Neuroethics & Law Blog

On The Power of the Visible (Goldberg)

As I may have mentioned in some of my prior posts, my work on pain will involve some historical and conceptual research regarding the import of the visible in Western biomedicine and Western culture in general.  Why is it that "seeing" into the inner sanctum of the body is so powerful, so important? And it is almost impossible to deny that this sight is of inordinate social and cultural significance.

Jean Jackson documents that pain which is visible -- like pain arising from a compound fracture resulting from an automobile accident -- is generally treated better, and is seen as morally superior (more "deserving" pain) than pain that is invisible via diagnostic instrumentation, such as chronic pain.  Chronic pain patients report the highest levels of hostility and social distance from their healers and physicians, and are on the bottom of the moral hierarchy Jackson constructs.  And in no small part, I want to argue, this is because it is, in fact, invisible to the scientific Eye/I.

Further proof of the cultural importance of the visible is evident in the history of roentgenology.  In a working paper that will likely become part of my dissertation, I document how dozens of early roentgenologists suffered and died for the sake of seeing inside the body.  I reference the paper in this commentary, which suggests that memory fingerprinting technology should not be admissible evidence because of the likelihood of undue prejudice.  In turn, the likelihood of such prejudice is a function of the weight and importance attached to scientific images of the body, and in particular, of the brain.

I was therefore pleased to learn of a new study entitled, "Seeing is believing: On the effect of brain images on judgments of scientific reasoning."  Note the authors' conclusion that neuroimaging appeals to the tendency to prefer "reductionistic explanations of cognitive phenomena."

Here is the Abstract:

Brain images are believed to have a particularly persuasive influence on the public perception of research on cognition. Three experiments are reported showing that presenting brain images with articles summarizing cognitive neuroscience research resulted in higher ratings of scientific reasoning for arguments made in those articles, as compared to articles accompanied by bar graphs, a topographical map of brain activation, or no image. These data lend support to the notion that part of the fascination, and the credibility, of brain imaging research lies in the persuasive power of the actual brain images themselves. We argue that brain images are influential because they provide a physical basis for abstract cognitive processes, appealing to people’s affinity for reductionistic explanations of cognitive phenomena.

(h/t to Stuart Buck at Overcoming Bias)

Neuroethics-Related Book Reviews

Christian Perring informs me of some book reviews that may be of interest to Neuroethics & Law Blog readers, including the first one by our own Neil Levy:

Review - Did My Neurons Make Me Do It?
Philosophical and Neurobiological Perspectives on Moral Responsibility and Free Will
by Nancey Murphy and Warren S. Brown
Oxford University Press, 2007
Review by Neil Levy, Ph.D.
http://metapsychology.mentalhelp.net/poc/view_doc.php?type=book&id=4201&cn=394

Review - Brain, Mind, and Human Behavior in Contemporary Cognitive Science
Critical Assessments of the Philosophy of Psychology
by Jeff Coulter and Wes Sharrock
Edwin Mellen Press, 2007
Review by Keith Harris, Ph.D.
http://metapsychology.mentalhelp.net/poc/view_doc.php?type=book&id=4199&cn=394

Review - What Is Emotion?
History, Measures, and Meanings
by Jerome Kagan
Yale University Press, 2007
Review by Jelle De Schrijver
http://metapsychology.mentalhelp.net/poc/view_doc.php?type=book&id=4197&cn=396

Review - Explorations in Neuroscience, Psychology and Religion
by Kevin S. Seybold
Ashgate, 2007
Review by Paul A. Wagner, Ph.D.
http://metapsychology.mentalhelp.net/poc/view_doc.php?type=book&id=4165

Review - Psychiatry in the Scientific Image
by Dominic Murphy
MIT Press, 2006
Review by Luc Faucher, Ph.D.
http://metapsychology.mentalhelp.net/poc/view_doc.php?type=book&id=4153

Review - Explaining the Brain
Mechanisms and the Mosaic Unity of Neuroscience
by Carl F. Craver
Oxford University Press, 2007
Review by Roy Sugarman, Ph.D.
http://metapsychology.mentalhelp.net/poc/view_doc.php?type=book&id=4152

Two Situationism Articles on SSRN

"The Great Attributional Divide: How Divergent Views of Human Behavior are Shaping Legal Policy"

Emory Law Journal, Vol. 57, 2008

ADAM BENFORADO, Affiliation Unknown
JON D. HANSON, Harvard University - Harvard Law School
This article, the first of a multipart series, argues that a major rift runs across many of our major policy debates based on our attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people's dispositions (i.e., personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us. Given that situationism offers a truer picture of our world than the alternative, and given that attributional tendencies are largely the result of elements in our situations, identifying the relevant elements should be a major priority of legal scholars. With such information, legal academics could predict which individuals, institutions, and societies are most likely to produce situationist ideas - in other words, which have the greatest potential for developing the accurate attributions of human behavior that are so important to law.

