Neuroethics & Law Blog

"How Law Should Deal With Vulnerabilities in the Age of Neurotechnology?" by Diebel

Talya Deibel (University College Cork) has written "How Law Should Deal With Vulnerabilities in the Age of Neurotechnology?" Please see that contribution below: 

Digital dependencies are the defining characteristics of our contemporary civilization. [link to source] Humans depend on large-scale complex artificial systems which is a major source of vulnerability. This is nothing new as humans have been dependent on material infrastructures such as transportation, water, or energy for a long time. Today, these dependencies are formed in the digital world characterized by the intensive use of AI, where the cyber identity of humans becomes an essential feature of their existence.

Another example is neurotechnologies, initially developed to secure the right to life and health. They refer to technological practices which are designed to image the cerebral tissue and to manipulate the brain activity. Both AI and neurotechnology are illustrations of complex technological systems that sustain a narrative of progress, health, and techno-solutionism. However, at the same time, they are seen as disruptive as they disturb existing dynamics in the society in how they amplify and create new types of vulnerabilities.

Consider the obvious example of how we cannot properly exist in a society where transportation, banking, health, and public affairs are digitally organized and require having ‘a smart phone’. Another real life example is how humans become deprived of their right to information and free press when social media is censored in authoritarian states. A third illustration is how a patient becomes dependent on a neural device to manage her symptoms for Parkinson’s disease. These devices are produced by biomedical companies which sometimes go bankrupt. [link to source] In such a case all that is left is a human being with a non-functioning technological device in her body. These examples illustrate different grades of vulnerabilities and open up discussions in the legal scholarship regarding how to protect the vulnerable individuals from the ramifications of disruptive technologies. [link to source]

Identifying what type of digital dependencies and vulnerabilities exist in the legal sphere is necessary to suggest better alternatives when regulating technology. For instance, the digital technology affects how our sense of selves are constructed. Neurotechnology contains a spectrum of scientific practices, including closed loop feedback systems and AI-driven algorithms which have a direct relationship with ‘the mind’. This is relevant to legal scholarship, as modern laws conceptualize natural legal subjects as embodied beings with minds. Such conception of the mind is not limited to reason or cognitive capacities. Rather, it refers to an inner sphere where human dignity resides. It comprises of unmanifested thoughts, emotions, desires, will, and memories. It is traditionally viewed as a closed and separate realm which is accessible only to the individual. In the liberal tradition this aspect is often perceived as an ‘inner self’ as the source of autonomy, intentionality, authenticity, creativity, and identity. [link to source]

This inner self is sometimes understood as an area of ‘non-trespassing’ where incorporeal personality interests that are worthy of protection are located. [link to source] The key challenges posed by the integration of the digital into bodies and minds is not only about how technology becomes part of our private intimate sphere but also about how it affects the process of the construction of our ‘selfhood’ and extend our minds. [link to source] This has various legal implications including democracy, freedom of thought, privacy, and the protection of physical and mental integrity. Moreover, these legal implications are strongly manifested in private legal relations in the age of techno-scientific capitalism where incorporeal interests such as personal data is an economic asset. [link to source] Soon this will be relevant for brain data as neurotechnologies are no longer limited to the laboratories. They are ready for the consumer and workplace usage and this poses a novel challenge in law as the brain data which belongs to the ‘inner self’ will be assessed with large-scale AI driven algorithms.

Technology giants with dominant market positions as well as new start-ups begun marketing wearable EEG (electroencephalogram) devices such as EEG headbands for meditation and relaxation, smart caps that monitor attention span, cognitive load and fatigue, and open-source neurotechnology kits for DIY enthusiasts. [link to source] The striking marketing strategies include creating a transhumanist narrative of human augmentation which, sustains dependencies on the technology, as illustrated in the slogans like ‘you can think now’. In the US, where regulations are less strict than in the EU, companies like Neuralink begun human trials of invasive brain-computer interfaces. [link to source] The undemocratic potential of these initatives based on right-wing myths and political opportunism which fuel the narrative of fear, distrust, and catastrophe when it comes to the global perception of neurotechnologies.

