described as “the heart” and “cornerstone” of the utility patent system, in the design patent context, the term has become next to useless. Instead of actually policing nonobviousness in design, modern courts grant patent rights to any work that is not an exact replica of another. The problem, judges maintain, is that comparing one visual design against another demands the use of aesthetic judgment and aesthetic judgment is an instinctual, subjective process incapable of legal definition. Recent neuroscientific studies of aesthetic judgment dispel some of the mystery surrounding perception of industrial design. These studies show, contrary to longstanding judicial assumptions, that design innovation tends to reduce visual enjoyment. We prefer the “aesthetic middle”: the range of designs comprised of not the avant-garde or the tried and true, but something in between. New insight into the functioning of the aesthetic middle shows the need for a reevaluation of the nonobviousness standard and offers guidance for returning the standard to its former place as a meaningful limit on design patent protection." |
| Bergkamp | 2023 | An Uncomfortable Tension: Reconciling the Principles of Forensic Psychology and Cultural Competancy | Jude Bergkamp, Katharine A. McIntyre, Magen Hauser | 47 Law & Hum. Behav. 233 | "Objective: State of Washington v. Sisouvanh (2012) was the first case in which an appellate court asserted the need for cultural competence in competency-to-stand-trial evaluations. A court reiterated this need in State of Washington v. Ortiz-Abrego (2017). Research in forensic psychology seldom addressed cultural considerations in pretrial evaluations until this past decade, but the growing body of literature pales in comparison to the work found in clinical and counseling psychology. Most of the current literature acknowledges the lack of professionally sanctioned practice guidelines and makes valuable suggestions regarding how to address cultural factors that are relevant to the requisite capacities of legal competency. Yet, none of this research addresses potential risks incurred by the evaluators who attempt to incorporate these suggestions into practice or acknowledges the possible incompatibility between forensic and cultural competency principles. Hypotheses: The authors posit there may be areas of incompatability, or tension, between the tenets of forensic psychology and cultural competency. Method: To examine this potential incompatibility, we reviewed legal cases with cultural implications, addressed recent developments regarding cultural “incompetence,” and conducted an overview of cultural competency in clinical and forensic psychology. Results: Comparing general principles of forensic psychology with those of cultural responsiveness and humility, we found that questions emerged regarding the potential philosophical conflicts as well as risks that may be incurred by individual evaluators in legal settings. Conclusions: The resultant dilemma sets the stage for pragmatic suggestions regarding communication, assessment, and diagnosis. Finally, we emphasize the need for sanctioned practice guidelines." |
| Yuste | 2023 | Neuro-rights and New Charts of Digital Rights: A Dialogue Beyond the Limits of the Law | Rafael Yuste, Tomás de la Quadra-Salcedo | 30 Ind. J. Global Legal Stud. 15 | "In this article, the authors address some of the most pressing issues that stem from the relationship between the technological advancements of the twenty-first century and legal regulation. The development of neurotechnology and artificial intelligence (AI), while offering considerable opportunities for the betterment of social life, also poses unprecedented risks. These challenges manifest in a wide variety of topics. Areas such as human rights treaties, antitrust law, property law, and labor law are affected by these developments. The risks associated with the unregulated use of neurotechnology and AI do not cease at the sectorial stage. Some of the values upon which current democratic systems and governance models are built could be equally threatened. In anticipation of the harming potential of unmitigated technological advances, some governments and international institutions have enacted legal provisions to regulate the current digital landscape. These normative instruments, including the Chilean Constitutional Amendment and European Charts of Digital Rights, are also analyzed in the following pages. The purpose of this article is not purely descriptive, but rather to spark a debate among legal scholars and experts in their respective fields. The approach followed here, dialogical in its nature, may provide a model for further collaboration. It is the authors' understanding that the regulation of neurotechnology and AI requires an interdisciplinary approach that is transnational in its scope." |
| Ashburn | 2023 | Dissociated Decision-Making: Contract Competency Evaluations of Individuals with Dissociative Identity Disorder | Andrea Ashburn | 56 Colum. J.L. & Soc. Probs. 195 | "Dissociative Identity Disorder (DID) is a mental disorder in which the impacted individual develops multiple independent personality states. The existence of DID calls into question countless existing legal concepts, but the vast majority of existing legal scholarship addressing DID primarily discusses criminal issues. Just as it is to the general population, the ability to enter into enforceable contracts is important to the DID community. Without a legal framework that adequately addresses the unique needs of those with DID, these individuals risk losing their right to contract entirely. This Note seeks to further expand the discussion of DID to non-criminal issues by (1) presenting background information on DID as a disorder, (2) examining New York mental health contract law doctrine and its standards governing the competency to enter into a contract, and (3) suggesting that an alternative standard apply to individuals with DID." |
| Derrig | 2022 | What Can a Few Make of Mankind? | Ríán Derrig | 33 Eur. J. Int'l L. 1287 | "Harlan Grant Cohen and Timothy Meyer present International Law as Behavior as a collection that aspires to exemplify and set an agenda for an interdisciplinary movement of scholars studying the ‘behavioral roots of international law’. This review essay places the book within a larger context of interactions between behavioural psychology and social sciences. Identifying the origins of contemporary behavioural international law scholarship in behavioural economics, and especially the 1970s work of the psychologists Amos Tversky and Daniel Kahneman, this essay questions the plausibility of the model of human motivation theorized in International Law as Behavior. Moreover, detailed analysis of the consequences of explaining international law phenomena using behavioural concepts demonstrates that responsibility is systematically under-attributed to the powerful and over-attributed to the vulnerable. Ultimately, this essay contends that viewing legal and social phenomena through behavioural psychology offers little explanatory power, while inuring us to a condition of passivity and control, seeking to replace politics with technique." |
| Coupens | 2022 | Subjectivizing the Negligence Reasonable Person Standard for Persons with Mental Disabilities | Mackenzie Coupens | 100 Denv. L. Rev. 281 | "Hiding under the guise of the fundamental purposes of tort law, the theory of negligence in the United States holds defendants with mental disabilities liable for their actions despite the real possibility that they may be incapable of exercising the required level of care. While individuals with mental disabilities are required to exercise the same level of care as the reasonable, prudent person under the circumstances, the law allows concessions for children and individuals with physical disabilities. For these exceptions, the age and intelligence or physical disability of the defendant are considered part of the circumstances under which the defendant must exercise care. Courts and commentators provide many public policy arguments for why the subjective standard is necessary for children and those with physical disabilities; however, many of the arguments supporting the exceptions are applicable to defendants with mental disabilities.Though the law is intended to provide compensation to injured parties, it strongly disfavors holding someone liable for actions they cannot control. Accordingly, this Comment proposes subjectivizing the reasonable person standard for defendants with mental disabilities to consider how their mental disabilities affect their capacity to act reasonably. As support for a subjective standard, this Comment draws parallels to contributory negligence and tort liability in other countries where individuals are not expected to exercise a level of care that they are incapable of. Additionally, this Comment urges that the societal and scientific understanding of mental disabilities no longer supports the traditional policy reasons for holding individuals with mental disabilities liable for torts without consideration of their ability to exercise the required level of care." |
| McCay | 2023 | What is Neurotechnology and Why Are Lawyers Getting Involved? | Alan McCay, Michelle Sharpe | 2023 | "So, what has been happening? In November of last year, Elon Musk’s Neuralink, a neurotechnology company which had earlier demonstrated that a monkey with one of its brain-implants could play a computer game by thought alone (rather than using its body), announced that it hopes to begin human trials on their device in 2023. Shortly before Christmas, Jeff Bezos and Bill Gates invested in one of Musk’s rivals, Synchron, a company that already has devices implanted in the brains of some humans with neurological conditions, enabling them to interact with a computer and even to tweet to Musk’s own social media platform by thought alone. Arguably Synchron has now increased its lead over Musk’s company given that it has this year published the results of long-term safety studies for its brain-implants. On the legal front, in August the Law Society of England and Wales released a report on the implications of neurotechnology for lawyers. Shortly after this, the UN’s Human Rights Council resolved that it needed to find out about the implications of this technology. Meanwhile, the Chilean Neuroprotection Bill continues to make its way through the legislative process, and earlier this year UNESCO released its neurotech human rights report. At the time of writing, the UK’s Information Commissioner’s Office is just about to release its report on issues that concern it. There’s clearly a ramping up of neurotech-related activity which shows no sign of abating." |
| Brewer | 2023 | Brain Science in American Courts: The Culpable Neurotransmitters | Janet K. Brewer | The Journal of Forensic Practice | "The purpose of this paper is to analyse how novel homicide defences predicated on contemporary neuroscience align with legal insanity. Doctrinal analysis, systematic investigation of relevant statutes and cases, was used to elucidate how the law of insanity is evolving. Cases represent the first recorded instance of a particular neuroscientific defence. US appellate cases were categorised according to the mechanism of action of neurotransmitter relied upon in court. A case study approach was also used to provide a contextualised understanding of the case outcome in depth. Findings broadly depict how the employment of expert testimony runs parallel with our contemporary understanding of key neurotransmitters and their function in human behaviour. Generally, medico-legal evidence concerning neuromodulating agents and violent behaviour was inconclusive. However, the outcome of defence strategy may depend on the underlying neurotransmitter involved. This study shows that as more discoveries are made about the neurobiological underpinnings of human behaviour; this new knowledge will continue to seep into the US court system as innovative defence strategies with varying success. Medical and legal practitioners may gauge the success of a defence depending on the neuromodulating agent. Many scholars have focused on the role of neuroimaging as neuroscientific evidence and how it is used is shaping US criminal jurisprudence. To the best of the author’s knowledge, no study has incorporated the true origin of neuroscientific evidence as being underpinned by the understanding of neurotransmitters." |
| Xie | 2023 | The Impact of Neuromorality on Punishment: Retribution or Rehabilitation? | Sandy Xie, Colleen M. Berryessa & Farah Focquaert | The Palgrave Handbook on the Philosophy of Punishment 441 | "This chapter examines neuromorality and its implications for criminal punishment. Increasing evidence suggests that morality is neurologically influenced, supporting the concept of neuromorality, according to which brain areas and neural networks underlie morality and moral decision-making. As evidence on neuromorality grows, findings may lead to questions about how immorality and related criminal behavior should be punished in the legal system. After reviewing existing neuroscientific evidence that suggests how distinctive neural deficits can negatively impact moral sense and decision-making, and can contribute to offending, we discuss how such evidence could affect perceptions of moral responsibility. We then explore practical and philosophical implications of neuromorality for determining retributive and utilitarian punishments in the legal system. Finally, we conclude by suggesting ways that neurological factors may be integrated into criminal sentencing." |
| Johnson-Gomez | 2023 | The Brain on Death Row: Reconciling Neuroscience & Categorical Exemptions from Execution | Alexa Johnson-Gomez | 24 Minn. J.L. Sci. & Tech. 447 (2023). | "The death penalty has long been a fixture of the American justice system, but in the 21st century, a new player has entered the arena: the brain. Neuroscience has become a crucial tool in assessing moral blameworthiness and determining whether execution is appropriate. It has been used in crafting Eighth Amendment jurisprudence, and in practice, as the sentencing phase of capital trials often features stories about defendants' brains during arguments for mitigating factors. However, as this Note argues, using the brain to establish categorical exemptions from the death penalty has been fraught with challenges, and a fundamental restructuring of its use is necessary. As background, Part I of this Note will first consider Supreme Court jurisprudence on the Eighth Amendment and proportionality of punishments--a critical aspect of how neuroscience fits into categorical exemptions from execution--then engage in a literature review of neuroscience research relevant to discussions of the death penalty. Part II of this Note will lay out the major categorical exemptions from the death penalty and consider how notions about the brain have been foundational to the creation of these exemptions, arguing that the Supreme Court has largely misapplied or failed to apply neuroscience to these categorical exemptions, resulting in problematic constructs and flawed rules." |
