Neuroethics & Law Blog

Fractional Parenthood in the U.S.

In prior posts, I've discussed the phenomena that I call "fractional parenthood": an embryo is formed from the DNA of more than two parents. See here and here. Prior news reports focused on work in Britain, but an A.P. news story discusses progress made by U.S. researchers who have apparently used a different technique to achieve a similar result: they made human embryos which, if brought to term, would have fractional parents, having received nucleic DNA from a woman, mitochondrial DNA from a different woman, and nucleic DNA from a man.

I think the key new information comes at the end of the article:

In a report published online Wednesday by the journal Nature, Shoukhrat Mitalipov and others at OHSU report transplanting nucleus DNA into 64 unfertilized eggs from healthy donors. After fertilization, 13 eggs showed normal development and went on to form early embryos.

The researchers also reported that four monkeys born in 2009 from eggs that had DNA transplants remain healthy, giving some assurance on safety.

Mitalipov said in an interview that the researchers hope to get federal approval to test the procedure in women, but that current restrictions on using federal money on human embryo research stand in the way of such studies.

The research was funded by the university and the Leducq Foundation in Paris.

Dr. Douglass Turnbull of Newcastle University in Britain, whose team has transplanted DNA between eggs using a different technique, called the new research "very important and encouraging" in showing that such transplants could work.

But "clearly, safety is an issue" with either technique if it is applied to humans, he said.

Progress Repairing Damaged Spinal Cords

See the New Scientist report here.

"The Juror and Courtroom of the Future"

Recently Posted to SSRN:

"The Juror and Courtroom of the Future"
The Future of Evidence (Carol Henderson & Jules Epstein, eds.) 113-36 (2011)

NEAL FEIGENSON, Quinnipiac University - School of Law 
CHRISTINA SPIESEL, Yale University - Law School

Litigation and trial practice today reflect the same increasing use of and dependence on digital, screen-based, multimedia communication that characterizes the culture as a whole. More evidence and arguments in brick-and-mortar courtrooms are being presented digitally, on screens. At the same time, dispute resolution is moving online and hence being conducted through screen-based interfaces. We can expect this convergence to accelerate in coming years. This chapter explores both trends, tracing the movement from screens in court to courts on the screen, from video trials and videoconferencing to trials in virtual reality. Practical and evidentiary concerns are discussed. Finally, the chapter sketches a portrait of jurors in the digital and Internet age and explains how the law is addressing, and should address, their changing needs and demands.

"A First Episode Standard for Involuntary Treatment"

Recently Posted to SSRN:

"A First Episode Standard for Involuntary Treatment" 

ADAM G. GERHARDSTEIN, University of St. Thomas School of Law
 

This paper proposes a new standard for involuntary treatment, one that does not include a requirement of physical harm. Instead it requires that individuals are experiencing their first major episode of a psychiatric disorder. A first episode standard would allow for the involuntary treatment of individuals who are (1) over 18, (2) mentally ill (the presence of a mental disorder that diminishes a person’s ability to reason, resulting in an impairment of functioning), and (3) have never received psychiatric treatment for the disorder. This standard would soften the trauma of a first episode, assisting families in their attempts to intervene before their loved ones’ lives are in complete disarray and their episodes escalate to the point of violence. It would expand access to early, effective treatment, giving individuals experiencing their first major episodes the best chance for a healthy long-term prognosis. And, a first episode standard would save taxpayers’ money.

"Copyright, Neuroscience, and Creativity"

Recently Posted to SSRN:

"Copyright, Neuroscience, and Creativity"
Alabama Law Review, Vol. 64, 2013

EREZ REUVENI, Stanford Law School Center for Internet and Society, United States Department of Justice
 

It is said that copyright law’s primary purpose is to encourage creativity by providing economic incentives to create. Accepting this premise, the primary disagreement among copyright stakeholders today concerns to what extent strong copyrights in fact provide such incentives.  This focus on economic incentives obscures what is perhaps copyright doctrines’ greatest weakness – although the primary purpose of copyright law is to encourage creativity, copyright doctrine lacks even a rudimentary understanding of how creativity functions on a neurobiological level.  The absence of a cohesive understanding of the science of creativity means that much of copyright theory is premised on antiquated assumptions regarding the creative process that have no basis in cognitive neuroscience or psychology and therefore do not in fact encourage creativity effectively from a scientific perspective.  This Article fills that void by developing a coherent narrative of how creativity functions on a neurobiological level and demonstrating how copyright law specifically and information policy generally play a largely unexplored role in determining how effectively the brain’s creative process – what I term the cognitive architecture of creativity – functions both internally and when interacting with the Internet and other informational environments.  Relying on this narrative, the Article argues that creativity is not an isolated singular moment of genius as theorized by contemporary copyright doctrine, but rather the product of complex interactions between individuals within a larger cultural environment that, in turn, can trigger the brain’s creative process in the right circumstances.  Copyright’s goal of encouraging creativity should therefore be understood as an environmental design question, with the brain’s creative process as that environment’s hub, and copyright law and information policy as design levers in engineering that environment.  Relying on this framework, the Article concludes by suggesting modifications to copyright law and policy that complement how the brain’s cognitive architecture interfaces with the Internet, thereby better achieving copyright’s core goal of encouraging creativity.

"Speaking Science to Law"

Recently Posted to SSRN:

"Speaking Science to Law"
Georgetown International Environmental Law Review (GIELR), Vol. 25, 2013, Forthcoming

DEBORAH M. HUSSEY FREELAND, University of San Francisco - School of Law

We consult scientific expert witnesses in almost every field of law. Yet even in cases involving a strong scientific consensus, the powerful qualities of scientific knowledge are easily lost in translation. Moreover, even prominent scientists who are committed to providing accurate information to legal fact-finders may suffer reputational harm simply for participating in an adversarial process.

This article analyzes the connection between law and science through the expert witness from the perspectives of epistemology and cross-cultural communication, focusing on the distinct ways in which scientists and lawyers know, value and express their knowledge. When a lawyer meets with a scientific expert witness, more confusion attends their interaction than either likely realizes. Linguistic translation is necessary -- but not only translation of the substance of science into terms accessible to the legal fact-finder. An additional form of translation is essential, though the need for it may go unnoticed: that of homonyms -- terms that are superficially identical in law and science (such as "fact," "uncertainty," and "proof") but which have deeply different meanings in their respective disciplines. Lawyers and scientists may be using the same words without realizing that they are talking past each other.

Cultural translation is also required: while their professional norms with respect to fact-finding have some overlap, they also contrast so sharply that professional behavior for the lawyer would constitute malpractice for the scientist. In their cultures of knowledge-production, the scientist is most closely analogous to the judge: the professional identities of both are founded in their neutrality. However, when the scientific fact-finder's report is presented to the legal fact-finder through the work of the lawyer, the scientist can appear partisan -- and even risks becoming partisan. For a scientist, the appearance of partisanship is an appearance of impropriety that can cause her debilitating professional harm, threatening her professional identity.

The purpose of this article is to identify and explain the homologies and false cognates between law and science, to better equip lawyers and judges to make proper interdisciplinary translations in the process of speaking science to law.

"Deciding Under Non-Epistemic Uncertainty"

I'll be presenting Smooth and Bumpy Laws later this week at the Deciding Under Non-Epistemic Uncertainty Conference at the University of Freiburg. As always, blog readers are encouraged to introduce themselves.

"Paternalism and Psychic Taxes: The Government's Use of Negative Emotions to Save Us from Ourselves"

Recently Posted to SSRN:

"Paternalism and Psychic Taxes: The Government's Use of Negative Emotions to Save Us from Ourselves"
Southern California Interdisciplinary Law Journal, Vol. 22, Forthcoming

GARY LUCAS, JR., Texas Wesleyan University School of Law
 

Paternalism has become increasingly popular among policy makers. This Article analyzes whether the government should use psychic taxes as a tool for paternalism. A psychic tax is a government policy that imposes a psychic cost by provoking negative emotions such as fear, anxiety, or shame. This Article focuses specifically on graphic warnings on cigarettes and food. The Food and Drug Administration recently adopted regulations that require graphic warnings on cigarettes, including images of a corpse and of diseased lungs. And policy makers are also considering graphic warnings on food. For example, the government could mandate that food manufacturers place a drawing of an overweight person on unhealthy foods.

Proponents of psychic taxes argue that contrary to the rational actor model used in law and economics, people are not perfectly rational and do not always make the best choices for themselves. If failures of rationality cause people to make suboptimal choices, then in theory, the government could use psychic taxes to modify behavior and improve people’s lives.

Unfortunately, real-world governments are not perfect, so the implementation of psychic taxes presents a number of potentially serious challenges. The government’s lack of complete information, the possibility of unintended consequences, and a number of other factors make it inherently difficult to predict whether psychic taxes will in fact prove beneficial. Moreover, in some cases, graphic warnings and other psychic taxes may be deceptive. So acceptance of psychic taxes as a legitimate policy tool may lead us down a slippery slope toward policies that are harmful and even abusive. Finally, since the government is likely to target goods that are consumed disproportionately by the poor, the burden of psychic taxes will fall largely upon low-income families.

Because of these concerns, this Article expresses skepticism about the use of psychic taxes. Privately produced products and other nongovernmental solutions will often eliminate the effects of irrationality making psychic taxes unnecessary. Even when that is not the case, psychic taxes create the potential for considerable costs, many of which are difficult to quantify in advance. For this reason, the government should not employ psychic taxes without compelling evidence that the benefits will be substantial. In particular, the lack of strong empirical support for graphic warnings on cigarettes and food raises questions about whether these warnings are worthwhile.

"Neuroscience, PTSD and Sentencing Mitigation"

Recently Posted to SSRN:

"Neuroscience, PTSD and Sentencing Mitigation"
33 Cardozo L. Rev. (2012)

BETSY GREY, Arizona State University (ASU) - Sandra Day O'Connor College of Law
 

Like other mental disorders, PTSD has been advanced in criminal law to support sentencing mitigation. Unlike other disorders, however, PTSD traces back to an event that is considered the cause of the disorder, known as the stressor. Stressors can range from car accidents to gang violence to the commission of a crime. This article examines whether lawmakers should consider the nature of the stressor when deciding whether to use PTSD as a mitigating factor in sentencing.

Courts and legislatures generally have not embraced use of PTSD in sentencing mitigation except in cases where it resulted from combat duty or domestic violence. This article questions that exceptionalism. In particular, limiting PTSD consideration to these contexts can no longer be justified by concerns that a defendant is faking the syndrome. Advances in neuroscience increasingly make it possible to measure the physiological changes that occur in a person’s brain after experiencing a trauma, raising the prospect of establishing the validity of a wider range of PTSD claims. In that event, the distinction between the combat and domestic violence stressors, as opposed to other causes of PTSD, is unwarranted in terms of the prevailing justifications for punishment. The issue, then, is whether other rationales can justify limiting PTSD consideration to certain stressors. Accordingly, lawmakers should acknowledge that other normative concerns may influence our treatment of PTSD in sentencing and develop more neutral limiting principles to determine when PTSD can mitigate a criminal sentence.