Neuroethics & Law Blog

Response to Abend (Michael Pardo & Dennis Patterson)

Gabriel Abend raises a number of interesting questions about philosophical methodology, in general and as it relates to our analysis. We are grateful that he does not think we are Platonists!  We approach his questions by making two general points about the methodology we employ in the book. 

The first point is that, although we focus on conceptual issues throughout our book, we do not offer (because we do not need to) a substantive theory of “concepts” or a specific theory of “conceptual analysis” as such.  Therefore, in the book we don’t attempt to offer answers to some of the more vexing issues that arise for theories of the latter (such as the roles of intuitions, ordinary meanings, or the concept-conception distinction).  As we note in the book, the approach we take is more method (and a largely pragmatic one) than doctrine and also corrective/ therapeutic in nature.  We take the claims and arguments as we find them, and—rather than imposing a top-down theory—we attempt to root out mistaken inferences and conclusions that arise because of conceptual confusion somewhere in the claims or arguments.  The concepts at issue may involve ordinary language, specialized terms in legal doctrine, scientific concepts, or stipulated concepts.  (We will demonstrate below with a couple of examples of how our arguments work.) 

The second point is that nothing in our arguments depends on being able to specify necessary and sufficient conditions for concepts.  In addition, we acknowledge that concepts may be vague; that they can change; and that in some cases there may be substantial disagreement about the content of a concept (for example, is it a “lie” if someone says something believed to be false, but they were mistaken and what they said is actually true—or rather did they merely “attempt to lie” and fail?).  This point also answers some of the concerns raised by Moriarty and Shen (and Francis’s comment to Jane’s post).  An emphasis on conceptual clarity does practical work on the ground even if there is no agreed-upon theory of the scope, contours, and relationships for the relevant concepts (for example, necessary and sufficient conditions for pain). 

With these two points in mind, we think the best way to respond to Abend’s abstract questions is with a couple of concrete examples.    

1.  The voluntary act requirement in criminal law (“actus reus”).  Criminal liability typically requires proof of a willed act by the defendant.  The criteria for this requirement are provided by legal doctrine.  Now, consider the claim that neuroscience informs this category by revealing whether a movement is willed or not.  However, suppose the argument for this relies on the following two assumptions: first, that the voluntary act element requires an “internal process of deciding to act” and “a feeling of deciding to act” and, second, that neuroscience can illuminate whether this internal process or feeling was present.  One way to respond to this argument, as we do, is to point out examples of conceptual confusions with the underlying assumptions.  For example, the voluntary act requirement does not, as is being assumed, require an internal decision to act or the feeling of such a decision.  Therefore, the argument does not go through.  This is our principal point: the assumptions in play are not plausible.

2.  Knowledge.  As Abend points out, there are many different theories of knowledge (and epistemologists are continually refining existing ones and creating new ones).  Conceptual clarity matters for the neurolaw context, however, even when there is vigorous ongoing debate about the nature of knowledge.  For example, propositional knowledge is—whatever else it may be—“factive.”  To know something implies that what is known is true.  One aspect of knowledge, in other words, involves an appropriate connection to the world.  The failure to recognize this point leads to conceptual confusion in a variety of claims and arguments about whether knowledge of various sorts is “in the brain.”  Given this factive component, knowledge is not “in the brain” because the very same brain state may exist regardless of whether the person has knowledge.  (This does not mean that a brain is not necessary for knowledge.)  

Here is a concrete example (a modified version of this famous one).  Suppose someone is driving along a highway and sees a barn (a real barn) and asserts, “there’s a barn.”  Hours later, the same person sees what he perceives to be a similar looking barn and again asserts, “there’s a barn.”  Unbeknownst to the driver, however, the second time he is in Fake Barn County, where they make barn facades along the highway to trick passing motorists.  Our driver, let’s assume, has similar perceptual experiences both times and forms similar underlying brain states.  Yet, in the first scenario he has knowledge, and in the second he does not.  Thus, knowledge is not his brain states, which, by hypothesis, were the same.  Again, to be clear, this is not to deny that in some cases there may be neurological differences between cases of knowing and non-knowing.  

Exactly how our specific arguments relate to the abstract issues raised by Abend raises several interesting questions about philosophical methodology.  Our discussions regarding the usage of concepts in the neurolaw context, we assume, have some bearing on theses issues.  But it would require an entirely new book to answer these meta-theoretical issues.  Again, interesting as they are, we do not think they are questions we need to answer, at least so far as the arguments in our book are concerned.      

