Neuroethics & Law Blog

"Law and Neuroscience in the United States"

Recently Posted to SSRN:

"Law and Neuroscience in the United States"  
INTERNATIONAL NEUROLAW: A COMPARATIVE ANALYSIS, p. 349, T.M. Spranger, ed., Springer-Verlag, 2012
Vanderbilt Public Law Research Paper No. 1-5

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OWEN D. JONES, Vanderbilt University - Law School & Dept. of Biological Sciences
FRANCIS X. SHEN, Tulane University Law School & The Murphy Institute

Neuroscientific evidence is increasingly reaching United States courtrooms in a number of legal contexts. And the emerging field of Law and Neuroscience is being built on a foundation that joins: a) rapidly developing technologies and techniques of neuroscience; b) quickly expanding legal scholarship on the implications of neuroscience; and c) neuroscientific research designed specifically to explore legally relevant topics. 

Despite the sharply increasing interest in neuroscientific evidence, it remains unclear how the legal system – at the courtroom, regulatory, and policy levels – will resolve the many challenges that new neuroscience applications raise. 

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This chapter – part of an edited volume surveying neurolaw in 18 countries – provides an overview of notable neurolaw developments in the United States through 2011. The chapter proceeds in six parts. Section 1 introduces the development of law and neuroscience in the U.S. Section 2 then considers several of the evidentiary contexts in which neuroscientific evidence has been, and likely will be, introduced. Sections 3 and 4 discuss the implications of neuroscience for the criminal and civil systems, respectively. Section 5 reviews three special topics: lie detection, memory, and legal decision making. Section 6 concludes with brief thoughts about the future of law and neuroscience in the United States. 

Our 7th Blogiversary!

I'm pleased to report that the Neuroethics & Law Blog turns seven years old today and that readership has increased each year.

If you are a scholar or graduate student who writes in the field of neuroethics (or a related area) and are interested in guest blogging, send me a brief email about yourself, along with the month (between now and six months from now) that you are interested in guest blogging.  Guests should plan to write 1-2 posts per week for the duration of their visit.

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article: Patients Clamor for Cancer Drug That Shows Promise for Alzheimer’s in Mice, Scientific American In The Popular Press: Treating Depression: Is there a placebo effect?, CBS News The Real Suicide Data from the TADS Study Comes to Light, Mad in America Love and other drugs, or why parents should chemically enhance their marriages, Practical Ethics Computer modelling: Brain in a box, Nature News Can Gardening Help Troubled Minds Heal?, NPR  Neuroscientists Identify How the Brain Works to Select What We (Want To) See, Science Daily How Did Human Brains Get to Be so Big?, Scientific American Are you mad to love city living?, Culture Lab Alex the parrot’s last experiment shows his mathematical genius, Nature News Blog How significant are developments in making Alzheimer's brain cells in the lab?, BBC News How Exercise Fuels the Brain, New York Times Well Blog Prune bad brain wiring with magnetic pulses, New Scientist Moments of the self, Mind Hacks A Blood Test to Predict Everlasting Love?, Time Healthland Study suggests anticipation of stress may accelerate cellular aging, SCOPE If morality is broken, we can fix it, New Scientist The Neuroscience of Magic, Gizmodo Army Moves To Act Fast On Battlefield Brain Injuries, NPR A rapidly reversible, light-activated painkiller, The Guardian Charles Fernyhough Asks Does Neuroscience Change The Way We Understand Ourselves?, The School of Life The artist who hears colour: World's only recognised cyborg uses head-mounted camera to convert hue to sound, The Daily Mail Is Your Cell Phone Making You a Jerk?, Time Healthland Grief: Normal, Not A Mental Illness, ABC News Eternal Sunshine Drug Points the Way Toward Counteracting the Agony of Chronic Pain, Scientific American Twitter Reveals People Are Happiest in the Morning, Scientific American From the Academic Literature: Nocebo Effects, Patient-Clinician Communication, and Therapeutic Outcomes, JAMA Sex Differences in the Brain: The Not So Inconvenient Truth, The Journal of Neuroscience Neurochemical Enhancement of Conscious Error Awareness, The Journal of Neuroscience  Linking Pain and the Body: Neural Correlates of Visually Induced Analgesia, The Journal of Neuroscience Neural Mechanisms Underlying Motivation of Mental Versus Physical Effort, PLoS Biology Neuroscience: Powerful acts, Nature Rethinking the Emotional Brain, Neuron

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.