| Suuberg | 2023 | Emotional Distress Cliams, Dignitary Torts, and the Medical-Legal Fiction of Reasonable Sensitivity | Allessandra Suuberg | 36 J.L. & Health 113, 114 (2023). | "Can individuals with a highly sensitive temperament recover in tort for intentional infliction of emotional distress (IIED)? In 2019, an article in the University of Memphis Law Review raised this question, referring to the “Highly Sensitive Person” (HSP) construct in psychology and asking whether the IIED tort's ‘reasonable person’ standard discriminates against highly sensitive plaintiffs. Following up on that discussion, the present article considers how the law of IIED has historically treated plaintiffs with diagnosed psychiatric vulnerabilities that are either known or unknown to the defendant. The article also extends this discussion to the law's treatment of temperaments, such as high sensitivity, which are distinct from diagnosed psychiatric disorders; presents hypothetical scenarios with respect to undiagnosed but inferred or predicted vulnerabilities; and explores the history of the dignitary IIED tort and the origins of its reasonableness requirement. This discussion acknowledges that scientific advances can allow uniquely vulnerable plaintiffs to assert harm in new ways--while also (1) pointing out that scientific uncertainties regarding the mind and temperamental sensitivity persist today and (2) touching on clinical and criminal law approaches to intentionally inflicted harms, which can emphasize the defendant's conduct as opposed to the plaintiff's subjective traits or experience for victim-protecting reasons. The purpose of raising these considerations is not to suggest particular reforms or strategies but, rather, to encourage readers to consider the potential impact of focusing on the plaintiff's biology on the one hand, or the defendant's conduct on the other, when deciding how to remedy intentionally inflicted mental harms." |
| Buckingham | 2023 | Abolishing Juvenile Interrogation | Samantha Buckingham | 101 N.C. L. Rev. 1015 (2023). | "Rehabilitation is a paramount consideration in abolishing police interrogation of youth. Interrogation is one of the first interactions young people have with the criminal legal system. Unfortunately, the most common methods of interrogation are coercive rather than consensual. Youth are uniquely vulnerable to coercive methods, especially in conjunction with racial, socioeconomic, and ableist hierarchies. Youth vulnerability requires more protective legal standards than those applied to mature adults. Current police practices, permitted by the very structure of the law, harm youth at a critical stage of their development and legal socialization. Interrogation is a missed opportunity to consider how every legal actor can incentivize youth to respect and follow the law. Reforms and scholarly proposals focused on adjusting police behavior or changing the circumstances of youth interrogation fail to ameliorate harm to youth. This Article examines how police interrogation of a youthful suspect may undercut rehabilitation by damaging that young person's sense of belonging and desire to behave as society hopes. This Article concludes that the most appropriate and practicable solution is a categorical ban on officer-initiated interrogation of youth." |
| Klein | 2023 | Taking Corrigibility Seriously | Dora W. Klein | 28 Berkeley J. Crim. L. 35 (2023). | "When he was seventeen years old, Riley Briones participated in the murder and robbery of a Subway restaurant clerk. After a jury trial, he was found guilty of felony murder and given a mandatory sentence of life in prison without the possibility of parole (LWOP). Over the next two decades, Briones obtained his GED, held a job in the prison, counseled younger inmates, and in general was, even by the government's admission, a “model inmate.” When he was thirty-five years old, the United States Supreme Court decided the case Miller v. Alabama, ruling that mandatory LWOP sentences for juvenile offenders are cruel and unusual and therefore prohibited by the Eighth Amendment. The Court based its decision in part on juveniles' general capacity for change, reasoning that their capacity for change makes juveniles less culpable as well as more amenable to rehabilitation. Because a sentence of LWOP presumes that the offender will never be fit to rejoin society, it should be reserved for the “uncommon” or “rare” juvenile who is “irreparably corrupt.” Mandatory LWOP sentences deny juvenile offenders the opportunity to persuade the sentencing judge or jury that they are capable of change and do not deserve the LWOP sentence. Briones argued, and the district court agreed, that the decision in Miller rendered Briones's mandatory LWOP sentence unconstitutional.When he was nearly forty years old, Briones was granted a new sentencing hearing, at which the judge would determine whether Briones's crimes were the product of “transient immaturity” or whether they were evidence of “permanent incorrigibility.” The resentencing judge acknowledged that Briones had in fact changed since committing his crimes but nevertheless resentenced Briones to LWOP. Briones appealed, arguing that the resentencing decision failed to adequately take account of the evidence that he had the capacity for change, especially the evidence that he had in fact changed. A panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the sentencing decision, but the en banc court reversed--only to have its decision vacated by the U.S. Supreme Court. On remand, the Ninth Circuit affirmed the district court's decision to resentence Briones to LWOP. This article explores the key issue in the Briones case and the thousands of cases like it: the issue of “corrigibility” or capacity for change. This issue is at the heart of the recent “trilogy of Supreme Court cases addressing the Eighth Amendment limits on the sentencing of juvenile offenders. Although the Court's most recent case on this issue, which rolled back some of the protections established in previous cases, is likely to be its last for the foreseeable future, the Court's prior decisions transformed the sentencing of juveniles--excluding juveniles from the death penalty, from LWOP sentences for nonhomicide offenses, and from mandatory LWOP sentences for any offense." |
| Leib-Neri | 2023 | Love, Marriage, & Neurodiversity: Using Neuroscience to Equalize Marriage Rights for People with Intellectual & Developmental Disabilities Under Guardianship Arrangements | Marisa A. Leib-Neri | 108 Iowa L. Rev. 1475 (2023). | "People with intellectual and developmental disabilities (“IDD”) are subjected to strict control through guardianship arrangements. While guardianships are meant to protect people with IDD, they often strip people of self-determination and freedom. In recent years, neuroscience and the neurodiversity movement have redefined our understandings of decision-making capacity, but the law has failed to adopt these advances to the detriment of the disabled. This failure to allow choice and liberty is particularly clear when people with IDD wish to get married or engage in romantic or sexual relationships. This denial of true marriage equality and choice for people with IDD is devoid of scientific understanding and fundamentally discriminatory. States can rectify their antiquated guardianship laws by adopting a supported-decision-making (“SDM”) model that provides assistance in decision-making when needed for romantic relationships and marriage decisions, while continuing to maintain the choice, liberty, and dignity of a person with IDD." |
| Levin | 2023 | Children Sentenced As Adults | Vanessa F. Hernandez Levin | 37 Notre Dame J.L. Ethics & Pub. Pol'y 81 (2023). | "Imagine a situation where a child is sentenced to death. That could never happen, you are thinking. Yet just seventeen years ago, capital punishment was legal for children over the age of sixteen. There has been recognition that our criminal laws should acknowledge juveniles' ages for over one hundred years. That is precisely why we have both juvenile and adult courts. Despite the longstanding recognition of a need for separate courts for juveniles and adults, youths can still be charged and sentenced as adults in certain instances. There has been a shift away from treating adults and children differently and now many of our current laws have not been updated to reflect and incorporate how juveniles are biologically different from adults. This article will analyze juvenile criminal justice laws with a concentration on the transfer process in which juveniles can be tried and sentenced as adults. The article will further discuss policies that should be considered in any new legislation concerning juvenile transfer laws. Every state currently has a transfer process for handling allegations of serious crimes committed by juveniles. Many of these cases are transferred to adult courts where juveniles are tried as adults and face the possibility of a more severe, adult sentence. Most of the juvenile transfer statutes which are still in existence were enacted in the 1980s and 1990s, when crime was on the rise and states were cracking down on juvenile offenders by making it easier to prosecute them as adults." |
| Coffman | 2023 | The Neurological Imprint of Incarceration and Its Effect on Recidivisim | Malcolm Coffman | 37 Notre Dame J.L. Ethics & Pub. Pol'y 251 (2023). | "The idea that incarceration ultimately increases crime is not new. This effect is often attributed to the collateral consequences of conviction: former inmates face disenfranchisement, a loss of employment opportunities, and a restriction of civil rights. But prison takes a neurological toll as well. Like the social and economic penalties that accompany a prison sentence, this too can contribute to reincarceration. For many, the experience of confinement causes behavioral changes that persist even after release. Institutionalization causes some to struggle with the unstructured reality of life on the outside. Harsh prison conditions are psychologically damaging: inmates placed in solitary confinement can develop psychological disorders; those who witness or experience violence may become traumatized; and all are affected by the chronic and repeated stress of prison. It is an environment “so stark and psychologically painful that it represents a form of traumatic stress severe enough to produce post-traumatic stress reactions once released.” Such reactions include impulsivity, abuse of drugs and alcohol, and increased aggression. Outside of prison, these are the behaviors most likely to lead to rearrest. This Note explores those behaviors, their inception, and how they relate to criminal activity. Research in neuroscience and psychology has shown that traumatic environments like prison can change the brain; applying these findings to data on crime and recidivism, I argue that these changes ultimately increase the risk of reoffending. We have a vested interest in the long-term effects of prisons on those inside. Since over 95% of inmates will eventually be released, incarceration should not make them more likely to commit crime. But by exposing inmates to the negative neurological effects of toxic stress and trauma, incarceration may have a criminogenic effect. This is supported by a large body of research showing that prison does not reduce subsequent offending, and may actually increase it. However, despite some researchers attributing this consequence directly to the harsh conditions of imprisonment, the relationship is rarely explored on a neurological level." |
| Nasr | 2023 | Sentencing Kids to Life: New Approaches for Challenging Yourth Life Sentences Under Section 12 of the Charter | Leila Nasr | 48 Queen's L.J. 1 (2023). | "Despite significant changes in youth criminal justice legislation in recent years, sentencing a young person to life continues to be treated as a question of whether and when it is permissible to do so. Using Berger and Kerr's “two-track” framework for section 12 analysis, this paper considers new ways to argue that such sentences may be impermissible by their very nature. It examines two areas where support for this proposition can be found. First, in line with the “severity” track, it explores how current neurobiological and developmental science casts doubt on the appropriateness of the arbitrary 18-year threshold for adult criminal culpability. This suggests a court's decision to effectively assign adult culpability to a youth when sentencing them to life is out of step with the science and will always violate section 12 due to its inherent disproportionality. Second, using the lesser-known “methods” track of section 12, it argues that life sentences may be unconstitutional per se when applied to young people because of the particularly cruel and unusual effects the particular method of punishment has on this demographic. I argue this dual line of section 12 analysis creates space to advance novel arguments for the contention that sentencing a young person to life will always amount to cruel and unusual treatment, and that such sentences will continue to hamper meaningful juvenile justice efforts until they are outlawed." |
| Ligthart | 2021 | Neurolaw: Advances in Neuroscience, Justice & Security | Sjors Ligthart, Dave van Toor, Thomas Douglas, Gerben Meynen | 2021 | "This edited book provides an in-depth examination of the implications of neuroscience for the criminal justice system. It draws together experts from across law, neuroscience, medicine, psychology, criminology, and ethics, and offers an important contribution to current debates at the intersection of these fields. It examines how neuroscience might contribute to fair and more effective criminal justice systems, and how neuroscientific insights and information can be integrated into criminal law in a way that respects fundamental rights and moral values. The book’s first part approaches these questions from a legal perspective, followed by ethical accounts in part two. Its authors address a wide range of topics and approaches: some more theoretical, like those regarding the foundations of punishment; others are more practical, like those concerning the use of brain scans in the courtroom. Together, they illustrate the thoroughly interdisciplinary nature of the debate, in which science, law and ethics are closely intertwined. It will appeal in particular to students and scholars of law, neuroscience, criminology, socio-legal studies and philosophy." |
| Murrey | 2008 | The Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys | Gregory Murrey, Donald Starzinski | 2008 | "Drawing on the expertise of several well-known figures in the medical, neuropsychological, and legal professions, Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys, Second Edition provides a concise, general overview of the forensic assessment process and the issues surrounding Traumatic Brain Injury (TBI). The book identifies key topics involved in forensic assessment, including definitions and select medical diagnostic terminology, and reviews the neurologic, neuropsychiatric, neuropsychological, and psychological assessment processes specific to brain injury cases. The second edition is updated and revised to include a new chapter on neuropsychiatric evaluation as performed by a clinical or forensic neuropsychiatrist. It delineates the distinct differences between the forensic neurological and neuropsychiatric assessments, acknowledging the overlaps and defining the separate focus of each discipline. New information on forensic testimony and the forensic examiner as an expert witness covers the qualifications and credibility of the forensic expert and the admissibility of expert testimony in TBI cases. The handbook highlights the most recent court rulings and possible modification to the admissibility of forensic testimony. Also new to this edition is a chapter on neuropsychological rehabilitation issues after TBI. It outlines crucial information on treatments, services, and facilities that may be required temporarily or ongoing and thus have bearing during litigation and on the outcome of a traumatic brain injury case. Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys, Second Edition offers clinically useful and practical tables and reference pages that are indispensable for forensic examiners, expert witnesses, and legal professionals alike." |