Reconstructing Images of Faces Using fMRI

See here:

Abstract

Recent neuroimaging advances have allowed visual experience to be reconstructed from patterns of brain activity. While neural reconstructions have ranged in complexity, they have relied almost exclusively on retinotopic mappings between visual input and activity in early visual cortex. However, subjective perceptual information is tied more closely to higher-level cortical regions that have not yet been used as the primary basis for neural reconstructions. Furthermore, no reconstruction studies to date have reported reconstructions of face images, which activate a highly distributed cortical network. Thus, we investigated (a) whether individual face images could be accurately reconstructed from distributed patterns of neural activity, and (b) whether this could be achieved even when excluding activity within occipital cortex. Our approach involved four steps. (1) Principal component analysis (PCA) was used to identify components that efficiently represented a set of training faces. (2) The identified components were then mapped, using a machine learning algorithm, to fMRI activity collected during viewing of the training faces. (3) Based on activity elicited by a new set of test faces, the algorithm predicted associated component scores. (4) Finally, these scores were transformed into reconstructed images. Using both objective and subjective validation measures, we show that our methods yield strikingly accurate neural reconstructions of faces even when excluding occipital cortex. This methodology not only represents a novel and promising approach for investigating face perception, but also suggests avenues for reconstructing ‘offline’ visual experiences—including dreams, memories, and imagination—which are chiefly represented in higher-level cortical areas. 

CONFUSION IN NEUROLAW (Gabriel Abend)

 

“Can you tell me, Socrates, whether virtue is acquired by teaching or by practice; or if neither by teaching nor practice, then whether it comes to man by nature, or in what other way?” So asks Meno at the very beginning of Plato’s dialogue, the Meno. Socrates replies that he can’t tell him how virtue is acquired, because he doesn’t know what virtue is. In order to find out the properties of object X, you first need to individuate or pick out X, so that your observations and statements can be about it (as opposed to their being about something else). This may seem relatively easy if your X is the moon, gold, Uruguay, or the set of people who are taller than 1.88 meters and live in Montevideo, Minnesota. But what are you to do if your X is virtue, piety, justice, knowledge, love, empathy, law, intending, or lying? 

Pardo and Patterson are no Platonists, and Minds, Brains, and Law doesn’t draw on Plato and his disciples, but on Wittgenstein and his disciples, especially Bennett and Hacker. However, one way of paraphrasing one of the key arguments of the book might be as follows: the burgeoning field of law and neuroscience (and cognitive neuroscience more generally) hasn’t paid proper attention to Socrates’ reply to Meno. Neuroscientists do experimental research and make knowledge-claims about certain cognitive and social phenomena, whose properties they aim to identify, including their neural “correlates,” “underpinnings,” or “substrates.” Unfortunately, it’s often unclear what exactly these phenomena are. Then, P&P go on to argue that these are primarily conceptual questions, i.e., not the kind of questions that empirical research can resolve by itself—no matter how much of it and no matter how innovative or sophisticated.

It’s hard to exaggerate the importance and timeliness of this twofold argument that Minds, Brains, and Law advances. Even though P&P’s book is “first and foremost… a philosophical project” (p. 208), its importance is practical and methodological as well. It should have an impact on the work of both neuroscientists and legal scholars who draw on neuroscience: they can’t afford to neglect their explicit conceptual choices and implicit conceptual assumptions anymore. That’s why P&P shouldn’t be “taken to be ‘skeptics’ about the prospects of neuroscience for law” (pp. ix, xx). On the contrary, they are strengthening the field by distinguishing what is meaningful and useful from what is meaningless and useless. As they convincingly argue, sound conceptual foundations are a prerequisite for scientific progress. There’s no way around that.

In what follows I’d like to raise four questions about P&P’s book, in particular about their conceptual analysis: 

(1) First, what’s the difference (if any) between a concept of X and a conception of X (where X might be, say, knowledge, law, lie, love, or lion)?

(2) Second, what is it to get a conception/concept wrong? In virtue of what are conceptions/concepts bad, defective, or inadequate? I understand P&P’s arguments against particular concepts/conceptions that are common in neurolaw, such as voluntary action, mind, knowledge, memory, lying, and rule-following. But I’m curious about the general criteria or principles that they’re using in these cases and presumably would use to detect other bad cases. Put differently, what do “problematic” and “confused” conceptions/concepts share?

In this respect, what role (if any) do these four elements play? I. The conceptual analyst’s and/or the reader’s intuitions; II. Logic: consistency, inferences’ validity, infinite regress, etc.; III. Ordinary language, as spoken by the person on the street; and IV. The Oxford English Dictionary lexical definitions (or the Duden, Diccionario de la Real Academia Española, or whatever natural language you happen to speak).

(Here P&P’s word choices are significant, I think. They say that concepts/conceptions are “problematic,” “confused,” or “mistaken.” Ideas, claims, and views “make no sense,” in a specific technical sense (p. xxv). Once they say that an idea isn’t “intelligible” (p. 13), and once that something can’t be “intelligibly said” (p. 20). Because the concept of intelligibility has a complex genealogy, I wondered what work P&P intended it to do. I also wondered if it’s a property of ideas, or a property of utterances, or both.)

