Thursday, December 4, 2014
Guest Blogger Professor Jean Macchiaroli Eggen - Will the Neuroscience Revolution Change Tort Law?: Some Thoughts on the Mental Disabilities* Rule in Negligence Law
Over the past several decades research in neuroscience, through the use of functional neuroimaging and other techniques, has sought to explain a vast array of human thought processes and behaviors, and the law has taken a keen interest in these studies. Neuroscience has offered tantalizing insights into human cognition and decision making. Criminal law has been the most frequently discussed area of the law to take an interest in and incorporate neuroscience research, most notably in matters related to juvenile sentencing. E.g. Miller v. Alabama, 132 S. Ct. 2455, 2464-65 (2012) (noting that neuroscience has demonstrated a fundamental difference between juvenile and adult brains and holding that mandatory life imprisonment without parole for persons under the age of eighteen was unconstitutional); Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting the death penalty for older juveniles based, in part, on brain development studies).
But other areas of the law will not be far behind. Tort law is likely to be among the first areas of the law impacted by the neuroscience revolution. Common-law tort doctrines contain a variety of mental states embedded in the elements of specific torts and privileges or defenses, including such familiar-yet-elusive concepts as intent, consent, and duty.
What can neuroscience add to tort doctrine? Neuroimaging shows promise as a technology to identify the cognitive processes persons use when making decisions to act. This is particularly relevant to tort law, which categorizes human decisions to determine when those decisions require accountability to persons injured by them.
But finding a role for neuroscience in tort doctrine is not without problems. A person’s decision to act in a certain way is a complex process that combines neurobiology with ethical and normative factors. Some of the challenges of using neuroscience to define tort rules and duties are:
- Tort law is primarily retrospective, examining the parties’ past behavior and deciding whether and to what extent the defendant should be held liable. To what extent can neuroscience information about a person’s motivations obtained at a later date ever be used in tort litigation to accurately identify a party’s motivation at the time of the tortious incident?
- “Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993). Scientific investigation is progressive; the scientific method is based upon the process of disproving hypotheses which, in turn, leads to further hypotheses. Scientific explanations are always subject to further testing and refinement. The law, however, demands a final conclusion. Furthermore, legal decisions apply normative thinking and judgments to observable phenomena. Reconciling the processes and goals of science with those of the law is a tricky enterprise. But does that mean that neuroscience should have no role in tort law?
- Neuroimaging studies are not mere snapshots of brain activity, but involve multiple images obtained over time and interpreted by researchers. Their meaning turns on sophisticated interpretational techniques, and translating the results from the artificial conditions of the laboratory to situations in the real world relevant to the law is problematic and imprecise. Admissibility of neuroscience evidence in the courtroom raises questions about both the reliability of the studies and their relevance.
All of these issues – and many more – demonstrate the need for caution. Courts should not just jump on the neuroscience bandwagon because it is the next exciting thing. A reasoned incremental approach is best.
I suggest that one way to begin the process of incorporating neuroscience into tort doctrine is to reexamine rules of tort law that have little basis in fact but are founded on outdated and generally unsupported policy judgments. One such example appears in the negligence rule disallowing an adult with a mental disability from submitting evidence of the mental condition in determining whether the person acted negligently. In contrast, an adult with a physical disability may present evidence of the physical condition. One policy underlying the rule is to prevent persons from feigning mental illness to avoid liability. The rule has become entrenched in tort law. In Williams v. Hays, 38 N.E. 449, 450 (N.Y. 1894), the New York Court of Appeals held that “[t]he general rule is that an insane person is just as responsible for his torts as a sane person.” The Restatement (Third) of Torts: Liability for Physical and Emotion Harm § 11 & cmt. e (2010) reaffirmed this rule and the policies underlying it. Although the ALI recognized that this rule may be flawed because of the known organic bases of many mental conditions, it continued to embrace the rule for reasons of administrative efficiency.
The mental disabilities rule in negligence law may be a logical place to begin a reasoned discourse about the role neuroscience can play in reforming tort doctrine. Accurate diagnosis of mental conditions through neuroimaging, combined with a science-based understanding of the behavioral patterns that accompany such conditions, support the argument that the rule is no longer tenable in tort law. The law has much to gain from what neuroscience has to offer, and with appropriate caution neuroscience has the potential for playing a key role in transforming many aspects of tort doctrine.
* The Americans with Disabilities Act (ADA) defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C.A. § 12102(1)(A) (2014).
Jean Eggen has written generally on the subject of the role of neuroscience in reforming tort doctrine at
She has also written more specifically on how neuroscience can reform the mental disabilities rule in negligence law, available in prepublication draft, with permission of Indiana Health Law Review, here.
A useful basic introduction to neuroimaging for lawyers is: