Neuroethics & Law Blog

"Stay Out of My Head: Neurodata, Privacy, and the First Amendment" by Unger

Wayne Unger, JD (Gonzaga University School of Law, Gonzaga University School of Law) has published "Stay Out of My Head: Neurodata, Privacy, and the First Amendment" on SSRN. Here is the abstract: 

The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information while, on the other hand, the First Amendment is meant to promote the free flow of information. As technology advances and new categories of data are created and stored—like neurodata—it becomes more evident that the First Amendment actually promotes privacy by precluding government intrusion upon the freedom of thought and the right to a free mind.

This Article argues that the First Amendment serves as a more robust source of privacy protections than the Fourth Amendment, at least with respect to government intrusion into an individual’s neurodata, because such intrusion would violate the First Amendment’s right not to speak. As brain-computer interfaces become more prevalent, and produce more neurodata, the First Amendment’s well-established doctrines against compelled speech ought to extend to prevent government access to an individuals’ stored ideas, thoughts, and beliefs.

"Recognising State Blame at Sentencing: A Communicative and Relational Framework" by Manikis

Marie Manikis (McGill University - Faculty of Law) has published "Recognising State Blame at Sentencing: A Communicative and Relational Framework"  on SSRN. Here is the abstract: 

Censure, blame and harms are central concepts in sentencing that have evolved over the years to take into account social context and experiential knowledge. Flexibility, however, remains limited as the current analysis in sentencing focuses on the offender while failing to engage with the state's contribution in creating wrongs and harms. This risks giving rise to defective practices of responsibility since the state can also contribute to their production. The following article presents a complementary and additional framework within sentencing to account for state censure, blame and harms. The framework is rooted in communicative theories of punishment that integrate a responsive understanding of censure and a relational account of responsibility.

"Should Robots Have Standing? From Robot Rights to Robot Rites" by Gunkel

David J. Gunkel (Northern Illinois University) has published "Should Robots Have Standing? From Robot Rights to Robot Rites" on SSRN. Here is the abstract: 

“Robot” designates something that does not quite fit the standard way of organizing beings into the mutually exclusive categories of “person” or “thing.” The figure of the robot interrupts this fundamental organizing schema, resisting efforts at both reification and personification. Consequently, what is seen reflected in the face or faceplate of the robot is the fact that the existing moral and legal ontology—the way that we make sense of and organize our world—is already broken or at least straining against its own limitations. What is needed in response to this problem is a significantly reformulated moral and legal ontology that can scale to the unique challenges of the 21st century and beyond.

"Imprisonment" by Noorda

Hadassa Noorda (University of Amsterdam) has published "Imprisonment" on SSRN. Here is the abstract: 

Criminal law theorists have for the most part neglected the question of why imprisonment requires special legal safeguards for those targeted. The few scholars who have addressed this question have focused on how prison facilities restrict freedom of movement, control over one’s daily life, and access to particular human functioning, but they have ignored state measures that do not include confining individuals behind bars. I defend an alternative account: I argue that the use of prison facilities is part of a raft of state measures, which includes measures that have a relatively minor impact on individuals and others that are more severe. What matters, in deciding what legal safeguards individuals should have against what kinds of state imposition, is how severely a measure impacts on the normal life of those subjected to it. This impact-based approach enables us to decouple the concept of imprisonment from walls, locks, and political and social barriers, thereby highlighting atypical forms of imprisonment, such as open prisons, as well as potential forms of imprisonment to be employed outside of prison, including house arrest. For instance, a person confined to a prison facility can, to a certain extent, be free to take part in society, or a person subject to other state measures can reside at home but be constrained from carrying out a major part of her activities. The account I defend enables us to identify imprisoned individuals as well as those subjected to measures similar to imprisonment, which has potential consequences for their legal rights.

"Honor Among Thieves: Enforcing Criminal Contracts" by Pi

Daniel Pi (University of Maine - School of Law) has published "Honor Among Thieves: Enforcing Criminal Contracts" on SSRN. Here is the abstract: 

Contracts involving promises to commit criminal acts are ordinarily unenforceable. Yet nonenforcement does not fully deter incentives to form criminal agreements. This Article demonstrates that partial enforcement can generate greater deterrence incentives by disrupting the trust relationship between parties to a criminal agreement, effecting superior deterrence. Specifically, by allowing promisors and denying promisees the right to sue, the law can effect a no-lose proposition for the former, and a no-win proposition for the latter. Since mutual assent requires mutuality, and fewer promisees will assent under asymmetric enforcement, partial enforcement achieves better deterrence than total nonenforcement.

