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Jane -- Great post, and I was wondering the same thing: do "we need to sort out all the conceptual issues related to neuroscience and law?" Or, put slightly differently *which* conceptual confusions are really the most problematic for advancing justice?

Law is (conceptually and otherwise) confused in many domains beyond law and neuroscience, yet law often (though not always) seems to muddle through and get it pretty close to right in the end.

One neurolaw example that comes to mind is pain. I don't know what "pain" is as a conceptual or theoretical matter, and I'd be willing to agree that it's not an "entity". Yet my inability to articulate a coherent conception of pain doesn't stop me from looking at another human's face to see if he/she is in "pain", and doesn't stop me from intervening if I think I need to do so. Similarly, it doesn't stop the law from using a lot of evidence to draw a conclusion about the extent to which a particular plaintiff is in "pain", and then providing relief if it is deemed warranted.

Against this backdrop, do we need to unpack the conceptual challenges of neuroscientific measures of pain, or can we just say that the neuroscience may provide evidence that correlates, more or less reliably, with the things that we have already determined to be proxies for pain / correlates of pain?

Hi Francis, On the point you raise, I think our response to Nicole Vincent's second question answers this with respect to the probative value of correlations. With respect to the larger issue, that of conceptual confusions in neurolaw, you might want to look at our discussion of Brain-Based Lie Detection in MBL at 94-105. There (p. 106) we defend the claim that B-B Lie Detection provides direct access to lies. The confusion is conceptual.

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