Neuroethics & Law Blog

The Subjective Experience of Punishment

My article, "The Subjective Experience of Punishment," was recently published in the Columbia Law Review.  You can download the final version for free here.  You can also download a response to the piece by Ken Simons here and by Miriam Baer here.

Here is the abstract from the original article:

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences.

I make two central claims: First, a successful justification of punishment must take account of offenders' subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now.

I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.

Pain in Crabs

http://www.cnn.com/2009/WORLD/europe/03/27/crabs.memorypain/index.html?eref=rss_latest

Ironic, though, that the researcher thinks that other animals, such as farm animals say, are protected in any interesting sense.

Anger or Moral Outrage? (Maibom)

It has long been debated whether anger is, or can be, a moral emotion. Seneca famously argued that we should rid ourselves of this emotion (On Anger). But although the fascination with Stoicism has very much survived into our century, few, if any, endorse the suggestion that we should rid ourselves of most emotions. Nevertheless, if there ever were a promising candidate for elimination, anger would seem to be it. The destructive effects of anger are depressingly abundant. Despite this, even Stoic specialists are apologists for anger. In her book on Stoicism and the military—Stoic Warriors—Nancy Sherman insists that anger should not be eliminated because some forms of it are “constructive and healthy responses to injustice and wrongdoing” (67). Anger is OK when it is moral, e.g. when it is moral indignation or moral outrage. Anger at political states of affairs is commonly referred to as a prototypical of moral indignation. This ignores, of course, that one person’s injustice is another’s justice. Be that as it may, it is common to assume that there is a form of anger that is tracks the right sorts of things. Thus, Sherman concludes that: “To feel outrage in bearing witness to torture, massacre, or rape is a fundamental response to human violation, and a fundamental way we protest the shame and abject servility that violence inflicts. These responses are a part of our humanity to cultivate, not excise.” (Sherman 2005, 89). (Notice that, ironically some of what we ought to be angry about are, themselves, the fruits of anger.) This sounds nice. But is it true? There are reasons to be doubtful.

In a recent issue of Journal of Experimental Social Psychology (45, 155-60), Daniel Batson—known for his influential empathy-altruism studies—and colleagues find little evidence of moral outrage. In a series of studies meant to measure people’s judgments of torture, they find little evidence that torture evokes much anger unless the subjects have some relation to the person tortured. This stands in contrast to people’s judgments of moral wrongness, which is unaffected by relationship. There is a only a weak correlation between such judgments and the feeling of anger. The study follows up on earlier studies of the relationship between unfairness judgments and anger (Batson et al. 2007). Here, too, Batson and colleagues found that anger correlates well with unfair treatment of cared-for others, but not with judgments of unfairness per se. The same is, of course, true of unfair treatment of the self. In other words, one may be aware of unfair treatment of, or severe pain being inflicted upon, others without feeling much, if any, anger at all unless that other is regarded as a cared for other.

Batson et al. introduce the concept of ‘empathic anger’ to capture anger at maltreatment of cared-for others. In some of their studies, empathy induction was used to produce anger at others’ unfair treatment. One might, of course, wonder whether such anger ought to be regarded as empathic anger rather than just anger, since it is common to think that anger covers not just slights, insults, etc. to the self, but also to close others.  For instance, Richard Lazarus (1991) regards the core relational theme of anger to be ‘a demeaning offence against me and mine’ (122, my emphasis). Here, interestingly, Lazarus follows Aristotle in including close others—Aristotle talks of friends—as those offence against whom causes anger (Rhetoric). Does empathy induction serve to include others into one’s circle of friends or cared-for others? I don’t think we know. What we do know is that we are not likely to feel much anger at unfairness and harm to others, unless those others matter to us. Batson et al. conclude that there is currently little evidence in favor of anger being moral in nature, but caution that further research is needed.  

Now, this line of research gives rise to a lot of questions, and I do not expect the defenders of moral anger to be bowled over. They may, e.g., object to the construction of moral outrage as having the appraisal condition ‘a fairness/harm (or just: moral) principle has been violated’. However, if Batson et al.’s studies are replicated and extended appropriately, we will have to face the fact that anger, as a response to wrongs, is limited in scope to the self and cared-for others (not humanity). And that seems to be a serious limitation. Now, some people believe that anger is concerned with specifically moral wrongs inflicted on the self and cared-for others. But anger often arises over issues that may have little moral import, but that nevertheless affects someone’s wellbeing negatively. So might anger be a more, if you like, nepotistic emotion responsive to certain forms of negative impacts on wellbeing? In that case, what would the moral objection to getting rid of anger amount to? Might Seneca have been right? Assuming that we can rid ourselves of anger without rather serious side-effects, should we?