"Epistemic Ambivalence in Law" by Amaya

Amalia Amaya (Edinburgh Law School, UNAM Philosophical Research Institute) has published "Epistemic Ambivalence in Law" on SSRN. Here is the abstract: 

In this paper, I aim to initiate an exploration of the phenomenon of ambivalence in legal decision-making. I will restrict my inquiry to epistemic ambivalence, rather than other types of ambivalence which legal decision-makers are also likely to experience. In addition, I will only examine the epistemic consequences of ambivalence about belief, which also has important moral and affective dimensions. Finally, I will only discuss epistemic strategies that may be used to reason through ambivalence about belief, rather than attempting to provide a whole account of the resources that legal decision-makers have at their disposal to properly deal with it. In short, I will study ambivalence in law from an epistemic angle – albeit in the recognition that other perspectives would be needed to provide a full account of this phenomenon. The plan is as follows. Section 2 will explain the concept of ambivalence, its sources, and consequences and it will lay out an account of the main kinds of epistemic ambivalence confronting legal decision-makers. Drawing on the psychology of ambivalence, section 3 will examine different ways in which epistemic ambivalence is addressed in processes of decision-making, some of which are epistemically objectionable. Section 4 argues that virtue-based remedies may help legal decision-makers tackle ambivalence in ways that are epistemically productive. I conclude in section 5 with some suggestions for further research.

What is neurotechnology and why are lawyers getting involved? by McCay and Sharpe

Allan McCay (Deputy Director of The Sydney Institute of Criminology and an Academic Fellow at the University of Sydney's Law School) and Michelle Sharpe (Solicitor and Tenured Lecturer at the University of Melbourne) have published What is neurotechnology and why are lawyers getting involved? on SSRN. Here is the abstract: 

A series of developments in the field of neurotechnology holds wonderful potential, but also brings challenges for lawyers and might even threaten our capacity to choose freely.

So, what has been happening? In November of last year, Elon Musk’s Neuralink,  a neurotechnology company which had earlier demonstrated that a monkey with one of its brain-implants could play a computer game by thought alone (rather than using its body), announced that it hopes to begin human trials on their device in 2023. Shortly before Christmas, Jeff Bezos and Bill Gates invested in one of Musk’s rivals, Synchron, a company that already has devices implanted in the brains of some humans with neurological conditions, enabling them to interact with a computer and even to tweet to Musk’s own social media platform by thought alone. Arguably Synchron has now increased its lead over Musk’s company given that it has this year published the results of long-term safety studies for its brain-implants. On the legal front, in August the Law Society of England and Wales released a report on the implications of neurotechnology for lawyers. Shortly after this, the UN’s Human Rights Council resolved that it needed to find out about the implications of this technology. Meanwhile, the Chilean Neuroprotection Bill continues to make its way through the legislative process, and earlier this year UNESCO released its neurotech human rights report. At the time of writing, the UK’s Information Commissioner’s Office is just about to release its report on issues that concern it. There’s clearly a ramping up of neurotech-related activity which shows no sign of abating.

 

 

 

 

 

"The Inherent Problem with Mass Incarceration" by Donelson

Raff Donelson (Chicago-Kent College of Law - Illinois Institute of Technology) has published "The Inherent Problem with Mass Incarceration" on SSRN. Here is the abstract: 

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration. This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs. Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically. This essay fills that void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes. On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society.

"Punishment as Communication" by Duff

R. A. Duff (University of Stirling - Department of Philosophy) has published "Punishment as Communication" on SSRN. Here is the abstract: 

This chapter defends a communicative theory of punishment, as making plausible sense of the retributivist idea that wrongdoers should not enjoy impunity. In the context of criminal law, the wrongs that matter are public wrongs that concern the whole polity: the criminal law defines those wrongs, and provides for those who commit them to be called to formal public account, for them through the criminal process. That calling to account is a communicative process: it culminates in a conviction that censures the offender, and seeks an apologetic response from him. The punishment that typically ensues furthers this communicative exercise: the offender is required to undertake, or undergo, a penal burden that constitutes an apologetic reparation for his crime, and so communicates to him the need for such reparation. Central to this communicative conception is that punishment is a two-way process, which seeks an appropriate response from the offender, who has an active role in the process. The role of prudential deterrence in such an account is discussed: it is a necessary condition of a justifiable system that it has some dissuasive efficacy, and deterrence might be a dimension of that dissuasion—inextricably interwoven with the moral message that is the core of the communication. A purely communicative account that allows no room for deterrence might be implausible as an account of what human punishment ought to be; but one that portrays a two-way moral communication as the primary, distinctive aim of criminal punishment can be defended.

"Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information" by Marks

Mason Marks (Florida State University - College of Law, Harvard Law School, Yale Law School, Leiden Law School, Center for Law and Digital Technologies) has published "Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information" on SSRN. Here is the abstract: 

In the sci-fi television series Severance, employees of Lumon Industries receive brain implants that segment their memories of work and home life. When they arrive each morning, implants suppress employees’ access to memories of the outside world, including those regarding friends, family, and society. They can retrieve only work-related memories formed within the building. When employees leave work for the day, their implants restore access to memories of the outside world while restricting work-related content.

This article presents a novel information-based theory of mind and describes Lumon’s actions as "cognitive content moderation." This practice regulates the internal flow of mental information and influences thought and behavior. Lumon is a fictional corporation, but emerging neuro-technologies like brain-computer interfaces will make cognitive content moderation a reality. Governments already regulate mental processes. For instance, the federal Controlled Substances Act prohibits consuming psychedelic substances that alter the flow of subconscious information and reveal useful insights (after consuming these substances, people often report receiving helpful messages from ancestors, God, nature, or entities from other dimensions). By limiting the use of psychedelics such as psilocybin and dimethyltryptamine, the government engages in cognitive content moderation. Other emerging neuro-technologies, like Neuralink and Synchron's brain implants, will expand the public and private sector's ability to influence internal communications and regulate memory, thought, emotion, and behavior.

Most of the brain’s activity occurs subconsciously, and cognitive content moderation primarily affects the flow of subconscious information exchanged between brain modules and sub-regions. Accordingly, the article defines a First Amendment right to receive subconscious information, which limits the government’s ability to regulate cognitive processes by altering or interrupting that flow. This right is supported by existing theory and doctrine that define related rights, including the right to receive information and ideas, to freely operate one’s mind, and to create knowledge.

By framing thought and other mental processes in terms of internal information flow, the article attempts to bridge the divide between existing First Amendment theory and doctrine regarding thought, which are relatively underdeveloped and underutilized, and current free speech theory and doctrine, which are robust and expansive. It claims that in addition to influencing the flow of subconscious information, nascent neuro-technologies can render cognitive processes expressive, bringing them further within the First Amendment’s scope. The article concludes by defining the scope and limits of the right to receive subconscious information, addressing likely criticisms, and exploring potential applications.

"Promise or Peril?: The Political Path of Prison Abolition in America" by Barkow

Rachel E. Barkow (New York University School of Law) has published "Promise or Peril?: The Political Path of Prison Abolition in America" on SSRN. Here is the abstract: 

This article explores whether prison abolition as a movement will, on net, lead to more productive changes to criminal justice punishment practices or instead produce a backlash that hinders reform efforts. For those who embrace abolition as an expressive reaction to what they view as the intolerable state of American punishment practices, the answer to that question may not matter. But others adopt an abolitionist stance precisely because they believe it is the most effective political strategy for bringing about change to American criminal justice practices. It is this latter goal of abolition that is the subject of this Article.

The most optimistic take is that the movement could shift the conversation around crime policy for bolder initiatives that dislodge the central role of prisons and punishment and shift attention to root causes of harm. On this view, the abolitionist perspective can shift the Overton window to embrace much broader downsizing of prisons and investment in communities than would take place without the abolitionist challenge. Moreover, the call for abolition is just the kind of simple, powerful rhetorical move that draws people to embrace it and helps mobilize grassroots efforts for change.