"Naïve Cynicism: Maintaining False Perceptions in Policy Debates"

Emory Law Journal, Vol. 57, 2008

ADAM BENFORADO, Affiliation Unknown
JON D. HANSON, Harvard University - Harvard Law School
This is the second article in a multi-part series. In the first part, The Great Attributional Divide, the authors suggested that a major rift runs across many of our major policy debates based on contrasting attributional tendencies (dispositionist and situationist). This article explores how dispositionism maintains its dominance despite the fact that it misses so much of what actually moves us. It argues that the answer lies in a subordinate dynamic and discourse, naïve cynicism: the basic subconscious mechanism by which dispositionists discredit and dismiss situationist insights and their proponents. Without it, the dominant person schema - dispositionism - would be far more vulnerable to challenge and change, and the more accurate person schema - situationism - less easily and effectively attacked. Naïve cynicism is thus critically important to explaining how and why certain legal policies manage to carry the day.

Baker on Neurscience and the Law

Greg Baker (William and Mary, Law) has posted Neuroscience and the Law: Real Potential with a Healthy Dose of Caution (West Virginia Law Review, Vol. 3, No. 2, 2009) to SSRN (Hat tip to Larry Solum).  Here is the abstract:

This article will discuss the fascinating and growing area of neuroscience and the law. The innovations in science, medicine, and technology create unique opportunities for the law. Creative problem-solving in the law can take cues from many of these innovations. Brain imaging for example is discussed as one of the newest creations that might play a pivotal role in the criminal justice system. While I endorse the use of science and technology as an integral part of a multidisciplinary approach to legal problem solving, I also urge we take such steps with caution. In considering the appropriate legal roles for many of these relatively new creations to take, we must be reminded that fundamental legal principles, the Constitution, and our Bill of Rights are at stake.

Greg Baker (William and Mary, Law) has posted Neuroscience and the Law: Real Potential with a Healthy Dose of Caution (West Virginia Law Review, Vol. 3, No. 2, 2009) to SSRN (Hat tip to Larry Solum).  Here is the abstract:

This article will discuss the fascinating and growing area of neuroscience and the law. The innovations in science, medicine, and technology create unique opportunities for the law. Creative problem-solving in the law can take cues from many of these innovations. Brain imaging for example is discussed as one of the newest creations that might play a pivotal role in the criminal justice system. While I endorse the use of science and technology as an integral part of a multidisciplinary approach to legal problem solving, I also urge we take such steps with caution. In considering the appropriate legal roles for many of these relatively new creations to take, we must be reminded that fundamental legal principles, the Constitution, and our Bill of Rights are at stake.

Paris Hilton and Punishment Experience

Here is part 2 of a two-part series I posted at the Volokh Conspiracy on "The Subjective Experience of Punishment":

In my previous post, I suggested that our prevailing theories of punishment require us to take account of variations in prisoners’ experiences of punishment. Admittedly, we have dueling intuitions about doing so. I think most people are sympathetic to the genuine claustrophobe who has an unusually difficult time in prison (and claustrophobic symptoms are likely to fall along a wide spectrum). On the other hand, most people are unsympathetic to the spoiled rich person who is used to fine food and accommodations and therefore has an unusually difficult time in prison.

In my article, I do my best to explain this battle of intuitions. For example, perhaps a person like Paris Hilton is actually more culpable than someone else who commits the same crime. She had better alternatives to criminal behavior. She could have hired a chauffeur to drive her around. If so, there’s no puzzle in explaining why people think she should spend at least as much time in prison as an ordinary person who commits the same crime. (Put aside the possibility that Hilton actually had claustrophobia, which complicates the analysis.)

Assuming that our theories do indeed tell us to take account of variation in punishment experiences, the critical question is: what, if anything, follows from this? As some people noted in the comments, it could just mean that something is wrong with our theories. For example, a pure incapacitationist about punishment has no obligation to consider variations in experience.

Alternatively, we could decide it’s just too costly or difficult to administer calibrated punishments. For example, it would be difficult to predict in advance how a particular prisoner will experience punishment; to measure a prisoner’s subjective experiences while punishment is being imposed; to determine when a prisoner contrives to appear more distressed by punishment or the prospect of punishment than, in fact, he is; and to reach consensus over the kinds of subjective experiences that matter for assessing punishment.