Addressing technological vulnerabilities above all requires a democratic environment. It is important to remember that vulnerability does not mean weakness. According to Martha Fineman, who applies vulnerability theory in law, vulnerability refers to a universal human condition. On the one hand, digital technology exacerbates this inherent condition. [link to source] On the other hand, there are significant differences when it comes to vulnerable subjects. For instance, while race, gender, and ability create horizontal differences among individuals, social standing, status, or citizenship creates vertical differences. When the AI and neurotechnology create new techno-vulnerabilities, individually focused human-rights agendas or regulatory frameworks that celebrate formal equality end up far from being sufficient, as several significant social advantages and disadvantages create intersectional effects.

First, the techno-vulnerabilities potentially amplify systemic inequalities. Legal challenges such as discrimination and commodification of data and human bodies had been widely discussed in the context of biotechnology, AI, and responsible innovation. However the potential commodification of the ‘inner self’ presents us with a unique challenge as it creates novel types of physical, emotional, and social dependency relationships between technologies and humans.

The acute ‘techno vulnerability’ becomes visible where there are power imbalances such as consumer and workplace relationships that are traditionally characterized by asymmetrical contractual relationships where parties have unequal bargaining power. For instance, consumers and employees face risks of harm to their ‘inner selves’ such as mental harm, data breaches, privacy violations, and manipulation. Certain groups are particularly susceptible to these risks. These include immigrants, ethnic minorities, queer individuals, children with underdeveloped prefrontal cortices, individuals struggling with addiction, neurodivergent people and others. Questions concerning the equitable protection of mental data, autonomy, freedom, and mental integrity point to legal interests associated with a broader conception of the protection of the inner self.

Yet, vulnerabilities in technological cultures are not purely negative. They also present opportunities for creativity, openness, adaptability, and resilience for a fairer society. [link to source] There are several illustrations of how the society deals with vulnerabilities such as techno-solutionism (e.g. privacy by design or PETs) or strict legal protection. Alternatively, Langdon Winner argues for a different option in free and democratic societies where ‘there is an attitude of trust’ to the fair usage of technologies. [link to source] This requires the legal protection of the reasonable expectation of the individuals that the technologies will function reliably and do not jeopardize fundamental rights. The current developments in neurotechnology confirms the urgency of such an alternative approach whenever it highlights the intersectional challenges and diverse social needs for a better protection of the inner self.

"Confronting Failures of Justice: Getting Away with Murder and Rape" by Robinson et al.

Paul H. Robinson (University of Pennsylvania), Jeffrey Seaman (University of Pennsylvania), and Muhammad Sarahne (University of Pennsylvania) have published "Confronting Failures of Justice: Getting Away with Murder and Rape" on SSRN. Here is the abstract:

Most murderers, rapists, and other serious criminals escape justice in America. Legal academia has traditionally focused on the problem of injustice, where the legal system punishes wrongly through punishing the innocent or over-punishing the guilty. But the problem of failures of justice, where the legal system fails to punish criminal offenders, has been largely ignored. This is unfortunate because, as the book discusses, the damage caused by unpunished crime is immense, and even worse, falls disproportionately on vulnerable poor and minority communities, thus damaging equity as well as justice. Regular failures of justice increase crime by undermining deterrence and the criminal justice system’s credibility with the community as a moral authority. A government that allows rampant failures of justice is ignoring one of its most basic duties. No society should allow its members to be murdered, raped, and robbed without consequence. Yet that is what the American legal system does in most cases. Confronting Failures of Justice dares to ask why getting away with murder and rape is the norm, not the exception, in America.

The book’s seventeen chapters tour nearly the entire criminal justice system, examining the rules and practices that regularly produce failures of justice in serious criminal cases. Topics covered include flawed police investigations, inadequate financing, statutes of limitation, judicial restrictions on investigation, failures to utilize new technology, the exclusionary rule, speedy trial rules, pretrial release, plea bargaining, sentencing procedures, early release on parole, executive clemency, witness intimidation, police-community relations, non-enforcement policies, distributive principles, and more. Each chapter outlines the nature and extent of justice failures caused by the rule or practice, provides real-world examples, and describes the competing societal interests upheld or neglected by the status quo. Finally, each chapter reviews proposed or implemented reforms that could balance the competing interests in a less justice-frustrating manner and recommends one—sometimes completely original—reform to improve the system.

