Neuroethics & Law Blog

First Annual Neuroethics Society Meeting

The first annual meeting of the Neuroethics Society will be held in Washington, D.C. on November 13-14.  You can register and get more information here.  The current program is below.

First Annual Meeting of the Neuroethics Society, Washington DC

Program as of 7/15/08

Thur 11/13

7:30-8:10 Poster Set-Up, Breakfast Buffet

8:10-8:30 Welcome and Opening Remarks (Steve Hyman, Harvard, and Alan Leshner, AAAS)

8:30-9:50 Neuroethics of Pediatric Bipolar Disorder

Moderator: Eric Parens (The Hastings Center)

Speakers: Ben Vitiello (National Institute of Mental Health), Steven Hyman (Harvard University), and Josephine Johnston (The Hastings Center).

9:50-10:10 Break

10:30-11:50 Debate on Cognitive Enhancement

Moderator: Paul Wolpe (Emory University)

Debaters: Julian Savulescu (University of Oxford) and Carter Snead (University of Notre Dame).

12:00-1:00 Lunch

1:00-2:20 The Science of Decision-Making and Free Will

Moderator: Elizabeth Phelps (New York University)

Speakers: Adina Roskies (Dartmouth College), Stephen Morse (University of Pennsylvania), Mike Shadlen (University of Washington), and Paul Glimcher (New York University).

2:30-4:15 Poster Session with Refreshments

4:15-5:00 The View from Capitol Hill: Neuroscience and Policy

Speaker: TBA

5:30-6:30 Reception hosted by the Dana Foundation

6:30-8:00 Discussion of the Ethics of Deep Brain Stimulation,

              hosted by the Dana Foundation

              Moderator: Judy Illes (University of British Columbia)

              Panelists: Helen Mayberg (Emory University), Philip Campbell (Nature), Jonathan Moreno (University of Pennsylvania)

Fri 11/14

7:30 -8:40 Breakfast Buffet

8:40-10:00 Neuroethics of Forensic Neuroscience

Moderator: Adam Kolber (Princeton University and University of San Diego)

Speakers: Daniel Langleben (University of Pennsylvania), Steve Laken (Cephos Corporation), Hank Greely (Stanford University), Anne Harrington (Harvard University).

10:00-10:30 Break

10:30-11:50 National Intelligence and Neuroscience

       Moderator: Jonathan Moreno (University of Pennsylvania)

Speakers: Alice Young (Texas Tech), John Rasure (Mind Institute), Christopher “Kit” Green (Wayne State School of Medicine).

12:00-2:00 Lunch, Open Business Meeting

2:00-3:20 The Business of Neuroscience

Moderator: Martha Farah (University of Pennsylvania)

Speakers: Zach Lynch (Neurotechnology Industry Organization), David Ewing Duncan, Mark Frankel (AAAS).

3:20-3:45 Break

3:45-4:45 Updates and FYIs

        Moderator: Ilina Singh (London School of Economics and Political Science)

4:45-5:00 Closing Remarks

Denno on Lethal Injection

On SSRN:

"The Lethal Injection Debate: Law and Science"

Fordham Urban Law Journal, Vol. 35, No. 701, 2008
Fordham Law Legal Studies Research Paper No. 1175343

DEBORAH W. DENNO, Fordham University School of Law
On April 16, 2008, for the first time in decades, the United States Supreme Court reviewed evidence concerning whether a state's method of execution violated the Eighth Amendment's Cruel and Unusual Punishments Clause. In Baze v. Rees, a 7-2 plurality ruling, the Court upheld the constitutionality of Kentucky's method of executing inmates by lethal injection, determining that Kentucky's administration of a three-drug combination used by most death penalty states did not pose a "substantial" or "objectively intolerable" risk of "serious harm" to inmates. While the road leading to Baze is well traveled with lethal injection litigation, post-Baze, there appear to be many more litigation miles still to go. There is no better background for attempting to assess the future direction of Baze than the Fordham Urban Law Journal's symposium issue, The Lethal Injection Debate: Law and Science. This forum, the first of its kind on this topic, reflects the latest balanced perspective on the legal, medical, and ethical concerns over lethal injection from some of the country's leading experts. Likewise, this Introduction discussses the ways the symposium's ten articles provide the proper insight and context for determining how the Baze Court's Eighth Amendment standards will apply in practice.