[Aristotle: Collected Works of Aristotle, Princeton, NJ: Princeton University Press 1984. Daniel Batson et al.: Anger at unfairness: Is it moral outrage? European Journal of Social Psychology, 37, 1272-85 (2007). Daniel Batson et al.: Pursuing moral outrage: Anger at torture. Journal of Experimental Social Psychology, 45, 155-60 (2009). Seneca: Moral and Political Essays, J. Cooper & J. Procope (Eds.), Cambridge: Cambridge University Press, 1995. Nancy Sherman: Stoic Warriors: The Ancient Philosophy Behind the Military Mind. New York: Oxford University Press, 2005.]

First Amendment Freedom of Thought and Compelled Use of Psychotropic Drugs (Blitz)

Earlier in the month, I promised some blog posts on how neuroscientific findings might raise questions of interest to legal scholars and practitioners who think about First Amendment issues and other constitutional questions.  More weeks have passed than I anticipated.  But I’d like to make good on that promise, beginning with a post that highlights, and briefly reflects upon, some intriguing thoughts on this subject that I read not too long ago by Rodney J.S. Deaton called “Neuroscience and the In Corpore-ted First Amendment,” a piece that I hope gets more attention in First Amendment scholarship.  (It can be found at 4 First Amendment Law Review 181 (2006)).

First, some very quick background for the piece.  In a famous 1969 First Amendment case (Stanley v. Georgia), the Supreme Court said:  “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”  What it has not had anything like a full opportunity to elaborate upon is what type of government action is ruled out by this constitutional ban on mind control.  In fact, even where it has had opportunities of this kind, it has sometimes refused the invitation.  In 2003, for example, it considered – in the case of Sell v. United States -- the question of whether (and, if so, when) a judge can order a defendant to take antipsychotic drugs in order to make him competent to stand trial.   One might think that if anything might count as mind control it would be coerced use of psychotropic drugs.   Although Sell’s lawyers, as well as those from the Center from Cognitive Liberty and Ethics, thus urged the Court to make it clear that government-compelled use of psychotropic drugs violated one’s freedom of thought under the First Amendment, the Court didn’t do so.  In fact, it didn’t even mention the First Amendment or take any note of what it had said in Stanley about freedom of thought.  Instead, as it had in a pair prior cases on forcible administration of antipsychotics (Washington v. Harper and Riggins v. Nevada), it found constitutional limits on coerced administration of drugs in a different constitutional source, our “substantive due process” right to privacy protections that it has elsewhere relied upon in analyzing patient’s right to refuse medical treatment.   In the end, the Court said the government had failed to make the constitutional showing it needed to make to justify forcible administration of the drug to the defendant – more specifically it failed to show the coerced treatment was **all** of the following:  (1) “medically appropriate” (2) “substantially unlikely to have side effects that may undermine the fairness of the trial” and (3) “taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” 

 As Deaton notes, this dodging of the First Amendment issues relating to psychiatric intervention is probably only a temporary stop gap: “If the Justices' silence reflects a reluctance to lead First Amendment jurisprudence into th[e] realm of neuroscientific discourse, they may learn that this can only be avoided for so long.”  But rather than simply taking the Court to task for refusing to find a freedom of thought violation, his analysis – if I understand it correctly – instead makes the somewhat counterintuitive argument that if anything constitutes a forced governmental invasion of, or intrusion into, the freedom of thought protected by the First Amendment, it’s not compelled use of antipsychotic drugs, but rather compelled encounters with therapy and certain other instances of speech. 

Why the skepticism that forced use of antipsychotic drugs might often amount to the “mind control” barred by freedom of thought?  Well, the fact that drugs alter mental processes doesn’t mean they control those processes – or allow those administering the drugs to exercise such control.  As Deaton observes, summarizing some of the findings on these drugs’ effects: “Antipsychotic medications do not control the specific content of defendants' mental processes; they only alter the intensity with which defendants experience those mental processes.” So unless “freedom of thought” entails a “freedom of intense thought” there may not be a First Amendment claim here at all.  Rather, perhaps the Court got it right in Sell (and in its prior forced antipsychotic medication cases) when it drew upon the constitutional “right of privacy” precedents that it has drawn on to limit the state’s intrusion into the body rather than its First Amendment jurisprudence on intrusion into the mind. 