A systematic study of failures of justice is long overdue. Now for the first time, scholars, students, policymakers, and citizens have a comprehensive guide to the problem—and possible solutions.

"Peer Effects in Prison" by Johnsen and Khoury

Julian Johnsen (University of Bergen) and Laura Khoury (Université Paris Dauphine) have published "Peer Effects in Prison" on SSRN. Here is the abstract:

Peer interactions play a key role in the criminal sector due to its secrecy and lack of formal institutions. A significant part of criminal peer exposure happens in prison, directly influenced by policymakers. This paper provides a broader understanding of how peer effects shape criminal behavior among prison inmates, focusing on co-inmate impacts on recidivism and criminal network formation. Using Norwegian register data on over 140,000 prison spells, we causally identify peer effects through within-prison variation in peers over time. Our analysis reveals several new insights. First, exposure to more experienced co-inmates increases recidivism. Second, exposure to "top criminals" (i.e. those with extreme levels of criminal experience) plays a distinctive role in shaping these recidivism patterns. Third, inmates form lasting criminal networks, as proxied by post-incarceration co-offending. Fourth, homophily intensifies these peer effects. These findings contribute to the theoretical understanding of peer influences in criminal activities and offer practical insights for reducing recidivism through strategic inmate grouping and prison management policies.

"Obstructing Precedent" by Watson

Bill Watson (Harvard Law School) has published "Obstructing Precedent" on SSRN. Here is the abstract: 

Critics of the Supreme Court sometimes accuse the justices of disrespecting or being unfaithful to precedent—of severely undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is an important prerequisite to understanding the Roberts Court’s treatment of precedent in a wide range of cases.

Roughly put, a court obstructs precedent when it refuses to cooperate with its prior self in building a coherent body of law. The court reaches a holding in the instant case that cannot be justified by the same rationale—the same weighting of values or purposes—as justified its holding in the precedent case. As a result, the same institution seems over time to speak not with one voice but with multiple discordant voices that reflect no unified political vision. Over the last few years, the Roberts Court has repeatedly obstructed precedent in just this sense in cases spanning diverse areas of the law.

Those who criticize the justices for disrespecting or being unfaithful to precedent usually imply that the justices have thereby acted illegitimately. But that conclusion is too quick. There is nothing inherently illegitimate about obstructing precedent, either legally or politically; obstructing precedent can sometimes be a salutary means of gradual change. At the same time, the Court’s aggressive pattern of obstructing precedent in recent years is cause for concern, given how that pattern undermines the impersonality of the justices’ reasoning and risks further eroding public trust in the Court.

"Redeemable Fines: Overcoming the Crisis of Overincarceration" by Parchomovsky and Stein

Gideon Parchomovsky (University of Pennsylvania) and Alex Stein (Israel Supreme Court) have published "Redeemable Fines: Overcoming the Crisis of Overincarceration" on SSRN. Here is the abstract:

In this Essay, we introduce a new mechanism uniquely designed to achieve rehabilitation of offenders and improve the criminal justice system: the redeemable fine. A redeemable fine is a monetary penalty that will be returned to the offender—in installments or, in exceptional cases, in one payment—over a certain period so long as she or he commits no further crimes. Unlike traditional fines, redeemable fines can be structured in a myriad of ways to provide individually tailored optimal rehabilitative incentives for offenders. First, the installment period of the repayment can be short (several months) or long (several years), depending on the characteristics of the offense and the offender. Second, there is the frequency of the payments. The payment intervals can be long, short, intermediate or variable. The sentencing judge will be able to order that the repayments will be made annually, every six months, every single month or, in exceptional cases, in one installment on the successful completion of the rehabilitation. As with traditional fines, the redeemable fine’s amount will correlate with the seriousness of the offender’s misdeed. For these and other reasons, introduction of redeemable fines can dramatically reduce the rates and the costs of incarceration and render the criminal justice system fairer and more humane, while providing meaningful incentives for offenders not to commit further offenses.