(3) Third, suppose you’ve already gotten rid of all the bad concepts/conceptions of knowledge, love, justice, intending, lying, and so on. Yet, probably, more than one will still be left. Then, how should you choose among the conceptions/concepts that do make sense? Sometimes P&P use the expressions “plausible” (pp. 3, 43-44, 129),“best understood as” (p. 5), and “properly understood” (p. 125). So, what makes a conception/concept more plausible than another? And what are the general criteria or principles that these predicates represent?

Sometimes P&P use the expression “correct conception,” or “correct criteria in applying the concepts” (pp. xxv, 43, 46). So, is there one and only one correct concept/conception of each object or phenomena (or one “right analysis,” as some philosophers would put it)? Or do we have to be relativists about concepts/conceptions, and let several of them coexist, especially across cultures and languages? 

(4) Finally, let’s return to Plato and knowledge (epistêmê). Suppose a person named Artime says that knowledge is true belief (doxa). Abreu objects that it’s true belief plus an account (logos). Recoba objects that it’s true belief obtained in a reliable way. P&P disagree with all of them: “knowing is an ability”; “knowing something… is an ability” (pp. xx, 17, 69, 139, 209). In the previous question I asked what to do in such cases, where none of the conflicting concepts/conceptions fails to make sense. In this question I’d like to ask what exactly the verb “to be” means in sentences like these: “Knowledge is A,” “Love is B,” “Mind is not C,” “Law is D,” or “Memory is not E.”

This way of using “to be” might be expected from someone who endorses Plato’s “Theory of Forms.” But aren’t more metaphysically modest folks better off staying away from it? For, as P&P observe, “law,” “lie,” “deception,” “knowledge,” etc. don’t carve nature at its joints; they aren’t “natural kinds”; they don’t have “true essences” (pp. 114-115). At least, then, if you make claims about what these things “are,” you’ve got to clarify and defend the following distinction. On the one hand, “is” as applied to knowledge, law, mind, virtue, and love; on the other hand, “is” as applied to krypton, the top quark, Abell 1835 IR1916, and the name of the current president of Uruguay.

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Gabriel Abend - Assistant Professor of Sociology - New York University

Response to Pustilnik, Shen, and Moriarty (Michael Pardo & Dennis Patterson)

We are extremely grateful to Adam for hosting this symposium.  As long-time readers of this blog, we appreciate the excellent work that Adam has done in providing such a wonderful interdisciplinary, intellectual, professional, and enjoyable forum.  It truly is an honor and a privilege to have our work discussed here.  We are also extremely grateful to Amanda, Francis, Jane, Gabriel, Carter, and Nicole for participating in the discussion and for engaging with our work. 

Pustilnik

Amanda Pustilnik focuses on our criticism of Patricia Churchland’s recent claim that difficult normative problems about legal responsibility can be resolved by looking in the brain. While accepting  much of our analysis, Pustilnik notes two areas where increased neurological evidence may contribute to law.  First, it might provide better diagnostic evidence for the issues and categories on which legal doctrine currently focuses.  Second, it may inform whether the legal issues and categories are the ones the law should focus on, given its states goals.  We agree wholeheartedly with these two points and believe they are consistent with our analysis.  We emphasized the first potential neuroscientific contribution at various points throughout our book, but the second one not as much. Pustilnik’s larger point about the potential for psychological, psychiatric, and neuroscientific evidence to provide an empirical bridge between normative judgments and legal categories is an important one.  It makes explicit, we think, what is implicit in many of our discussions.  

We note that it also supports our larger point in criticizing Churchland’s claim.  We agree with Churchland and Pustilnik that better understanding of “in control” and “out of control” brains would provide important evidence for implementing current law more accurately and also for reforming law to better match our normative goals.  But the answers to the complex normative questions are not themselves answered by looking in the brain.  Nor do they follow in a straightforward manner from a control vs. out-of-control distinction.  They require normative arguments, which Churchland fails to provide.        

Shen

In our book, we asserted that our general analysis about the relationships among mind, brain, and law extends beyond the examples discussed (which primarily involve criminal law and procedure).  In his post, Francis Shen picks up on this thread by asking how our analysis extends to issues such as recent debates in tort law and insurance law about how to treat mental disorders and injuries.  His questions pose a challenge: what, if anything, can our conceptual claims about the mind contribute to these debates, as we appear to him to be advocating a position that is inconsistent with both sides?