| Mahlmann | 2023 | Mind and Rights: The History, Ethic, Law and Psychology of Human Rights | Matthias Mahlmann | 2023 | "Mind and Rights combines historical, philosophical, and legal perspectives with research from psychology and the cognitive sciences to probe the justification of human rights in ethics, politics and law. Chapters critically examine the growth of the human rights culture, its roots in history and current human rights theories. They engage with the so-called cognitive revolution and investigate the relationship between human cognition and human rights to determine how insights gained from modern theories of the mind can deepen our understanding of the foundations of human rights. Mind and Rights argues that the pursuit of the human rights idea, with its achievements and tragic failures, is key to understand what kind of beings humans are. Amidst ongoing debate on the universality and legitimacy of human rights, this book provides a uniquely comprehensive analysis of great practical and political importance for a culture of legal justice undergirded by rights. This title is also available as open access on Cambridge Core." |
| Alces | 2023 | Trialectic: The Confluence of Law, Neuroscience, and Morality | Peter A. Alces | University of Chicago Press (2023). | |
| Sapolsky | 2023 | Determined: A Science of Life Without Free Will | Robert M. Sapolsky | Penguin Press (2023). | |
| Buccafusco | 2023 | There's No Such Thing As Independent Creation, and It's A Good Thing, Too | Christopher Buccafusco | 64 Wm. & Mary L. Rev. 1617 (2023). | |
| Spivak-Birndorf | 2023 | Keeping Up with New Legal Titles | Chava Spivak-Birndorf, Matt Timko | 115 Law Libr. J. 307 (2023). | |
| Caminatti | 2023 | Copyrighting Brain Computer Interface: Where Neuroengineering Meets Intellectual Property Law | Favio Ramirez Caminatti | 14 Cybaris An Intell. Prop. L. Rev. 1 (2023). | |
| Raymond | 2023 | 25 Is the New 18: Extending Juvenile Jurisdiction and Closing Its Exceptions | Dylan Raymond | 2023 Utah L. Rev. 727 (2023). | |
| Hoffman | 2022 | Cognitive Decline and the Workplace | Sharona Hoffman | 57 Wake Forest L. Rev. 115 (2022). | |
| Beier | 2022 | Applied Neuroscience Needs a Task Force to Craft Effective Governance | David Beier, Lucy Tournas, Gary Marchant | STAT News (2022). | |
| Marchant | 2019 | Filling the Governance Gap: International Principles for Responsible Development of Neurotechnologies | Gary Marchant, Lucy Tournas | 10 AJOB Neuroscience 176 (2019). | |
| 2023 | The Brain on Death Row: Reconciling Neuroscience & Categorical Exemptions from Execution | Alexa Johnson-Gomez | 24 Minn. J.L. Sci. & Tech. 447 (2023). | "The death penalty has long been a fixture of the American justice system, but in the 21st century, a new player has entered the arena: the brain. Neuroscience has become a crucial tool in assessing moral blameworthiness and determining whether execution is appropriate. It has been used in crafting Eighth Amendment jurisprudence, and in practice, as the sentencing phase of capital trials often features stories about defendants' brains during arguments for mitigating factors. However, as this Note argues, using the brain to establish categorical exemptions from the death penalty has been fraught with challenges, and a fundamental restructuring of its use is necessary. As background, Part I of this Note will first consider Supreme Court jurisprudence on the Eighth Amendment and proportionality of punishments--a critical aspect of how neuroscience fits into categorical exemptions from execution--then engage in a literature review of neuroscience research relevant to discussions of the death penalty. Part II of this Note will lay out the major categorical exemptions from the death penalty and consider how notions about the brain have been foundational to the creation of these exemptions, arguing that the Supreme Court has largely misapplied or failed to apply neuroscience to these categorical exemptions, resulting in problematic constructs and flawed rules." | |
| 2023 | Emotional Distress Cliams, Dignitary Torts, and the Medical-Legal Fiction of Reasonable Sensitivity | Allessandra Suuberg | 36 J.L. & Health 113, 114 (2023). | "Can individuals with a highly sensitive temperament recover in tort for intentional infliction of emotional distress (IIED)? In 2019, an article in the University of Memphis Law Review raised this question, referring to the “Highly Sensitive Person” (HSP) construct in psychology and asking whether the IIED tort's ‘reasonable person’ standard discriminates against highly sensitive plaintiffs. Following up on that discussion, the present article considers how the law of IIED has historically treated plaintiffs with diagnosed psychiatric vulnerabilities that are either known or unknown to the defendant. The article also extends this discussion to the law's treatment of temperaments, such as high sensitivity, which are distinct from diagnosed psychiatric disorders; presents hypothetical scenarios with respect to undiagnosed but inferred or predicted vulnerabilities; and explores the history of the dignitary IIED tort and the origins of its reasonableness requirement. This discussion acknowledges that scientific advances can allow uniquely vulnerable plaintiffs to assert harm in new ways--while also (1) pointing out that scientific uncertainties regarding the mind and temperamental sensitivity persist today and (2) touching on clinical and criminal law approaches to intentionally inflicted harms, which can emphasize the defendant's conduct as opposed to the plaintiff's subjective traits or experience for victim-protecting reasons. The purpose of raising these considerations is not to suggest particular reforms or strategies but, rather, to encourage readers to consider the potential impact of focusing on the plaintiff's biology on the one hand, or the defendant's conduct on the other, when deciding how to remedy intentionally inflicted mental harms." | |
| 2023 | Abolishing Juvenile Interrogation | Samantha Buckingham | 101 N.C. L. Rev. 1015 (2023). | "Rehabilitation is a paramount consideration in abolishing police interrogation of youth. Interrogation is one of the first interactions young people have with the criminal legal system. Unfortunately, the most common methods of interrogation are coercive rather than consensual. Youth are uniquely vulnerable to coercive methods, especially in conjunction with racial, socioeconomic, and ableist hierarchies. Youth vulnerability requires more protective legal standards than those applied to mature adults. Current police practices, permitted by the very structure of the law, harm youth at a critical stage of their development and legal socialization. Interrogation is a missed opportunity to consider how every legal actor can incentivize youth to respect and follow the law. Reforms and scholarly proposals focused on adjusting police behavior or changing the circumstances of youth interrogation fail to ameliorate harm to youth. This Article examines how police interrogation of a youthful suspect may undercut rehabilitation by damaging that young person's sense of belonging and desire to behave as society hopes. This Article concludes that the most appropriate and practicable solution is a categorical ban on officer-initiated interrogation of youth." | |
| 2023 | Taking Corrigibility Seriously | Dora W. Klein | 28 Berkeley J. Crim. L. 35 (2023). | "When he was seventeen years old, Riley Briones participated in the murder and robbery of a Subway restaurant clerk. After a jury trial, he was found guilty of felony murder and given a mandatory sentence of life in prison without the possibility of parole (LWOP). Over the next two decades, Briones obtained his GED, held a job in the prison, counseled younger inmates, and in general was, even by the government's admission, a “model inmate.” When he was thirty-five years old, the United States Supreme Court decided the case Miller v. Alabama, ruling that mandatory LWOP sentences for juvenile offenders are cruel and unusual and therefore prohibited by the Eighth Amendment. The Court based its decision in part on juveniles' general capacity for change, reasoning that their capacity for change makes juveniles less culpable as well as more amenable to rehabilitation. Because a sentence of LWOP presumes that the offender will never be fit to rejoin society, it should be reserved for the “uncommon” or “rare” juvenile who is “irreparably corrupt.” Mandatory LWOP sentences deny juvenile offenders the opportunity to persuade the sentencing judge or jury that they are capable of change and do not deserve the LWOP sentence. Briones argued, and the district court agreed, that the decision in Miller rendered Briones's mandatory LWOP sentence unconstitutional.When he was nearly forty years old, Briones was granted a new sentencing hearing, at which the judge would determine whether Briones's crimes were the product of “transient immaturity” or whether they were evidence of “permanent incorrigibility.” The resentencing judge acknowledged that Briones had in fact changed since committing his crimes but nevertheless resentenced Briones to LWOP. Briones appealed, arguing that the resentencing decision failed to adequately take account of the evidence that he had the capacity for change, especially the evidence that he had in fact changed. A panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the sentencing decision, but the en banc court reversed--only to have its decision vacated by the U.S. Supreme Court. On remand, the Ninth Circuit affirmed the district court's decision to resentence Briones to LWOP. This article explores the key issue in the Briones case and the thousands of cases like it: the issue of “corrigibility” or capacity for change. This issue is at the heart of the recent “trilogy of Supreme Court cases addressing the Eighth Amendment limits on the sentencing of juvenile offenders. Although the Court's most recent case on this issue, which rolled back some of the protections established in previous cases, is likely to be its last for the foreseeable future, the Court's prior decisions transformed the sentencing of juveniles--excluding juveniles from the death penalty, from LWOP sentences for nonhomicide offenses, and from mandatory LWOP sentences for any offense." | |
| 2023 | Love, Marriage, & Neurodiversity: Using Neuroscience to Equalize Marriage Rights for People with Intellectual & Developmental Disabilities Under Guardianship Arrangements | Marisa A. Leib-Neri | 108 Iowa L. Rev. 1475 (2023). | "People with intellectual and developmental disabilities (“IDD”) are subjected to strict control through guardianship arrangements. While guardianships are meant to protect people with IDD, they often strip people of self-determination and freedom. In recent years, neuroscience and the neurodiversity movement have redefined our understandings of decision-making capacity, but the law has failed to adopt these advances to the detriment of the disabled. This failure to allow choice and liberty is particularly clear when people with IDD wish to get married or engage in romantic or sexual relationships. This denial of true marriage equality and choice for people with IDD is devoid of scientific understanding and fundamentally discriminatory. States can rectify their antiquated guardianship laws by adopting a supported-decision-making (“SDM”) model that provides assistance in decision-making when needed for romantic relationships and marriage decisions, while continuing to maintain the choice, liberty, and dignity of a person with IDD." | |
| 2023 | Children Sentenced As Adults | Vanessa F. Hernandez Levin | 37 Notre Dame J.L. Ethics & Pub. Pol'y 81 (2023). | "Imagine a situation where a child is sentenced to death. That could never happen, you are thinking. Yet just seventeen years ago, capital punishment was legal for children over the age of sixteen. There has been recognition that our criminal laws should acknowledge juveniles' ages for over one hundred years. That is precisely why we have both juvenile and adult courts. Despite the longstanding recognition of a need for separate courts for juveniles and adults, youths can still be charged and sentenced as adults in certain instances. There has been a shift away from treating adults and children differently and now many of our current laws have not been updated to reflect and incorporate how juveniles are biologically different from adults. This article will analyze juvenile criminal justice laws with a concentration on the transfer process in which juveniles can be tried and sentenced as adults. The article will further discuss policies that should be considered in any new legislation concerning juvenile transfer laws. Every state currently has a transfer process for handling allegations of serious crimes committed by juveniles. Many of these cases are transferred to adult courts where juveniles are tried as adults and face the possibility of a more severe, adult sentence. Most of the juvenile transfer statutes which are still in existence were enacted in the 1980s and 1990s, when crime was on the rise and states were cracking down on juvenile offenders by making it easier to prosecute them as adults." | |
| 2023 | The Neurological Imprint of Incarceration and Its Effect on Recidivisim | Malcolm Coffman | 37 Notre Dame J.L. Ethics & Pub. Pol'y 251 (2023). | "The idea that incarceration ultimately increases crime is not new. This effect is often attributed to the collateral consequences of conviction: former inmates face disenfranchisement, a loss of employment opportunities, and a restriction of civil rights. But prison takes a neurological toll as well. Like the social and economic penalties that accompany a prison sentence, this too can contribute to reincarceration. For many, the experience of confinement causes behavioral changes that persist even after release. Institutionalization causes some to struggle with the unstructured reality of life on the outside. Harsh prison conditions are psychologically damaging: inmates placed in solitary confinement can develop psychological disorders; those who witness or experience violence may become traumatized; and all are affected by the chronic and repeated stress of prison. It is an environment “so stark and psychologically painful that it represents a form of traumatic stress severe enough to produce post-traumatic stress reactions once released.” Such reactions include impulsivity, abuse of drugs and alcohol, and increased aggression. Outside of prison, these are the behaviors most likely to lead to rearrest. This Note explores those behaviors, their inception, and how they relate to criminal activity. Research in neuroscience and psychology has shown that traumatic environments like prison can change the brain; applying these findings to data on crime and recidivism, I argue that these changes ultimately increase the risk of reoffending. We have a vested interest in the long-term effects of prisons on those inside. Since over 95% of inmates will eventually be released, incarceration should not make them more likely to commit crime. But by exposing inmates to the negative neurological effects of toxic stress and trauma, incarceration may have a criminogenic effect. This is supported by a large body of research showing that prison does not reduce subsequent offending, and may actually increase it. However, despite some researchers attributing this consequence directly to the harsh conditions of imprisonment, the relationship is rarely explored on a neurological level." | |