"Smooth and Bumpy Laws" at Yale Law School

Earlier, I blogged about a panel on brain imaging and deception detection to be held at Yale Law School tomorrow (Friday, February 24, 2012; 2-4pm). Note that the event will now be held in room 120, and see here for more information about it.

In addition, I will be speaking at Yale earlier in the day about my new draft paper, "Smooth and Bumpy Laws," in room 129 from 12-1:30pm as part of the Thomson Reuters ISP Speaker Series.  See here.  Both events are open to the public.  I'll post more about the paper in the future, but if you'd like a sneak preview, you can download the current draft here. As always, blog readers are encouraged to introduce themselves.

60 Minutes Covers the Placebo Effect of Antidepressants

See here. And see my earlier post on the subject.

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article: Why Cognitive Enhancement Is in Your Future (and Your Past), The Atlantic  In The Popular Press: Scientists zap brain to see if it will help trigger 'flow', Washington Post Video: Neuroscientists Measure Brain Activity in Love Competition, Wired Underwire What’s New? Exuberance for Novelty Has Benefits, New York Times  Best Time for a Coffee Break? There's an App for That, Science Daily How Child Abuse Primes the Brain for Future Mental Illness, Time Healthland Using fMRI to understand and potentially prevent depression in girl, SCOPE The Therapist May See You Anytime, Anywhere, New York Times Patients Clamor for Cancer Drug That Shows Promise for Alzheimer’s in Mice, Scientific American Smart-Phone App Catches Depression Onset, Scientific American Are you having trouble sleeping?, The Neurocritic Individual ecstasies: the revelatory experience conference, Mind Hacks Chimpanzees Help, But Only When Asked, Scientific American Brain-Imaging Technique Predicts Who Will Suffer Cognitive Decline Over Time, Science Daily Childhood abuse may stunt growth of part of brain involved in emotions, The Guardian From the Academic Literature: Prediction of Cognitive Decline by Positron Emission Tomography of Brain Amyloid and Tau, Archives of Neurology Incidence of Traumatic Brain Injury Across the Full Disease Spectrum: A Population-based Medical Record Review Study, Epidemiology Periods of rest in fMRI contain individual spontaneous events which are related to slowly fluctuating spontaneous activity, Human Brain Mapping Exposure to Particulate Air Pollution and Cognitive Decline in Older Women, Archives of Internal Medicine PKMζ is essential for spinal plasticity underlying the maintenance of persistent pain, Molecular Pain Choosing a second generation antidepressant for treatment of major depressive disorder, BMJ Different Bodies, Different Minds The Body Specificity of Language and Thought, Current Directions in Psychological Science

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.

Time of Day and Cortical Excitability

The Neuroskeptic warns neuroscientists using fMRI (and other measurement technologies) that the time of day when an experiment is conducted might possibly have unanticipated effects on results. See discussion here, sparked by this paper.

Yale Law School Panel on Detection Deception

On Friday February 24, Yale Law School's Information Society Project will host the following event (originally posted here). I'm told that it is open to the public:

Get scanned, Get Canned: Deception Detection and Neuroscience Technology Outside the Courtroom

February 24, 2012 
2:00- 4:00 pm
Room 128

Deception-detection technology based on recent developments in neuroscience is here!  Several companies offer neuroscience-based lie detectors to potential clients for use in both courtroom and non- courtroom settings, promoting their services as superior to polygraph and other more dated technologies.  However some legal scholars, ethicists, and neuroscientists have questioned both the effectiveness and desirability of using neuroscience-based methods to detect  deception, and those methods have not been widely accepted in court.  

