The Law and Neuroscience Blog

Toward a Neuroscience Model of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine

Jean Macchiaroli Eggen & Eric J. Laury
Columbia Science and Technology Law Review

The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort law related to the variety of mental states, including intent, knowledge, recklessness, and negligence. As the courts become saturated with neurimaging evidence, it is imperative to be prepared with a framework for addressing the many legal questions that the new neuroscience will pose. Our proposed neuroscience model of tort law is both simple and complex. Its simplicity lies in a workable framework for allowing the law to move forward while incorporating functional neuroimaging evidence in tort law. Its complexity is in the challenges posed by the interpretation of the neuroscience data and by extrapolation from the evidence to the legal issues. Our model is intended to commence the discourse about ways in which tort law may be improved through an understanding of, and appropriate use of, information acquired through the newest technologies of functional neuroimaging. We intend this model to provide guidance to judges and attorneys when confronted with functional neuroimaging evidence in tort cases, and we anticipate that serious consideration of the model will propel courts toward incorporating these relevant social and scientific advances into the evolving principles of tort law.

Jean Macchiaroli Eggen & Eric J. Laury, Toward a Neuroscience Model of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, Columbia Science and Technology Law Review

Differential brain activity for Black and White faces predicts damage awards in hypothetical employment discrimination cases

Harrison A. Korn, Micha A. Johnson, Marvin M. Chun
Social Neuroscience

Currently, potential jurors' racial biases are measured by explicit questioning––a poor measure because people often hide their views to adhere to social norms, and people have implicit views they are not consciously aware of. In this experiment, we investigated whether two alternative methods of measuring racial bias––a standard Black/White, good/bad Implicit Association Test (IAT) and neural activity, measured by fMRI, in response to seeing faces of Black and White individuals––could predict how much money subjects would award Black victims in hypothetical employment discrimination cases. IAT scores failed to predict how much money subjects awarded victims. However, in right inferior parietal lobule (BA 40) and in right superior/middle frontal gyrus (BA 9/10)––which have both previously been implicated in measuring biases and implicit preferences––the difference in neural activity between when subjects viewed Black faces paired with neutral adjectives and when subjects viewed White faces paired with neutral adjectives was positively correlated with the amount of money the subjects awarded victims. This suggests that brain activity measures racial bias with more practical validity, at least in this situation and with our sample size, than a common behavioral measure (the IAT).

Harrison A. Korn, Micha A. Johnson, Marvin M. Chun, Differential brain activity for Black and White faces predicts damage awards in hypothetical employment discrimination cases, Social Neuroscience 1 (2011).

Taking Aim at Free Will

Kerri Smith
Nature

Scientists think they can prove that free will is an illusion.
Philosophers are urging them to think again.

Smith, Kerri. (2011), Taking Aim at Free Will. Nature: 1 Sept 2011, 477, 23-25.

9th Cir. Conference includes Neurolaw Expert Panel

Four neurolaw experts spoke on “The Promises and Perils of Neuroscience Evidence in the Courtroom” at the Annual Conference of the U.S. Court of Appeals, 9th Circuit, in Carlsbad, California, on August 16, 2011.  The panel included Professors Owen Jones (Vanderbilt), Nita Farahany (Vanderbilt), Stephen Morse (Pennsylvania) and Hank Greely (Stanford).  Before a large audience that included the Hon. Anthony Kennedy, Associate Justice of the U.S. Supreme Court, and the Hon. Alex Kozinski, Chief Judge of the 9^th Circuit, the panelists provided a brief introduction to law-relevant neuroscience, summarized the growing use of neuroscientific evidence in the courtroom, and addressed both the benefits and pitfalls of trying to use such evidence to inform legal decision-making.

The Brain on Trial

David M. Eagleman
Baylor College of Medicine

This article summarizes several difficulties with the current system of criminal justice. It begins with several examples to clarify the relationship between biology and behavior, identifies problems with the assumption that all brains are created equal, argues for a forward-looking justice system, describes new opportunities from neuroscience for rehabilitation, and offers a roadmap to achieve a more tailored, customized, neurally-compatible system of sentencing.

Eagleman, David M. (2011), The Brain on Trial. Atlantic Monthy: Jul/Aug 2011, 308:1, 112-123.

Adolescent Brains and Juvenile Justice

In May 2011, Arizona State University hosted a conference on "Adolescent Brains and Juvenile Justice: New Insights from Neuroscience, Genetics and Addiction Science."  The conference was co-sponsored by the ASU Center for Law, Science & Innovation, the Diane Halle Center for Family Justice, the ASU Lincoln Center for Applied Ethics, and the MacArthur Law and Neuroscience Project.  To learn more about the conference, please visit the conference site.