| 2023 | Sentencing Kids to Life: New Approaches for Challenging Yourth Life Sentences Under Section 12 of the Charter | Leila Nasr | 48 Queen's L.J. 1 (2023). | "Despite significant changes in youth criminal justice legislation in recent years, sentencing a young person to life continues to be treated as a question of whether and when it is permissible to do so. Using Berger and Kerr's “two-track” framework for section 12 analysis, this paper considers new ways to argue that such sentences may be impermissible by their very nature. It examines two areas where support for this proposition can be found. First, in line with the “severity” track, it explores how current neurobiological and developmental science casts doubt on the appropriateness of the arbitrary 18-year threshold for adult criminal culpability. This suggests a court's decision to effectively assign adult culpability to a youth when sentencing them to life is out of step with the science and will always violate section 12 due to its inherent disproportionality. Second, using the lesser-known “methods” track of section 12, it argues that life sentences may be unconstitutional per se when applied to young people because of the particularly cruel and unusual effects the particular method of punishment has on this demographic. I argue this dual line of section 12 analysis creates space to advance novel arguments for the contention that sentencing a young person to life will always amount to cruel and unusual treatment, and that such sentences will continue to hamper meaningful juvenile justice efforts until they are outlawed." | |
| 2021 | Neurolaw: Advances in Neuroscience, Justice & Security | Sjors Ligthart, Dave van Toor, Thomas Douglas, Gerben Meynen | 2021 | "This edited book provides an in-depth examination of the implications of neuroscience for the criminal justice system. It draws together experts from across law, neuroscience, medicine, psychology, criminology, and ethics, and offers an important contribution to current debates at the intersection of these fields. It examines how neuroscience might contribute to fair and more effective criminal justice systems, and how neuroscientific insights and information can be integrated into criminal law in a way that respects fundamental rights and moral values. The book’s first part approaches these questions from a legal perspective, followed by ethical accounts in part two. Its authors address a wide range of topics and approaches: some more theoretical, like those regarding the foundations of punishment; others are more practical, like those concerning the use of brain scans in the courtroom. Together, they illustrate the thoroughly interdisciplinary nature of the debate, in which science, law and ethics are closely intertwined. It will appeal in particular to students and scholars of law, neuroscience, criminology, socio-legal studies and philosophy." | |
| 2008 | The Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys | Gregory Murrey, Donald Starzinski | 2008 | "Drawing on the expertise of several well-known figures in the medical, neuropsychological, and legal professions, Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys, Second Edition provides a concise, general overview of the forensic assessment process and the issues surrounding Traumatic Brain Injury (TBI). The book identifies key topics involved in forensic assessment, including definitions and select medical diagnostic terminology, and reviews the neurologic, neuropsychiatric, neuropsychological, and psychological assessment processes specific to brain injury cases. The second edition is updated and revised to include a new chapter on neuropsychiatric evaluation as performed by a clinical or forensic neuropsychiatrist. It delineates the distinct differences between the forensic neurological and neuropsychiatric assessments, acknowledging the overlaps and defining the separate focus of each discipline. New information on forensic testimony and the forensic examiner as an expert witness covers the qualifications and credibility of the forensic expert and the admissibility of expert testimony in TBI cases. The handbook highlights the most recent court rulings and possible modification to the admissibility of forensic testimony. Also new to this edition is a chapter on neuropsychological rehabilitation issues after TBI. It outlines crucial information on treatments, services, and facilities that may be required temporarily or ongoing and thus have bearing during litigation and on the outcome of a traumatic brain injury case. Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys, Second Edition offers clinically useful and practical tables and reference pages that are indispensable for forensic examiners, expert witnesses, and legal professionals alike." | |
| 2023 | Mind and Rights: The History, Ethic, Law and Psychology of Human Rights | Matthias Mahlmann | 2023 | "Mind and Rights combines historical, philosophical, and legal perspectives with research from psychology and the cognitive sciences to probe the justification of human rights in ethics, politics and law. Chapters critically examine the growth of the human rights culture, its roots in history and current human rights theories. They engage with the so-called cognitive revolution and investigate the relationship between human cognition and human rights to determine how insights gained from modern theories of the mind can deepen our understanding of the foundations of human rights. Mind and Rights argues that the pursuit of the human rights idea, with its achievements and tragic failures, is key to understand what kind of beings humans are. Amidst ongoing debate on the universality and legitimacy of human rights, this book provides a uniquely comprehensive analysis of great practical and political importance for a culture of legal justice undergirded by rights. This title is also available as open access on Cambridge Core." | |
| 2023 | Trialectic: The Confluence of Law, Neuroscience, and Morality | Peter A. Alces | University of Chicago Press (2023). | "As emerging neuroscientific insights change our understanding of what it means to be human, the law must grapple with monumental questions, both metaphysical and practical. Recent advances pose significant philosophical challenges: how do neuroscientific revelations redefine our conception of morality, and how should the law adjust accordingly? Trialectic takes account of those advances, arguing that they will challenge normative theory most profoundly. If all sentient beings are the coincidence of mechanical forces, as science suggests, then it follows that the time has come to reevaluate laws grounded in theories dependent on the immaterial that distinguish the mental and emotional from the physical. Legal expert Peter A. Alces contends that such theories are misguided—so misguided that they undermine law and, ultimately, human thriving. Building on the foundation outlined in his previous work, The Moral Conflict of Law and Neuroscience, Alces further investigates the implications for legal doctrine and practice." | |
| 2023 | Determined: A Science of Life Without Free Will | Robert M. Sapolsky | Penguin Press (2023). | "Robert Sapolsky’s Behave, his now classic account of why humans do good and why they do bad, pointed toward an unsettling conclusion: We may not grasp the precise marriage of nature and nurture that creates the physics and chemistry at the base of human behavior, but that doesn’t mean it doesn’t exist. Now, in Determined, Sapolsky takes his argument all the way, mounting a brilliant (and in his inimitable way, delightful) full-frontal assault on the pleasant fantasy that there is some separate self telling our biology what to do. Determined offers a marvelous synthesis of what we know about how consciousness works—the tight weave between reason and emotion and between stimulus and response in the moment and over a life. One by one, Sapolsky tackles all the major arguments for free will and takes them out, cutting a path through the thickets of chaos and complexity science and quantum physics, as well as touching ground on some of the wilder shores of philosophy. He shows us that the history of medicine is in no small part the history of learning that fewer and fewer things are somebody’s “fault”; for example, for centuries we thought seizures were a sign of demonic possession. Yet, as he acknowledges, it’s very hard, and at times impossible, to uncouple from our zeal to judge others and to judge ourselves. Sapolsky applies the new understanding of life beyond free will to some of our most essential questions around punishment, morality, and living well together. By the end, Sapolsky argues that while living our daily lives recognizing that we have no free will is going to be monumentally difficult, doing so is not going to result in anarchy, pointlessness, and existential malaise. Instead, it will make for a much more humane world." | |
| 2023 | There's No Such Thing As Independent Creation, and It's A Good Thing, Too | Christopher Buccafusco | 64 Wm. & Mary L. Rev. 1617 (2023). | "Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law's independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those assumptions are replaced with contemporary accounts of how human *1618 memory influences the creative process, the independent creation doctrine becomes empirically meaningless. Independent creation, as copyright law understands it, does not exist." | |
| 2023 | Keeping Up with New Legal Titles | Chava Spivak-Birndorf, Matt Timko | 115 Law Libr. J. 307 (2023). | ||
| 2023 | Copyrighting Brain Computer Interface: Where Neuroengineering Meets Intellectual Property Law | Favio Ramirez Caminatti | 14 Cybaris An Intell. Prop. L. Rev. 1 (2023). | "This article explores the legal implications of content generated by human authors but with significant interference from neural engineering devices. I begin defining brain-computer interface as an area within the scope of neuroengineering. Then, I explore the different approaches to the legal definition of authorship in the United States and Europe, with special attention to the present standards of originality, and analyze how the present and future biotechnological advances may alter that scope. Additionally, I explore, from a policy standpoint, whether intellectual property (IP) protections awarded to humans for their independently created content should apply to content that could have only been developed with the meddling of brain-computer interface (BCI). Finally, this paper presents four different approaches to take into consideration when jurisdictions legislate on the presented issue." | |
| 2023 | 25 Is the New 18: Extending Juvenile Jurisdiction and Closing Its Exceptions | Dylan Raymond | 2023 Utah L. Rev. 727 (2023). | "Courts are in broad agreement that juveniles--defined as people under 18-years-old--are less culpable than adults and thus punish them differently. Indeed, few would disagree that the adult criminal system should apply only to adults--people “fully developed and mature.” If separating adults and juveniles based on culpability is the goal, it begs a simple question: should the split happen at age 18? Some U.S. institutions imply that they believe an 18-year-old lacks the requisite maturity to assume certain responsibilities, including the House of Representatives and car rental agencies, which permit participation at 25. Looking globally, important institutions like the United Nations mark the start of adulthood at age 25. These entities align with mounting evidence from brain development research suggesting that a rational brain fully forms around age 25. Until the point of full brain maturity, “emerging adults”8-- ages 18 to 25--are “developmentally distinct from older adults ... particularly in the prefrontal cortex region, which regulates impulse control and reasoning.” As a result, when compared to adults, emerging adults take more risks, are more prone to emotional outbursts, and disregard future consequences.These traits echo the foundation of courts' reasoning that juveniles are less culpable than adults. Thus, courts' current approach of treating juveniles and emerging adults differently is misguided. Emerging adults should take part in the juvenile system because emerging adults are more developmentally similar to juveniles than older adults. And not only do the developmental similarities call for reduced culpability, but they also link to the key forward-looking trait of emerging adults and juveniles: a unique susceptibility to rehabilitation stemming from brain plasticity. Finally, emerging adults occupy a challenging socio-economic space distinct from adulthood and childhood.14 The juvenile system is better suited for these developmental and socio-economic traits of emerging adults.Yet the age limit of juvenile jurisdiction in the U.S. (the last year minors are subject to the juvenile system) is 17 in 46 states and Washington D.C., 16 in three states, and 18 in Vermont (which was scheduled to increase the age of juvenile jurisdiction to 20 by 2024). But 20, like 17, is still premature; instead, states should gradually raise the age to 25. Further, the current juvenile system in the United States allows juveniles to be tried and punished as adults, a practice abandoned in other developed countries.16 The reasons that emerging adults are less culpable than adults over and are susceptible to rehabilitation apply to juveniles even more, and juveniles should be addressed solely in the system created for them. As such, states should eliminate procedural mechanisms that transfer juveniles to the adult system. This Note argues, first, that states should raise the age of juvenile jurisdiction to 25 to include emerging adults in the juvenile system until they are fully mature, and second, that states should eliminate current practices of transferring juveniles to the adult criminal system. Part I details the developmental and socio-economic differences between emerging adults and adults, and Part II describes the history and potential of the juvenile system and outlines the U.S. practice of punishing juveniles as adults. Part III makes a case for raising the age of juvenile jurisdiction to 25 and eliminating the juvenile transfer system, based on culpability, practicality, and the public interest in rehabilitating emerging adults. By implementing these two solutions, states can better align with the current scientific research and principles of culpability-aligned justice, while also maximizing the chance of rehabilitating justice-involved emerging adults into everyday society." | |
| 2022 | Cognitive Decline and the Workplace | Sharona Hoffman | 57 Wake Forest L. Rev. 115 (2022). | "Cognitive decline will increasingly become a workplace concern because of three intersecting trends. First, the American population is aging. In 2019, 16.5 percent of the population, or fifty-four million people, were age sixty-five and over, and the number is expected to increase to seventy-eight million by 2025. Dementia is not uncommon among older adults, and by the age of eighty-five, between 25 and 50 percent of individuals suffer from this condition. Second, many individuals are postponing retirement and prolonging their working lives. For example, about a quarter of physicians are over sixty-five, as are 15 percent of attorneys. The average age of federal judges is sixty-nine. Third, a variety of technologies, such as positron emission tomography (“PET”) scans, spinal taps, genetic tests, and even blood tests now enable physicians to detect potential signs of dementia long before symptoms emerge. Employers may well be tempted to pursue these diagnostic tools because cognitive decline can cause a multitude of complex challenges in the workplace, threatening productivity, workplace morale, and public safety. The question of how to handle cognitive decline in the workforce has received very limited attention in the legal literature. This Article strives to treat the subject in a balanced way, considering the interests and difficulties faced by all stakeholders: employers, workers, and the public. It examines and critiques a variety of strategies that employers could implement, including mandatory retirement ages, mandatory cognitive testing for older employees or all employees, testing for dementia biomarkers, and an approach of individualized assessment. It evaluates these approaches in light of the relevant federal laws that prohibit age, disability, and disparate impact discrimination and suggests necessary statutory revisions. The Article concludes with detailed recommendations to help employers, employees, and professional associations appropriately manage this very sensitive matter." | |