What might have a better claim to count as government control of the contents of one’s mental processes, he suggests, is not forced drug use, but forced therapy – and perhaps involuntary exposure to other government-imposed speech calculated to produce certain changes in what people believe.  This probably cuts against many peoples’ likely intuitive reactions:  Unlike drugs injected into your body, speech is something you can mull over, weigh in light of counterarguments, and ultimately reject.  As many First Amendment cases emphasize, the effects of speech can often be undone by counterspeech.  But this might not save government-imposed speech from sometimes counting as an infringement of freedom of thought.  While it may be “easier to resist an idea rather than medicine,” that resistance might take a lot of work and may have little chance, in the end, of staving off transformations in the contents of one’s thoughts (that, as noted above, are not the kinds of changes arising from forced drug use).   It is after all, not only forcibly administered drugs that cause biological changes, but thoughts and ideas constantly placed before you by a therapist – thoughts and ideas that are “physically encoded into literal neuronal changes that then are managed by the memory system of the brain, forcing neuronal mechanisms to process the words and ideas.”  And, it is not only therapy that might impose involuntary transformations of thought in this way, but (as Deaton recognizes) also some government uses of neuromarketing research to promote a certain preference in citizens, or, as Susan Hurley has written about in a 2004 piece in Philosophical Studies that I hope to say more about in another post, violent films and video games (or for that matter, non-violent films and video games) that might “bypass processes of autonomous deliberation and control.”

One interesting feature of the freedom of thought analysis is that its conclusion in a sense reverses that of the analysis by Bruce J. Winick to which it is a response (another analysis of these issues very much worth reading, in 44 Univ. of Miami Law Review (1989), and in his book, The Right to Refuse Mental Health Treatment). (He also has a brief on-line piece on the issue here).  Winick concludes that “the dramatic effects of the antipsychotic drugs on mental processes demand first amendment scrutiny” while behavioral therapy, by contrast does “not appear to present sufficiently serious effects on mental processes to trigger first amendment scrutiny.”  For Deaton, by contrast, although forcible administration of antipsychotics may well be unconstitutional, this isn’t because they violate First Amendment freedom of thought, whereas compelled therapy is more likely to do so. 

Ultimately, I’m not sure how convinced I am by all of this argument.  Not every government action that leads to some alteration in our mental processes can count as a freedom of thought violation.  That would treat as unconstitutional far too much regulation – since just about all regulation has some effect on our thoughts.   But I’m not sure this means that a pharmacological alteration of our mental processes will only offend the First Amendment when it directly alters the contents of our thoughts rather than their intensity or other “content neutral” features of their character.  In the law of freedom of speech, even content-neutral restrictions (for example, a ban on leafleting in public streets) can raise significant First Amendment concerns and my hunch is that the same should be true of freedom of thought.  While the Stanley decision’s defense of freedom of thought sometimes speaks of the cardinal sin (under freedom of thought) as trying to alter “the moral content of a person's thoughts,” it elsewhere speaks more broadly of a bar on government restriction or manipulation of individuals’ “beliefs . . . thoughts . . . emotions. . . sensations.”  As is clear from Adam’s article on memory-dampening drugs, it is also quite possible that, even if the antipsychotic drugs at issue in Sell are best described as content-neutral in their effects, at least some government-ordered use of memory-enhancing drugs in the future (or restrictions on use of memory-dampening drugs) will aim at controlling the contents of our thoughts – by assuring that we remember certain events or forget others.

I hope to say more about the other side of the argument – on speech that transforms our behavior in hard- or impossible-to-resist ways – in an additional post or two.  In the meantime, I’d be happy to hear any thoughts you have on these issues (whether they originated with you or were furtively inserted into your minds by government agents).  

