HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia 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.”  . . . .

June 1, 2007 | Permalink | Comments (0) | TrackBack (0)

Disputes Over Control Of Frozen Embryos Continue

The LaTimes has a story concerning a dispute between a former husband and wife over the disposition of frozen embryos.  It states,

After two years of infertility treatments — from temperature monitoring and artificial inseminations to hormone injections and laparoscopic surgery — Augusta Roman felt her last, best hope for bearing a child was only hours away. Her doctor had retrieved 13 eggs from her ovaries, and six had been fertilized with the sperm of her husband, Randy Roman.   Ten hours before the embryos were to be implanted in Augusta's womb, Randy emerged from their study and broke unfathomable news: Despite all she had endured, he couldn't go through with it.  The doctor's call announcing the creation of the embryos had crystallized nagging doubts about their marriage that he had harbored for years. He insisted on canceling the procedure and freezing the embryos while they attempted counseling to work through their differences. . . .

Counseling failed, and in August 2003, 16 months after the canceled embryo transfer, the couple mediated the dissolution of their six-year marriage. She got the house in this Houston suburb, near NASA's Johnson Space Center, and most of the furnishings. He got the 32-inch Sony TV, a futon and dinette set, and the 1998 Honda Civic.

They could not agree, however, on the disposition of one piece of community property — the three embryos of the original six that had survived the freezing process.

Augusta wanted to take possession and have them implanted, agreeing to release Randy from any financial or parental obligation. Randy wanted the embryos destroyed, or at least frozen indefinitely. He argued that even though he did not want to raise children with Augusta, he would never disavow his genetic offspring. As he would point out in court, the couple had initialed a cryopreservation consent form stipulating that should they divorce, any frozen embryos "shall be discarded."

Roman vs. Roman now rests with the Supreme Court of Texas, one of a number of divorce cases nationwide in which the custody dispute has revolved around microscopic clumps of cells that are considered — by most states, at least — to be property and not human life.

The article provides a good overview of this couple's concerns as well as a brief discussion about where the law stands now and how it might develop in the future.

June 1, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 31, 2007

TB Quarantine

I am sure that many people have been following the rather frightening saga of the man, Andrew Speaker (and yes, he is an attorney (gulp!)), with drug-resistant TB now under quarantine after taking several flights, some transatlantic.  Here is the basic background:

A man with a rare and dangerous form of tuberculosis ignored doctors' advice and took two trans-Atlantic flights, leading to the first U.S. government-ordered quarantine since 1963, health officials said Tuesday.  The man, whom officials did not identify, is at Atlanta's Grady Memorial Hospital in respiratory isolation. . . .

In an interview with the Atlanta Journal-Constitution, the man said he had traveled to Europe for his wedding and honeymoon and expressed frustration with how he said the CDC handled the situation.  "I didn't want to put anybody at risk," the man, who declined to be identified because of the stigma surrounding his condition, told The Atlanta Journal-Constitution. "We just wanted to come home and get treatment."

The infected man flew from Atlanta to Paris on May 12 aboard Air France Flight 385. He returned to North America on May 24 aboard Czech Air Flight 0104 from Prague to Montreal. The man then drove into the United States at the Champlain, N.Y., border crossing.

The man had been advised by health officials in early May not to travel to Europe. "He was told traveling is against medical advice," said Dr. Steven Katkowsky, director of the Fulton County Department of Health & Wellness.

The man conceded that the health department advised him not to travel, but he didn't want to call off his wedding, he told the Journal-Constitution. The CDC never told him he couldn't go, he said.  When the man arrived back in the United States, he voluntarily went to a New York hospital, then was flown by the CDC to Atlanta. He is not facing prosecution, health officials said.

The man said the CDC contacted him in Rome during his honeymoon, telling him that he had to return home and that he had to turn himself in to Italian authorities, be isolated and be treated there, the Journal-Constitution reported.

Here is a brief update about Mr. Speaker, now in Denver receiving treatment, and his father-in-law, a CDC employee:

Speaker's father-in-law works for the Centers for Disease Control and Prevention in Atlanta, an agency spokesman said Thursday.  The father-in-law, Robert C. Cooksey, is a microbiologist who has conducted research on tuberculosis for the National Center for Infectious Diseases, according to a CDC biography posted on the agency's Web site.

CNN affiliate WSB-TV reported that Cooksey gave his son-in-law, Speaker, "fatherly advice" after he found out his son-in-law had contracted the infectious disease, but did not advise him in any official capacity.

Concurring opinions' Steve Vladek has some thoughts on the law of quarantine and whether fellow travelers may sue the now-quarantined passenger.   (Thanks Professor O'Donnell for the link).  Other information and commentary can be found here, here and here.  Unfortunately, it doesn't look like the United States had a plan on how to deal with this type of situation and I am sure that the rest of the world is excited about having Americans traveling to visit them this summer.

May 31, 2007 | Permalink | Comments (0) | TrackBack (0)

No Private Testing for Mad Cow Disease

Wos - just when you think that the food supply cannot get any worse -- the government argues against the testing of cattle for mad cow disease . . . .  Here is the brief excerpt from the Wall Street Journal:

The Bush administration said it will fight a ruling allowing meatpackers to test their animals for mad-cow disease. The Agriculture Department tests fewer than 1% of slaughtered cows for the disease. Kansas-based Creekstone Farms Premium Beef wants to test all of its cows. A federal judge ruled in March that such tests must be allowed. The Agriculture Department argues that widespread testing could lead to a false positive. Larger meat companies say if Creekstone tests its meat and advertises it as safe, they might be expected to perform the expensive test, too.

You can find more about the original case, Creekstone Farms Premium Beef v. US Department of Agriculture, as well as a link to the decision, here.  There is more commentary from Firedoglake as well.

May 31, 2007 | Permalink | Comments (0) | TrackBack (0)