 The next frontier for deception detection using “brain scans” may therefore instead lie in private and administrative settings like health law, tort law, labor and employment law, and national security law.  For example, although federal law (and some state law) arguably prohibits the use of such technologies in employment decisions, the technology could get a foothold in other settings like security screening for commercial air travel.  Neuroscience-and-law experts Owen Jones, Adam Kolber, and John Meixner will join the Information Society Project for a panel moderated by Visiting Fellow Bradley Moore to discuss the scientific validity, legal framework, and ethical implications for neuroscience-based deception detection.

"A Bee Line in the Wrong Direction: Science, Teenagers, and the Sting to 'The Age of Consent'"

Recently Posted to SSRN:

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"A Bee Line in the Wrong Direction: Science, Teenagers, and the Sting to 'The Age of Consent'" 
Journal of Law & Policy, Vol. 20, p. 63, 2012

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JENNIFER ANN DROBAC, Indiana University School of Law - Indianapolis
This article updates prior work on the sexual harassment of juveniles to mark that the trend, in New York and across the nation, is to treat adolescent acquiescence, in the context of civil sexual abuse allegations, like adult consent. Incorporating Supreme Court adoption of the neuroscience and psychosocial studies from Graham v. Florida, 130 S.Ct. 2011 (2010), the article takes a fresh look at the trend to recommend a new approach to adolescent “consent.” It recommends affording adolescents the right to give legal assent when it serves their best interests.

Part I of this Article briefly reviews the neuroscience and psychosocial evidence regarding adolescent development to maturity. This research is new and reported conclusions vary, but a snapshot review of current understanding helps guide an evaluation of New York law first formulated in 1933. Part I concludes that adolescents are not younger, smaller adults but are fundamentally different in the ways they think and behave. Part II explores legal guidance concerning consent, assent, and juvenile incapacity. It highlights that legal authority cautions against attributing full legal capacity to minors — whether or not one affords them decision making autonomy. Part III reviews recent cases from New York to show how New York courts treat adolescent consent to unlawful sex with an adult inconsistently. It also notes several other cases from across the nation that replicate the New York inconsistencies. This Article concludes in Part IV by recommending a new approach to adolescent consent to sex with an adult-legal assent.

UPDATED: Call for Abstracts for University of Pavia's "Law and Science Young Scholars" Symposium

UPDATE: I'm told the deadline for abstracts has been extended to Feb. 26, 2012 and that notification of acceptance has been postponed to Mar. 15, 2012.

The University of Pavia has issued a call for (extended) abstracts for its 2012 Law & Science Young Scholars Informal Symposium, which will take place on May 14, 2012 at the University of Pavia (Italy). It will be another in a series of such symposia organized in the last two years on the initiative of the European Centre for Law, Science and New Technologies (ECLT) University of Pavia (http://www.unipv-lawtech.eu/lang1/index.html).

The Symposium aims to provide a forum for post-graduate scholars, PhD students and early-career researchers working on issues at the intersection of law and science.  You'll find much more information via this website (in particular, you can download the call for abstracts).  Law and neuroscience is one area of work specifically mentioned in the call for abstracts.