 

Lobel and Amir on Ariely/Thaler/Sunstein

My San Diego colleagues and friends, Orly Lobel and On Amir, have published a review of recent work in behavioral law and economics in the Columbia Law Review.  You can find the piece on SSRN.  The abstract is below: 

"Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy" 

Columbia Law Review, Vol. 108, 2009
San Diego Legal Studies Paper No. 09-006

ORLY LOBEL, University of San Diego - School of Law
ON AMIR, University of California, San Diego - Rady School of Management
Research in the field of behavioral economics indicates that humans stumble in their decisionmaking in predictable ways that can often be corrected by a gentle nudge from the appropriate regulatory authority. Two new books -- Dan Ariely's Predictably Irrational and Richard Thaler and Cass Sunstein's Nudge -- recount the findings of behavioral research on predictable patterns in human decisionmaking and lay the foundation for regulation through choice architecture that recognizes these human stumbles. In this Review Essay, we provide a critical account of remaining gaps in behavioral economics research and suggest that some types of behavioral insights may be better translated into law and policy reforms than others. We further argue that Nudge's concept of libertarian paternalism both understates and exaggerates the jurisprudential and policy implications of regulatory innovation. While key insights from the behavioral field may lead to effective regulation systems with minimal intervention, these systems entail costs, have distributional effects, solve macro coordination problems, and are inevitably value driven. Moreover, policy nudges serve merely as a first stage of sequenced regulation where, inevitably, more coercive measures are required in later stages. The idea of choice architecture is then related to the growing body of regulatory studies collectively termed new governance. We conclude with a call for a more nuanced account of the range of mechanisms as well as the limits, costs, and consequences of applying lessons from the field of behavioral economics to law.

Neuroimaging, Insanity, and the Jury

Michael Perlin has posted the following article to SSRN:

"'His Brain Has Been Mismanaged with Great Skill': How Will Jurors Respond to Neuroimaging Testimony in Insanity Defense Cases?" 

Akron Law Review, Vol. 42, No. 2, 2009
NYLS Legal Studies Research Paper No. 08/09 #16

MICHAEL L. PERLIN, New York Law School
The robust debate over neuroimaging has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility and availability. When we consider the topic that I will be addressing in this paper - the impact of this evidence on juror decision-making in insanity defense cases - we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely, more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence - apparently, less inherently easy to falsify- have on jurors whose inherent suspicion of mental state opinion testimony is well-documented, (2) will this "falsifiability" issue even matter to jurors whose personal values/moral codes reject the motion of any non-responsibility verdict because it is dissonant with their heuristics-driven false "ordinary common sense," (3) will there now be some shred of truth in one of the standard insanity defense myths (that the insanity defense is a "rich man's ploy"); that is, will the "rich and famous" be able to disproportionately rely on neuroimaging testimony in their trials?, (4) to what extent will sanism and pretextuality drive juror behavior in such cases, and (5) what are the therapeutic jurisprudence implications of the answers to all of these questions?

This presentation will address - though it cannot fully answer - all of these questions in the hopes that other legal scholars will be stimulated to consider them each in depth in the future.

The Prisoner, The First Amendment, and The Brain (Blitz)

As an ardent fan of the 1960s television series, The Prisoner, I wanted to begin my first (belated) guest post here with a tribute of sorts to the creator and star of the show, Patrick McGoohan, who died this past January.  The 17-episode series was about an intelligence agent who -- just after resigning from intelligence job without giving a reason -- wakes up to find himself confined to a mysterious village where he is relentlessly pressured by the powers-that-be to provide an explanation for his resignation.  The series is a gold mine for neuroethics and law scholars looking for science fiction examples, given its many stories about futuristic neurotechnologies from mind-swap machines, to dream-watching monitors (equipped with dream-control devices), to subliminal “speed learning” broadcasts that imprint history lessons directly on the watcher’s brain, to various methods of undermining one’s sense of reality. 

But the part of The Prisoner that interests me most (at least for purposes of this blog post) is its reflections on the power of social conformity. While the protagonist (identified only as “Number 6”) can withstand the interrogations to which he’s subjected by the Village authorities, he finds it less easy (in one episode) to deal with ostracism by the entire community.  In a sense, the events of the episode nicely illustrate an observation that John Locke made centuries ago about the nearly-irresistible force of social conformity: While an individual might defy “the laws of the commonwealth,” wrote Locke, he is far less likely to resist “the fashion and opinion of the company he keeps, and would recommend himself to’ since “[h]e must of a strange and unusual constitution, who can content himself to live in constant disgrace and disrepute with his own particular society.”  Locke’s observation has received experimental support and elaboration from the studies on social conformity by psychologists like Muzafer Sherif and Solomon Asch.

