Neuroethics & Law Blog

Less Controversial Neuropolitics

Today's NYT has an op-ed by Sam Wang and Sandra Aamodt on how certain false beliefs can be sticky, in part because we retain certain memories without retaining the source of the memory (a phenomenon dubbed "source amnesia").  An excerpt:

Journalists and campaign workers may think they are acting to counter misinformation by pointing out that it is not true. But by repeating a false rumor, they may inadvertently make it stronger. In its concerted effort to “stop the smears,” the Obama campaign may want to keep this in mind. Rather than emphasize that Mr. Obama is not a Muslim, for instance, it may be more effective to stress that he embraced Christianity as a young man.

. . .

In 1919, Justice Oliver Wendell Holmes of the Supreme Court wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Holmes erroneously assumed that ideas are more likely to spread if they are honest. Our brains do not naturally obey this admirable dictum, but by better understanding the mechanisms of memory perhaps we can move closer to Holmes’s ideal.

NELB Roundup

Some noteworthy links for Neuroethics & Law Blog readers, particular the first two:

(1) Tyler Cowen at Marginal Revolution on the New Yorker article on itching (and much more)

(2) Vaughan Bell at MindHacks on the "fMRI Smackdown"

(3) Bruce Schneier at Wired on the dangers of remotely overriden devices (via BoingBoing).

More Neuropolitics Controversy

The Atlantic recently published an article about some of the work of Marco Iacoboni and FKF Applied Research.  Author Jeffrey Goldberg was placed in a brain scanner and the researchers tried to say something about his political views.  Here is a strongly-worded response from Daniel Engber at Slate.  Some excerpts from Engber follow:

Now these guys have worked over the press yet again. Goldberg is too smart to be a shill for the neuromarketers—his tone is never more than half-serious, and he does pause at the outset to express some skepticism. (David Brooks provides him with a useful quote: "My fear is that [brain-imaging] is like flying over Los Angeles at night, looking at the lights in the houses and trying to guess what people are talking about at dinner.") . . .

Meanwhile, Goldberg playfully entertains the notion that brain-based market research can reveal hidden truths about his personal and political life. ("What if the MRI discovered that I have deep empathy for Pat Buchanan?" he wonders before sliding into the scanner. "What if it discovered a malignant tumor? What if it discovered a malignant tumor in the shape of Pat Buchanan?") Not likely. The neuropundits are more like tarot readers than scientists: They claim to read specific mental states from patterns of blood flow and brain activity, but the narratives they invent are arbitrary, equivocal, and inconsistent. And whenever the imaging data happen to contradict reality, they change their interpretation without a second thought.

(Hat tips to Martha Farah for The Atlantic article and Emily Murphy for the Slate article).

Savulescu to Head Oxford Centre for Neuroethics

Julian Savulescu has been selected to head a new neuroethics center at Oxford.  According to this press release, it will be the first neuroethics center in the United Kingdom.  Some excerpts:

The Oxford Centre for Neuroethics, led by experts from ethics, philosophy of mind, neuroscience, neurology, psychiatry and legal theory, will be the first international centre in the UK dedicated to neuroethical research. Research will focus on questions about the enhancement of cognition and mood; borderline consciousness and severe brain impairment; free will, criminal responsibility, and addiction; and the neural basis of moral decision-making.

. . .

The Centre will bring together researchers from Europe, Australia and USA, across a wide range of disciplines, from ethics, philosophy of mind, law, psychiatry, and neurosciences to address current advances in neurosciences and other areas of related clinical medicine.  It will link relevant research groups around the world and seek to engage policy makers and the general public.

Amazon Tribe Story Inaccurate

A recent news item from the Associated Press about a so-called "lost" Amazon tribe was inaccurate.  The AP reported here that the tribe has been known by researchers for twenty years.  Now it appears that the tribe has been known by researchers since 1910 and that the photographer was deliberately misleading reporters. 

Second Generation Forensic Evidence by Murphy

The following paper has been posted to SSRN:

"Inferences, Arguments, and Second Generation Forensic Evidence"

Hastings Law Journal, 2008
UC Berkeley Public Law Research Paper No. 1142522

ERIN MURPHY, University of California, Berkeley, School of Law (Boalt Hall)
Advances in scientific and technological evidence have resulted in a new, second generation of forensic proof characterized by its high degree of probativeness, mechanical sophistication, and database-based investigative capacity. Methods such as DNA typing are already in widespread use in the criminal justice system, and law enforcement may soon have commonly available other novel techniques such as advanced biometrics, electronic locators, or even reliable lie detection systems.

The promise and allure of such forms of forensic evidence rest in its high degree of accuracy. But the perception that such evidence is effectively infallible has resulted in an increasing number of instances in which the government has sought to bolster its case by making arguments based on actions taken, or not taken, by the defense. In some cases, the government appropriates a nontestifying defense expert as its own. In others, the government presents evidence that the defense sought expert assistance but then did not present the expert's conclusions, thus implying that those conclusions did not support the defense. Lastly, the government has even argued in some cases that the defendant's failure to seek expert assistance supports an inference of guilt, because an innocent person would have made efforts to disprove such powerful and inculpating evidence.