Here is how Shen sets up the debates.  In one camp, there are “dualists” (insurance companies and tort defendants) who argue for a robust distinction between mind and body.  In the second camp, there are those (tort plaintiffs and mental-health advocates) who argue that mental disorders and mental injuries are physical and thus the doctrinal distinction between mind and body should be abandoned.  He argues that neither position seems consistent with ours.  So what gives?

We side with the second camp here, and this conclusion is in fact consistent with the analysis in our book. Any claims based on substance dualism for treating mental disorders differently from other physical disorders or for treating mental/ emotional injuries differently from other physical injuries should be rejected.  There may be good policy reasons for drawing distinctions along these lines—for example, evidentiary considerations or effects on primary (i.e., non-litigation) behavior, in other words, the usual reasons for drawing doctrinal distinctions—but the fact that mental events are not physical events should not be one of them.   

This is perfectly consistent with our view, however, that the mind and the various mental attributes are not identical with the brain or states of the brain.  In the book, we pointed to instances where confusion arises because necessary conditions are equated with sufficient conditions.  As we see it, the issues Shen points to regarding disorders and injuries are about necessary conditions.  To argue, as we do, that the mind consists in an array of powers, abilities, and capacities is consistent with the notion that each of the latter depends on a properly functioning brain.  A brain is necessary for, and plays an important causal role in, the exercise of these powers, abilities, and capacities.  Therefore, a demonstrated causal relationship between the brain (e.g., traumatic injury) and a mental category (e.g., memory loss) provides probative evidence regarding the latter.  In short, biological evidence may, depending on the evidence and the issue, provide probative evidence of mental disorder or injury.  We do not dispute this, at any rate.  But, the biological evidence is not the mind or the mental attribute (i.e., it is not sufficient).  Our ability to blog may (given our current circumstances) depend on having WiFi access and a computer.  But this does not mean that our WiFi access and computers are blogs.  The same is true for any legal category that depends on a mental attribute.  If a legal category depends on a cognitive, volitional, or emotional defect, for example, neurological evidence may inform that category, but it does not replace that category (without changing the subject).  As we note in the book, this is one area in which neuroscience might have a significant practical impact on law (by providing inductive evidence regarding legal categories).  The danger—we call it “conceptual confusion” in the book—would be to equate the defect with biological evidence for it.  Our analysis contributes, in part, by illuminating this potential pitfall and its implications for law.  We note that the potential pitfalls extend beyond law. They also affect psychological explanations of mental disorders and injuries (as Gregory Miller argues here). 

Moriarty

Jane Moriarty focuses on brain-based lie detection.  She challenges our claims about the need for conceptual clarity as a practical matter. She bases her challenge on two points.  First, that correlations of brain activity with lying may provide probative evidence of lying, even if we cannot conceptually sort out “mind” from “brain” or “person” from “brain.”  Second, the conceptual and empirical issues are “entwined” and cannot be cleanly separated. (“Research designs for neuroscience lie detection are entwined with many assumptions about brains, minds, truth, deception, intent, signaling, memory, and mistake.”)

We agree completely with the first point.  We acknowledge in the book that neuroscience-based lie detection may provide relevant and potentially highly probative evidence, depending on the correlations between the evidence and the issues about which the law cares (i.e., whether someone is lying).  On the second point, we agree that the conceptual and empirical issues are entwined.  But this is precisely why we believe conceptual clarity is so important as a practical matter—it helps us to sort out what is being correlated with what, and what inferences may or may not be drawn from the evidence.  

Here are three examples of conceptual issues with practical implications.  First, the brain/ person issue matters because lies involve complex social acts by persons (e.g., saying something believed to be false in a context in which saying so violates a norm of not doing so).  It is the social act that the law cares about, not the brain activity in and of itself (at least where the issue of lying is concerned).  Someone with brain activity correlated with lying who does not engage in the social act has not lied; someone who engages in the social act without this brain activity has lied.  Thus, the lie is not the brain activity.  Second, as Moriarty’s post implies, many of the studies about “lie detection” actually purport to measure an “intent to deceive.”  But lying and intending to deceive are distinct (a conceptual point).  One can lie (and be guilty of perjury) even without intending to deceive (for example, a witness who says something she knows to be false but hopes the jury sees through it).  And one can intend to deceive without lying.  Third, many of the studies do not appear to be measuring lies.  The social acts being correlated with brain activity may in fact be more akin to playing a game or reciting lines in a play.  Now, it may still turn out that these studies tell us something about real-world lying.  But it also might turn out that they do not in fact translate for this reason.  Each of these conceptual issues may be overcome if they are recognized and kept in mind (none is necessarily fatal to the possibility of brain-based lie detection).  When unrecognized, however, they may cause conceptual confusion, and this may lead to mistaken assumptions about the nature of the evidence and what inferences it warrants.  These are real practical consequences, and they depend on increased awareness of the conceptual issues and how they entwine with the scientific and legal ones.