Literature as Scientific Endeavor

In the Sunday New York Times Book Review, Walter Kirn reviews James Wood's new book How Fiction Works.  According to Kirn, Wood views literature as a scientific endeavor to credibly capture human nature.  It seems to me that there is a growing strain of legal thought that tries to do something similar.  See, e.g., here, here, and here. 

Here are Kirn's words:

His essential point is this: Novels and short stories succeed or fail according to their capacity (a capacity that has progressed over the centuries rather like the march of science) to represent, affectingly and credibly, the actual workings of the human mind as it interacts with the real world. The mind and the world, as Wood defines them, are dependable, fixed phenomena, for the most part, possessed of natural, intrinsic qualities that fiction writers in their ink-stained lab coats measure, prod, explore and seek to illustrate using a rather limited range of instruments that can be endlessly adjusted.

(Originally posted at Prawfsblawg).

Westen on the Reasonable Person Standard

The following has been posted to SSRN:

"Individualizing the Reasonable Person in Criminal Law"

Criminal Law and Philosophy, Vol. 2, pp. 137-62, June 2008

PETER K. WESTEN, University of Michigan Law School
Criminal law commonly requires judges and juries to decide whether defendants acted reasonably. Nevertheless, issues of reasonableness fall into two distinct categories: (1) where reasonableness concerns events and states of affairs, including states of risk of which an actor is conscious, that can be justly assessed without regard to the actor's individual traits, and (2) where reasonableness concerns culpable mental states and emotions that cannot justly be assessed without reference to the actor's capacities.

This distinction is significant because, while the reasonable person by which type-1 cases are assessed is a disembodied and impersonal ideal that consists of nothing but the uncompromising values of the jurisdiction, the reasonable person by which type-2 cases are measured must necessarily incorporate some of an actor's individual traits or risk blaming the blameless.

Courts and commentators have thus far approached the task of individualizing, or subjectivizing, reasonableness in type-2 cases by trying to determine in advance which individual traits are generally relevant and which are not. I propose an alternative approach that, in addition to applying to negligence and voluntary manslaughter cases alike, derives its content from the social practice of blaming. I propose that a reasonable person in type-2 cases consists of every physical, psychological, and emotional trait an actor possesses, with one exception - the exception being that he possesses proper respect for the values of the people of the state as reflected and incorporated in the statute at hand.

Negative Emotion and False Memories

The following working paper and abstract have been posted to SSRN (see also this earlier Neuroethics & Law Blog post):

"How Does Negative Emotion Cause False Memories?"

CHARLES J. BRAINERD, Cornell University
LILIAN MILNITSKY STEIN, Pontifical Catholic University of Rio Grande do Sul
R. A. SILVEIRA, University of Santa Cruz do Sul
GUSTAVO ROHENKOHL, Pontifical Catholic University of Rio Grande do Sul
VALERIE F. REYNA, Cornell University
Remembering negative events can stimulate high levels of false memory, relative to remembering neutral events. In experiments in which the emotional valence of encoded materials was manipulated with their arousal levels controlled, valence produced a continuum of memory falsification. Falsification was highest for negative materials, intermediate for neutral materials, and lowest for positive materials. Conjoint-recognition analysis produced a simple process-level explanation: As one progresses from positive to neutral to negative valence, false memory increases because (a) the perceived meaning resemblance between false and true items increases and (b) subjects are less able to use verbatim memories of true items to suppress errors.

"The Cognitive Psychology of Mens Rea"

Former Neuroethics & Law guest blogger Kevin Jon Heller (Law, University of Auckland) has posted the following paper and abstract to SSRN:

"The Cognitive Psychology of Mens Rea"

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.

This 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 them 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.