We might, however, be able to craft some general policies that better take account of subjective experience. Also, while it might be too difficult to individually calibrate punishment, that may not always be the case. Here are some reasons why we shouldn’t be too quick to give up on the possibility of someday making individual calibrations:

First, outside the criminal context, we often make difficult assessments of subjective experience in the courtroom. In tort law, for example, we attempt to value subjective feelings of physical pain and emotional distress. Rather than using an objective pricing mechanism (e.g., $5,000 for a broken arm and $10,000 for a broken leg), we attempt to determine how much pain or distress a particular defendant has experienced and will experience as a result of the plaintiff’s tortious conduct. We do so, even though plaintiffs have incentives to portray themselves as suffering more than they actually do. Experts routinely testify about plaintiffs’ physical and emotional damages and help jurors weed out malingerers. We certainly disagree about how we ought to aggregate the value of various kinds of unpleasant mental states (e.g., physical pain, mental anguish, upsetting memories) and distill them all into a single dimension represented in dollars, but we nevertheless make such valuations all the time.

Second, we already spend considerable, if insufficient funds, on psychological evaluations of individual offenders. And while administrability concerns may preclude us from calibrating all punishments, there may be classes of crimes or offenders where individualized calibration is appropriate. For example, psychiatrists have made progress in diagnosing and assessing the severity of claustrophobia and in detecting those who malinger the condition. If so, perhaps subclinical levels of claustrophobia could be taken into consideration as well.

Third, emerging neuroscience technologies hold out the promise that our assessments of individuals’ subjective experiences may become more accurate. Using functional magnetic resonance imaging (“fMRI”), researchers can observe a subject’s brain while the subject experiences emotions like happiness, sadness, anger, fear, and disgust and attempt to find the neural correlates of such emotions. A number of studies purport to have found brain regions that are more active when subjects experience physical pain, and I have argued elsewhere that, in the not-too-distant future, neuroimaging may provide helpful evidence in tort cases in detecting malingered pain. Neuroscientists have also noted structural differences in the brains of people who have experienced chronic depression and in the brains of those under long-term stress, which could conceivably provide more objective evidence about a person's experiences over long periods of time.

By all means, current technology leaves much to be desired and intersubjective comparisons of utility are notoriously difficult to make. We are likely a long way from having accurate, practical means of assessing the complicated, evolving sets of experiences associated with punishment. It is better, though, to recognize the practical, ever-changing limitations on our ability to measure subjective experiences as contingent features of early twenty-first century living rather than to construct a purely objective view of punishment that builds these limitations into our theory of what punishment is really all about.

Harvard/ENSN NeuroSchool open for applications (Connors)

Hello all-

Thanks to Adam's generosity, I'm checking in from my new post as the Programme Coordinator for the European Neuroscience and Society Network (ENSN) to do a bit of shameless plugging for good neuroscience events we've got on tap.  Our first workshop, 'Our Brains, Our Selves,' co-hosted by Harvard's Department for the History and Philosophy of Science, is coming up this May.  Unfortunately, we're at capacity for observers and participants at this point, but if you're interested in the ethical/legal/social aspects of neuroscience research do take a look at the programme and speakers list on the website. I'll be posting updates and output from the event in early May, particularly from Amanda Pustilink's talk on criminal neuroscience - a selection of work from the SSRN article that's already been discussed here.

We've also got our first annual NeuroSchool coming up in Italy this September/October, which I'm very excited about. The NeuroSchools are a chance for neuroscientists and social scientists to come together and discuss neurotech and neuroscience research and flesh out the issues involved, improve interdisciplinary dialogue and understanding, and provide a platform for future cross-discipline collaboration.  This year's NeuroSchool is hosted in Italy.  Please consider applying if you're working in a relevant area - particularly as the ENSN is funding all accomodation and travel expenses for participants.  The application deadline is May 15th.

As a side note, I'm vamping up the ENSN website to provide a starting point for people interest in the social aspects of neuroscience work, including international events and recent publications -- information that will also go out in our upcoming newsletters (sign up HERE).  If you've got a neuroscience and law publication or event that you'd like publicized for an international audience, please email me with details: ensn@lse.ac.uk.