PEBS Neuroethics Roundup (JHU)

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"Psychosocial and Ethical Aspects in Non-Invasive EEG-Based BCI Research—A Survey Among BCI Users and BCI Professionals"

"Psychosocial and Ethical Aspects in Non-Invasive EEG-Based BCI Research—A Survey Among BCI Users and BCI Professionals" by Gerd Grübler, et al., has been published in the most recent issue of Neuroethics:

Abstract

In this paper, the results of a pilot interview study with 19 subjects participating in an EEG-based non-invasive brain–computer interface (BCI) research study on stroke rehabilitation and assistive technology and of a survey among 17 BCI professionals are presented and discussed in the light of ethical, legal, and social issues in research with human subjects. Most of the users were content with study participation and felt well informed. Negative aspects reported include the long and cumbersome preparation procedure, discomfort with the cap and the wet electrodes, problems concerning BCI control, and strains during the training sessions. In addition, some users reflected on issues concerning system security. When asked for morally problematic issues in this field of non-invasive BCI research, the BCI professionals stressed the need for correct information transfer, the obligation to avoid unrealistic expectations in study participants, the selection of study participants, benefits and strains of participation, BCI illiteracy, the possibility of detrimental brain modifications induced by BCI use, and problems that may arise at the end of the trials. Furthermore, privacy issues were raised. Based on the results obtained, psychosocial and ethical aspects of EEG-based non-invasive BCI research are discussed and possible implications for future research addressed.

"Immorality or Abnormality: What's to Blame for Increasing Blame?"

Recently posted to SSRN:

"Immorality or Abnormality: What's to Blame for Increasing Blame?"

ELIZABETH A GILBERT, University of Virginia (UVA)
BARBARA A. SPELLMAN, University of Virginia School of Law

A growing body of research shows that immoral actors are judged to be more causal of and more blameworthy for bad outcomes. Prior research suggests that the immorality-blame link is a product of top-down processing, in which automatic judgments about an actor’s morality influence later cause and blame judgments. We, however, suggest that immorality is typically correlated with abnormality, and what appears to be a relationship between morality and blame is due at least in part to the relationship between normality and cause. Study 1 provides evidence that judgments of morality and normality are typically correlated. Studies 2 and 3 replicate this finding and also show that that normality mediates the relationship between morality, causation, and blame. Study 3 also provides evidence for why abnormal behavior affects blame judgments. Specifically, immoral behavior, because it is abnormal, prompts counterfactual thinking — i.e., imagining ways a bad outcome could have been prevented — and such thinking in turn affects cause and blame judgments. These findings support a bottom-up, probabilistic process of cause and blame assignment. They also conflict with prescriptive theories of blame and have applied implications for legal policy.

Minds, Brains, and Neuroscience Lie Detection (Jane Moriarty)

Professors Patterson and Pardo have written a terrific and engaging book addressing the philosophical issues posed by neuroscience in the context of the legal system while not losing sight of the real-world implications of neuroscience in law. 

This blog post focuses on the book authors’ discussion of neuroscience lie detection, a subject with many studies and no lack of commentary.   Two conceptual issues are considered here: first, the relationship among minds, brains, and persons; and second, whether we must (or can) fully separate the conceptual issues of deception from the empirical issues of neuroscience lie detection.

The authors distinguish themselves first from the pure neuro-reductionists who posit that “the mind is the brain” yet reject as implausible the notion of Cartesian dualism. “Human beings have minds,” they state, “but minds are not the substances located within their bodies.” Rather, Pardo and Patterson look to the person as a whole: “To have a mind is to possess an array of rational and emotional powers, capacities, and abilities exhibited through thought, feeling, and action.”

Does the brain or the mind lie? Pardo and Patterson look to the person.  “People, not their brains, lie. . . .”  But clearly, the person’s cognition is dependent—at least in part—upon the brain.  When a person decides to deceive, is it the person, the mind, or the brain that made the decision?  How can we know?  The brain and person are inseparable.  And the mind, if it exists, is a dependent clause of the brain.   Although the authors are convinced that distinguishing brain from mind is critical, I wonder whether it really is—at least for lie detection.

In the area of neuroscience lie detection, the authors’ conceptual concern is to determine the “scope and contours of what it means to lie.”  This conceptual concern, they note, is at least as old as Aristotle.  Revisiting these centuries-old concepts in light of the newfound ability to measure brain waves (EEG) and track hemoglobin moving through the brain (fMRI) is a fascinating venture.  Do these technologies bring something new to the conceptual understanding of mind/brain?  And in particular, to neuroscience lie detection?

