Law Commons^™

From Scanner To Court: A Neuroscientifically Informed “Reasonable Person” Test Of Trademark Infringement, Zhihao Zhang, Maxwell Good, Vera Kulikov, Femke Van Horen, Mark Bartholomew, Andrew S. Kayser, Ming Hsu

Journal Articles

Many legal decisions center on the thoughts or perceptions of some idealized group of individuals, referred to variously as the “average person,” “the typical consumer,” or the “reasonable person.” Substantial concerns exist, however, regarding the subjectivity and vulnerability to biases inherent in conventional means of assessing such responses, particularly the use of self-report evidence. Here, we addressed these concerns by complementing self-report evidence with neural data to inform the mental representations in question. Using an example from intellectual property law, we demonstrate that it is possible to construct a parsimonious neural index of visual similarity that can inform the reasonable …

Remodelling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic

Faculty Scholarship at Penn Carey Law

This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …

Internal And External Challenges To Culpability, Stephen J. Morse

Faculty Scholarship at Penn Carey Law

This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …

Legal Recognition Of Animal Sentience: The Case For Cautious Optimism, Jane Kotzmann

Animal Sentience

Rowan et al.’s target article provides a valuable indication of the work that was required to reach the point where animals are recognised as sentient in various laws. To ensure this work was not in vain, the language of sentience needs to be used as a moral currency to demand further cultural change involving greater human respect for animals.

Exploring Tactile Art-Making With Deafblind Students And Their Families: An Opportunity For Creative Play, Alice Rodgers

Expressive Therapies Capstone Theses

The impact of a deafblind diagnosis on an individual’s mental health and the well-being of the family involved can be profound. However, current research and available literature for the mental health treatment and therapy practices of deafblind persons and their families is limited (Kyzar et al., 2016; “WFDB Global Report 2018,” n.d.). This thesis used the Leeds Family Psychology and Therapy Service principles (Leeds FPTS) and the Expressive Therapies Continuum with established deafblind teaching strategies to facilitate an original arts-based community project entitled: “Things We Like.” This project provided an opportunity for deafblind students (ages three to 22) and their …

Pornography: Social, Emotional And Mental Implications Among Adolescents, William Kelly Canady

National Youth Advocacy and Resilience Conference

This presentation will explain the historical development of pornography. It will highlight four segments: 1- Porn’s impact on brain development of reward pathways, ultimately increasing the appetite for more porn. 2- Porn can be a false substitute for real intimacy, resulting in decreased sexual satisfaction with a real person and increased verbal and physical aggression. 3- Porn promotes sex trafficking, promotes multiple sex partners and reduced STD prevention. 4- A review of interventions available to assist clients in navigating a lifestyle away from pornography.

Animal Sentience: History, Science, And Politics, Andrew N. Rowan, Joyce M. D'Silva, Ian J.H. Duncan, Nicholas Palmer

Animal Sentience

This target article has three parts. The first briefly reviews the thinking about nonhuman animals’ sentience in the Western canon: what we might know about their capacity for feeling, leading up to Bentham’s famous question “can they suffer?” The second part sketches the modern development of animal welfare science and the role that animal-sentience considerations have played therein. The third part describes the launching, by Compassion in World Farming, of efforts to incorporate animal sentience language into public policy and regulations concerning human treatment of animals.

Is Executive Function The Universal Acid?, Stephen J. Morse

Faculty Scholarship at Penn Carey Law

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our …

Pornography: Adolescent Brain Development & Addiction, William K. Canady

National Youth Advocacy and Resilience Conference

This presentation will explain the historical development of pornography. It will highlight three segments: 1- Porn’s impact on brain development of reward pathways, ultimately increasing the appetite for more porn. 2- Porn can be a false substitute for real intimacy, resulting in decreased sexual satisfaction with a real person and increased verbal and physical aggression. 3- Porn promotes sex trafficking, promotes multiple sex partners and reduced STD prevention.

Book Review: Was Yosef On The Spectrum By Samuel J. Levine, Ian Hale, Ph.D.

Touro Law Review

No abstract provided.

Evolution And The Expression Of Biases: Situational Value Changes The Endowment Effect In Chimpanzees, Owen D. Jones, Sarah F. Brosnan, Molly Gardner, Susan P. Lambeth, Steven J. Schapiro

Owen Jones

Cognitive and behavioral biases, which are widespread among humans, have recently been demonstrated in other primates, suggesting a common origin. Here we examine whether the expression of one shared bias, the endowment effect, varies as a function of context. We tested whether objects lacking inherent value elicited a stronger endowment effect (or preference for keeping the object) in a context in which the objects had immediate instrumental value for obtaining valuable resources (food). Chimpanzee subjects had opportunities to trade tools when food was not present, visible but unobtainable, and obtainable using the tools. We found that the endowment effect for …

Confabulation In Individuals With Disorders Of The Corpus Callosum: Educational Implications, Cheryl Lynn Wright

Dissertations

Individuals with disorders of the corpus callosum (DCC) may have subtle cognitive differences. Historically, confabulation has been associated with DCC. Therapies to mitigate confabulation is a newly emerging field. This study explores the possible educational implications that those with DCC may experience with confabulation.