"Electronic Prison: A Just Path to Decarceration" by Robinson and Seaman

Paul H. Robinson (University of Pennsylvania) and Jeffrey Seaman (University of Pennsylvania) have published "Electronic Prison: A Just Path to Decarceration" on SSRN. Here is the abstract: 

The decarceration movement enjoys enthusiastic support from many academics and activists who point out imprisonment’s failure to rehabilitate and its potential criminogenic effects. At the same time, many fiscal conservatives and taxpayer groups are critical of imprisonment’s high costs and supportive of finding cheaper alternatives. Yet, despite this widespread support, the decarceration movement has made little real progress at getting offenders out of prison, in large part because community views, and thus political officials, are strongly committed to the importance of doing justice – giving offenders the punishment they deserve – and decarceration is commonly seen as inconsistent with that nonnegotiable principle. Indeed, almost no one in the decarceration movement has attempted to formulate a large-scale decarceration plan that still provides for what the community would see as just punishment.

In this Article, we offer just such a plan by demonstrating that it is entirely possible to avoid the incarceration of most offenders through utilizing non-incarcerative sanctions that can carry a total punitive effect comparable to physical prison. New technologies allow for imposing “electronic prison” sentences where authorities can monitor, control, and punish offenders in a cheaper and less damaging way than physical prison while still doing justice. Further, the monitoring conditions provided in electronic prison allow for the imposition of a wide array of other non-incarcerative sanctions that were previously difficult or impossible to enforce. Even while it justly punishes, electronic prison can dramatically increase an offender’s opportunities for training, treatment, education, and rehabilitation while avoiding the problems of unsupported families, socialization to criminality, and problematic reentry after physical incarceration. And, from a public safety standpoint, electronic prison can reduce recidivism by eliminating the criminogenic effect of incarceration and also provides longer-term monitoring of offenders than an equivalently punitive shorter term of physical imprisonment. Of course, one can imagine a variety of objections to an electronic prison system, ranging from claims it violates an offender’s rights to fears it may widen the net of carceral control. The Article provides a response to each.

Electronic prison is one of those rare policy proposals that should garner support from across the political spectrum due to effectively addressing the complaints against America’s incarceration system lodged by voices on the left, right, and center. Whether one’s primary concern is decarcerating prisoners and providing offenders with needed treatment, training, counseling, and education, or one’s concern is reducing crime, imposing deserved punishment, or simply reducing government expenditures, implementing an electronic prison system would provide a dramatic improvement over America’s current incarceration policies.

"The Case for Scientific Jury Experiments" by Chao et al.

Bernard Chao (University of Denver Sturm College of Law), Christopher T. Robertson (Boston University & University of Arizona), and David Yokum (The Policy Lab at Brown University) have published "The Case for Scientific Jury Experiments" on SSRN. Here is the abstract:

For decades, litigators have relied on focus groups. While this approach can help identify issues for further exploration, attorneys often use focus groups to shape trial strategy or even predict outcomes. But focus groups are ill-suited for these applications because they suffer from several well-known weaknesses.

Fortunately, recent technical advances in crowdsourcing and insights into human decision-making have opened the door to a better approach. We can now conduct large-scale (i.e., 100’s to 1000’s of mock jurors) A vs. B experiments. These experiments avoid the problems of focus groups and can be used to test any number of issues. We explain this approach and then highlight some examples from our research including: 1) the effects of anchoring, 2) the problem with self diagnosing bias, 3) how subsequent remedial measures affect juries; and 4) how juries respond to a variety of different jury instructions.