I appreciate the authors’ elegant approach to these theoretical problems and agree with their claim that it is a “conceptual mistake to assume that brain-based lie detection provides direct access to lies [and] deception.”   If successful, neuroscience lie detection will only establish that there are neural correlates of deception—nothing more.  But perhaps that will be sufficient.

Neuroscience research certainly brings new ways of recording, measuring, and visualizing activity within the brain.  However, other than claiming there is promising research to date, little can be said about neuroscience research on deception.  If the data become more robust and supported by replicated studies—and that is a big if—neuroscience may provide more accuracy in understanding brain activity and how that relates to deception.   The authors seem to agree that neuroscience may be useful in the future in lie detection, provided there is sufficient proof of neurological events meaningfully correlated with lying; a position with which I agree.

I am less convinced than the authors that we can tease apart the conceptual problem (the scope and contour of what it means to lie) from the empirical concerns (determining when a subject is lying). Research designs for neuroscience lie detection are entwined with many assumptions about brains, minds, truth, deception, intent, signaling, memory, and mistake.  As an empirical matter, the troubling plasticity of memory and the ever-present problem of mistake may prove to be confounding problems that cannot be managed.  And these empirical concerns are part and parcel of the scope and contours of deception.

More fundamentally, I am uncertain that we need to sort out all the conceptual issues related to neuroscience and law.  We many never sort out the conceptual concerns and scholars may continue to disagree in perpetuity about the relationship of mind and brain and personhood.  But for neuroscience lie detection, it may be enough if there are neural signals that are meaningfully correlated with intentional deception with known rates of error sufficiently low to constitute evidentiary reliability.  This quest alone provides an entire universe of complexity that scientists have not resolved and indeed, may not.

But to my mind, the most interesting philosophical, legal, empirical, and societal questions arise if neuroscience lie detection really does succeed. . . . What do you think?

Minds, Brains, and Mental Disorders

Thank you to Adam for the invitation to contribute to this online symposium. In the post below I ask the authors how their argument would apply in a legal context different from the ones considered in the book.

   In Minds, Brains, and Law Michael Pardo and Dennis challenge us to better clarify out conception of the "mind". The authors reject both Cartesian Dualism and neuro-reductionism, arguing instead for a third-way: "[t]he mind is not an entity or substance at all (whether nonphysical (Cartesian) or physical (the brain)). To have a mind is to possess an array of rational and emotional powers, capacities, and abilities exhibited in thought, feeling, and action" (44).

   While the book focuses primarily on criminal law to illustrate its claims, the argument is that clarifying our conception of the mind is a fundamental conceptual issue that has import for "every important question and debate" in neurolaw (46).

   Given this definition of the mind above, what are its implications are for our conceptions of "mental health", "mental disorder", "mental injury" and by way of contrast "physical" or "bodily" injury?

   The issue of defining concepts such as "mental injury" is timely and ripe with conflict. Mental health parity advocates (see Patrick Kennedy as a leading example) argue that mental disorders are brain-based and thus ought to be covered in the same way as phsical disorders. Courts (as Stacey Tovino has discussed) are struggling to draw the line between mental and physical for purposes of insurance claims and tort claims. Conceptual and philosophical questions related to mind/body abound in this domain, and additional clarity is needed.

   Can the Pardo/Patterson thesis rescue this body of doctrine, or at a minimum, can it better clarify the conceptual errors being made? At present, the debate is between the two camps that Pardo/Patterson reject. On one hand, dualists (let's call them the insurance companies and tort defendants) want to invoke the traditional line between bodily/mental. On the other hand are those plaintiffs and advocates who argue that the mental = brain, and brain = physical, so mental disorders = physical disorders. Neither of these arguments seems consistent with the third way that Pardo/Patterson advocate.

   So what do the authors suggest as a way forward in defining mental disorder, mental injury, and the like? If the mind is not an entity, then what (conceptually) is mental health and mental disorder? Is there any meaningful distinction for law to make between a mental disorder and a brain disorder, or between a disorder of the mind and a disorder of the body?

Norms & Neurons (Amanda Pustilnik)

Michael Pardo and Dennis Patterson have written a Big Book, an ambitious book, on the relationship between neuroscience and law.  Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience is the book, or at least one of the books, that the field of law and neuroscience has needed.  To say that neuroscience is or even could be relevant to law rests on important presuppositions about the relationship between brain and mind, the nature of mind, the nature and purposes of law, and the relationship between mind and law.  The theoretical and epistemological underpinnings of these enterprises remain under-examined in law and neuroscience scholarship.  This is not because authors in the field are philosophically naïve – far from.  Rather, it is because of the richness of the material and the newness of the field.  There is much work to be done, and there will be for some time.