Exercise in a Pill

I bring to your attention an article in last week's NYT.  It describes recently published research on drugs that seem to mimic or augment the beneficial effects of exercise with little or no actual exercise required:

Researchers at the Salk Institute in San Diego reported that they had found two drugs that did wonders for the athletic endurance of couch potato mice. One drug, known as Aicar, increased the mice’s endurance on a treadmill by 44 percent after just four weeks of treatment.

A second drug, GW1516, supercharged the mice to a 75 percent increase in endurance but had to be combined with exercise to have any effect.

If such drugs are safe and effective in humans, they hold out the promise that we may be able to get the positive health effects of exercise without much exercise.  Millions of people who go to the gym every morning could instead spend their limited time doing something else.  Yet, one detects from the article a hesitation to embrace that possibility.  People seem much more eager to play up the possibility that the drug will "help people who are too frail to exercise and those with health problems like diabetes that are improved with exercise." 

There are probably many reasons for this.  For example, researchers may focus on drugs that treat the sorts of medical conditions for which the FDA is likely to grant approval.  Similarly, perhaps it is easier (ironically) to get research grants to treat specific medical diseases rather than conditions that affect the entire population of healthy people.  I suspect though, that there is a general discomfort in supporting drugs that are meant to enhance human performance rather than serve as a therapy for some disorder.  Aside from concerns about safety, though, it's hard to see why.  People seem to take too seriously the adage, "No pain, no gain."  Sure, if you like the positive psychological effects of actual exercise, go ahead and exercise.  But if you don't, feel free to embrace the possibility that, some day in the still distant future, you won't have to.

(With minor differences, this post originally appeared at Prawfsblawg.) 

Intractable Pain Paper on SSRN

"Intractable Pain, Palliative Management and the Principle of Medical Futility"

CUA Columbus School of Law Legal Studies Research Paper No. 2008-28

GEORGE P. SMITH, Catholic University of America - Columbus School of Law

ABSTRACT:
This monograph examines the issue of existential or psychological pain and how, heretofore, it has been dealt with by hospice or palliative care - concluding, as such, that terminal or deep sedation should be embraced more widely within the Ethic of Adjusted Care as a part of the compassionate management of the dying.

The first element of palliative treatment in hospice care is symptom control - pharmacological and psychological - in the dying patient. Today, pain relief - be it physical, mental, social or spiritual - is being recognized more and more as a fundamental human right. If voluntary refusals by competent dying patients of hydration and nutrition are tolerated routinely by both the legal and medical professions, as well as society at large - even though these actions hasten death - then, surely, under the Doctrine of Mercy and/or Principle of Beneficence, assistance in relieving chronic, irremediable pain should be allowed when requested.

The Principle of Medical Futility, supplemented by the Doctrine of Double Effect, can serve as a decisive tool for both physicians and judges when called upon to evaluate end-of-life care. If a patient is in a futile condition, efficacious treatment should be given even if the secondary effect of that assistance means hastening life's cruel and inhumane ending. Terminal sedation is just that: recognized treatment. It should not be confused, taxonomically, by denominating it as euthanasia, murder, or assisted suicide. Rather, it is but an act of self-determination.

The time has come to step outside the mired and endless moral argumentation over the "slippery slope consequence" of validating a right, however exercised, to a good (painless) death and acknowledge - decisively - that standards of common decency, compassion and mercy demand nothing less.

Social Psychology and Confessions

The full-text of the following article is available at SSRN.  It's over ten years old, but may nevertheless interest some readers:

"The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions"

Studies in Law, Politics, and Society, Vol. 16, 1997

RICHARD A. LEO, University of San Francisco - School of Law
RICHARD J. OFSHE, University of California, Berkeley - Department of Sociology
This article (1) develops a social psychological decision-making model that describes the methods of influence through which interrogation proceeds and identifies the factors leading the guilty and the innocent to decide to confess; (2) Specifies the sequence and effects of the tactical moves through which interrogators influence suspects decisions; (3) Describes the variety of types of confessions and their differentiating characteristics; and (4) Develops and illustrates through case materials of a classification system for categorizing types of statements made in response to interrogation. Together, the decision-making model and the expanded classification system provide a framework for explaining the process of police interrogation as it is practiced in the United States.