The community of people with DCC and the community of people who interact with individuals with DCC were surveyed to ascertain the prevalence of confabulation within the population of those with DCC. A subset of questions probed whether age and/or gender impact the rates of reported confabulation. The research paradigm included a section that covered the …

How Should Justice Policy Treat Young Offenders?, B J. Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson, Anthony D. Wagner

Faculty Scholarship at Penn Carey Law

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

An Animal Victim's Best Chance: Veterinary Legal Duty To Report Cruelty In The U.S., Lora Dunn

Animal Sentience

Legislation throughout the U.S. recognizes animal sentience and the importance of veterinary reporting to combat the ongoing suffering of these animal victims: All 50 states have felony penalties available for animal cruelty crimes, and veterinary reporting is permitted or required in the majority of states. The remaining minority of U.S. states should take action to require veterinarians to report animal cruelty and render veterinarians immune for good faith reporting.

Animal Sentience: The Other-Minds Problem, Stevan Harnad

Animal Sentience

The only feelings we can feel are our own. When it comes to the feelings of others, we can only infer them, based on their behavior — unless they tell us. This is the “other-minds problem.” Within our own species, thanks to language, this problem arises only for states in which people cannot speak (infancy, aphasia, sleep, anaesthesia, coma). Our species also has a uniquely powerful empathic or “mind-reading” capacity: We can (sometimes) perceive from the behavior of others when they are in states like our own. Our inferences have also been systematized and operationalized in biobehavioral science …

Cognitive Fallacies Reading List, Curtis E.A. Karnow

Curtis E.A. Karnow

Reading list of books, articles, reports, and other material relating to cognitive fallacies, i.e., errors in reasoning which affect us all, including lawyers and judges. These errors in turn affect lawyers’ competence and judges’ ability to provide fair, impartial and well-reasoned decisions.

Cosmetic Neurology: Enhancement Of The Mind And Attention Deficit Hyperactive Disorder Medication Abuse Among College Students, Mary M. Huff

Senior Honors Theses

Cosmetic neurology is becoming increasingly popular, and it is not just sleep deprived, over worked college students who are interested. People are beginning to seek off-label prescriptions for medications that are typically used to treat disorders such as attention deficit hyperactive disorder (ADHD) or narcolepsy, while researchers are trying to create drugs used solely for mind enhancement purposes. Along with these drugs come many legal and ethical quandaries relating to the regulation of current use as well as the what ifs of future possibilities. A survey was conducted among college students regarding the diagnosis of ADHD, the abuse of ADHD …

Pain As Fact And Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions Of Law, Amanda C. Pustilnik

Faculty Scholarship

Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been …

Evolution And The Expression Of Biases: Situational Value Changes The Endowment Effect In Chimpanzees, Owen D. Jones, Sarah F. Brosnan, Molly Gardner, Susan P. Lambeth, Steven J. Schapiro

Vanderbilt Law School Faculty Publications

Cognitive and behavioral biases, which are widespread among humans, have recently been demonstrated in other primates, suggesting a common origin. Here we examine whether the expression of one shared bias, the endowment effect, varies as a function of context. We tested whether objects lacking inherent value elicited a stronger endowment effect (or preference for keeping the object) in a context in which the objects had immediate instrumental value for obtaining valuable resources (food). Chimpanzee subjects had opportunities to trade tools when food was not present, visible but unobtainable, and obtainable using the tools. We found that the endowment effect for …

Feeling At Home: Learning, Law, Cognitive Science, And Narrative, Lea B. Vaughn

Articles

What is the "how and why" of law's affinity for narrative? In order to explain why the use of stories is such an effective teaching and presentation strategy in the law, this paper will consider theories and accounts from cognitive as well as evolutionary psychology, neuroscience, and, briefly, cultural anthropology. This account seeks to address "how" narrative helps us learn and use the law as well as "why" we are so compelled to use stories in teaching and in practice.

Brain science, simplified here, suggests that the first task is to grab someone's attention. Emotionally charged events are more likely …

Broad, Deep And Indirect: The Potential Influence Of Neuroscience In Law, Amanda C. Pustilnik

Amanda C Pustilnik

No abstract provided.

Pain As Fact And Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions Of Law, Amanda Pustilnik

Amanda C Pustilnik

Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been …

Broad, Deep And Indirect: The Potential Influence Of Neuroscience In Law, Amanda C. Pustilnik

Faculty Scholarship

No abstract provided.

Social Software, Groups, And Governance, Michael J. Madison

Articles

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading social software, increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. …