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article: The Power of Introverts: A Manifesto for Quiet Brilliance, Scientific American In The Popular Press: Why Cognitive Enhancement Is in Your Future (and Your Past), The Atlantic  Deep brain stimulation enhances spatial memory, The Guardian Schizophrenia: When Hallucinatory Voices Suppress Real Ones, New Electronic Application May Help, Science Daily The Le Roy Teen Mystery: How to Treat Mass Psychogenic Illness, Time Healthland Clint Eastwood helps reveal secrets of brain evolution, New Scientist Siblings Brain Study Sheds Light on the Roots of Addiction, Time Healthland Why Some Wild Animals Are Becoming Nicer, Wired Science A discussion on the ethics of neuroscience, The Blog of the Presidential Commission for the Study of Bioethics Issues Neuroscience could mean soldiers controlling weapons with minds, The Guardian Is Twitter Really More Addictive than Alcohol? The Vagaries of Will and Desire, Time Healthland Ape versus machine: Do primates enjoy computer games?, BBC News Smoking May Lead to Faster Cognitive Decline in Men, Time Healthland Thinking About Mortality Changes How We Act, Scientific American Ethical Questions Surround “Electrical Thinking Cap” That Improves Mental Functions Working Long Hours Can Be Depressing, Truly, NPR Shots Why Are Men So Violent?, Psychology Today Is Drug Addiction a Lifestyle Choice?, Practical Ethics Just Another Pretty Face: New Insight Into Neural Basis of Prosopagnosia, Science Daily From the Academic Literature: Neuroscience: Another Remembered Present, Science Nanoscopy in a Living Mouse Brain, Science Abnormal Brain Structure Implicated in Stimulant Drug Addiction, Science Why is Facebook So Successful? Psychophysiological Measures Describe a Core Flow State While Using Facebook, Cyberpsychology, Behavior, and Social Networking The neurobiology of anhedonia and other reward-related deficits, Trends in Neurosciences The neurodevelopmental origins of suicidal behavior, Trends in Neurosciences  Memory Enhancement and Deep-Brain Stimulation of the Entorhinal Area, New England Journal of Medicine Nocebo Effects, Patient-Clinician Communication, and Therapeutic Outcomes, JAMA Do Stable Patients With a Premorbid Depression History Have a Worse Outcome After Deep Brain Stimulation for Parkinson Disease?, Neurosurgery Trans-Synaptic Spread of Tau Pathology In Vivo, PLoSONE Genetic contributions to stability and change in intelligence from childhood to old age, Nature Primate cognition: Copy that, Nature Mapping brain activation and information during category-specific visual working memory, Journal of Neurophysiology Mass media information and adherence to Mediterranean diet: results from the Moli-sani study, International Journal of Public Health Sex differences in memory of emotional images: A behavioral and electrophysiological investigation, International Journal of Psychophysiology Maternal support in early childhood predicts larger hippocampal volumes at school age, PNAS Identification of oligomers at early stages of tau aggregation in Alzheimer’s disease, The FASEB Journal

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.

"The Challenge of Flexible Intelligence for Models of Human Behavior"

Recently Posted to SSRN:

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"The Challenge of Flexible Intelligence for Models of Human Behavior"  
Technical Report of Association for the Advancement of Artificial Intelligence, Spring Symposium, 2012

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MARK TURNER, Case Western Reserve University - Department of Cognitive Science
MATHEW D. MCCUBBINS, University of Southern California - Marshall School of Business, Gould School of Law and the Department of Political Science
NICHOLAS WELLER, University of Southern California - Department of Political Science, University of Southern California - School of International Relations
Game theoretic predictions about equilibrium behavior depend upon assumptions of inflexibility of belief, of accord between belief and choice, and of choice across situations that share a game-theoretic structure. However, researchers rarely possess any knowledge of the actual beliefs of subjects, and rarely compare how a subject behaves in settings that share game-theoretic structure but that differ in other respects. Our within-subject experiments utilize a belief elicitation mechanism, roughly similar to a prediction market, in a laboratory setting to identify subjects’ beliefs about other subjects’ choices and beliefs. These experiments additionally allow us to compare choices in different settings that have similar game-theoretic structure. We find first, as have others,that subjects’ choices in the Trust and related games are significantly different from the strategies that derive from subgame perfect Nash equilibrium principles. We show that, for individual subjects, there is considerable flexibility of choice and belief across similar tasks and that the relationship between belief and choice is similarly flexible. To improve our ability to predict human behavior, we must take account of the flexible nature of human belief and choice.