These observations present a challenge of sorts for First Amendment jurisprudence -- not unlike the challenge presented to First Amendment jurisprudence by the “sticky” false memories that were discussed in this blog earlier a few months ago, and that interfere with the First Amendment’s ability to advance the truth simply by promoting open discussion and communication.  Our brains also apparently make it difficult for the First Amendment to serve one of the other functions attributed to it by judges and scholars: serving as a guarantor of individual autonomy.  A study recently discussed in CNN and published in Neuron apparently shed some light on some of the biology underlying social conformity observed in experiments like those of Asch and Sherif:  An individual finding herself out of step with her group’s opinion had a neuronal response in two parts of the brain similar to that which occurs with “a prediction error signal,” “a difference between expected and obtained outcomes that is thought to signal the need for a behavioral adjustment.” 

The larger question in all of this for me is what should a legal and social regime do if it places value on the kinds of conduct that our biology (in some respects) makes difficult, including marching to the beat of a different drummer.  In the op-ed on sticky false memories that Adam excerpted from a few months ago, Sam Wang and Sandra Aamodt suggest that although “[o]ur brains do not naturally obey” Oliver Wendell Holmes’s “admirable dictum” that free trade in ideas will bring us closer to the truth, perhaps “by better understanding the mechanisms of memory perhaps we can move closer to Holmes’s ideal.”  A better understanding of the biology underlying conformity might likewise suggest ways we might move closer to the individual liberty celebrated by writers like John Stuart Mill and Ralph Waldo Emerson -- and in Patrick McGoohan’s “The Prisoner.”

"Law and the Brain" One Week Course

I just finished teaching a one-week, one-credit "Law and the Brain" course at the University of Illinois College of Law.  It's a shorter version of the class that I began teaching at the University of San Diego in 2006.

The University of Illinois has a fantastic program that brings scholars in as one- or two-week visitors to teach short courses.  It's a great opportunity to introduce students to an area of the law to which they might not otherwise be exposed.  The course blends in with students' existing schedules.  I taught the course during my spring break at the University of San Diego.  Though it may not be everyone's ideal way to spend Spring Break, I very much enjoyed the opportunity, despite the rigorous schedule. 

I've now taught "Law and the Brain" as a one-credit course, a two-credit course, and a three-credit course.  While it's hard to cover in one week everything that I would have liked to cover, I vote for more exposure to a wider-array of topics in law school, even if one has to sacrifice some depth on occasion.

Disgust and Morality (Maibom)

Hi, I am one of the guest bloggers for March, who plans to make up for her late start with a strong finish to the month :-) I am assistant professor of philosophy at Carleton University and have worked, among other things, on psychopaths and criminal responsibility, and on moral emotions, particularly empathy, sympathy, and shame. My first blog, fittingly, concerns some recent papers on disgust.

DISGUST AND MORALITY

Empathy and sympathy have long been seen as the quintessential moral emotions. It seems intuitive that if any emotions are other-directed or altruistic, they are. Empathy and sympathy fit particularly well with the Western focus on morality as mainly concerned with harms, rights, and justice. For this reason, philosophers and psychologists interested in morality have long been excited about them. Only more recently have other emotions received comparable attention. Disgust is one of those emotions. As with so many other moral emotions, the trouble with disgust is that it has aspects that appear to be distinctly nonmoral. For instance, whereas it is possible to see how feeling distressed that someone else is distressed provides some grounds for thinking that what happened to them was wrong, or some grounds for helping them, it is not easy to see how feeling disgusted by someone grounds our rejecting their actions as immoral and our shunning their company. Disgust has the added inconvenience of being associated with racism and genocidal propaganda (the Jew as a rat, the Tutsi as a cockroach).

In the history of Western morality, however, purity has long played a not insignificant role, and it is not too difficult to connect purity with disgust. For instance, for the Ancient Greek, a murderer was unclean. The Bible, too, brims over with references to unclean acts. Until relatively recently, it used to be common to see such concepts discarded as irrelevant to morality given its poor fit with Western sensibilities and dominant Western moral theory. But renewed interest in morality as an empirical phenomenon has helped move research towards a more inclusive notion of what counts as moral phenomena. For instance, Richard Shweder was inspired by his work in Orissa, India, to reintroduced concepts of divinity, authority, and purity into empirical moral discourse. Jonathan Haidt, following in Shweder’s footsteps, has subsequently helped broaden our understanding of the varieties of moral categories.

For Haidt, disgust is an emotion that is typically felt in response to a violation of purity, sanctity, or divinity. Thus, an emotion, which evolved to protect the organism against poisoning through ingestion of food or to dangerous micro-organisms through touch or proximity, has become adapted to another moral domain (probably via the process of cultural evolution). Most obviously, disgust is associated with food restrictions. And food that can be eaten is often called right or lawful (food), as in kosher and halal. Notoriously, Christians will eat practically anything, and this mere fact might have contribute to the rather limited conception of the moral realm that is common in the West, or, perhaps, Western moral theory.

