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Archive for the ‘neurolaw’ Category

Today we find a well written article on research into the conflict between the front and middle brain:

It was only in 2000 that two London scientists selected 70 people, all in the early sizzle of love, and rolled them into the giant cylinder of a functional magnetic resonance imaging scanner, or fMRI. The images they got are thought to be science’s first pictures of the brain in love.

A story mixing science with passion is popular in the press, so here are a few more which track the release of research results over the past 7 years:

All of these news items quote Helen Fisher, an anthropologist at Rutgers University. In addition to  self-archiving her articles, she has given a presentation to TED|Talks. (Co-author Lucy Brown has a presentation at the NY Times.)

Where’s the neurolaw? Well, family lawyers might take an interest in this…

And criminal lawyers might like this…

Of course, it’s not all happening in the brain, which led to this unusual MRI study:

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If you have a subscription or google the title of the piece, you can read an interesting New York Times column about Brandon Garrett’s empirical analysis of 200 wrongful convictions.

The study in question is called Judging Innocence, but we have to wait until January to read it in the Columbia Law Review. In the meantime, consider the causes of wrongful convictions:

  1. Eyewitness Misidentification
  2. Unreliable or Limited Science
  3. False Confessions
  4. Forensic Science Fraud or Misconduct
  5. Government Misconduct
  6. Informants or Snitches
  7. Bad Lawyering

(The links above will take you to the Innocence Project in the US. In Canada, we have the Association in Defence of the Wrongfully Convicted.)

According to the study, the most common cause of conviction is eyewitness error. It is responsible for 79% of wrongful convictions. As if that were not astounding enough, false confessions were made by innocent people in 36 – or 18% – of the 200 cases.

This means two of the leading causes of wrongful convictions can be attributed to the frailties of human mind, because the instruments of justice rely on fallible statements by witnesses and the accused. If neurolaw is to make its mark anywhere in the criminal justice system, perhaps it should be in the prevention and correction of wrongful convictions.

(Hat tip goes to the Jonah Leher, for mention of the NYT column)

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The law faculty of Arizona State University hosted a conference on the topic of neuroethics and neurolaw, and kindly uploaded audio of the speaker’s presentations. Most are accompanied by PowerPoint presentations you can download as PDFs.

These two give particularly good overviews:

  • Emily Murphy, Authenticity, Bluffing, and the Privacy of Human Thought: Ethical Issues in Brain Scanning
  • Gary Marchant, Brain Scanning in the Courts:  The Story So Far [ed: gives lots of US case law]

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Here’s an article, just uploaded to SSRN, that I can’t resist promoting because it’s about moral intuitions and the law.

From the introduction:

In this research, we use traditional psychological methodologies to ask when laypeople consider breach to be immoral , which moral principles and moral heuristics they employ to make that judgment, and to what extent their moral reasoning (be it rational or faulty) affects their legal and financial decision-making.

Why should we read it? From the conclusion:

Empirical results like those we have presented here have bearing on practical legal matters, including bargaining during contract drafting as well as negotiations over the breach of a contract. These results may also bear on moral theories of breach of contract, as we identify some discontinuities and tensions between intuition and reason.

Great stuff.

  • Wilkinson-Ryan, Tess and Baron, Jonathan, “Moral Judgment and Moral Heuristics in Breach of Contract” (2006). Available at SSRN: http://ssrn.com/abstract=930144

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Brian Doherty has written an excellent piece for Reason in which he claims we don’t need neuroscience to buttress insanity defenses because “old-fashioned” evidence does just fine. He concludes:

Even in the 21st century, our ability to make those kinds of legal and moral judgments remains largely untouched by purely objective science. To make the judgments about human beings and their behavior that courts need to make, [Phillip] Resnick says, “You need to understand why. And you can’t see why on an fMRI.”

That final quote gives the piece its title, You Can’t See Why on an fMRI: What science can, and can’t, tell us about the insanity defense.

This piece is not without flaws, however, and while his examples support his conclusion that determinations of legal insanity can be done with old-fashioned techniques, other cases (like that of Herbert Weinstein) illustrate the merits of neuroscientific evidence. He may as well be arguing the science of genetics has nothing to contribute to the law, because there are cases that can be solved using old fashioned fingerprinting instead of DNA tests.

Furthermore, I think he misses an important point: we should reconstruct the insanity defense according to the lessons given to us by ‘objective science’. Turning our back on these is just an affirmation of ignorance.

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