Neuroethics & Law Blog

Jonathan Moreno's "Mind Wars"

In my last post, I mentioned DARPA-funded research on invisible materials that might someday be used by the military.  While that post wasn't neuroethics-related, Jonathan Moreno has a new book coming out this Fall that very much is: Mind Wars: Brain Research and National Defense. 

I have heard Jonathan speak on the subject of neuroscience and warfare, and I'm sure the book will be an excellent addition to the literature.  It currently has a November release date.  Here's part of a blurb from Amazon:

In his fascinating new book, Jonathan D. Moreno investigates the deeply intertwined worlds of cutting-edge brain science, U.S. defense agencies, and a volatile geopolitical landscape where a nation's weaponry must go far beyond bombs and men. The first-ever exploration of the connections between national security and brain research, Mind Wars: Brain Research and National Defense reveals how many questions crowd this gray intersection of science and government and urges us to begin to answer them.

From neuropharmacology to neural imaging to brain-machine interface devices that relay images and sounds between human brains and machines, Moreno shows how national security entities seek to harness the human nervous system in a multitude of ways as a potent weapon against the enemy soldier. Moreno charts such projects as monkeys moving robotic arms with their minds, technology to read the brain’s thought patterns at a distance, the development of "anti-sleep" drugs to enhance soldiers’ battle performance and others to dampen their emotional reactions to the violence, and advances that could open the door to "neuroweapons"—virus-transported molecules to addle the brain.

Cloak of Invisibility

Neuroethics it ain't.  But here's a fun AP news article about DARPA-funded research to create a cloak of invisibility, reminiscent of the Ring of Gyges discussion in Plato's Republic (and numerous comic book superheroes thereafter). 

It's theory for now, though the article sounds surprisingly optimistic:

"This is very interesting science and a very interesting idea and it is supported on a great mathematical and physical basis," said Nader Engheta, a professor of electrical and systems engineering at the University of Pennsylvania. Engheta has done his own work on invisibility using novel materials called metamaterials.

Pendry and his co-authors also propose using metamaterials because they can be tuned to bend electromagnetic radiation — radio waves and visible light, for example — in any direction.

A cloak made of those materials, with a structure designed down to the submicroscopic scale, would neither reflect light nor cast a shadow.

Instead, like a river streaming around a smooth boulder, light and all other forms of electromagnetic radiation would strike the cloak and simply flow around it, continuing on as if it never bumped up against an obstacle. That would give an onlooker the apparent ability to peer right through the cloak, with everything tucked inside concealed from view.

Ambien and PVS

The AJOB Editors Blog discusses the publication of case studies of three patients in a persistent vegetative state who were purportedly transiently aroused by Ambien (Zolpidem), a drug typically used to fight insomnia.  According to a story about the case studies in the Guardian:

A drug commonly used as a sleeping pill appears to have had a miraculous effect on brain-damaged patients who have been in a permanent vegetative state for years, arousing them to the point where some are able to speak to their families, scientists report today.

The dramatic improvement occurs within 20 minutes of taking the drug, Zolpidem, and wears off after around four hours - at which point the patients return to their permanent vegetative state, according to a paper published in the medical journal NeuroRehabilitation.

There is good reason to be skeptical of these reports, as AJOB Editors Blog notes:

At best this is the weirdest anecdotal report in the history of neurology - even for a journal that publishes case studies, and one wonders why on earth a larger group of subjects would not be studied before moving to this level of publication (the plural of anecdote is data?) about the most controversial area of end of life care on Earth.

But really the question is what this little report will do to the wide world of Schiavo.   

Blumenthal on Emotional Paternalism

Jeremy Blumenthal (Law, Syracuse) has posted "Emotional Paternalism" to SSRN.  This looks like a very interesting paper.  I had the pleasure of guest blogging with Jeremy a couple of months ago at Prawfsblawg.  Here is the abstract:

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 I evaluate and extend 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, I move to remedy some of these gaps. I document not only cognitive but emotional biases that people are subject to, including a number that have been little discussed in legal academia. I note the importance of such emotional biases to legal decision-making and illustrate potential legal errors to which they may lead. I also mention 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, I take 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, I draw 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, I identify potential objections to some of the points I raise, summarizing and concluding with further speculation about the appropriateness of paternalistic intervention by the State.

This is, however, an early working paper. Accordingly, comments and feedback are welcome, but please do not cite or quote without permission.

Thanks to Guest Blogger Caitlin Connors

Many thanks to Caitlin Connors who just completed her guest blogging stint at the Neuroethics & Law Blog.  You can find her posts here, here, here, and here.  I look forward to having more guest bloggers in the future.

Maroney on Competence to Stand Trial

Terry Maroney (USC, Law) (and soon to be a new prof. at Vanderbilt) has posted "Emotional Competence, Rational Understanding, and the Criminal Defendant" to SSRN.  Here is the abstract:

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."