Caitlin

The (New?) Aesthetics of Execution (Madeira)

In Baze v. Rees, decided on April 16, 2008, the U.S. Supreme Court took up the gauntlet of lethal injection, considering whether Kentucky’s three-drug lethal injection method posed an unacceptable risk of significant pain.  The court, however, was concerned not only with the Eighth Amendment proscription against the wanton infliction of pain during execution but the visibility of the condemned’s suffering—the aesthetics of execution. What is at stake, then, is not only pain, but its politics and propriety, which come into play when pain becomes palpable through displays of human suffering.  According to the majority, one of the advantages of Kentucky’s lethal injection cocktail is that it promotes death with dignity.  That state’s current lethal injection protocol consists of sodium thiopental, which induces unconsciousness; pancuronium bromide, a neuromuscular paralytic agent that ceases diaphragm movement; and potassium chloride, which induces cardiac arrest. Pancuronium also has other side effects advantageous in the production of sterile and serene execution scenes; it prevents involuntary bodily movements made by an unconscious offender prior to the injection of the third drug.  The majority opinion acknowledges this benefit, stating that “the Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.”  A lack of dignity does not come from pain itself, for pain is inevitable in execution; instead, it stems from the sight of a body in pain—for with such struggles comes the awareness of another’s suffering.  In their concurring opinions, other justices also recognize the political import of painful displays.  Justice Stevens takes the majority to task for allowing a state to prioritize decorum over compassion by using pancuronium to mask displays of suffering that could indicate that a condemned offender is still conscious:  “[w]hatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.”  Scalia, on the other hand, treats pain and its ensuing indignities as essential to the act of execution, stating that a truly retributive punishment must inflict pain “commensurate with the pain that the criminal has caused.”  This is, of course, the quintessential problem that many murder victims’ families have with the death penalty—that it offers viewers no glimpse into the aesthetics of suffering.  The majority decision supports that state’s right to ensure that the condemned appears to pass peacefully, while Justices Stevens and Scalia both plead for pain’s presence, albeit for very different reasons.  Baze might raise more questions than it answers, but its rhetoric not only acknowledges that pain is crucial to execution as a symbolic act, but sheds light on how the members of the high court regard the proprieties of pain.

Neuroimaging Evidence in US Courts

Jane Campbell Moriarty has written a survey article, "Neuroimaging Evidence in US Courts," in a recent issue of Behavioral Sciences and the Law.  There is no free digital copy, but the abstract is below.  (You can reach her by email here.)

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.

Brain Activity Prior to Conscious Awareness

A recent study in Nature Neuroscience has sent freewheeling free will discussion aflutter.  Here's the abstract:

There has been a long controversy as to whether subjectively 'free' decisions are determined by brain activity ahead of time. We found that the outcome of a decision can be encoded in brain activity of prefrontal and parietal cortex up to 10 s before it enters awareness. This delay presumably reflects the operation of a network of high-level control areas that begin to prepare an upcoming decision long before it enters awareness.

For some discussion, see here (Wired), here (Wired Interview), here (Boston Globe), and here (Health LawProf Blog).  Here's a sample from the Wired article:

The decision studied -- whether to hit a button with one's left or right hand -- may not be representative of complicated choices that are more integrally tied to our sense of self-direction. Regardless, the findings raise profound questions about the nature of self and autonomy: How free is our will? Is conscious choice just an illusion?

"Your decisions are strongly prepared by brain activity. By the time consciousness kicks in, most of the work has already been done," said study co-author John-Dylan Haynes, a Max Planck Institute neuroscientist.

Haynes updated a classic experiment by the late Benjamin Libet, who showed that a brain region involved in coordinating motor activity fired a fraction of a second before test subjects chose to push a button. Later studies supported Libet's theory that subconscious activity preceded and determined conscious choice -- but none found such a vast gap between a decision and the experience of making it as Haynes' study has.

In the seven seconds before Haynes' test subjects chose to push a button, activity shifted in their frontopolar cortex, a brain region associated with high-level planning. Soon afterwards, activity moved to the parietal cortex, a region of sensory integration. Haynes' team monitored these shifting neural patterns using a functional MRI machine.

Taken together, the patterns consistently predicted whether test subjects eventually pushed a button with their left or right hand -- a choice that, to them, felt like the outcome of conscious deliberation. For those accustomed to thinking of themselves as having free will, the implications are far more unsettling than learning about the physiological basis of other brain functions.

(X-Posted to Prawfsblawg.)

Neurolaw Symposium and Call for Papers

Prof. Jane Campbell Moriarty has sent me a symposium announcement and a call for papers for a fantastic neurolaw program she is organizing at the University of Akron School of Law on Sept. 25 & 26.  (Click here for all the details: Download moriarty_call_for_papers.doc ).