On closer inspection, however, it turns out that disgust is alive and well as a morally relevant emotion, even in the West. The famous scene of Lady Macbeth wanting to wash the blood of her hands is hardly foreign to the Western mind. Indeed, Zhong and Liljenquist have found that people exposed to stories of immoral deeds have an increased need for cleaning products, presumably in order to clean themselves. So disgust remains important to Western morality also, only it turns out that disgust plays a larger role in morality in lower socioeconomic groups than in higher socioeconomic groups. Since most academics and, therefore, moral theorists are from the latter group, disgust has tended to be overlooked as a morally relevant emotion. In a range of studies, Haidt and colleagues have demonstrated that many people find disgusting actions as wrong as harmful actions—e.g. having sex with a dead chicken. In a trend that some might find disturbing, people of higher SES find such actions relatively morally insignificant.

The burgeoning literature on shame has, however, tended to focus on shame as belonging to a particular moral domain. According to Shweder this domain is the domain of divinity, according to Haidt it is purity/sanctity, and according to Jesse Prinz it is that of natural order. What tend to be focused on here is the eliciting conditions of disgust which, albeit often of wildly diverse kinds, are seen to cluster around such conceptions.

Recent evidence from experiments on the relationship between disgust and moral judgments, however, suggest that disgust cannot be contained within a moral domain defined in terms of Divinity (purity/sanctity) or the Natural Order. In a recent issue of Science, Hanah Chapman and colleagues present evidence to the effect that people are disgusted not just at certain foul tasting foods, but to moral transgressions such as unfairness! Participants in the so-called Ultimatum Game not only expressed more disgust facially (separate measures were conducted), but also rated their emotion as being most like disgust (when given a forced choice between 7 different facial expressions when they were given unfair/unequal offers (anything less than 50/50), an effect that increased with increased unfairness. The study indicates that disgust can be associated with judgments that have nothing to do with divinity, purity, sanctity, or the natural order of things.

In an accompaniment to the article, Rozin, Haidt, and colleagues warn against accepting this study too uncritically given the close facial similarities between the emotions of disgust and anger. I find the criticism less than convincing. It is important to note, however, that Haidt himself has recently published a series of studies that show similar results, i.e. that disgust can be associated with a much broader range of moral judgment than the moral domain theoretic approach would have it (Schnall et al. 2008). Schnall et al. find that inducing disgust makes all moral judgments more severe whether or not those judgments concern independently judged disgusting actions.

Someone like Haidt has traditionally linked harm norms with emotions like compassion, empathy and/or sympathy. However, if one considers the evidence carefully, it is compelling to include many other sentiments as related to judgments of harm, including disgust. What is the preponderant emotion of Luke Skywalker as he rejects the Emperor’s suggestion that he strike him down right there and then if disgusted? The vehement rejection of the idea that he would ever become like the Emperor bears all the marks of a disgusted repulsion. Perhaps the time has come to move beyond moral domain theory.

(References: Chapman et al.: In Bad Taste: Evidence for the Oral Origins of Moral Disgust, Science, 323, 1222-6. Rozin et al.: From Oral to Moral. Science, 323, 1179-80. Schnall et al.: Disgust as Embodied Moral Judgment, Personality and Social Psychology Bulletin, 34, 1096-1109.)

fMRI Lie Detection to Be Tested in Court

It was only a matter of time....  It appears that a custodial parent is seeking to present fMRI evidence that he is being truthful, in the context of a child protection hearing, when he reports that he did not sexually abuse his child. 

The details are still sketchy.  Emily Murphy reports that "The defense plans to claim the fMRI-based lie detection (or 'truth verification') technology is accurate and generally accepted within the relevant scientific community in part by narrowly defining the relevant community as only those who research and develop fMRI-based lie detection."  She goes on to explain why this would seem to be an odd choice. 

