Thursday, March 15, 2007

More Brain Info

Since it is still Brain Awareness Week, I thought I'd highlight some recent articles about neuroscience and the law from SSRN (free if you register):

  • Chorvat, Terrence R. and McCabe, Kevin, "The Brain and the Law" . George Mason Law & Economics Research Paper No. 04-33 Available at SSRN: Abstract:
    Much has been written about how law as an institution has developed to solve many problems that human societies face. Inherent in all of these explanations are models of how humans make decisions. This article discusses what current neuroscience research tells us about the mechanisms of human decision-making of particular relevance to law. This research indicates that humans are both more capable of solving many problems than standard economic models predict, but also limited in ways those models ignore. This article discusses how law is both shaped by our cognitive processes and also shapes them. The article considers some of the implications of this research for improving our understanding of how our current legal regimes operate and how the law can be structured to take advantage of our neural mechanisms to improve social welfare.
  • Robinson, Paul H., Kurzban, Robert and Jones, Owen D., "The Origins of Shared Intuitions of Justice" (December 18, 2006). University of Pennsylvania Law School, Public Law Working Paper No. 06-47 Available at SSRN: Abstract:
    Contrary to the common wisdom among criminal law scholars, the empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms to which criminal law addresses itself - physical aggression, takings without consent, and deception in transactions - the shared intuitions are stunningly consistent across cultures and demographics. What could explain the fact that judgments of moral blameworthiness, which seem so complex and subjective, show such remarkable consensus? Here we theorize that there may be an evolved predisposition toward these shared intuitions of justice arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange - the cornerstones of cooperative action. Data from animal behavior, brain science, and developmental psychology are reviewed and broadly support this hypothesis. Alternative explanations - such as general social learning and efficient norms - are also considered, but face substantial theoretical and empirical difficulties. Whatever the correct explanation for the observed consensus, intuitions of justice seem to be an inherent part of being human, which carries important implications for criminal law and criminal justice policy.
  • Morse, Stephen J., "Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note" . Ohio State Journal of Criminal Law, Vol. 3, p. 397, 2006 Available at SSRN: Abstract:
    This brief diagnostic note identifies a cognitive pathology, Brain Overclaim Syndrome [BOS], that often afflicts those inflamed by the fascinating new discoveries in the neurosciences. It begins by suggesting how one should think about the relation of neuroscience (or any other material explanation of human behavior) to criminal responsibility, distinguishing between internal and external critiques based on neuroscience. It then describes the signs and symptoms of BOS, the essential feature of which is to make claims about the implications of neuroscience for criminal responsibility that cannot be conceptually or empirically sustained. It then applies the diagnostic lens of BOS to the claims in Roper v. Simmons. Finally, the article recommends Cognitive Jurotherapy [CJ] as the therapy of choice for BOS.
  • Saunders, Kevin W., "A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice" . Utah Law Review, Vol. 2005, pp. 695-741, 2005 Available at SSRN: Abstract:
    Modern brain science has discovered a second period of physical development of the brain in the adolescent years. Paralleling the cognitive development of infancy and early childhood, the judgmental and inhibitory regions of the brain go through a process of synaptic overblooming and later paring in this later period of life. Just as environment affects cognitive development, it appears it also has an effect on judgment and inhibition. This has consequences that should influence the development of the law. First, if environment affects which synapses remain in the developed brain and later influence judgment, there is greater reason to be concerned about the media environment children face. Second, if children are unable to make adult judgments and inhibit their actions, rather than simply being unwilling to do so, that should speak in favor of a juvenile justice system that recognizes that juvenile offenders may be more amendable to rehabilitation than adults.
  • Keckler, Charles N.W., "Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment" (February 15, 2005). George Mason Law & Economics Research Paper No. 05-02 Available at SSRN: or DOI: 10.2139/ssrn.667601. Abstract:
    The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication.
  • Redding, Richard E., "The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century" . American University Law Review, Vol. 56, p. 51, 2006 Available at SSRN: Abstract:
    Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. "Irresistible impulse" (or "control") tests, on the other hand, provide an insanity defense to those who committed a crime due to their inability to exercise behavioral control. Control tests have fallen into disfavor, however. Opponents of control tests offer three rationales for their abandonment: (1) that cognitive tests for insanity are sufficient, since those with impaired impulse control will also be cognitively impaired; (2) that mental health professionals are incapable of reliably assessing the capacity for impulse control, particularly in relation to criminal behavior, or of differentiating between a truly irresistible impulse and an impulse that is merely difficult to resist; and, therefore, that control tests lead to erroneous insanity acquittals; and, (3) that because "they directly pose the question of whether a person could control his or her behavior," control tests run counter to the law's assumption that people have free will and bear responsibility for their actions. Current neuroscience research presents a challenge to these claims. In the Article, I argue for a return to control tests for insanity, but with important doctrinal modifications.
Because my own brain and time are limited, I've done little more than scan the abstracts -- but even that much is interesting.

Graphic from

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