Neuroethics & Law Blog

Maroney on "Emotional Regulation and Judicial Behavior"

Recently posted to SSRN:

"Emotional Regulation and Judicial Behavior" 

California Law Review, Vol. 99, 2011

TERRY A. MARONEY, Vanderbilt Law School
Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. Though in the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, our legal culture continues to insist that a good judge firmly puts them aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation. This Article proposes a model for judicial emotion regulation that goes beyond a blanket admonition to "put emotion aside." While legal discourse on judicial emotion has been stunted, scientific study of the processes of emotion regulation has been robust. By bringing these literatures together for the first time, the Article reveals that law does nothing to promote intelligent judicial emotion regulation and much to discourage it.

An engagement model for managing judicial emotion promises to reverse this maladaptive pattern. It provides concrete tools with which judges may prepare realistically for emotional situations they necessarily will encounter, respond thoughtfully to emotions they cannot help but feel, and integrate lessons from such emotions into their behavior. Importantly, medicine has begun to pursue just such a program to promote competent emotion regulation by doctors. The engagement model is far superior to all its alternatives. Other regulation strategies, such as avoidance, are fundamentally incompatible with judges’ professional responsibilities. Suppressing the expression and experience of emotion - encouraged by the status quo - is costly and normatively undesirable. Suppression is unrealistic, exacerbates cognitive load, impairs memory, and can paradoxically increase emotion’s influence while rendering that influence less transparent. The judicial engagement model, in contrast, leverages the best of what the psychology of emotion regulation has to offer. It puts a name to what extraordinary judges already are doing well and makes it available to all judges. By setting aside not judicial emotion but, rather, the crude manner in which we have asked judges to manage it, we stand materially to improve the quality of judging.

Recent Nicolelis Talk in NYC

Barbara Bottalico is a lawyer and a Ph.D. student in Italy who works on issues at the intersection of law and neuroscience (bio here).  We are pleased to host her this semester as a visiting scholar at Brooklyn Law School.  Barbara has written a summary of a recent talk by Miguel Nicolelis at Cooper Union.  The talk was entitled, "Beyond Boundaries: The New Neuroscience of Connecting Brains with Machines—and How It Will Change Our Lives" (here's a link to his book with the same title). Barbara's summary appears after the jump.

Robinson on Coercive Indoctrination and "Rotten Social Background"

Recently posted to SSRN:

"Are We Responsible for Who We Are? The Challenge for Criminal Law Theory in the Defenses of Coercive Indoctrination and ‘Rotten Social Background’" 

U of Penn Law School, Public Law Research Paper No. 11-10

PAUL H. ROBINSON, University of Pennsylvania Law School
Should coercive indoctrination or “rotten social background” be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community’s shared intuitions of justice support it. The law’s rejection of such defenses suggests that there might be little popular support for them.

This is not necessarily the end of the story, however. Coercive indoctrination has in some cases, such as that of POW Richard Tenneson, prompted considerable public sympathy, confirming that lay persons do tend to exculpate some such offenders. Such intuitive support for a coercive indoctrination defense suggests that there may be practical crime-control value in having the criminal law recognize it. If the criminal law can build its reputation as a reliable moral authority with the community it governs, it can harness the potentially powerful forces of social and normative influence.

There are good arguments for seeing “rotten social background” as a form of coercive indoctrination and, thus, for considering it too for a defense under such a newly-created doctrine. However, while the two defenses may be analogous, having a “rotten social background” by itself is not likely to meet the minimum prerequisites that logically would adhere to a coercive indoctrination defense, and certainly would have little intuitive support. On the other hand, specific cases of “rotten social background” might well qualify, if it is shown that that experience forced upon the person a set of beliefs and values compelling him toward the offence that he could not reasonably have been expected to resist.

"Neuroscientific Challenges to Retributivism" by Pardo and Patterson

Recently posted to SSRN:

"Neuroscientific Challenges to Retributivism" 

THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming
U of Alabama Public Law Research Paper No. 1783823

MICHAEL S. PARDO, University of Alabama School of Law
DENNIS PATTERSON, European University Institute, Rutgers University School of Law, Camden, Swansea University School of Law
We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology.

We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.

Mark Zuckerberg on fMRI and Computers

In this video, Mark Zuckerberg is asked what he got out of his college psychology courses.  The biggest take away, he says, is how little we know about the brain.  Fair enough.  Then, he says that our knowledge of the brain can be compared to typing in a computer command and seeing which part of the computer gets hot.  An overstatement, to be sure, but an interesting one nonetheless. 

See the video here (scroll down) and start around the 7:10 mark.  If you'd like, start around the 5 minute mark to hear how the movie, "The Social Network," compares to real life.

PEBS Neuroethics Roundup from JHU Guest Blogger

Last Edition's Most Popular Article: The self: why science is not enough, New Scientist In The Popular Press: Can a Pill Make You Limitless? The Ethics of Cognitive Enhancement, Berman Bulletin Video: Paul Root Wolpe: It’s time to question bio-engineering, TED Kindergarten co-op: How babysitting made us brainy, New Scientist Brain Science and the Law, The Dana Foundation Scientists Switch Off Brain’s Anxiety Circuit, NIH Research Matters Wired for Distraction: Kids and Social Media, TIME Do You Have Free Will? Yes, It’s the Only Choice, New York Times Breakthrough in delivering drugs to the brain, BBC News The mathematics of being nice, New Scientist Music is All in the Mind, Scientific American MIND in Pictures: I Think, Therefore I Scan, Scientific American One pill makes you smarter: The myth of the meat machine, Scientific American Nerve-Electronic Hybrid Could Meld Mind and Machine, Wired Science For the Brain, a Race To Recall the Details, New York Times A Simple Prescription for Superior Powers, New York Times How Free Is Your Will?, Scientific American Fake tweets by 'socialbot' fool hundreds of followers, New Scientist Bees Could Reveal Key to Dementia, Science Daily From the Academic Literature: Neural processing of social rejection: The role of schizotypal personality traits, Human Brain Mapping Gender differences in brain functional connectivity density, Human Brain Mapping Experimental Philosophy and the Problem of Free Will, Science Memory: Tagging in the cortex, Nature Reviews Neuroscience Psychiatric disorder: The stresses of womanhood, Nature Reviews Neuroscience Hippocampal Volume Differences in Gulf War Veterans with Current Versus Lifetime Posttraumatic Stress Disorder Symptoms, Biological Psychiatry Membrane Potential-Dependent Modulation of Recurrent Inhibition in Rat Neocortex, PLoS Biology Recalibration of Auditory Space following Milliseconds of Cross-Modal Discrepancy, Journal of Neuroscience Model-Based Influences on Humans' Choices and Striatal Prediction Errors, Neuron Schizophrenia: Zooming in on a gene, Nature A sensory subpopulation depends on vesicular glutamate transporter 2 for mechanical pain, and together with substance P, inflammatory pain, PNAS Cognitive change on the repeatable battery of neuropsychological status (RBANS) in parkinson's disease with and without bilateral subthalamic nucleus deep brain stimulation surgery, TCN

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the  Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

"Incriminating Thoughts" by Farahany

Nita Farahany has a new paper entitled, "Incriminating Thoughts," forthcoming in the Stanford Law Review.  The abstract now appears on SSRN:

"Incriminating Thoughts" 

Stanford Law Review, Vol. 46, 2011

NITA A. FARAHANY, Vanderbilt Law School
The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self-Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This article seeks to reframe the debate. It demonstrates through modern applications from neuroscience the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. Evidence can arise from the identifying characteristics inherent to individuals; it can arise automatically, without conscious processing, through memorialized photographs, papers and memories; or it can arise as uttered responses, both silently and aloud. This spectrum – identifying, automatic, memorialized, and uttered – is more nuanced and more precise than the traditional testimonial/physical dichotomy, and it better reflects the rationale underpinning the privilege against self-incrimination. Neurological evidence, like more traditional evidence, may be located on this spectrum, and thus doctrinal riddles of self-incrimination, both modern and ancient, may be solved.

"Informed Consent to Psychoanalysis: The Law, the Theory, and the Data"

Recently posted to SSRN:

"Informed Consent to Psychoanalysis: The Law, the Theory, and the Data" 

USC Law Legal Studies Paper No. 11-5

ELYN R. SAKS, USC Law
To describe our project briefly, we explore the issue of informed consent to psychoanalysis. (Informed consent, roughly, requires that information about the nature of a treatment, its risks and benefits, and its alternatives be disclosed to a patient.) Our discussion has theoretical and empirical components. In our theoretical analysis, we consider several dimensions of an informed consent to psychoanalysis. What are the values behind an informed consent requirement, and do psychoanalysts share them? Can patients really understand, say, the nature of transference or regression at the beginning of the process? And once they do, is it perhaps too late - are they in a psychological space where they can really elect to exit the treatment? To assess these questions empirically, we conducted an empirical survey of sixty-two analysts on informed consent to psychoanalysis. The survey data yields some counterintuitive results. We find that respondents often do not mention cognitive behavioral therapy as well as some important risks, such as a malignant regression and the limits of confidentiality. We also test whether analyst "ambivalence" drives the considerable variability we find in our results.