Wired News Report: Your Thoughts are Your Password (Connors)

Wired news posted this piece of sexy neurotechnology news last week:

Researchers at Carleton University in Ottawa, Canada, are exploring the possibility of a biometric security device that will use a person's thoughts to authenticate her or his identity.

Their idea of utilizing brain-wave signatures as "pass-thoughts" is based on the premise that brain waves are unique to each individual. Even when thinking of the same thing, the brain's measurable electrical impulses vary slightly from person to person. Some researchers believe the difference might just be enough to create a system that allows you to log in with your thoughts.

A pass-thought could be anything from a snatch of song, the memory of your last birthday or even the image of your favorite painting. A more achievable alternative might present you with predetermined pictures, music or video clips, to which you would think "yes" or "no" while the machine monitors your brain activity.

Call me a doubting Thomas, but my thoughts on this align pretty immediately with those of the skeptic in the article: it just ain't gonna work.  The coolheaded science responder says:

Iead Rezek, of the Pattern Analysis Research Group at the University of Oxford, says the proposal has "flair," but is impractical: Too many things are going on in the brain at the cellular level that all look the same from a scalp distance. "Signals from an uncountable number of nerve cells are smeared and lumped together by the time we are recording the brain-wave patterns," says Rezek. "Authentication is akin to recognizing speakers from muffled voices because, for example, the speakers are some distance away."

Good science fiction fodder, anyway.

---C.C.

"When men play God, they play God badly." (Connors)

Announced at the end of April but receiving a suprisingly small amount of press thus far, NIH has awarded a group at Case Western University a $772,500 grant to develop ethical standards for genetics enhancement research.  Professor Maxwell Melman will lead a team of "law professors, physicians, and bioethicists" in sorting through guidelines and considerations for future investigations and trials.  Correct me if I'm wrong, but to my knowledge the Case Law grant representsthe first significant NIH funding of any overtly genetic enhancement-related research program.

From the original Medical News Today announcement (also reproduced on the Case Law website):

Over the past half-century or so we have developed elaborate rules protecting human subjects in medical testing," Mehlman said. "The problem is that the rules were all designed with therapeutic goals in mind. The question is, are these safeguards appropriate to govern testing for non-therapeutic enhancements, where the measurement and valuation of the benefits is different from therapeutic testing?" The project's specific aims are to:

• Identify the differences between genetic research performed for therapeutic purposes and research performed for enhancement purposes.
• Determine the conditions under which it would be ethical to conduct genetic enhancement research using human subjects.
• Determine whether existing rules meet the ethical conditions for performing genetic enhancement research, and if they don't, recommend changes to the existing rules.

The media response?  Not much so far, but what's there is fierce.  The conservative Center for Bioethics and Human Dignity has labeled the project "state-sponsored liberal eugenics" and takes the opportunity to remind us, "When men play God, they play God badly."

Says Mitchell and Hook of the CBHD:

...Just because some unscrupulous scientist may perform human enhancement experiments does not mean we need a regulatory regime in place so the government can do so. We need to draw a line in the sand and say, “Not beyond therapy!  Make no mistake about it; so-called enhancement is merely a desire to re-engineer the human person either for the sake of competitiveness or out of a vile self-loathing of one’s finitude and limitations.

This grant does not merely cross a moral line in the sand, it uses your tax dollars and mine to demolish a brick wall 10-feet wide, turning it to rubble. We must protest the use of our tax dollars for genetic enhancement research of any kind.

A replica of CBHD position statement was reposted under Ben Mitchell's name in the May 4th Baptist Press with the following remarkably unsubtle headline: "NIH Eugenics Project a Flashback to Nazi Research." 

It would have been fantastic to see the CBHD issue a thoughtful, nuanced analysis of the implications of NIH funded genetics enhancement guidelines research.  Certainly, the Case Law grant does likely signal NIH’s willingness to steer funding towards genetics enhancement research once guidelines have been established – seemingly rather sooner than later – and this is newsworthy. The distinction between “therapy” and “enhancement” in applied technology work is such a hotspot of debate, particularly when we have to consider that government health service involvement in enhancement research might be on its way. I'll be quite curious to read the recommendations the Case Law group produces.

As is, the CBHD merely adds fuel to the fire for those who dismiss reservations about enhancement technologies as hysterical whistleblowing. And, unfortunately, it only further polarizes discussion about an issue that ought to be receiving careful and composed scrutiny from the bioethics community. 

I’d love to hear that community’s responses to the Case Law funding. Please comment!

--C.C.

New Scientist on Brain Scanning

The cover story in today's issue of New Scientist is about the use of brain scanning to discover thoughts or memories of the person being scanned.  MindHacks posts more about it here.