"Neuroimage Evidence and the Insanity Defense"

N.J. Schweitzer and Michael J. Saks
Arizona State University

Abstract:

The introduction of neuroscientific evidence in criminal trials has given rise to fears that neuroimagery presented by an expert witness might inordinately influence jurors' evaluations of the defendant. In this experiment, a diverse sample of 1,170 community members from throughout the U.S. evaluated a written mock trial in which psychological, neuropsychological, neuroscientific, and neuroimage-based expert evidence was presented in support of a not guilty by reason of insanity (NGRI) defense. No evidence of an independent influence of neuroimagery was found. Overall, neuroscience-based evidence was found to be more persuasive than psychological and anecdotal family history evidence. These effects were consistent across different insanity standards. Despite the non-influence of neuroimagery, however, jurors who were not provided with a neuroimage indicated that they believed neuroimagery would have been the most helpful kind of evidence in their evaluations of the defendant. 

Schweitzer, N. J. and Saks, M. J. (2011), Neuroimage Evidence and the Insanity Defense. Behavioral Sciences & the Law.

Justice Breyer cites neuroscience research in videogame dissent

 
 
Hon. Stephen G. Breyer: “[c]utting-edge neuroscience has shown that ‘virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior’”

 

 

The U.S. Supreme Court recently invalidated (7-2) a California law that banned the sale of violent videogames to children.  The majority, in an opinion by Justice Scalia, held in Brown v. Entertainment Merchants Assoc., that videogames were subject to First Amendment “speech” protection.  In dissent, Justice Breyer noted that “[c]utting-edge neuroscience has shown that ‘virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior.’” He argued the Court should defer, for this reason among others, to the elected legislature’s conclusion that the videogames in question were likely to harm children.  

The Antisocial Person

The Annals of General Psychiatry has a nice review piece entitled, "The 'antisocial' person: an insight in to biology, classification and current evidence on treatment."

Abstract

Background: This review analyses and summarises the recent advances in understanding the neurobiology of violence and empathy, taxonomical issues on defining personality disorders characterised by disregard for social norms, evidence for efficacy of different treatment modalities and ethical implications in defining 'at-risk' individuals for preventive interventions.

Methods: PubMed was searched with the keywords 'antisocial personality disorder', 'dissocial personality disorder' and 'psychopathy'. The search was limited to articles published in English over the last 10 years (1999 to 2009)

Results: Both diagnostic manuals used in modern psychiatry, the Diagnostic and Statistical Manual published by the American Psychiatric Association and the International Classification of Diseases published by the World Health Organization, identify a personality disorder sharing similar traits. It is termed antisocial personality disorder in the diagnostic and statistical manual and dissocial personality disorder in the International Classification of Diseases. However, some authors query the ability of the existing manuals to identify a special category termed 'psychopathy', which in their opinion deserves special attention. On treatment-related issues, many psychological and behavioural therapies have shown success rates ranging from 25% to 62% in different cohorts. Multisystemic therapy and cognitive behaviour therapy have been proven efficacious in many trials. There is no substantial evidence for the efficacy of pharmacological therapy. Currently, the emphasis is on early identification and prevention of antisocial behaviour despite the ethical implications of defining at-risk children.Conclusions: Further research is needed in the areas of neuroendocrinological associations of violent behaviour, taxonomic existence of psychopathy and efficacy of treatment modalities.

Scientific Advances and the Death Penalty

The Wall Street Journal Law Blog has an interesting piece on science and the death penalty.  Here is a brief excerpt:

Will scientific advances ultimately spell doom for capital punishment?

That’s the question raised by this piece over at the Arizona Republic, which examined a recent conference at Arizona State that looked at advances in neuroscience and genetics — and how they might help explain criminal behavior.

The thought goes like this: A better understanding of criminal behavior might ultimately lead society to show more compassion for those who suffer from the genetic defects that lead them to kill, maim, or commit other criminal acts.

“There is a ton of new science coming forward in both genetics and neuroscience that describe the brain in a way that leads to a predisposition to violent behavior,” said Gary Marchant, the executive director of the Center for Law, Science & Innovations at Arizona State University’s Sandra Day O’Connor College of Law. In the not-to-distant future, predicts Marchant, science will kill the death penalty.

Happy reading!