Neuroethics & Law Blog

What "neurolaw" isn't (Murphy)

From over the wires: "Why Blame Me? It Was All My Brain's Fault" published last Wednesday in the Times.  Professor Raymond Tallis describes his take on the situation:

The legal profession in America is taking an increasing interest in neuroscience. There is a flourishing academic discipline of “neurolaw” and neurolawyers are penetrating the legal system.

He goes on to critique "neurolaw" for its alleged assistance to defense lawyers for "placing the brain on the stand" (quoted from the Rosen article) and its foundations in determinism.  He cautions about "investing millions in 'neurolaw' centres" such as the Vanderbilt program on the basis that "observations of brain activity in the laboratory can explain very few things about us." 

Leaving aside the point that neuroscience could be used as aggravating as well as mitigating evidence, even in the pro-determinism-no-responsibility attitude that Tallis ascribes to "neurolaw" and its constituent "brain-blamers," his article and fundamental argument require one very important clarification. 

The academic discipline of "neurolaw" has no such agenda (assuming that Tallis is referring to research in "law and neuroscience," which does not use the neologism).  In fact, the new interdisciplinary centers and projects are urging caution at all turns in even these earliest stages of exploring the relationships between neuroscience and law.  (See, for example, the announcement about the MacArthur Project made in NYC on Oct 9th, referenced below and available on the website as an audio file.)  Neuroscientists often come out as the most cautious about the current and future limitations of neuroscience, and there are plenty of skeptics from the legal and philosophical side involved in such work.  Neuroscientists cannot be fairly characterized as pushing their findings into the courtroom.  Instead, these interdisciplinary projects acknowledge the interest that the law takes in explanations of human behavior, and are investigating how neuroscience data might be useful in refining the law and conceptualizing human behavior, while remaining largely agnostic with respect to aiding either prosecution or defense on the basis of philosophical beliefs about free will or determinism.

Having failed to investigate the nature of the research being conducted at the interface of neuroscience and law, Tallis sets up "neurolaw" as a straw man and knocks it down by calling it "just another branch of neuromythology."  Unfortunately, what could have been an interesting, discussion-provoking piece falls flat by reflecting a lack of understanding of the research goals of law and neuroscience initiatives.   

New Journal - Neuroethics (Levy)

The journal Neuroethics - of which I am the editor - is now accepting submissions. Help make the journal a success by submitting!

Neuroethics in Science (Murphy)

Just in time for the annual Society for Neuroscience meeting, Science has published an editorial by Stanford Law professor Hank Greely.  The brief editorial describes some of the work neuroethics has done and where the big questions in the field may take us.  The Neuroethics Society, The Dana Foundation, AAAS, and The MacArthur Law and Neuroscience project are highlighted as pioneers of funding and network-building, but the editorial concludes with a call for more and sustained support for research:

The U.S. Human Genome project had a program for studying the ethical, legal, and social implications (ELSI) of genetics, but no similar program exists for neuroscience, although we are our brains far more truly that we are our genomes.  The ELSI program may not be the right model, but funds are essential to promote this kind of research, particularly by medical school researchers who depend on grants.  In these days of tight federal budges, money is hard to get.  But to fund science without supporting work on its social consequences will ensure that the neuroscience revolution brings far too much social pain and chaos along with its scientific and medical breakthroughs.

AMA and Clinical Placebo Deception

I've blogged before about the AMA's recent categorical prohibition on the use of placebo deception by physicians.  For those interested, the full text of the new AMA ethics policy (as recommended by the AMA's Council on Ethical and Judicial Affairs) is available on the AMA's website here.

Schauer on Law and Reasoning By Analogy

Fred Schauer (Harvard, Kennedy School) has posted, "Why Precedent in Law (and Elsewhere) is Not Totally (or Even Substantially) about Analogy" to SSRN.  See here.  Here's the abstract:

Cognitive scientists and others who do research on analogical reasoning often claim that the use of precedent in law is an application of reasoning by analogy. In fact, however, law's principle of precedent is quite different. The typical use of analogy, including the use of analogies to earlier decisions in legal argument, involves the selection of an analog from multiple candidates in order to help make the best decision now. But the legal principle of precedent requires that a prior decision be treated as binding, even if the current decision-maker disagrees with that decision. When the identity between a prior decision and the current question is obvious and inescapable, precedent thus imposes a constraint quite different from the effect of a typical argument by analogy. The importance of this is not so much in showing the a common claim in the psychological and cognitive science literature is mistaken, but that the possibility of making decisions under the constraints of binding precedent is itself an important form of decision-making that deserves to be researched in its own right.