"The Law and Economics of Fluctuating Criminal Tendencies"

Recently posted to SSRN:

"The Law and Economics of Fluctuating Criminal Tendencies" 
FSU College of Law, Public Law Research Paper
FSU College of Law, Law, Business & Economics Paper

MURAT CAN MUNGAN, Florida State University - College of Law
Law and economics is one of the most successful legal disciplines, and it is used frequently to study various legal issues, doctrines, and policies. Its application to criminal law has received great attention by economists as well as lawyers. But, economic analyses of criminal law are often criticized for employing unrealistic assumptions and performing poorly in providing rationales for various criminal law doctrines. In light of these criticisms, one may be tempted to jump to the conclusion that law and economics in particular, and consequentialist approaches in general, are inappropriate for studying criminal law and procedure.

In this article, I demonstrate that the poor performance of economic analyses in providing rationales for a number of criminal law doctrines is not the result of some inherent problem with consequentialism, but its narrow application. Specifically, I show that the two main criticisms mentioned above are interrelated, and that addressing the first - by employing more realistic assumptions - at least partially resolves the second.

In particular, economic analyses of criminal law can achieve greater explanatory power by incorporating two simple facts: (i) the degree of control one can exert over himself to abstain from committing a wrongful act fluctuates over time, and (ii) the incapacitative function of imprisonment contributes to reductions in crime. Despite the simplicity of observing these two facts, almost all normative economic analyses of criminal law ignore them. Instead, they assume that criminals have constant criminal tendencies, and that the only benefit of imprisonment is deterrence.

This article demonstrates that an economic analysis incorporating the two simple facts mentioned above provides convincing rationales for (i) why repeat offenders are punished more severely, (ii) why there is a de facto tendency to punish offenders, who are believed to be remorseful, less severely, and (iii) why voluntary manslaughter is punished less severely than murder. Because previous economic analyses employing narrower approaches face difficulties in providing similar rationales, I conclude that the economic approach gains significant explanatory power by applying consequentialism more broadly.

"Blaming as a Social Process: The Influence of Character and Moral Emotion on Blame"

Recently posted to SSRN:

"Blaming as a Social Process: The Influence of Character and Moral Emotion on Blame" 
Law & Contemporary Problems, Forthcoming
Northwestern Law & Econ Research Paper No. 12-01
Northwestern Public Law Research Paper No. 12-01

JANICE NADLER, Northwestern University School of Law, American Bar Foundation
For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor’s mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our emotional reactions are not only a product of the act and the outcome, but also a product of inferences about the general virtuousness of the person who performed the act that caused the harm. Remarkably, this result holds true even though the mental state of the actor was clearly specified.

As observers, we give the benefit of the doubt to a person with a virtuous character who causes harm; we perceive his actions as less intentional and perhaps even less causal, and the harm less foreseeable than if his character is flawed. Remarkably, it seems that we do not deliberately use character information to inform responsibility judgments, for when differences in character are made explicit, we moderate our judgments so that we hold the virtuous harmdoer equally responsible as the ignoble harmdoer.

Philosopher vs. Lay Intuitions

Recently posted to SSRN:

"Moral Intuitions: Are Philosophers Experts?" 

KEVIN TOBIA, Rutgers, The State University of New Jersey - Rutgers University, New Brunswick/Piscataway
WESLEY BUCKWALTER, CUNY - The Graduate Center
STEPHEN STICH, Rutgers, The State University of New Jersey, University of Sheffield
Recently psychologists and experimental philosophers have reported findings showing that in some cases ordinary people’s moral intuitions are affected by factors of dubious relevance to the truth of the content of the intuition. Some defend the use of intuition as evidence in ethics by arguing that philosophers are the experts in this area, and philosophers’ moral intuitions are both different from those of ordinary people and more reliable. We conducted two experiments indicating that philosophers and non-philosophers do indeed sometimes have different moral intuitions, but challenging the notion that philosophers have better or more reliable intuitions.