| 2022 | Applied Neuroscience Needs a Task Force to Craft Effective Governance | David Beier, Lucy Tournas, Gary Marchant | STAT News (2022). | "In the United States alone, more than 100 million people are affected by at least one neurological disease. These conditions, which range from Alzheimer’s disease to depression and Parkinson’s disease, cost the health care system almost $800 billion per year. The toll is far higher if you add in the almost unquantifiable financial and emotional costs of diminished quality of life and caretaking. While the brain has historically been difficult to study directly, applied neuroscience is on the verge of transformative breakthroughs that could provide enormous benefits — as well as harms." | |
| 2019 | Filling the Governance Gap: International Principles for Responsible Development of Neurotechnologies | Gary Marchant, Lucy Tournas | 10 AJOB Neuroscience 176 (2019). | ||
| 2023 | Epilepsy Driving Laws: Seizing Fiction over Fact? | Colby Birkes | 61 U. Louisville L. Rev. 649 (2023). | "Part I of this Note offers an overview of epilepsy, including its causes, symptoms, treatments, and types. It then explores the history of the disease, analyzed through philosophical, medical, and socio-economic lenses. Part II introduces modern EDLs by discussing the seven most common tenets of these laws. Part III categorizes the laws into three groups (strict, moderate, and progressive) based on those seven tenets. Finally, Part IV outlines the solution, which revisits the modern EDLs and encourages the adoption of incremental revisions within the states' existing regulatory frameworks. The solution proposes using Medical Advisory Boards (MABs) and treating physicians to foster a better alignment between the laws and modern data and understanding of epilepsy. Moreover, it pushes for a legal distinction between the many types of epilepsy and the consideration of mitigating factors." | |
| 2023 | The United Nations Convention on the Rights of Persons with Disabilities, Neuroscience, and Criminal Legal Capacity | Benjamin A. Barsky, Michael Ashley Stein | 10 J.L. & Biosciences 1 (2023). | "The United Nations Convention on the Rights of Persons with Disabilities requires states parties to ‘recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.’ This mandate has sparked debate about the interpretation of legal capacity, including within the criminal context as applied to the retrogressively named ‘insanity defense.’ Yet, under-examined are two questions: First, what defenses should defendants with psychosocial disabilities be able to invoke during criminal prosecutions? Second, what kind of evidence is consistent with, on the one hand, determining a defendant's decision-making capacity to establish culpability and, on the other hand, the right to equal recognition before the law? Developments in neuroscience offer a unique prism to grapple with these issues. We argue that neuroscientific evidence of impaired decision-making, insofar as it presents valid and interpretable diagnostic information, can be a useful tool for influencing judicial decision-making and outcomes in criminal court. In doing so, we oppose the argument espoused by significant members of the global disability rights community that bioscientific evidence of psychosocial disability should be inadmissible to negate criminal responsibility. Such a position risks more defendants being punished harshly, sentenced to death, and placed in solitary confinement." | |
| 2023 | The Pros and Cons of Neuroscience in the Legal System | Aiden Fel | 44 BIFOCAL 90 (2023). | "The role of neuroscience in criminal liability has been a topic of much debate in recent years. Some argue that neuroscience is irrelevant in criminal court, while others contend that it can help establish that many criminals lack control over their behavior. However, the truth is likely somewhere in the middle, as certain types of neuroscience evidence may prove useful and relevant in criminal trials." | |
| 2023 | The Various Facs of Vulnerability: Offering Neurointerventions to Criminal Offenders | Sjors Ligthart, Emma Dore-Horgan, Gerben Meynen | 10 J.L. & Biosciences 1 (2023). | "In recent years, we have witnessed considerable progress in neurotechnologies that visualize or alter a person's brain and mental features. In the near future, some of these technologies could possibly be used to change neural parameters of high-risk behavior in criminal offenders, often referred to as neurointerventions. The idea of delivering neurointerventions to criminal justice populations has raised fundamental normative concerns, but some authors have argued that offering neurointerventions to convicted offenders could be permissible. However, such offers raise normative concerns too. One prominent worry that is often emphasized in the literature, relates to the vulnerability of convicted offenders in prison and forensic patients in mental health facilities. In this paper, we aim to show that as far as vulnerability is considered relevant within the context of offering medical interventions to offenders, it could contribute to arguments against as well as in favor of these offers." | |
| 2023 | The Legal Personhood of Human Brain Organoids | Masanori Kataoka, Tsung-Ling Lee, Tsutomu Sawai | 10 J.L. & Biosciences 1 (2023). | "Research using three-dimensional neural tissues derived from human pluripotent stem cells--known as ‘human brain organoids'--has progressed rapidly in recent years. Although related ethical issues have been intensively discussed, legal issues have only been sparsely examined compared with the related ethical issues. In this paper, we explore a fundamental issue concerning the legal status of human brain organoids: whether they can be considered legal persons. We clearly distinguish between two types of legal personhood: ‘natural person’ as a human legal person and ‘juridical person’ as a nonhuman legal person. By examining natural and juridical personhood separately, we point out the bias and confusion in the remarks on the legal personhood of human brain organoids and provide a more comprehensive picture of the problem." | |
| 2023 | All Cases Matter: Mitigating Bias in the Administrative Law Judiciary | Cherron Payne | 43 J. Nat'l Ass'n Admin. L. Judiciary 1 (2023). | "Part II of this article explores the issue of bias and the underlying factors that configure bias, such as attitude, stereotype, and prejudice. Part II also examines the two principal types of bias, explicit bias and implicit bias, and defines common subsets of bias, such as gender bias. Part III presents implicit bias as an unconscious, utilitarian, and neuroscientific mechanism. Part III examines the neuroscience of decision-making and the neural structures that influence and regulate decision-making processes. Part III also discusses emotion as an underpinning to decision-making and the role of emotion in implicit bias. Furthermore, the amygdala in the brain will be examined regarding its critical role in mediating emotion, fear, and the generation of implicit bias. Part IV discusses the individualized or personal factors that influence bias. This section also illustrates systematic factors that may elicit bias, such as diminished resources in administrative tribunals. Part V addresses the administrative law judiciary's susceptibility to bias due to systemic factors, such as resource allocation. This section also discusses the typical resource allocation in the administrative law judiciary and how diminished resources affect decision-making and fuel bias. Section V also presents a Connecticut case study examining the lived experiences of judges as an empirical basis to support the nexus between resource allocation and bias. Part VI introduces the 4-D deflate, debias, defend, and data approach as a paradigm for mitigating bias, along with a description of practical methods of mitigating bias in the judiciary. Part VII concludes this article by underscoring the need for bias mitigation and impartial administrative hearings." | |
| 2023 | Human Rights Systems of Protection from Neurotechnologies That Alter Brain Activity | Marta Sosa Navarro, Salvador Dura-Bernal | 15 Drexel L. Rev. 893 (2023). | "The relationship between technology and the law is traditionally known to be complex--especially when it comes to neurotechnology. Neurotechnology is the science and technology that can read and modify the brain, which is the organ responsible for our thoughts, perceptions, agency, and identity. Therefore, it is unquestionable that the regulator faces an unprecedented challenge to mitigate negative impacts of neurotechnology. The rapid development of neurotechnology and the readiness of the market to implement the techniques developed in the medical arena into direct-to-consumer devices calls for a global reflection on the risks that the non-medical use of neurotechnology may pose for human rights. This concern has led to the proliferation of reports and recommendations by regional and international policy-makers on one side and, on the other, to the emergence of uncoordinated domestic legislative proposals. Privacy concerns regarding brain data and their potential to violate human rights, such as the right to freedom of thought, and criminal procedural rights, such as the right to a defense and the right to remain silent, have been examined by scholars from different perspectives. However, the actual risks that direct-to-consumer neurotechnologies that can alter brain activity pose for individuals' human rights have received less attention. This Article aims to contribute to the existing discussions on whether regional and international systems of human *894 rights protection are fit to tackle the specific challenges posed by the non-medical applications of neurostimulation." | |
| 2023 | The Data We Leave Behind: Limits of Legal Protections for Neurotechnology and Genomic Data | Robert I. Field | 15 Drexel L. Rev. 769 (2023). | "It is almost impossible to go through a day without leaving digital traces through activities ranging from web searches to social media postings to use of smart phone apps. These traces permit providers of web-based services to amass large amounts of personal information that can be used to discern a user's interests, attitudes, preferences, behaviors, and other characteristics. In recent years, the companies that provide these services have begun to collect new kinds of especially sensitive biometric information, first reflecting genetic makeup and more recently reflecting neurotechnology measures of brain activity. Data on individual genetic traits and on entire genomes reveal the underlying nature of our physiological makeup, and brain data can reveal our innermost thoughts, even unconscious ones. Both kinds of data are collected on a wide scale by companies that offer testing services to customers on a direct-to-consumer (DTC) basis. While these data are enabling tremendous medical advances, they also create new risks should they be improperly disclosed, including discrimination, psychological, and social stress from unwanted revelations, and identification of third parties. Privacy has been recognized as a human right for almost a century, both in global covenants and in American laws. However, the laws that protect privacy in the United States leave significant gaps, especially regarding personal data collected by DTC testing companies. At the same time, personal data have tremendous economic value, creating an incentive for companies to collect as much as possible. Proposed federal legislation would tighten legal oversight, but, even if enacted, its protections are limited regarding data sharing with external entities and risks to third parties. This Article proposes further reforms that would mandate standardized privacy policies for DTC testing companies that clearly disclose data protection procedures and limit data sharing with outside parties. Nevertheless, these and other new legal safeguards must be designed carefully so they protect individuals without jeopardizing opportunities for continued medical advances." | |
| 2023 | Is A Global Governance Framework Necessary for Neurotechnology | Clare Stark | 15 Drexel L. Rev. 757 (2023). | "Neurotechnology is often recognized as “the field of devices and procedures used to access, monitor, investigate, assess, manipulate, and/or emulate the structure and function of the neural systems of animals or human beings.” Neurotechnology can help people with paralysis to move and feel, deaf people to hear, and blind people to partially see. Neurotechnology also has the potential to treat many diseases of the nervous system, neurological diseases, and mental illnesses, which represent a high cost in terms of health care expenditures. According to the Organisation for Economic Co-operation and Development (OECD), mental health illnesses drive economic costs of more than 4% of gross domestic product (GDP). Neurotechnology is a booming sector. Over the past decade, the overall investments of 1,200 NeuroTech companies have amounted to $33.2 billion, and the numbers are still set to grow. Neurotechnology has implications for the health sector but also for commercial purposes, including in areas of education, gaming, entertainment, transportation, and much more--but at what expense to our mental integrity and our cognitive liberty? New advances in neurotechnologies include translating thought to text, controlling machines through brain to computer interfaces, “develop[ing] wearables to infer a person's intended speech or movement,” monitoring attention levels and engagement, and implanting false memories into an animal's brain. The capabilities of neurotechnology create a new commercial market for neural data that raises ethical concerns related to “the autonomy, privacy, responsibility, consent, integrity and dignity of a person.” Is the brain sufficiently protected, or is it at risk of being hacked, manipulated, or controlled? This is particularly worrisome as inferences that can be drawn from brain data may also enable prediction of an individual's behavior. Along the same lines, are humans adequately protected from new forms of surveillance, called neurosurveillance? Neurosurveillance is the monitoring of brain data for “attentional engagement or awareness,” in places such as the workplace, school, or military. Some governments have already used neurotechnology to detect changes in emotional states in employees or to monitor the attention levels of students." | |