There is, however, a future political path for abolition that is less rosy. Instead of helping the cause of decarceration and improving the lives of those under the control and supervision of the state’s punitive apparatus, there is the possibility that calls for abolition could lead to more harms than they prevent. This risk exists for two main reasons. First, because the rhetoric of abolition is absolutist—the language being used is deliberate and calls for an end to prisons—there is the risk that approach will frighten segments of the public who would otherwise support even radical decarceration but who are not prepared to rule it out entirely. The second reason an abolitionist framing may ultimately produce more harm than good is that some who seek abolition often use that goal as the yardstick for deciding what policy changes to support. They reject what they call “reformist reforms” that do not contribute to dismantling the existing legal order. For example, many abolitionists reject calls to invest in improvements to prisons or put in place greater staffing, even if doing so would improve the lives of currently incarcerated people, on the view that this additional funding ultimately expands the role of prisons in society and leads to incarceration being more entrenched overall. Abolitionists have also rejected laws that would release certain groups of incarcerated people – such as those serving offenses that do not involve violence – because of a concern that those laws exclude others. The abolitionist framing therefore runs the risk of sacrificing too many reforms that would benefit people currently suffering from incarceration for a utopia that will ultimately not materialize.

In weighing the pros and cons of abolition as a political organizing strategy, then, a great deal turns on the likelihood of prisons being abolished. And on that score, the relatively recent history of another recent abolition movement—the movement to close state mental hospitals and provide community care to people with mental health needs known as deinstitutionalization—strongly suggests that the more pessimistic take on the fate of prison abolition will ultimately prove correct. Deinstitutionalization is a cautionary tale with important lessons for today’s abolitionists and their political calculus.

It is an urgent question what strategy will best address the fact that prisons and jails in the United States are inhumane and dreadful. For those of us committed to drastic changes to patterns of policing, prosecution, and punishment that perpetuate structural inequality and fail to reduce harm, what is the best path forward to achieve those goals? Is the rhetoric and social organizing power of abolition beneficial because it will spark a successful political movement toward decarceration, or does it bring more political risks than benefits and therefore ultimately harm the goal of weening America off its reliance on prisons, jails, and other forms of detention?

This article answers these questions by first describing the abolitionist movement in Part I. Part II considers the policy implications of an abolitionist framework. Part III then turns to the political calculation and analyzes the political pros and cons of an abolitionist stance. Drawing lessons from the defund the police movement and deinstitutionalization, it highlights where and why public resistance may emerge.

"Neuroimaging Evidence in US Courts" by Moriarty

Jane Campbell Moriarty (Duquesne University - School of Law) has published "Neuroimaging Evidence in US Courts" on SSRN. Here is the abstract:

This chapter provides a detailed consideration of neuroscience and neuroimaging evidence in federal and state courts of the United States. The chapter addresses evidence admitted in courts, analyzes where courts have excluded or limited certain types of evidence, and addresses problematic aspects of neuroscience evidence. It also considers the potential ways in which neuroscience has been affecting legal policy and evidentiary decisions.

The chapter first provides an overview of neuroimaging modalities that have been the subject of legal discussion. Additionally, it explains U.S. Evidence law, addressing the relevant rules of evidence and the critical cases that shape evidentiary policy. Substantively, it reviews a variety of criminal and, to a lesser extent, civil matters related to neuroscience and neuroimaging. With respect to criminal law, the chapter explores questions of legal competency, insanity and legal responsibility, sentencing, psychopathy, claims of ineffective assistance of counsel, and neuroscience lie detection. In addition, the chapter examines the special role that neuroscience has played in the development of juvenile sentencing law. The civil section addresses neuroimaging in relationship to traumatic brain injury. Throughout, the chapter considers some of the overarching concerns and potential promises about neuroimaging evidence.

"Human as a Matter of Law How Courts Can Define Humanness in the Age of Artificial Intelligence" by Gervais

Daniel J. Gervais (Vanderbilt University - Law School) has published "Human as a Matter of Law How Courts Can Define Humanness in the Age of Artificial Intelligence" on SSRN. Here is the abstract:

This Essay considers the ability of AI machines to perform intellectual functions long associated with human higher mental faculties as a form of sapience, a notion that more fruitfully describes their abilities than either intelligence or sentience. Using a transdisciplinary methodology, including philosophy of mind, moral philosophy, linguistics and neuroscience, the essay aims to situates the difference in law between human and machine in a way that a court of law could operationalize. This is not a purely theoretical exercise. Courts have already started to make that distinction and making it correctly will likely become gradually more important, as humans become more like machines (cyborgs, cobots) and machines more like humans (neural networks, robots with biological material). The essay draws a line that separates human and machine using the way in which humans think, a way that machines may mimic and possibly emulate but are unlikely ever to make their own.