We believe this study sheds important light on informed consent to psychoanalysis and that it will be of use in other psychotherapeutic contexts - and indeed, medical contexts in general. Informed consent doctrine has revolutionized the delivery of medical treatment. Psychoanalysis has a lot to offer in the way of insight about a practice like informed consent. This article may return psychoanalysis to its rightful place as a premier tool for studying the psychological dimensions of the law.

The Dana Foundation on the NYC Law and the Brain Conference

Nicky Penttila at the Dana Foundation wrote up a brief description of some of the presentations at the recent Law and the Brain Conference in New York City.

Humanities & Technology Association 2011

Here's a conference announcement that may interest some readers (via Philosophy CFPs):

Humanities & Technology Association 2011

33rd Annual Humanities and Technology Association Conference
Bowie State University, Bowie, MD
13–15 October 2011

THE HUMANITIES AND TECHNOLOGY ASSOCIATION is an interdisciplinary scholarly society that explores the impact of technology on human life from a broad range of perspectives. We welcome papers that investigate the cultural interaction of the humanities, science, engineering, and technology.

While progress in science, engineering, and technology can benefit the individual as well as society at large, it also has the power to be detrimental. Modern technologies are capable of redefining identity, the nature of social and political bonds, as well as plundering our planet’s resources. In the 21st century, survival and sustainability on all fronts require that we address the latest scientific and technological trends with an open mind so as to increase public awareness. We invite scholars from all disciplines to help us articulate a broad range of inquiries, reflections, and investigations into the interface between technology and the world at large.

Papers and panel suggestions will be arranged according to the following tracks:

Reminder: University of Missouri Neuroethics Symposium

The University of Missouri's Seventh Annual Life Sciences and Society Symposium is this weekend.  The title is "Ethics and the Brain."  I'm told that more than 500 people have registered for the free event.  As usual, blog readers in attendance are encouraged to introduce themselves.

PEBS Neuroethics Roundup from JHU Guest Blogger

Last Edition's Most Popular Article: The Next Wave Of Smart Drugs, Gizmodo In The Popular Press: Supremacy of a Social Network, New York Times   Wearable PET scanner maps rat brains in real time, BBC News The Creature Connection, New York Times Happier people tweet together, New Scientist Bites: X marks the spots, Wellcome Trust   Gotcha! Elephant Caught Cheating, National Public Radio Robot Nurses Are Less Weird When They Don’t Talk, Wired Science   Right-Handers Tend to Prefer the Right Side, Scientific American New View of How Humans Moved Away From Apes, New York Times AI lie detection could help crack terror cells, New Scientist In Va. assault case, anxious parents recognize ‘dark side of autism’, Washington Post Poker Bots Invade Online Gambling, New York Times Sperm Whales May Have Names, Wired Science The self: why science is not enough, New Scientist Shock tactics: Treatment or torture?, Guardian Judging Couples’ Chemistry Influenced by Serotonin, Science Daily From the Academic Literature: How is informed consent related to emotions and empathy? An exploratory neuroethical investigation, Journal of Medical Ethics Serotonergic Activity Influences the Cognitive Appraisal of Close Intimate Relationships in Healthy Adults, Biological Psychiatry Addiction: Beyond dopamine reward circuitry, PNAS How to Grow a Mind: Statistics, Structure, and Abstraction, Science The dynamics of collective human behavior, The Lancet Parkinson’s disease DBS: what, when, who and why? The time has come to tailor DBS targets, Expert Review of Neurotherapeutics

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the  Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

Guest Post on Mental Illness Memoirs

Serife Tekin, a postdoc at Dalhousie, writes in with a guest post on mental illness memoirs.  She can be reached here.  Here's the post:

A query into Mental illness memoirs: Does writing help psychiatric patients?

            One in every four adults in North America suffers from a diagnosable mental disorder in a given year.[1] Treatment options consist of pharmacological intervention and psychotherapy. Given the limited health care resources offered to psychiatric patients, and the limited time each patient is allotted for face to face psychotherapeutic treatment (see for instance Gardiner Harris’s[2] recent New York Times article, “Talk Doesn’t Pay, so Psychiatry Turns Instead to Drug Therapy”) should we perhaps consider memoir-writing – patients’ own expression of their experiences with mental disorders – an additional treatment venue available to patients?

