Neuroethics & Law Blog

Free Will in the FT

Stephen Cave has a brief essay in The Financial Times, reviewing three new books addressing issues of free will.  Here's a tidbit I wasn't aware of:

Two neuroscientists working in Australia have taken Libet’s discovery one step further. They found that, when asking people to choose to move either their left or right hands, it was possible to influence their choice by electronically stimulating certain parts of their brains. So, for example, the scientists could force the subjects always to choose to move their left hands. But despite their choice being electronically directed, these patients continued to report that they were freely choosing which hand to move.

Cave also writes:

Thanks to modern neuro-imaging technology, we now know that our minds - our conscious, mental life - are a product of activity in the brain.

Surely, we didn't learn this from neuroimaging.  Cave more-or-less recognizes this further down:

None of this will come as a surprise to philosophers. Many have long suspected that humans are as subject to causal laws as the rest of nature. They just did not know how. As the Dutch philosopher Spinoza wrote in 1676, ”Men are deceived if they think themselves free, an opinion which consists only in this, that they are conscious of their actions and ignorant of the causes by which they are determined.”

(Hat tip: Leiter Reports)

Roundup of Neurolaw Posts

Here is a roundup of some blog posts discussing Jeffrey Rosen's article, The Brain on the Stand, in the New York Times Magazine a couple of weeks ago:

• Brain Waves, "NeuroLaw Rising"
• Garden of Forking Paths, "Neurolaw in the NY Times"
• Majikthise, "Neurolaw"
• MindHacks, "How Neurolaw is Shaping the Courtroom"
• The Situationist, "Law and the Brain"

Jury Selection Consulting in Psychology Today

Matthew Hutson has an interesting article on jury selection consulting in Psychology Today.  Click here for the article.  Here's an excerpt:

How effectively do demographics predict jurors' responses? They're "barely important," Dimitrius says. "[But] that's what lawyers still learn in law school: You can't have any males on a rape case, for instance. Ridiculous stuff. Very rarely will we find a demographic that's a factor." The O.J. case was an exception. Of the final 12 jurors, eight were black women, and only two had college degrees. Dimitrius wasn't surprised when the panel sympathized with O.J., considered prosecuting attorney Marcia Clark a "bitch," and ignored the DNA evidence.

Much more predictive are juror personalities (during voir dire do they appear stern? compassionate?), experiences (have they been the victim of a violent crime?), and attitudes (how do they feel about large corporations?). "I'm matching our case with the juror's life experience or value system," says Texas consultant Robert Hirschhorn, who's worked on the trials of Ken Lay, Terry Nichols, and William Kennedy Smith. In a breach of contract case, he wants people with "a real strong sense of right and wrong, black and white—the kind of people who say, 'a deal's a deal.' "

"Implicit Bias, Science, and Antidiscrimination Law"

Samuel R. Bagenstos (Wash. U., Law) has posted Implicit Bias, Science, and Antidiscrimination Law on SSRN.  The paper is forthcoming in the Harvard Law & Policy Review.  Here is the abstract:

In recent years, scholars of antidiscrimination law have increasingly come to focus on the problem of “implicit” or “unconscious” bias. They have pointed to an expanding mass of evidence from experimental psychology that appears to demonstrate the pervasiveness of unconscious bias on the basis of race, gender, and other legally salient characteristics, and that raises troubling questions about the effects of that bias on legally relevant behaviors. Now, however, the arguments for using antidiscrimination law to respond to implicit bias face a new, more fundamental challenge. Gregory Mitchell and Philip Tetlock contend, in a recent piece, that the psychological research purporting to demonstrate the pervasiveness of implicit bias “fails to satisfy key scientific tests of validity.” Mitchell and Tetlock make some effective points. But this essay, which is framed as a response to their piece, contends that Mitchell and Tetlock's argument does not at all undermine the case for taking account of implicit bias in antidiscrimination policy. Even if one accepts every “scientific” critique they offer of the implicit bias literature - and there is substantial dispute within psychology on some of those critiques - the case for using the law to respond to the problem of implicit bias remains strong. In the end, many of Mitchell and Tetlock's critiques of implicit bias research rest, not on any “scientific” ground, but on normative assumptions about what kinds of discrimination the law should seek to prevent and punish. Mitchell and Tetlock's argument thus does not demonstrate the scientific weakness of implicit bias research; instead, it points the way to the normative work to which advocates of the implicit bias law-reform project must turn their attentions.