Real-Life Ethics of Memory Dampening

This piece by Scott Haig in Time magazine presents a practical, non-science-fiction case study on the ethics of memory erasure: What happens in the OR when a patient hears information about her prognosis before she was intended to hear it?  I suspect that many people will be troubled by the resolution here. (Hat tip: James Gordon, MCW-bioethics-listserv)

MacArthur Press Release

Here's a link to the press release for the MacArthur Foundation's law and neuroscience grant.  Here's a post about it on Brain Waves and here's a post on Prawfsblawg about law and evolutionary theory that makes reference to the grant toward the bottom.

MacArthur Law & Neuroscience Grant

Yesterday, I attended a panel discussion in the federal courthouse at 500 Pearl St. to kickoff the MacArthur Foundation's $10M grant to support research at the intersection of law and neuroscience.  This project has been in the works for some time, but it  was just made public yesterday.  The project will focus on criminal law issues, with three areas of focus: (1) "diminished brains and the law," (2) "decision making and the law," and (3) "addiction, neuroscience, and criminal justice policy."   The topics are clearly of interest to a broad audience.  Author Tom Wolfe (who happens to hold a Ph.D. in American Studies from Yale) was in the audience and asked panelists a question about free will.

All of this is clearly big news for the field.  Interestingly, some of the funds from MacArthur are expected to support actual experiments and not just papers about conceptual, ethical, and legal issues related to the neurosciences.  Here's a link to the project's main website.

Visual Persuasion Project (Buccafusco)

As visual imagery begins to play a larger role in the courtroom, lawyers will need to cultivate an ability to use and critique visual evidence.  To that end, Richard Sherwin, Neal Feigenson, and Christian Spiesel have begun training students at New York Law School and Quinnipiac Law School in "visual persuasion."  The website of the Visual Persuasion Project at NYLS has a wealth of interesting information on their courses, available litigation services, and law and popular culture bibliographies.  From the website:

    The goal of the Visual Persuasion Project is to promote a better understanding of the practice, theory, and teaching of law in the current screen-dominated, pervasively visual, digital era. The Project was formed to study and advance the cultivation of critical visual intelligence, to inspire creative visualizations of evidence, case narratives, policy analysis, and legal argumentation, and to help lawyers, judges, law students, and the lay public integrate new visual tools into more traditional (textual and verbal) approaches to legal analysis.

The issues raised by visual evidence should be important to neuroethics for a number of reasons.  Most obviously, juries are increasingly being shown images created by neuroscientific techniques such as CAT scans and fMRIs.  These "expert images," as Joseph Dumit calls them, raise concerns about the inferences jurors are likely to draw from colorful images presented alongside scientific testimony.  More broadly, however, those interested in neuroethics should think about the cognitive effects of all sorts of visual evidence, from diagrams and maps to photographs, films, and digital images.  How does the brain process information received visually instead of or in addition to information received aurally?  Does it respond to still images differently from moving images or black and white images differently from colored images?  As I have argued, judges may be capable of handling the technological differences between various media to create appropriate admissibility safeguards, but they are likely to overlook more fundamental concerns about the way visual media convey meaning.

Neuroethics in American Journal of Bioethics

The current issue of AJOB-Neuroscience is available online, with most of its content free (current TOC here).  The issue contains work by three Neuroethics & Law Blog writers, including an editorial by Neil Levy (on neuroethics and the extended mind thesis--linked to a couple of weeks ago), a target article by Stacey Tovino (on law and functional neuroimaging), and a brief commentary by me (on drugs to dampen the intensity of traumatic memories).  In addition to lots of other commentaries, the issue also contains an editorial on memory dampening by Judy Illes and a target article on memory dampening by Henry, Fishman, and Youngner.