Indeed, it would be surprising if the court adopted this interpretation and even more surprising if the court admitted the evidence, even in a non-jury proceeding.  Assuming that the court does not hear the evidence, one might speculate as to who benefits here: Perhaps the parent benefits by seeming willing to try a new approach to lie detection in order to demonstrate his truthfulness.  One might not expect a parent who violated the law to seek out extraordinary measures to clear himself (but who knows?).  Perhaps his attorney benefits by being the first to seek to introduce such evidence (so far as we know).  Perhaps No Lie MRI (the company which ran the tests) benefits from the publicity, even if it gets an unfavorable decision about the evidence.  Perhaps Cephos (another company that sells fMRI-based lie detection services) benefits by being the No-Lie-MRI-competitor that has not yet had its evidence deemed inadmissible (so far as we know).

In any event, I'm sure we'll hear more about this and gain more details in the near future.  Here's a link to Emily's post.   

Memory erasure moves from fantasy to reality (Reiner)

For the past few years, whenever I give a lecture on Pharmacological Manipulation of Memory, and I get to the section on therapeutic forgetting, I begin by telling my audience that memory erasure, along the lines of that described in the movie Eternal Sunshine of the Spotted Mind, remains in the realm of science fiction.  As of today, I must soften that disclaimer.

OK, perhaps not exactly like Eternal Sunshine, but a new paper from Sheena Josselyn's group at U. Toronto has just been published in Science demonstrating rather convincingly true selective memory erasure.  Until now, we in the neuroethics community and many in the PTSD community had been considering the implications of memory dampening - modifying the emotional impact of a memory by the use of such agents as propanalol, but in all of the experiments carried out to date, the memory itself was intact. Using an elegant set of molecular tools, specifically by coupling an inducible form of diptheria toxin to overexpression of the transcription factor CREB, Han et al. selectively ablated both a subset of neurons in the lataral amygdala and the fear memory that would normally be associated with the behavioral manipulation.  The effects were selective, robust, and long lasting.

The results are important for a number of reasons, but perhaps most importantly, they confirm a theory that has been widely held by neuroscientists for quite some time: that memories are encoded by ensembles of neurons, and that the specific neurons that encode a particular memory are sparsely distributed in the brain.  Han et al.'s results fully validate that perspective - ablating a random set of neurons in the lateral amygdala had no effect upon memory - an extremely important piece of data for our understanding of 'the memory trace'. 

The results also provide compelling data to buttress arguments which suggest that the resolution of fMRI is far too crude to successfully probe memory, given its resolution.  So mind reading with fMRI is, in my view, dead unless cellular level activity becomes discernible.  Long live fMRI.  

At the same time as providing stunningly elegant data on this important issue, this result underscores why we have little to fear in the way of specific memory erasure along the lines of Eternal Sunshine - identifying the neurons that encode a particular memory is still far off.  What Han et al. did was develop transgenic mice that allowed them to ablate the set of neurons that would be activated at some future date when fear memory was developed, rather than going in after the fact and finding the neurons that encode a particular memory and killing them. Unless we begin to infect our brains with viral vectors that change important parts of our genetic code, this experiment is not moving from the laboratory bench to the field any time soon.  Moreover, most neuroscientists believe that the memory trace is not encoded in the neurons as a whole but rather in the strength of specific synapses (once again, sparsely distributed between many neurons), and killing entire sets of neurons as Han et al. did would likely affect, although not ablate, other memories as well.

So we are still a ways off from true memory erasure.  But this result is still remarkable, and anyone interested in the issue would do well to pay attention.  That is, if your memory of this post is still intact.

Guest Blogger Intro (Blitz)

Many thanks to Adam for inviting me to blog here this month.  I teach and write primarily about law and technology as a professor at Oklahoma City University’s School of Law.  My recent work has focused on exploring areas where constitutional law meets emerging technology -- especially on how such new technology (from video surveillance to video games and virtual reality) might threaten or enhance our privacy and freedoms of thought and expression.  I’ve recently become very interested in how neuroethics and neuroscience intersect with these areas of law.  So I’m looking forward to using the next few weeks to blog about some of the recent scholarship on this subject.  I also to look forward to comments from readers recommending other books and articles that provide insights on how neuroscience can illuminate our thinking about liberty and privacy (and their future).  

Neuroeconomics eJournal at SSRN

SSRN has added a new Economics Research Network (ERN) eJournal in Neuroeconomics.  The abstracting journal will be edited by Kevin McCabe at George Mason and Michael Jensen at Harvard Business School. 

