HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Friday, June 1, 2007

Neurolaw Article

Several weeks ago, the New York Times Magazine contained an interesting article by Jeffrey Rosen on the developing field of Neurolaw (the application of neuroscience to law - particularly its relationship to certain aspects of culpability).  The article provides a great overview of some of the latest research on the brain and how it has been introduced into the legal system:

The extent of that revolution is hotly debated, but the influence of what some call neurolaw is clearly growing. Neuroscientific evidence has persuaded jurors to sentence defendants to life imprisonment rather than to death; courts have also admitted brain-imaging evidence during criminal trials to support claims that defendants like John W. Hinckley Jr., who tried to assassinate President Reagan, are insane. Carter Snead, a law professor at Notre Dame, drafted a staff working paper on the impact of neuroscientific evidence in criminal law for President Bush’s Council on Bioethics. The report concludes that neuroimaging evidence is of mixed reliability but “the large number of cases in which such evidence is presented is striking.” That number will no doubt increase substantially. Proponents of neurolaw say that neuroscientific evidence will have a large impact not only on questions of guilt and punishment but also on the detection of lies and hidden bias, and on the prediction of future criminal behavior. At the same time, skeptics fear that the use of brain-scanning technology as a kind of super mind-reading device will threaten our privacy and mental freedom, leading some to call for the legal system to respond with a new concept of “cognitive liberty.”

Here is a further excerpt highlighting some of the research by Professor Steven Morse at the University of Pennsylvania, who has a more moderate approach to the new science:

Even as these debates continue, some skeptics contend that both the hopes and fears attached to neurolaw are overblown. “There’s nothing new about the neuroscience ideas of responsibility; it’s just another material, causal explanation of human behavior,” says Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania. “How is this different than the Chicago school of sociology,” which tried to explain human behavior in terms of environment and social structures? “How is it different from genetic explanations or psychological explanations? The only thing different about neuroscience is that we have prettier pictures and it appears more scientific.”

Morse insists that “brains do not commit crimes; people commit crimes” — a conclusion he suggests has been ignored by advocates who, “infected and inflamed by stunning advances in our understanding of the brain . . . all too often make moral and legal claims that the new neuroscience . . . cannot sustain.” He calls this “brain overclaim syndrome” …

But he does think that the study of our decision-making powers could bear some fruit for the law. “I’m interested,” he says, “in people who suffer from drug addictions, psychopaths and people who have intermittent explosive disorder — that’s people who have no general rationality problem other than they just go off.” In other words, Morse wants to identify the neural triggers that make people go postal. “Suppose we could show that the higher deliberative centers in the brain seem to be disabled in these cases,” he says. “If these are people who cannot control episodes of gross irrationality, we’ve learned something that might be relevant to the legal ascription of responsibility.” That doesn’t mean they would be let off the hook, he emphasizes: “You could give people a prison sentence and an opportunity to get fixed.”  . . . .

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