"How Omissions Aren't Special" by Greasley

Kate Greasley (University of Oxford) has published "How Omissions Aren't Special" on SSRN. Here is the abstract: 

This short paper is a contribution to a special journal issue about Andrew Simester's book 'Fundamentals of Criminal Law'. It considers Simester's reappraised stance on omissions (or, in his analysis, 'not-doings') and the theoretical underpinnings he offers for the default rule that we are not prima facie criminally liable for our omissions as we are for our positive acts. I pay particular attention to the proposition that omissions are, all things being equal, less culpable than positive acts, and the idea that omissions liability is liberty-restricting in a way that positive act liability is not. Against the standard picture, I present a way of seeing omissions liability as being of a piece with liability for our harmful positive acts, and not subject to a different default rule.

"Don’t forget the upside of neurotechnology" by Witbrock and McCay

Michael Witbrock (The University of Auckland) and Allan McCay (The University of Sydney) have published "Don’t forget the upside of neurotechnology" on Springer Nature Link. Here is the first paragraph:

Much of the ethical and legal discussion concerning a new technology tends to centre around possible risks that technology might pose. However, for balanced decision making, it seems very worthwhile to discuss equally both these possible downsides, and the possible short-term and long-term upsides a new technology may support. In the case of neurotechnology, which increasingly focuses on merging developing AI technology with humans, there has been considerable consideration of ethical challenges and increasingly of legal challenges. While much of this discussion has taken place in scholarly literature, the recent reporting of Elon Musk’s company Neuralink’s implantation of a brain–computer interface into a human patient has brought the discussion further into the public sphere.

"Bioethics, Reproduction, and Extending Life" by Cohen

I. Glenn Cohen (Harvard Law School) has published "Bioethics, Reproduction, and Extending Life" on SSRN. Here is the abstract: 

This chapter considers where law and bioethics intersect as to the 100-year life. It tackles two different issues. The first is an exploration of the bioethics of life extension and whether such extension is something that should be pursued. The second considers attempts to extend reproduction into the late period of life and the ethics thereof.

"Are Embryos or Fetuses Brain Dead? Implications for the Abortion Debate" by Donley

Greer Donley (University of Pittsburgh) has published "Are Embryos or Fetuses Brain Dead? Implications for the Abortion Debate" on SSRN. Here is the abstract: 

Most state abortion definitions exclude the removal of a dead fetus, attempting to distinguish miscarriage and abortion care. But what does "dead" mean at the earliest stages of potential life? There is a consensus at the end of life that death not only encompasses the cessation of cardiac activity, but also brain death. This symposium essay considers whether life can exist before brain life begins and how that might impact the abortion debate. The most rudimentary brain waves cannot be detected in an embryo before roughly the eighth week of pregnancy; the capacity for feeling and consciousness begin much later. If brain life starts at one of these points, one could argue that before that moment, terminating a pregnancy simply removes dead pregnancy tissue and is not an abortion according to state abortion definitions. This essay considers important critiques of this argument as a legal theory, including that the legal definition of brain death requires "irreversibility," that this strategy could exacerbate fetal personhood efforts, and that this fundamentally philosophical question cannot be resolved by science, particularly in a moment of scientific distrust. The essay concludes that though the concept of brain life has some moral and rhetorical salience, it should not be pursued as a legal strategy.

"Ways of Explaining Law" by Priel

Dan Priel (York University) has published "Ways of Explaining Law" on SSRN. Here is the abstract: 

It’s become commonplace to say that jurisprudence is at a “dead end.” This essay, which reviews Julie Dickson’s Elucidating Law attempt to argue that matters are not so dire, explains the sources of the decline and offers some alternatives. It begins by identifying a fundamental disagreement between two approaches to explaining the “nature” or “essence” of law, one (derived from Kelsen) that gives philosophy priority over (or independence from) social explanation, and another (derived from Hart) that considers philosophy as a method for explaining social practices. I show that the former approach has been rejected with respect to all other social practices and question why it should be adopted with respect for law. I then show that the ordinary-language philosophy Hart embraced was designed to be an anti-naturalistic form of social explanation. Though itself a poor method for explaining social practices, the latter opens up new ways for thinking about jurisprudence. I conclude with such proposals focusing on the possibility of seeing jurisprudence as offering (false) models of legal reality rather than a collection of necessary truths about it.