| 2022 | No More Humans? Cybernetically-Enhanced Soldiers Under the Legal Review of Article 36 | Thibault Moulin | 8 J.L. & Cyber Warfare 59 (2022). | "The merger between a human and a machine and henceforth, the qualification of an augmented soldier as a weapon might appear as a highly hypothetical and futuristic scenario--it is not. As a matter of fact, the emergence of brain-computer interfaces (BCIs) could challenge this fundamental distinction in the foreseeable future, by allowing direct and remote control of weapons (drones, robots) by brain signals--i.e. ‘telepresence’. It indeed appears that ‘[e]very action our body performs begins with a thought and with every thought comes an electrical signal. The electrical signal can be received by brain-computer interface, consisting of an electroencephalograph (EEG) or an implanted electrode, which can then be translated, and then sent to the performing hardware to produce the desired action’. This means that a physical intervention--such as pulling a trigger or pushing a button--would not be systematically necessary to launch an attack. Rather, BCIs--whether invasive, noninvasive or semi-invasive--would rely on brain signals to do so. The impact of BCIs on the battlefield is however not limited to the remote control of objects. They also have the potential to inform decision-making, by rapidly processing external information gathered by human senses and/or analyzing signals subsequently produced by the brain to recommend that a soldier opens fire--or not. The first part of this article investigates such issues, and discusses whether BCIs themselves--as well as the soldiers operating them--may qualify as weapons, means or methods of warfare. It concludes that they may, under certain circumstances, indeed be described as means or methods of warfare (I). Considering that BCIs and the connected soldier qualify as such, and that states might contemplate using such technologies on the battlefield, this article considers whether states are under the obligation to proceed with a legal review, as required by Article 36 of Geneva Conventions' Additional Protocol I. In fact, it appeared during the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts that a mechanism was required to ensure the effectivity of the restrictions on weapons, which may cause superfluous injuries or have indiscriminate effect. If some states pushed for the creation of a new committee, which would have been in charge of determining whether new weapons complied with such prohibition, they encountered resistance from others. The latter argued that it would lead to disarmament, which was outside the scope of the Conference, and would not take military or political considerations into account. A compromise was eventually found with Article 36." | |
| 2023 | On the Viability and Potential Value of Current and Emerging Neuroscience and Technologies to the Practice of Forensic Science | Nathan Skinner, Monica A. Leyva, James Giordano | 11 European Society of Medicine 7.2 (2023). | "As developments in neuroscience and its technologies (neuroS/T) advance, the criminal justice system’s consideration of, and interest in the applications of such methods and tools to forensics and legal proceedings are also increasing. In light of these advances, considerations, and interest, it becomes essential to address the pragmatic validity, viability and potential value of neuroS/T to forensics and law. This essay describes ways that implementation of neuroS/T can directly benefit the forensic science community; identifies limitations of, and concerns about forensic use of neuroS/T; and posits the value of an implementation science framework to identify and analyze extant gaps (in both neuroS/T and forensic sciences and law) and offer ways that such gaps can - and arguably should - be compensated, closed or prevented in order to promote ethical interdisciplinary and systemic utility, effectiveness, and efficiency. " | |
| 2023 | The Myth of Youth: Rethinking the Negligence Standard of Care for Minors in the Age of Neuroscience | Thomas Salazar | 54 U. Pac. L. Rev 141 (2023). | "Modern neuroscience and psychology insights into brain development support expanding the current negligence standard of care for minors. This requirement is consistent with core negligence principles of fault, risk assessment, justice, and flexibility. Notably, the prevailing standard of care for minors provides a workable framework for analyzing the conduct of young adults in negligence cases. This Comment proposes courts should extend application of the relaxed standard of care for minors through age twenty-five while maintaining the adult activities doctrine as a critical safety net for negligence victims. Part II provides the basic framework and principles governing negligence liability. Part III considers the standard of care required of minors and the adult activities exception. Part IV explores the issues with negligence law's current approach to minors and rationales for expanding the standard of care required of minors. Part V considers the adult activities doctrine in light of the scientific literature. Part VI discusses the role contributory negligence plays in cases applying the relaxed standard of care. Part VII articulates the scientific, legal, and cultural challenges associated with expanding the negligence standard of care for minors to age twenty-five." | |
| 2022 | Mounting an Maoa Genetic Defense to Homicide: What Defense Attorneys Need to Know | Janet K. Brewer | 46 Am. J. Trial Advoc. 173 (2022). | "This Article reviews the current body of case law that has involved the MAOA gene as a defense to homicide. Part I of this Article explores the scientific research that underpins this behavioral genetic defense. Part II looks at critical trial matters concerning MAOA as a defense in homicide cases, with a focus on admissibility. Part III of this Article explores the typical outcome of cases in which the MAOA gene was employed as a defense. Part IV reviews key considerations such as the cost of mounting the defense, issues concerning experts who testify in these types of cases, the possible impact of such a genetic defense upon a jury, and whether an attorney's failure to recognize and assert a MAOA defense amounts to ineffective assistance of counsel." | |
| 2023 | Neurotechnology and the Law; Privacy and Security Concerns | Valentine Ugwuoke | LSN Law & Neuroscience eJournal (2023) (Student Paper). | "It was generally believed that the human brain which houses intentions and thoughts, is an impregnable fortress – not even the devil knows the intentions of a man. However, with the emergence of neurotechnology, it may now be possible to tap into someone's brain and read his thoughts. Modern neuroscience is offering to open up the sanctity of human thoughts. Neurotechnology is a technology that interacts directly with the brain, or more broadly the nervous system, by monitoring and recording neural activity, and/or acting to influence it. It is predicted that neurotechnology will become a significant market with the potential to generate substantial economic benefits, valued at US$17.1 billion globally by 2026, with the largest segments being neuromodulation, neuroprosthetics, and neurosensing. There are many concerns over the privacy and security issues associated with this technology. Given the massive scale of global neurotechnology investment, now is the time to anticipate and proactively fill protection gaps created by neurotechnology. In this paper, we are going to examine the importance of neurotechnology, the privacy and security concerns as well as the position of laws in response to neurotech. We are also going to make a recommendation on the need for a regulatory framework." | |
| 2023 | La Pruebapenal De Los Estados Mentales Desde La “Neurotecnología”: ¿Ya Es Una Realidad? [Criminal Evidence of Mental States from Neurotechnology: Is it Already a Reality?] | Miquel Julià-Pijoan | LSN Law & Neuroscience eJournal (2023) (in Spanish). | "The emergence of technologies based on brain data opens up new possibilities to prove facts relevant to the criminal justice function, which were previously beyond empirical corroboration. One of these "neurotechnologies" is "brain reading", which has the capacity to provide information about mental states. In this paper, I critically analyse this new technique with the aim of providing new elements to fuel the debate that must precede its eventual admission. Specifically, I reflect on whether (i) the description of this technique that is formulated corresponds to the representation that legal operators have of it - essential to avoid exaggerations about it - and (ii) whether this type of evidence can really provide legally relevant data. As a consequence, I conclude that there are conceptual, structural and methodological pitfalls that hinder its introduction in the criminal judicial process." | |
| 2023 | Raze Out the Written Troubles of the Brain: The Constitutional Issues with Reading the Brain Waves of Domestic Terrorism Detainees | Christos D. Strubakos | 33 Alb. L.J. Sci. & Tech. 303, 303 (2023). | "The Al Qaeda terrorist attacks of September 11, 2001 changed the world.In the years immediately following these devastating incursions on the American way of life, the U.S. Senate Select Committee on Intelligence and the U.S. House Permanent Select Committee on Intelligence Report identified several critical intelligence failures, which ranged from the inadequate collection of essential data to processing and sharing information regarding terrorist plans with other U.S. government agencies. While not entirely an intelligence failure, the intelligence community's missteps in gathering the necessary information and sharing it across agencies were likely a major contributing factor to Al Qaeda's success. Following the attacks, it became a critical mission to ensure that such an attack could never happen again. One of the best ways to prevent future attacks is to gather as much information as possible from suspected terrorists regarding plans and the membership and makeup of terrorist organizations. In 2003, Khalid Sheik Mohammed was arrested by Pakistani Inter-Services Intelligence and was held in several CIA black sites before being transferred to Guantanamo Bay Naval Facility in 2006. Intelligence sources reveal that Mohammed was subjected to what later became known as “enhanced interrogation,” which included being stripped naked and subjected to sleep deprivation, facial grabs, and waterboarding. Mohammed made at least thirty-one confessions during interrogation, including what the Bush administration claimed was information that allowed law enforcement to stop a plot to destroy the U.S. Bank Tower in Los Angeles in 2002. However, the accuracy of this assertion remains disputed today. Indeed, the inaccuracy of this information is a critical disadvantage of enhanced interrogation. Despite the potentially valuable information obtained from Guantanamo detainees like Mohammed, these enhanced interrogation techniques have been widely criticized for violating the Eighth Amendment's prohibition on the infliction of “cruel and unusual punishment.” While the Eighth Amendment is an obvious concern, more subtle are Constitutional protections regarding the reasonability of the search under the Fourth Amendment and bodily invasion under Fourteenth's Due Process Clause. Moreover, these Constitutional protections become even more salient in domestic or home-grown US citizen terrorists acting on American soil. Despite the legal and ethical challenges of enhanced interrogation, interrogating suspected terrorists is crucial in gathering information about the structure and plans of organizations or lone wolves who pose pending and severe threats against the homeland. Thus, any discussion of terrorist interrogation must balance the societal benefits of acquiring any intelligence data against individual protections under the Constitution. In Part I of my paper, I will overview the various interrogation techniques used post 9/11. From a cognitive neuroscience perspective, including enhanced interrogation, their usefulness in eliciting confessions or information, and the legal arguments for and against their use. In Part II, I will discuss the role of forensic neuroscience in developing novel, less invasive interrogation techniques that maximize the amount of information that can be acquired from a detainee without risking false confessions that are often made under duress or violating the Eighth Amendment rights of a US citizen. In particular, I will discuss recent attempts to design a helmet that can easily be placed on a detainee's head and measure electroencephalographic brain waves that are often correlated with a subject's attempt to deceive an interrogator. This helmet may be helpful in objectively assessing the quality of information obtained during an interrogation without subjecting the detainee to unnecessary stress and thus potentially violating the Constitution. Here, I will evaluate the scientific efficacy of such a device and its usefulness in the field to elicit information from would-be terrorists and compare and contrast it with traditional lie detection techniques and technologies. Part III will evaluate any Constitutional issues that may arise from using such a brain-reading helmet, particularly the Fourth Amendment's prohibition of an unreasonable search. Here, I will first discuss the jurisprudential precedent on unreasonable searches in the context of interrogations. Then I will look at the potential constitutional dangers that may arise from peering into a detainee's brain activity. I will conclude by proposing that, if adequately circumscribed such that investigators only measure aspects of brain activity related to deception, this technology can assist law enforcement in legally acquiring information from alleged terrorists about plots and organizations that can save lives and stop future attacks." | |
| 2023 | Neurolaw in the Courtroom: Comparative Perspectives on Vulnerable Defendants | Hannah Wishart, Colleen M. Berryessa | 2023 | "This collection presents a comparative perspective on interdisciplinary issues that fall under the emerging field of Neurolaw. The chapters embrace distinct procedural and evidential issues in the courtroom for vulnerable defendants, such as immature defendants, mentally disordered offenders and unfit-to-plead defendants, through a neuroscientific lens. This view is informed by worldwide analyses from legal academics, philosophers, and legal practitioners. The work brings together interdisciplinary and leading perspectives to discuss the use and relevancy of neuroscience at trial, and how the use of neuroscience is currently benefiting and impacting vulnerable defendants in global criminal trials. As such, the book builds upon and adds to the existing literature in this field by providing a comprehensive coverage of the intersection between these disciplines for vulnerable defendants in the courtroom. Key issues covered include: vulnerable defendants and the pre-trial process; the trial process; the use of neuroscience as expert evidence at trial; and vulnerable defendants, neuroscience and mitigation of sentence. Through original exploration presented by contributors from both academia and practice, the book will be of interest to academics, researchers and policy-makers working in the areas of Criminal Law and Procedure." | |
| 2023 | Neurolaw in the Courtroom: Comparative Perspectives on Vulnerable Defendants Chapter 1: Vulnerable Defendants and Neuroscience in Courtrooms Worldwide | Deborah W. Denno | 2023 | "This collection presents a comparative perspective on interdisciplinary issues that fall under the emerging field of Neurolaw. The chapters embrace distinct procedural and evidential issues in the courtroom for vulnerable defendants, such as immature defendants, mentally disordered offenders and unfit-to-plead defendants, through a neuroscientific lens. This view is informed by worldwide analyses from legal academics, philosophers, and legal practitioners. The work brings together interdisciplinary and leading perspectives to discuss the use and relevancy of neuroscience at trial, and how the use of neuroscience is currently benefiting and impacting vulnerable defendants in global criminal trials. As such, the book builds upon and adds to the existing literature in this field by providing a comprehensive coverage of the intersection between these disciplines for vulnerable defendants in the courtroom. Key issues covered include: vulnerable defendants and the pre-trial process; the trial process; the use of neuroscience as expert evidence at trial; and vulnerable defendants, neuroscience and mitigation of sentence. Through original exploration presented by contributors from both academia and practice, the book will be of interest to academics, researchers and policy-makers working in the areas of Criminal Law and Procedure." | |