            This question is motivated by the observation of the psychiatric landscape. In the last few decades we witnessed an increase in both the number of people who are diagnosed with mental disorders, and an increase in the number of patients who publish memoirs of their illness. Such illness narratives range from online blog entries to published manuscripts, representing a unique subset of patients –educated, with access to publishing industry. Patient memoirs offer accounts of a wide variety of mental disorders, and they tell individualized stories of treatment and coping. Patients present their stories of coping by appealing to various psychiatric discourses, e.g., psychoanalysis, DSM-driven psychiatry, biological psychiatry, the survivors’ movement, etc.

            Some of these patient-authors suggest that writing about their experiences helped them to acknowledge and accept their illness, and to remedy some of the repercussions of mental disorder challenges on interpersonal relationships. Being able to connect and situate the symptoms of their illness and to their specific life experiences, and retrospectively analyzing what they encountered, through writing, they experienced a stronger sense of agency.[3] Others, who focus on the negative influence of ruminating about one’s mental disorder, suggest that memoir writing, as an individually engaged therapeutic venue, may perpetuate one’s feeling of paralysis in the face of illness.[4] Based on these accounts it is hard to make a conclusive statement about the value of memoir writing in psychiatric patients’ ability to respond to challenges with mental disorders.

     There is relevant empirical research in trauma that could help us further judge the benefits of memoir writing. James Pennebaker’s empirical work on the value of writing about traumatic experiences on the subject’s well-being demonstrates that when individuals write about traumatic experiences by deeply engaging with the associated emotional difficulties in their lives, significant physical and mental health follows.[5] This is called the disclosure phenomenon. In these studies, writing about the deepest feelings related to traumatic experiences was associated with a significant drop in physician visits and with a beneficial influence on immunity. Further, writing about trauma was shown to yield comparably higher biological, mood, and cognitive effects than writing about superficial subjects. While some of the positive outcomes of the disclosure phenomenon are due to a reduction in inhibition, researchers argue that basic cognitive and linguistic processes during writing are a more significant factor in the positive outcomes. Support comes from the observed connection between language used and health outcomes. More thoughtful writing, which draws causal and insightful connections between the events and emotions, as well as the use of positive emotion words in expressing trauma lead to better health outcomes.

      

      Similar benefits might follow vis-à-vis a patient’s writing about her mental disorder. If, through memoir writing, the patient engages with the personal manifestations of the symptoms in her life, establishes causal and insightful relationships between her symptoms and other components of her life she might enjoy similar benefits to those individuals in Pennebaker’s studies who wrote about their traumatic experiences. While patients’ responses to writing seem to vary, it might be worthwhile to further investigate this topic empirically.

---

[1] Kessler, RC; Chiu, WT; Demler, O; Walters; EE.2005. Prevalence, severity, and comorbidity of twelve-month DSM-IV disorders in the National Comorbidity Survey Replication (NCS-R). Archives of General Psychiatry;62(6):617-27.

[2] Harris, Gardiner. 2011.New York Times. Retrieved on March 15, http://www.nytimes.com/2011/03/06/health/policy/06doctors.html

[3] e.g., Saks, E. 2007.  The centre cannot hold: My journey through madness. New York: Hyperion.

[4] e.g., Thompson, J. 2010. Leaving the boy in the room. Philosophy, Psychiatry, & Psychology 17, no. 3:247–250.

[5] Pennebaker, J. W. 1997. Writing about emotional experiences as a therapeutic process. Psychological Science, 8(3), 162-166.

PEBS Neuroethics Roundup from JHU Guest Blogger

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Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the  Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

"Imaging the Reconstruction of True and False Memories Using Sensory Reactivation and the Misinformation Paradigms"

Recently posted to SSRN:

"Imaging the Reconstruction of True and False Memories Using Sensory Reactivation and the Misinformation Paradigms" 

Learning & Memory, Vol. 17, pp.485-488, 2010
UC Irvine School of Law Research Paper No. 2011-08

CRAIG E.L. STARK, University of California, Irvine
YOKO OKADO, Johns Hopkins University
ELIZABETH F. LOFTUS, University of California, Irvine - Department of Psychology and Social Behavior, University of California, Irvine School of Law
Many current theories of false memories propose that, when we retrieve a memory, we are not reactivating a vertical, fixed representation of a past event, but are rather reactivating incomplete fragments that may be accurate or distorted and may have arisen from other events. By presenting the two phases of the misinformation paradigm in different modalities, we could observe sensory reactivation of the auditory and visual cortex during the retrieval phase. Overall, true and false memories showed similar brain activation, but could be distinguished by this reactivation. This was true only in the early regions of the sensory cortex.