Samuel R. Bagenstos (Wash. U., Law) has posted Implicit Bias, Science, and Antidiscrimination Law on SSRN.  The paper is forthcoming in the Harvard Law & Policy Review.  Here is the abstract:

In recent years, scholars of antidiscrimination law have increasingly come to focus on the problem of “implicit” or “unconscious” bias. They have pointed to an expanding mass of evidence from experimental psychology that appears to demonstrate the pervasiveness of unconscious bias on the basis of race, gender, and other legally salient characteristics, and that raises troubling questions about the effects of that bias on legally relevant behaviors. Now, however, the arguments for using antidiscrimination law to respond to implicit bias face a new, more fundamental challenge. Gregory Mitchell and Philip Tetlock contend, in a recent piece, that the psychological research purporting to demonstrate the pervasiveness of implicit bias “fails to satisfy key scientific tests of validity.” Mitchell and Tetlock make some effective points. But this essay, which is framed as a response to their piece, contends that Mitchell and Tetlock's argument does not at all undermine the case for taking account of implicit bias in antidiscrimination policy. Even if one accepts every “scientific” critique they offer of the implicit bias literature - and there is substantial dispute within psychology on some of those critiques - the case for using the law to respond to the problem of implicit bias remains strong. In the end, many of Mitchell and Tetlock's critiques of implicit bias research rest, not on any “scientific” ground, but on normative assumptions about what kinds of discrimination the law should seek to prevent and punish. Mitchell and Tetlock's argument thus does not demonstrate the scientific weakness of implicit bias research; instead, it points the way to the normative work to which advocates of the implicit bias law-reform project must turn their attentions.

In recent years, scholars of antidiscrimination law have increasingly come to focus on the problem of “implicit” or “unconscious” bias. They have pointed to an expanding mass of evidence from experimental psychology that appears to demonstrate the pervasiveness of unconscious bias on the basis of race, gender, and other legally salient characteristics, and that raises troubling questions about the effects of that bias on legally relevant behaviors. Now, however, the arguments for using antidiscrimination law to respond to implicit bias face a new, more fundamental challenge. Gregory Mitchell and Philip Tetlock contend, in a recent piece, that the psychological research purporting to demonstrate the pervasiveness of implicit bias “fails to satisfy key scientific tests of validity.” Mitchell and Tetlock make some effective points. But this essay, which is framed as a response to their piece, contends that Mitchell and Tetlock's argument does not at all undermine the case for taking account of implicit bias in antidiscrimination policy. Even if one accepts every “scientific” critique they offer of the implicit bias literature - and there is substantial dispute within psychology on some of those critiques - the case for using the law to respond to the problem of implicit bias remains strong. In the end, many of Mitchell and Tetlock's critiques of implicit bias research rest, not on any “scientific” ground, but on normative assumptions about what kinds of discrimination the law should seek to prevent and punish. Mitchell and Tetlock's argument thus does not demonstrate the scientific weakness of implicit bias research; instead, it points the way to the normative work to which advocates of the implicit bias law-reform project must turn their attentions.

Princeton Talk on Memory Dampening

On Friday at 4:30pm, I will be giving a DeCamp Bioethics Seminar James A. Moffett '29 Lecture at Princeton University.  The talk is entitled, "Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening."  Here's the paper.  As always, I encourage blog readers in attendance to introduce themselves.

I'm pleased with the timing of the talk, as Joseph LeDoux's laboratory appears to have had some success in pharmaceutically dampening memory of a particular musical tone in rats.  I'm waiting to get my hands on the actual Nature Neuroscience article.  In the meantime, Nature has this news story about the research, reporting:

[T]hey trained rats to fear two different musical tones, by playing them at the same time as giving the rats an electric shock. Then, they gave half the rats a drug known to cause limited amnesia (U0126, which is not approved for use in people), and reminded all the animals, half of which were still under the influence of the drug, of one of their fearful memories by replaying just one of the tones.

When they tested the rats with both tones a day later, untreated animals were still fearful of both sounds, as if they expected a shock. But those treated with the drug were no longer afraid of the tone they had been reminded of under treatment. The process of re-arousing the rats' memory of being shocked with the one tone while they were drugged had wiped out that memory completely, while leaving their memory of the second tone intact.