| 2023 | Neurolaw in the Courtroom: Comparative Perspectives on Vulnerable Defendants Chapter 2: Offering Neurotechnology to Defendants: On Vulnerability, Voluntariness, and Consent | Sjors Ligthart, Gerben Meynen | 2023 | "This collection presents a comparative perspective on interdisciplinary issues that fall under the emerging field of Neurolaw. The chapters embrace distinct procedural and evidential issues in the courtroom for vulnerable defendants, such as immature defendants, mentally disordered offenders and unfit-to-plead defendants, through a neuroscientific lens. This view is informed by worldwide analyses from legal academics, philosophers, and legal practitioners. The work brings together interdisciplinary and leading perspectives to discuss the use and relevancy of neuroscience at trial, and how the use of neuroscience is currently benefiting and impacting vulnerable defendants in global criminal trials. As such, the book builds upon and adds to the existing literature in this field by providing a comprehensive coverage of the intersection between these disciplines for vulnerable defendants in the courtroom. Key issues covered include: vulnerable defendants and the pre-trial process; the trial process; the use of neuroscience as expert evidence at trial; and vulnerable defendants, neuroscience and mitigation of sentence. Through original exploration presented by contributors from both academia and practice, the book will be of interest to academics, researchers and policy-makers working in the areas of Criminal Law and Procedure." | |
| 2023 | Neurolaw in the Courtroom: Comparative Perspectives on Vulnerable Defendants Chapter 3: Vulnerable Defendants: Redefining Decision-Making through the Lenses of Neuroscience, Law and Artificial Intelligence | Amedeo Santosuosso, Matilde Giustiniani | 2023 | "This collection presents a comparative perspective on interdisciplinary issues that fall under the emerging field of Neurolaw. The chapters embrace distinct procedural and evidential issues in the courtroom for vulnerable defendants, such as immature defendants, mentally disordered offenders and unfit-to-plead defendants, through a neuroscientific lens. This view is informed by worldwide analyses from legal academics, philosophers, and legal practitioners. The work brings together interdisciplinary and leading perspectives to discuss the use and relevancy of neuroscience at trial, and how the use of neuroscience is currently benefiting and impacting vulnerable defendants in global criminal trials. As such, the book builds upon and adds to the existing literature in this field by providing a comprehensive coverage of the intersection between these disciplines for vulnerable defendants in the courtroom. Key issues covered include: vulnerable defendants and the pre-trial process; the trial process; the use of neuroscience as expert evidence at trial; and vulnerable defendants, neuroscience and mitigation of sentence. Through original exploration presented by contributors from both academia and practice, the book will be of interest to academics, researchers and policy-makers working in the areas of Criminal Law and Procedure." | |
| 2023 | Neurolaw in the Courtroom: Comparative Perspectives on Vulnerable Defendants Chapter 4: Safeguarding the Procedural Rights of Young Defendants in England and Wales: The Role of Neuroscience | Amy Sixsmith | 2023 | "This collection presents a comparative perspective on interdisciplinary issues that fall under the emerging field of Neurolaw. The chapters embrace distinct procedural and evidential issues in the courtroom for vulnerable defendants, such as immature defendants, mentally disordered offenders and unfit-to-plead defendants, through a neuroscientific lens. This view is informed by worldwide analyses from legal academics, philosophers, and legal practitioners. The work brings together interdisciplinary and leading perspectives to discuss the use and relevancy of neuroscience at trial, and how the use of neuroscience is currently benefiting and impacting vulnerable defendants in global criminal trials. As such, the book builds upon and adds to the existing literature in this field by providing a comprehensive coverage of the intersection between these disciplines for vulnerable defendants in the courtroom. Key issues covered include: vulnerable defendants and the pre-trial process; the trial process; the use of neuroscience as expert evidence at trial; and vulnerable defendants, neuroscience and mitigation of sentence. Through original exploration presented by contributors from both academia and practice, the book will be of interest to academics, researchers and policy-makers working in the areas of Criminal Law and Procedure." | |
| 2023 | Neurolaw in the Courtroom: Comparative Perspectives on Vulnerable Defendants Chapter 5: Criminal Insanity in Norwegian Law between Care and Societal Protection | Sofia Moratti | 2023 | "This collection presents a comparative perspective on interdisciplinary issues that fall under the emerging field of Neurolaw. The chapters embrace distinct procedural and evidential issues in the courtroom for vulnerable defendants, such as immature defendants, mentally disordered offenders and unfit-to-plead defendants, through a neuroscientific lens. This view is informed by worldwide analyses from legal academics, philosophers, and legal practitioners. The work brings together interdisciplinary and leading perspectives to discuss the use and relevancy of neuroscience at trial, and how the use of neuroscience is currently benefiting and impacting vulnerable defendants in global criminal trials. As such, the book builds upon and adds to the existing literature in this field by providing a comprehensive coverage of the intersection between these disciplines for vulnerable defendants in the courtroom. Key issues covered include: vulnerable defendants and the pre-trial process; the trial process; the use of neuroscience as expert evidence at trial; and vulnerable defendants, neuroscience and mitigation of sentence. Through original exploration presented by contributors from both academia and practice, the book will be of interest to academics, researchers and policy-makers working in the areas of Criminal Law and Procedure." | |
| 2023 | Neurolaw in the Courtroom: Comparative Perspectives on Vulnerable Defendants Chapter 6: Social Vulnerability on Trial: The Role of the Neuroscience of Trauma in Recognizing Sever Social Adversity in Sentencing | Federica Coppola | 2023 | "This collection presents a comparative perspective on interdisciplinary issues that fall under the emerging field of Neurolaw. The chapters embrace distinct procedural and evidential issues in the courtroom for vulnerable defendants, such as immature defendants, mentally disordered offenders and unfit-to-plead defendants, through a neuroscientific lens. This view is informed by worldwide analyses from legal academics, philosophers, and legal practitioners. The work brings together interdisciplinary and leading perspectives to discuss the use and relevancy of neuroscience at trial, and how the use of neuroscience is currently benefiting and impacting vulnerable defendants in global criminal trials. As such, the book builds upon and adds to the existing literature in this field by providing a comprehensive coverage of the intersection between these disciplines for vulnerable defendants in the courtroom. Key issues covered include: vulnerable defendants and the pre-trial process; the trial process; the use of neuroscience as expert evidence at trial; and vulnerable defendants, neuroscience and mitigation of sentence. Through original exploration presented by contributors from both academia and practice, the book will be of interest to academics, researchers and policy-makers working in the areas of Criminal Law and Procedure." | |
| 2023 | An Empirical Study of the Use of Neuroscience in Sentencing in New South Wales | Armin Alimardani | 14 Frontiers in Psych. (2023). | "While neuroscience has been used in Australian courts for the past 40 years, no systematic empirical study has been conducted into how neuroscientific evidence is used in courts. This study provides a systematic review on how neuroscientific evidence is considered in sentencing decisions of New South Wales criminal courts. A comprehensive and systematic search was conducted on three databases. From this search, 331 relevant sentencing decisions before 2016 that discussed neuroscientific evidence were examined. The findings of this study suggest that neuroscientific evidence appeared to contribute to sentencing decisions in less than half of the cases examined; and in the majority of these, it supported a more lenient sentence." | |
| 2023 | The History of Forensic Neuropsychiatry | Manish A. Fozdar | Behavioral Sciences & the Law. (2023). | "Significant advances in various disciplines of neurosciences, such as neurology, neuropsychiatry, neuroimaging, and neurogenetics, have caused an exciting field to emerge in the field of forensic neuropsychiatry called neurolaw. The resurgence of interest in this field has paralleled the renaissance of neuropsychiatry in the last few decades. This historical review of the practice of forensic neuropsychiatry provides an insight into the past with the hope that it will guide the future development of this field." | |
| 2023 | Neurolaw: New Horizons of Legal Theory and the Problem of Free Will | Ivan Amirian | SSRN (2023). | "In the last decades we are witnessing a rather interesting phenomenon when through the intensification of interaction between law and neuroscience, law becomes more scientifically based than it ever was before.This relatively new interdisciplinary realm is termed neurolaw.On the one hand, such interaction obviously enriches the legal theory and opens new horizons. On the other hand, it engenders some quite complicated problems. One of the cornerstones of modern legal theory is a concept of free will. Consequently, one of the most significant problems among others is the one related to the question whether the free will is just an illusion and what could be done if it is the case. This paper presents an attempt to give an answer to the aforementioned questions. | |
| 2023 | Professor Samuel H. Pillsbury's Science of Mind: A Tribute | Deborah W. Denno | 56 Loyola of Los Angeles Law Rev. 167 (2023). | "This essay overviews Professor Samuel Pillsbury's contributions to the study of criminal law, focusing on how he has helped scholars see doctrine more expansively, particularly in the areas of mental states and punishment. The discussion pinpoints Pillsbury's concepts of "responsible choice" and a moral-emotive theory of retribution, emphasizing the significance of human emotions in the criminal justice system, which range in scale from indifference to empathy. The essay also highlights Pillbury's vast scope of contributions, including developing more refined standards of cognitive awareness, criminal premeditation, provocation, and negligence. Overall, Pillsbury's conceptions of legal doctrine draw on scientific understanding and human appreciation of right and wrong, which also prompt his proposals for integrated reforms and legal definitions. Professor Pillsbury's scholarship will continue to impact the discourse on legal tenants within criminal law for years to come." | |
| 2023 | The Neurodiversity Paradigm and Abolition of Psychiatric Incarceration | Kiera Lyons | 123 Colum. L. Rev. 1993 (2023). | "All fifty states authorize psychiatric incarceration, justifying the use of preventive detention based on the presumption of a causal relationship between “mental illness” and legal incompetence. Statutes linking observably different cognition to irrationality, disease, and contamination pre-date the Founding of the United States. Though there are ample critiques of psychiatric incarceration, within these critiques, the story of “mental illness” masquerades as biological fact. Thus, the idea that observably different cognition is the result of an infection or an impairment to an underlying normal cognitive function has been widely and uncritically accepted in both medicine and law as nature-imposed reality rather than critiqued as a malleable normative framework. Consequently, even psychiatric incarceration's most vocal critics have not been able to successfully advocate for its abolition. When lawyers, legislators, psychiatrists, and mental health professionals rely on this pathological framing, debates surrounding treatment imposed by the force of law devolve into a cyclical battle between preferences for protecting the liberty interests of those who are competent and preserving the state's power to mandate treatment for people who are incompetent. Generally, supporters of psychiatric incarceration argue that protecting the liberty interests of the “mentally ill” is no better than letting people die preventable deaths. Critics typically respond that the error rate in the determination of “mental-illness”-induced incompetence is too high to justify the harms imposed by the erroneous deprivation of liberty. But the cyclical battle between liberty and paternalism obscures the relevant--and not yet addressed--legal question of who is granted the expertise on divergent cognition and thus authority to decide when a person is legally incompetent. This Note proposes a resolution to this debate found not in the balance between liberty and paternalism but in rejecting the dominant normative framework of divergent cognition as “mental illness.” Rooted in a combination of Critical Autism Studies, Mad studies, and disability justice, this Note introduces the neurodiversity paradigm to reject the construction of “normal” cognition within law governing psychiatric incarceration. Within the language of the neurodiversity paradigm, “Neurodivergent” is the identity term coined by activist Kassiane Asasumasu for a person who experiences any form of divergent cognition, similar to how “Queer” is an umbrella term for a spectrum of different sexual and gender identities. By contrast, “neurotypical” refers to people who conform with the construction of “normal” cognition. The neurodiversity paradigm positions neurodivergence as an integral component of the self rather than as a corrosive, autonomy-depriving, or incompetence-inducing agent to an underlying “normal.” The paradigm thus severs the illusion of the causal relationship between divergent cognition and the determination of legal incompetence. In preserving the competence of Neurodivergent people, the neurodiversity paradigm permits all people to retain the final and unilateral legal authority to define the support they need in crisis and beyond. Thus, reframing the story told about divergent cognition allows policy discussions to step beyond the notion that the only effective interventions for people experiencing crisis are ones rooted in coercive applications of force that override potentially deadly exercises of autonomy. In reclaiming the expertise on neurodivergence for Neurodivergent people, this Note calls for the abolition of psychiatric incarceration in favor of an understanding of care designed by Indigenous, Black, Mad, Neurodivergent, and Disabled survivors of carceral psychiatry. Part I introduces the pathology paradigm. It explains how an outdated conceptualization of statistics within psychiatry permitted the construction of the false dichotomy between normal and abnormal cognition. It then details how disability studies absorbed the construction of abnormal cognition within biological impairment. Part II maps the pervasive and uncritical acceptance of the pathology paradigm into statutes authorizing psychiatric incarceration and policy debates regarding the practice's normative and ethical dimensions. Part III introduces the neurodiversity paradigm as developed in Critical Autism Studies and aligned with modern statistics. It then calls for the abolition of psychiatric incarceration in favor of an understanding of care and support currently being implemented by grassroots organizations that aim to catch society's most marginalized without resorting to handcuffs, body slams, or bullets." | |
