Wednesday, October 14, 2009
Like the soon-to-be-repeat world champion Philadelphia Phillies, my colleague and CrimProf contributing editor Adam J. Kolber is having a good week. First, he posted the revised version of his fine paper, The Comparative Nature of Punishment. Now, a thought-provoking new post on SSRN, The Experiential Future of the Law. Here is the abstract:
Subjective experiences, like pain, sadness, anxiety, and panic, are fundamentally important to the law. Since we cannot observe these experiences directly, we often ignore them or rely on very rough assessments of their nature and quality. In this article, I explain why subjective experience is so important to the law and how technological advances in neuroscience and related fields are beginning to give us new tools to more accurately infer the experiences of others.
In the experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity. Emerging technologies may also help us assess whether, for example: (1) a patient is in a persistent vegetative state, (2) a placebo treatment relieves pain, (3) an alleged victim has been abused as a child, (4) a person being executed is in pain, and (5) a waterboarded interrogatee has been tortured. While only some of these applications will pan out in the foreseeable future, I explain why thinking about our experiential future can help us better understand and apply the law today.
As always with Adam, well worth reading.