Description: Economic outcomes are the product of many individual decisions, constrained by scarcity, and equilibrium forces that simultaneously shape a person's social networks and the institutionally defined rules of the game. Decisions are made by computations in the brain which produce action-choices that directly affect the homeostatic wellbeing of the individual and choices that indirectly change wellbeing by changing an individual's future constraints, the scope of their social networks, and their message sending rights within the institutions they participate. Neuroeconomics broadly speaking is interested in the study of these computations and the resulting choices they produce. This includes experiments that attempt to understand the mechanisms of neuronal computations that produce action-choices, theories which predict how neuronal computations in socio-economic environments produce decisions, outcomes and wellbeing, and policy which use our understanding of neuoroeconomic behavior to either build or defend better solutions to societal problems.

(via Zack Lynch at Brain Waves) 

Neuroscience, Cognitive Psychology and the Criminal Justice System

The following message is posted on behalf of the AALS Criminal Justice Section:

The Criminal Justice Section of the AALS would like to announce a call for papers in conjunction with one of its proposed panels for January 2010 Annual Meeting in New Orleans, Louisiana.  The panel’s title and subject matter follow:

Neuroscience, Cognitive Psychology and the Criminal Justice System

The explosive growth of knowledge in the field of cognitive neuroscience provides both opportunities and challenges for the criminal justice system. This panel will explore the potential, as well as the pitfalls, of using cognitive neuroscience to shed light on criminal justice theory and practice. Topics include, among others, implicit bias in decision-making, the dynamics of tunnel vision, brain imaging to assess prior knowledge or veracity, group-level emotion and jury dynamics, the effects of emotionally-charged evidence on reasoning, and the effects of brain injury on criminal responsibility.

***

For those who wish to be considered, please send an abstract (only) of your proposed talk.  All abstracts will be reviewed anonymously by the officers of the section and others joining in the effort.  Reviewers will base their selection on the quality of the proposal and how well it fits within the panel’s program, as described above.  The Section reserves the right to not select any proposal should none fit the criteria adequately. 

This call for papers does not require any panelists to produce a paper for publication as part of  any participation with the panel.

To participate, send an abstract to my secretary, Patty Blake, [email protected], ON OR BEFORE APRIL 1, 2009.  Ms. Blake will strip out identifying information and abstracts will then be distributed to those reading and choosing.

If you have any questions, contact me directly at [email protected].

David Harris

Chair, Criminal Justice Section

PEBS Neuroethics News Roundup from the Johns Hopkins Berman Institute of Bioethics: Program in Ethics and Brain Sciences

 

In the Academic Literature: 

• Neuroscience and the Soul
  Science 2009:323(5918):1168
• Brain Imaging and Brain Privacy: A Realistic Concern?
  Journal of Cognitive Neuroscience 2009:21(1):119-127
• In Bad Taste: Evidence for the Oral Origins of Moral Disgust
  Science 2009:323:5918:1222-1226
• From Oral to Moral
  Science 2009:323(5918):1179-1180
• Neuroethics as a Brain-Based Philosophy of Life: The Case of Michael S. Gazzaniga
  Neuroethics 2009:1:3-11
• Advancing Neuroregenerative Medicine: a Call for Expanded Collaboration Between Scientists and Ethicists
  Neuroethics 2009:1:13-20
• Out on a Limb: The Ethical Management of Body Integrity Identity Disorder
  Neuroethics 2009:1:21-33
• Minimally Conscious State and Human Dignity
  Neuroethics 2009:1:35-50
• Will Neuroscience Discoveries about Free Will and Selfhood Change our Ethical Practices? 
  Neuroethics 2009:1:51-59  

In the Popular Press:

• Researchers Want to Add Touch, Taste and Smell to Virtual Reality
  Wired Science March 4 2009
  
• In a Helpless Baby, the Roots of Our Social Glue
  New York Times March 2 2009
  
  
• Humans may be primed to believe in creation
  New Scientist March 2 2009
• Rewiring the Brain: Inside the New Science of Neuroengineering 
  Wired Science March 2 2009
  
• ‘Wireless’ Activation of Brain Circuits
  Science Daily February 28 2009
• Manipulating Memory: Insights into the cellular and molecular basis of emotion and memory could help patients with post traumatic stress disorder
  The Scientist 2009:23(3):40
  
• Is doodling a form of cheating?
  Practical Ethics February 27 2009
• Bionic eye gives blind man sight
  BBC News March 4 2009

For any PEBS related questions: Contact Program Coordinator, Alan Regenberg | [email protected]
Johns Hopkins Berman Institute of Bioethics | 201North Charles, Suite 1701 | Baltimore, MD 21201

www.bioethicsinstitute.org/neuroethics