P&P great contribution with this work to law and neuroscience scholarship is to offer a non-reductionist argument for the possibility of a meaningful interrelationship between neuroscience and law.  While accepting the materialist premise (there is no ghost in the machine), P&P take aim at a form of reductionism, eliminative materialism, that lies at the heart of much law & neuroscience scholarship.  In so doing, they offer a strong case for the need to understand brains not as the fundamental unit of analysis and bearers of meaning but as components both in and shaped by an integrated system of signs and meanings.  To take possibly unjustified poetic license with their work: Our astrocytes are as stars that live as much in the nomos as in the cosmos.

As a materialist who instinctively struggles to resist the pull of reductionism (whether I will win remains to be seen), I find P&P’s approach sympathetic and appealing.  I also find some of their claims more convincing than others.  They do great work asserting the non-identity of natural facts and social facts.  Many social facts are real, yet they are not “things in the world” or “things in the brain.”  They cannot be located with a brain scanner.  Lying.  Love.  Violence.  Criminality.  These are meaningful concepts, meaningful experiences.  They are not things.  Efforts to find or measure the neural signatures of these states as if they were natural things – objects, no less – is a profound confusion.  I have written on the problems with trying to use neuroscience to find so-called criminally violent brains.  This is because criminal violence is a social category, not a natural category.  Whether any particular act counts as criminal violence rather than correct or even laudable social performance rests entirely on the context of the action and the norms of the culture.  We might find reliable markers that relate to some of these states, so that we can make an inference about a person’s subjective state, but we cannot find the thing because the thing does not exist as such to be found.

P&P continue to emphasize the role of norms in their challenge to Patricia Churchland’s work on brains that are or are not “in control.”  Churchland asserts that neuroscience may help empirically address whether a person can be said to be “in control” and therefore an agent of the kind who can be criminally responsible for his or her conduct.  P&P contest this notion, arguing that “[i]ncreased knowledge of brain chemistry will not answer normative questions about responsibility.”  In some areas, they are doubtlessly correct.  Their example of the dog owner who inadvertently allows his dog to escape and bite a child illustrates nicely that social and legal assignments of responsibility may be independent of brain state. 

But other problems of brain state and responsibility may be more challenging, and may point toward a contribution for neuroscientific evidence and analysis.  It may be that if a brain is “in control,” we cannot know enough to ascribe responsibility (criminal or otherwise) to the actor who possesses that “in control” brain unless we also know a great deal about the factual and normative context.  This is P&P’s position, with which I wholly agree.  However, if a brain is “not in-control,” then that might illuminate whether we properly can ascribe criminal responsibility of the current, conventional kind to the actor who possesses the “not in-control” brain.  This is where some appreciation for Churchland’s contribution may come in.  Unless the notion of responsibility, as well as the notion of excuse defenses for diminished capacity and diminished responsibility, are shams, then the law does (and is supposed to) care about the edge cases in which an actor is suffering from a sufficiently serious impairment that he cannot function as a typical agent.  Whether the law *should* treat people with diminished capacities differently than typical actors is of course debatable; for today’s post, suffice it say that the law purports that it *does* make this distinction, at least in a limited fashion.  And if it does make this distinction, it should do it legitimately:  Doctrines that provide a degree of excuse for people with certain impairments should conform empirically to such impairments.  Psychology, psychiatry, and neuroscience ought to have some role in elucidating such impairments, as well as helping to inform lawmakers (and the culture more broadly) about the reasonable expectations one might have as to people with such impairments. 

To argue otherwise seems cynical, wasteful, or cruel.  Should the law purport to offer an insanity defense, while crafting a legal definition of insanity that misdecribes mental illnesses to the point that no mentally ill person fits the letter of the defense?  Cynical!  Should the law have expectations about the current and future behavior of addicts so unrealistic, like that of perfectly relapse-free sobriety, that it contributes to the mass incarceration of largely non-violent offenders?  Wasteful!  Should people with brain injuries or diseases like temporal dementias, which leave them rationally aware but disinhibited, be punished for transgressive behavior that is itself the symptom of a lethal disease?  Cruel!  In each of these areas, where we already have (or may have) a normative intuition that punishment would be unfair, a more robust understanding of the neuroscience of being “not in control” might help us engage in more precise and appropriate legal decision-making.  Over time, neuroscience might contribute to a more clearly delineated understanding of what “control” actually means, and what disorders impair this kind of control, that can inform our normative decisions about what, and how much, to punish.

Francis, Jane, Gabriel, Carter, and Nicole: What do you think?

PEBS Neuroethics Roundup (JHU)

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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.