This Article explores the proper range of latitude to accord both the defense and prosecution in making challenges and inferences regarding scientifically or technologically sophisticated evidence. More specifically, this Article concludes that resolution of such questions requires informed and close attention to the particular characteristics of second generation scientific evidence.

Sexual Orientation and Brain Structure/Function

A study just published at PNAS is notable, not just for finding structural brain differences associated with sexual orientation, but also for finding functional differences in tasks unrelated to sexual activity. 

Here are some comments from Vaughan at MindHacks:

What is most intriguing about this new study is a further investigation assessed amygdala function in each side of the brain. In particular, it looked at the balance of activity between the two hemispheres when the participants were asked just to breath in unscented air.

The study found that straight men and gay women had greater right sided activity, whereas gay men and straight women showed equal activation on both sides. As with the structural comparisons, the measurements from homosexual participants were similar to their straight, opposite sex counterparts.

The reason this new study is interesting is because it found a functional brain difference in a task that was not specifically linked to sex or attraction.

Previous studies have found functional differences in the brains of gay and straight people, but they have tended to use experiments where participants were presented with either sexual images, gender specific faces, or stimuli linked to sexual activity, such as pheromones.

These are interesting findings, but they may be the result of same-sex sexual activity, rather than an explanation for why people seek it out.

If you have experience of sleeping with same-sex partners, it's hardly surprising that you may have a different response to same-sex material.

These new findings were from a neutral task. Now it's possible that lots of same sex experience could affect your brain response to fresh air, but it's highly unlikely.

It is possible, of course, that same-sex experience could alter the function of specific brain circuits which affects even non-sex related tasks, but these results also suggest the possibility that some more general differences in brain organisation are responsible for a number of effects, including sexual orientation.

And here is some more commentary from New Scientist.

Kissing, Hugging, and Stress Reduction in Chimps

From PNAS:

Stress reduction through consolation in chimpanzees

Orlaith N. Fraser*, Daniel Stahl, and Filippo Aureli*,

*Research Centre in Evolutionary Anthropology and Palaeoecology, School of Biological and Earth Sciences, Liverpool John Moores University, James Parsons Building, Byrom Street, Liverpool L3 3AF, United Kingdom; and Department of Biostatistics and Computing, Institute of Psychiatry, King's College, De Crespigny Park, London SE5 8AF, United Kingdom

Communicated by Frans B. M. de Waal, Emory University, Atlanta, GA, May 1, 2008 (received for review November 10, 2007)

Abstract

Consolation, i.e., postconflict affiliative interaction directed from a third party to the recipient of aggression, is assumed to have a stress-alleviating function. This function, however, has never been demonstrated. This study shows that consolation in chimpanzees reduces behavioral measures of stress in recipients of aggression. Furthermore, consolation was more likely to occur in the absence of reconciliation, i.e., postconflict affiliative interaction between former opponents. Consolation therefore may act as an alternative to reconciliation when the latter does not occur. In the debate about empathy in great apes, evidence for the stress-alleviating function of consolation in chimpanzees provides support for the argument that consolation could be critical behavior. Consistent with the argument that relationship quality affects their empathic responses, we found that consolation was more likely between individuals with more valuable relationships. Chimpanzees may thus respond to distressed valuable partners by consoling them, thereby reducing their stress levels, especially in the absence of reconciliation.

Memory Detection and Constitutional Rights

Abstract only on SSRN:

"Brain Imaging and the Bill of Rights: Memory Detection Technologies and U.S. Criminal Justice"

American Journal of Bioethics, Vol. 8, No. 1, pp. 1-4, 2008

DOV FOX, Yale Law School
Memory detection technologies could transform the character of criminal justice in the United States. Neurological test results provide information on the basis of which to resolve contested factual disputes in criminal trials. Because forensic neurotechnology measures involuntary (and thus uncontrollable) brain activities, these techniques promise superior reliability over traditional polygraph machines, which measure physiological functions that a subject may be able to control and learn to manipulate. Despite Supreme Court concerns, neuroimaging technologies do not threaten to usurp the role of juries as fact-finders. Assuming that EEG and fMRI techniques achieved sufficient levels of reliability to warrant legal admissibility under Frye and Daubert, forensic neurological evidence need not violate constitutional guarantees afforded by the Fourth, Fifth, or Sixth Amendments within the Bill of Rights.

"Engaging Capital Emotions" on SSRN

"Engaging Capital Emotions"

DOUGLAS A. BERMAN, Ohio State University - Michael E. Moritz College of Law
STEPHANOS BIBAS, University of Pennsylvania Law School
The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.