| 2023 | The Constitutionality of Brain Searches | Wayne Unger | 50 Hastings Const. L.Q. 321 (2023). | "If technology could read your mind and capture your thoughts as storable and processable data, would that frighten you? Recent advancements in brain-computer interfaces will likely make mind-reading a reality, and if it does, it presents the last stand or final frontier in the battle for privacy protections. It is well established that an individual must be able to retreat into their home and be free from government intrusion. But if an individual cannot retreat into their own mind free from government intrusion, then true solitude will become extinct. In a future state where brain-computer interfaces can actively decode an individual's ideas, thoughts, and beliefs--neurodata-- what constitutional protections, if any, exist to preclude government intrusion and protect the freedom of thought? This Essay analyzes Fourth Amendment jurisprudence as applied to neurodata. More specifically, it examines the Court's current perspectives regarding highly sensitive and intimate data to neurodata, and in doing so, it utilizes Matthew Tokson's emerging principles of Fourth Amendment privacy. I argue that neurodata unequivocally falls within the Fourth Amendment's protections, and I provide a normative justification for extending the Fourth Amendment to this emerging technology and category of data." | |
| 2023 | Are You Out of Your Mind?: Neurotechnologies and the Making of Disembodied Agency | Daniel Levin | 38 Berkeley Tech. L.J. 231 (2023). | "This Paper expounds on the legal and philosophical implications underlying the development of brain-computer interfaces (BCIs). As it stands, the current U.S. legal regime is ill-equipped to redress emergent privacy harms in these BCI developments. By privileging identifiability through discrete data points and limited interpersonal contexts, these laws misapprehend how companies facilitate classification and identification through the construction of behavioral profiles constituted through psychographics and the combination of various data points with other contextual data. Privacy law's failure to appreciate the social construction of doing privacy is by no means a sheer coincidence. Rather, it traces a genealogy to its normative underpinnings, wherein tech companies have “habituated us into thinking that managing our privacy is an individual responsibility.” In turn, our legal infrastructure entrenches a longstanding fallacy where privacy means control. This Note considers these issues in four parts. Part II provides an overview of how BCIs developed through medical and scientific research, generating the preconditions for illicit use in employment, military, education, and consumer product contexts. Part III draws out the implications for neural data extraction and manipulation, focusing attention towards neuroethical and privacy considerations for emerging disembodied agency. Part IV surveys deficiencies in existing privacy legal infrastructures for protecting neural data and, specifically, interrogates the underlying tenets to doing privacy law. Part V proposes a regulatory framework for protecting neural data that incorporates ongoing multi-stakeholder engagement to ensure that privacy law keeps pace with BCI's rapid innovation." | |
| 2023 | How Sleep-Related Fatigue Impacts the Evidentiary Value of Statements and Confessions | Zlatan Krizan, Richard A. Leo | 47 NACDL The Champion 44 (2023). | "In 1997 Michelle Moore-Bosko was raped and murdered in Norfolk, Virginia, by Omar Ballard. Based on false hunches and blinded by tunnel vision, however, Norfolk police detectives ignored Ballard and instead pursued and interrogated numerous other suspects. In serial fashion, they elicited provably false confessions from Danial Williams, Joseph Dick, Eric Wilson and Derek Tice, who eventually came to be known as the Norfolk Four. The Norfolk Four were each wrongfully convicted of the rape and murder of Moore-Bosko--Derek Tice twice--and would spend many years in prison before being formally exonerated. The interrogations that led to their false confessions (and eventually their wrongful convictions) were lengthy: Danial Williams was interrogated for more than 11 hours overnight before falsely confessing in early morning hours; Joseph Dick was interrogated for more than nine hours; Eric Wilson was interrogated for approximately 10 hours; and Derek Tice was interrogated for over 11 hours. Social scientists, legal scholars and journalists have documented hundreds of provably false confessions in the last three decades. In virtually all of these cases, the interrogations were psychologically manipulative, deceptive and/or coercive. In most of these cases--as in the interrogations of the Norfolk Four--the interrogations were unusually lengthy, often leading to sleep deprivation, fatigue, emotional distress, and interrogation-related regulatory decline. Danial Williams of the Norfolk Four, for example, was so tired that at one point in his interrogation he fell asleep. This article reviews the empirical science on sleep deprivation and its effects, analyzing how sleep deprivation and fatigue can undermine voluntariness and reliability of statements as well as confessions that police elicit during (often lengthy) interrogations. This is an area of science that criminal defense attorneys have underutilized in practice (and training) to challenge the admissibility of interrogation-induced statements and confessions from both suspects and witnesses." | |
| 2024 | Brain Science for Lawyers, Judges, and Litigants | Owen Jones, Jeffrey Schall, Francis Shen, Morris Hoffman, Anthony Wagner | Jones, Owen D., Jeffrey D. Schall, Francis X. Shen, Morris H. Hoffman, and Anthony D. Wagner, Brain Science for Lawyers, Judges, and Litigants (Oxford University Press, 2024) | Brain science in the form of neuroscientific evidence now appears frequently in courtrooms and policy discussions alike. Many legal issues are at stake, such as how to separate the best uses of brain science information from those that are potentially biasing or misleading. It is crucial to evaluate brain science evidence in light of relevant legal standards (such as the Daubert and Frye rules). Brain Science for Lawyers, Judges, and Policymakers responds to this rapidly changing legal landscape, providing a user-friendly introduction to the fundamentals of neuroscience for lawyers, advocates, judges, legal academics, and policymakers. It features detailed but clear illustrations, as well as a comprehensive and accessible overview of developments in legally relevant neuroscience. Readers will learn brain science terms, how to understand and discuss brain structure and function in legally relevant contexts, and how to avoid over- or under-interpreting neuroscience evidence. The book begins with a survey of the kinds of litigation, legislation, and regulation where neuroscience is currently being used. It provides accessible descriptions of basic brain anatomy and brain function, as well as an overview of how modern technologies can reveal the brain structures and brain functions of individuals. It finishes with cautions and limitations, including timely and though-provoking observations about where the future of neurolaw might lead. Throughout, the authors offer clear and concise guidance on understanding both the promise and the limitations of using brain science in law and policymaking. | |
| 2023 | A New Addition to the Trademark Litigator's Tool Kit: A Neuroscientific Index of Mark Similarity | Mark Bartholomew, Zhihao Zhang, Ming Hsu, Andrew Kayser, Femke van Horen | 113 Trademark Rep. 789 (2023). | "The linchpin for any claim of trademark infringement is an assessment of consumer confusion, but for a long time trademark practitioners and scholars have bemoaned the inherent difficulty of making such an assessment. Judges cannot substitute their own views for those of the average consumer. Instead, trademark law demands the ability of the trier of fact “to think through the consumer and see the marketplace only as the consumer sees it.” Seeing through the eyes of the average consumer is easier said than done, however, as evident in the wide variety of judicial conceptions of consumer capabilities. The judge must always worry that their sense of mark similarity or product proximity may be different from that of the relevant purchasing segment. Survey evidence presents a means for surfacing actual consumer perceptions and avoiding the trier of fact's own subjective experience, but its probative value is often discounted over fears of bias and inaccurate consumer self-reporting. Enter neuroscience. Neuroscientific techniques promise a more unvarnished view of consumer perception, one that is not mediated through consumer self-reporting. Neuroscience is already influencing the law in a variety of areas, from tort law to the death penalty. One difficulty for neuroscience, however, comes from the need to translate scientific understandings--typically generated from a group of research subjects participating under stable laboratory conditions--to a specific individual acting within the less constrained real world. In particular, most legal applications hinge upon the mental state of a particular person at a defined moment in time--e.g., what was the mental state of the killer at the moment of the crime?--something that goes beyond what can be provided by neuroscientific techniques, at least in the near term. In contrast, trademark law's determination of infringement depends on the aggregate sense of consumers. Because likelihood of confusion--the issue at the center of any claim of trademark infringement--asks about the overall perceptions of the relevant consuming pool, it avoids the difficulty of extrapolating from aggregate data to a specific instance (often referred as the “group to individual” or “G2i” problem), by probing a more enduring mental representation, and can thus more immediately benefit from neuroscientific evidence in a way that other legal questions (e.g., the mens rea of a particular criminal defendant at a particular moment) cannot. This is not to say that brain scans can somehow substitute for the entire likelihood of confusion analysis. Just as survey evidence is only one potential part of a larger holistic assessment of consumer confusion, neuroscientific data on consumer perception would serve as an additional resource, not a replacement. Ultimately, where to set the line between infringing and non-infringing conduct is up to lawmakers, not scientists, as the data itself provides factual information but not normative judgments. Still, additional insight into consumer thought is bound to be helpful: “As long as trademark purports to be guided by consumer reactions, it can only benefit from a better understanding of those reactions.” This article makes the case for neuroscience's value in improving assessments of mark similarity, and thereby consumer confusion. Part II describes how likelihood of confusion is determined in trademark law, chronicling long-standing frustrations with confusion's assessment and current doctrinal shortfalls. It also takes some time to examine the shortcomings with survey evidence of confusion. This review sets the stage for Part III, which offers our proof of concept. We describe an experiment we conducted to construct an index of neural responses to visual similarity. This index relies on a well-established neuroscientific phenomenon in which the neural response declines upon repeated presentation of the same stimulus, thereby permitting the presentation of different marks and a corresponding calculation of their perceived similarity. Our research demonstrates that mark similarity is capable of quantification, and in a way that avoids some of the key problems plaguing survey research. Part IV offers thoughts on how neuroscientific measurements like ours can be deployed to improve not only the likelihood of confusion analysis, but other areas of trademark law that also depend on understanding of aggregate consumer sentiment like secondary meaning and dilution." | |
| 2023 | Neurodisability in Clients and Parties | Joseph A. Wszalek | 96 Wis. Law. 16 (2023). | "Cognitive-behavioral limitations, also known as neurodisabilities, can dramatically affect how a person performs day-to-day activities. Whether it is difficulty staying on task, adapting to new behavioral expectations, or maintaining a coherent conversation, neurodisabilities can create steep hurdles in a person's family, work, or social life and can present serious challenges not only for many clients, defendants, and petitioners but also for lawyers and judges. This article summarizes current definitional models of neurodisability, discusses behavioral challenges typically associated with neurodisability, and defines neurobiological conditions that frequently underlie neurodisability. The article illustrates how neurodisability might present in terms of behaviors or actions and how legal professionals might address and accommodate those behaviors within their practices. This brief overview should help legal professionals be more informed, effective, and empathetic when interacting with persons with cognitive-behavioral challenges. | |
| 2023 | Stay Out of My Head: Neurodata, Privacy, and the First Amendment | Wayne Unger | 80 Wash. & Lee L. Rev. 1439 (2023). | "The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces, coupled with advanced artificial intelligence, produce neurodata--the collection of substantive thoughts as storable and processable data. But government access to individuals' neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one's substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information while, on the other hand, the First Amendment is meant to promote the free flow of information. As technology advances and new categories of data are created and stored--like neurodata--it becomes more evident that the First Amendment actually promotes privacy by precluding government intrusion upon the freedom of thought and the right to a free mind. This Article argues that the First Amendment serves as a more robust source of privacy protections than the Fourth Amendment, at least with respect to government intrusion into an individual's neurodata, because such intrusion would violate the First Amendment's right not to speak and the freedoms of thought and belief. As brain-computer interfaces become more prevalent, and produce more neurodata, the First Amendment's well-established doctrines against compelled speech and its recognition of the freedom of thought ought to extend to prevent government access to an individual's stored ideas, thoughts, and beliefs. In furtherance of this argument, this Article synthesizes First Amendment scholarship and proposes the Privacy Theory of the First Amendment to illustrate how the First Amendment broadly protects the privacy interests of individuals." | |
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