(Hat tip for the [email protected] article: Larry Hinman).

Scooter Libby and the Fallibility of Memory

An article in the March 9, 2007 issue of the New York Law Journal (no free link, I'm afraid) discusses failed efforts to admit evidence of memory fallibility in the trial of I. Lewis "Scooter" Libby, suggesting that the failure to admit the evidence may be argued in appellate briefs.  The article focuses on comments by Elizabeth Loftus from a recent conference at John Jay College entitled, "Off the Witness Stand: Using Psychology in the Practice of Justice."  In this excerpt, Loftus describes her testimony in a pretrial hearing in United States v. Libby, Cr. 05-394:

Mr. Libby's lawyers, she said, wanted to bring expert testimony for the defense, in
the person of Professor Robert A. Bjork, chairman of the psychology department at
the University of California, Los Angeles, a fellow memory expert. Ms. Loftus was
called to explain her work, and that of other psychologists in the memory field, to
Judge Reggie B. Walton.

"The judge was very predisposed against this testimony," said Ms. Loftus. "You can
see that from the transcript of the hearing where I testified. Who knows? This may be
one of those cases where a conviction is overturned. It happens."

Ms. Loftus maintained that the Libby jury should at least have been informed that
numerous scientific studies show that human memory is highly malleable.

Mr. Libby, convicted of lying to FBI agents and a grand jury as to his memory of
conversations with journalists about a former CIA analyst who figured into the larger
political context of motives for the U.S. invasion of Iraq, might indeed have lied.
Ms. Loftus said it was equally plausible that Mr. Libby falls into the subject of her
three decades of scholarship.

"People can have very elaborate recollections about events that never took place,"
she said. "There is an alternative to the [prosecution's] explanation that he lied
about events of July 10, 2003. Now, the FBI questioned him about these things twice,
once on Oct. 14, then again on Nov. 26.

"During that space of time," Ms. Loftus said, "Libby may have merged all kinds of
things into what seemed to him a coherent recollection. We see very rich false
memories in much shorter time spans."

Even journalists' memories are faulty, Ms. Loftus said of former New York Times
reporter Judy Miller, with whom Mr. Libby famously had discussions on the hot topic of
Valerie Plame Wilson, the ex-CIA operative in question.

"Several months after their last encounter," said Ms. Loftus, "Libby bumped into
Judy Miller in New York. She didn't recognize the guy."

(Hat tip: Ivy Lapides).

Neurolaw in NYT

The New York Times Magazine has the word "neurolaw" splashed across the cover in large typeface.  The story by Jeffrey Rosen, entitled "The Brain on the Stand," is sure to create a lot of publicity for the field.  Here is the link.

(image by Brendan Monroe)

Symposium on Trust, Empathy, and Self

The University of Minnesota Law School is hosting a symposium on April 6-7 entitled:

Self and Other:

Cognitive Perspectives on

Trust, Empathy and the Self

Here's the description from the symposium website:

This symposium will feature leading scholars from law, economics, and psychology discussing trust, empathy, and the self.

Recent work on making the model of human behavior used by legal and economic scholars more realistic considers how people make sense of themselves and of others. How do people construct their views of themselves? What determines when people trust others and to what extent? What role does empathy play in helping people understand other people? How do cognitive processes work in the context of trust and empathy? And how can a model of human behavior be constructed that achieves sufficient realism consistent with the tractability needed for policymaking? The symposium will consider these and related issues.

Memory Dampening Article Published

My article, Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening, has now been published in the Vanderbilt Law Review.  You can download a copy here.

Snead on Neuroimaging and Capital Punishment

O. Carter Snead (Law, Notre Dame), former general counsel to the President's Council on Bioethics, has posted Neuroimaging and the "Complexity" of Capital Punishment to SSRN.  This should be of interest to many of our readers.  Here's the abstract:

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over the longer term, these same experts (and their like-minded colleagues) appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short and long term efforts are meant ultimately to usher in a more compassionate and humane regime for capital defendants.

This article seeks to articulate, analyze, and provide a critique of the project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The article concludes that the project as currently conceived is internally inconsistent, and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more draconian and less humane than the deeply flawed present framework.