"Brain Science for Lawyers, Judges, and Policymakers" by Jones et al.

Owen D. Jones (Vanderbilt University), Jeffrey D. Schall (York University), Francis X. Shen (University of Minnesota Law School), Morris B. Hoffman (Second Judicial District Court Judge, State of Colorado), and Anthony D. Wagner (Stanford University) have published "Brain Science for Lawyers, Judges, and Policymakers" on SSRN. Here is the abstract: 

Brain science in the form of neuroscientific evidence now appears frequently in courtrooms and policy discussions alike. Many legal issues are at stake, such as how to separate the best uses of brain science information from those that are potentially biasing or misleading. It is crucial to evaluate brain science evidence in light of relevant legal standards (such as the Daubert and Frye rules).

Brain Science for Lawyers, Judges, and Policymakers responds to this rapidly changing legal landscape, providing a user-friendly introduction to the fundamentals of neuroscience for lawyers, advocates, judges, legal academics, and policymakers. It features detailed but clear illustrations, as well as a comprehensive and accessible overview of developments in legally relevant neuroscience. Readers will learn brain science terms, how to understand and discuss brain structure and function in legally relevant contexts, and how to avoid over- or under-interpreting neuroscience evidence.

The book begins with a survey of the kinds of litigation, legislation, and regulation where neuroscience is currently being used. It provides accessible descriptions of basic brain anatomy and brain function, as well as an overview of how modern technologies can reveal the brain structures and brain functions of individuals. It finishes with cautions and limitations, including timely and though-provoking observations about where the future of neurolaw might lead. Throughout, the authors offer clear and concise guidance on understanding both the promise and the limitations of using brain science in law and policymaking.

"Truth in Sentencing, Incentives and Recidivism" by Macdonald

David Macdonald (University of British Columbia Okanagan) has published "Truth in Sentencing, Incentives and Recidivism" on SSRN. Here is the abstract:

Truth in Sentencing laws eliminate discretion in prison release. This decreases the incentive for rehabilitative effort among prisoners. I use a regression discontinuity design to exploit a change in these incentives created by the introduction of TIS in Arizona. Before prison, I find that sentences were reduced by 20% for TIS offenders. Further, I find that rule infractions increased by 22% to 55% and education enrolment fell by 24%. After release, I find offenders were 4.8 p.p. more likely to reoffend. I further find that recidivism and infractions effects are largest among drug and violent offenders. Finally, I show that the reduction in sentences resulted in a broad equalization of time served at the cutoff, which indicates that the removal of early-release incentives by TIS was the main mechanism driving results.

"Predatory Decarceration" by Wade

Elenore Wade (Rutgers Law School) has published "Predatory Decarceration" on SSRN. Here is the abstract: 

This Essay critiques an emerging package of state and federal law reforms often broadly referred to as “bipartisan criminal justice reform,” describing the reforms at the level of political economy and referring to the emergent policy as one of predatory decarceration. Borrowing from Keeanga-Yamahtta Taylor’s description of the immediate post-redlining era of federal housing finance policy as predatory inclusion, I describe how these law reforms combine with increasing reallocation of criminal sentences from prisons into the community to create an environment where returning prisoners are coerced into low-wage jobs where they are less likely or able to challenge working conditions individually or collectively.

I analyze these reforms from a political economic perspective rather than with a narrow focus on mass incarceration, arguing incarceration is inseparable from a U.S. political economy with a severely underdeveloped welfare state, making it predisposed to respond to violence and disorder with severe and increasingly invasive and sophisticated penal controls. The predatory decarceration reform package reproduces rather than intervenes in this phenomenon because it subsumes a diverse array of critiques of increased carceral control into mere critiques of prisons. Although approaching the analysis at this level could make the problem of carceralism seem even more intractable and grim, I instead discuss how it opens possibilities for law reforms to support rather than frustrate the goals of the diverse abolitionist and other social movements whose calls for reform has been vastly oversimplified by the fleeting coalitions that produced predatory decarceration.