"Enhancing Moral Conformity and Enhancing Moral Worth"

"Enhancing Moral Conformity and Enhancing Moral Worth" by Thomas Douglas has been published in the most recent issue of Neuroethics:

Abstract

It is plausible that we have moral reasons to become better at conforming to our moral reasons. However, it is not always clear what means to greater moral conformity we should adopt. John Harris has recently argued that we have reason to adopt traditional, deliberative means in preference to means that alter our affective or conative states directly—that is, without engaging our deliberative faculties. One of Harris’ concerns about direct means is that they would produce only a superficial kind of moral improvement. Though they might increase our moral conformity, there is some deeper kind of moral improvement that they would fail to produce, or would produce to a lesser degree than more traditional means. I consider whether this concern might be justified by appeal to the concept of moral worth. I assess three attempts to show that, even where they were equally effective at increasing one’s moral conformity, direct interventions would be less conducive to moral worth than typical deliberative alternatives. Each of these attempts is inspired by Kant’s views on moral worth. Each, I argue, fails.

"Views of Addiction Neuroscientists and Clinicians on the Clinical Impact of a ‘Brain Disease Model of Addiction’"

"Views of Addiction Neuroscientists and Clinicians on the Clinical Impact of a ‘Brain Disease Model of Addiction’" by Stephanie Bell, et al., has been published in the most recent issue of Neuroethics:

Abstract

Addiction is increasingly described as a “chronic and relapsing brain disease”. The potential impact of the brain disease model on the treatment of addiction or addicted individuals’ treatment behaviour remains uncertain. We conducted a qualitative study to examine: (i) the extent to which leading Australian addiction neuroscientists and clinicians accept the brain disease view of addiction; and (ii) their views on the likely impacts of this view on addicted individuals’ beliefs and behaviour. Thirty-one Australian addiction neuroscientists and clinicians (10 females and 21 males; 16 with clinical experience and 15 with no clinical experience) took part in 1 h semi-structured interviews. Most addiction neuroscientists and clinicians did not uncritically support the use of brain disease model of addiction. Most were cautious about the potential for adverse impacts on individuals’ recovery and motivation to enter treatment. While some recognised the possibility that the brain disease model of addiction may provide a rationale for addicted persons to seek treatment and motivate behaviour change, Australian addiction neuroscientist and clinicians do not assume that messages about “diseased brains” will always lead to increased treatment-seeking and reduced drug use. Research is needed on how neuroscience research could be used in ways that optimise positive outcomes for addicted persons.

"Traumatic Brain Injury: An Objective Model of Consent"

"Traumatic Brain Injury: An Objective Model of Consent" by S. Honeybul, K. M. Ho, and G. R. Gillett has been published in the most recent issue of Neuroethics:

Abstract

The aim of this paper was to explore the issue of consent when considering the use of a life saving but not necessarily restorative surgical intervention for severe traumatic brain injury. A previous study has investigated the issue amongst 500 healthcare workers by using a two-part structured interview to assess opinion regarding decompressive craniectomy for three patients with varying injury severity. A visual analogue scale was used to assess the strengths of their opinions both before and after being shown objective outcome data. Opinions were assessed in a number of scenarios, one of which was that the participants themselves were the injured party. The implication, which was clearly stated, was whether they would provide consent for the procedure to be performed. The study demonstrated that participants were relatively risk aversive in regards to survival with severe disability especially when the injury was severe and there was high probability of that outcome occurring. This finding was not however universal and a minority of participants would provide consent even when the possibility of survival with severe disability was very high. The obvious difficulty comes when considering consent in patients who are unable to express their wishes. In order to address this issue we propose a model of consent based on a balance of the various factors that seem to be of material relevance. These include the severity of the injury, the willingness or otherwise to accept survival with severe disability and the willingness to “risk” the possibility of an unacceptable outcome in order to achieve an acceptable outcome.

Student Note" "A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains"

Recently posted to SSRN (and published in the Fordham Urban Law Journal, Vol. 41, No. 177, 2013):

"A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains"

ELLEN KOENIG, Fordham University School of Law

The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in Strickland v. Washington, the Court adopted a two-prong ″reasonableness″ test, which, according to Justice O’Conner, may result in court decisions that fail to properly protect a criminal defendant’s rights. Recently, courts have adopted a second approach based on guidelines promulgated by the American Bar Association.

This Note aims to answer this question. It first provides a background on the right to effective assistance of counsel and briefly describes neuroscience evidence, oppositions to and limitations on in its use, and its admissibility in court. Second, this Note attempts to give some guidance to attorneys by exploring the American Bar Association and U.S. Supreme Court standards. Third, it summarizes the results of a statistical analysis conducted by the author, which helps further define when courts require attorneys to develop neuroscience evidence. It concludes by arguing that attorneys need guidance to ensure they are not violating the Sixth Amendment. This Note expands on the American Bar Association’s standard and suggests a framework attorneys may use to determine whether they should develop neuroscience evidence to ensure that their client has a fair trial.