Law Commons^™

Law, Responsibility, And The Brain, Owen D. Jones, Hakwan C. Lau, Dean Mobbs, Christopher D. Frith

Owen Jones

This article addresses new developments in neuroscience, and their implications for law. It explores, for example, the relationships between brain injury and violence, as well as the connections between mental disorders and criminal behaviors. It discusses a variety of issues surrounding brain fingerprinting, the use of brain scans for lie detection, and concerns about free will. It considers the possible uses for, and legal implications of, brain-imaging technology. And it also identifies six essential limits on the use of brain imaging in courtroom procedures.

Brain Imaging For Legal Thinkers: A Guide For The Perplexed, Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall, Rene Marois

Owen Jones

It has become increasingly common for brain images to be proffered as evidence in criminal and civil litigation. This Article - the collaborative product of scholars in law and neuroscience - provides three things.

First, it provides the first introduction, specifically for legal thinkers, to brain imaging. It describes in accessible ways the new techniques and methods that the legal system increasingly encounters.

Second, it provides a tutorial on how to read and understand a brain-imaging study. It does this by providing an annotated walk-through of the recently-published work (by three of the authors - Buckholtz, Jones, and Marois) that …

Behavioral Genetics And Crime, In Context, Owen D. Jones

Owen Jones

This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime.

It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.

Who Speaks For Neuroscience? Neuroimaging Evidence And Courtroom Expertise, Jane Campbell Moriarty, Daniel D. Langleben

Jane Campbell Moriarty

Athletes, Veterans, And Neuroscience: A Symposium On Traumatic Brain Injury And Law, Jane Campbell Moriarty

Jane Campbell Moriarty

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

Memory And Punishment, O. Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

Mental Disabilities And Duty In Negligence Law: Will Neuroscience Reform Tort Doctrine?, Jean Eggen

Jean M. Eggen

Recent developments in neuroscience may contribute to some long-needed changes in negligence law. One negligence rule in need of reform is the duty rule allowing physical disabilities to be considered in determining whether a party acted negligently, but disallowing mental disabilities for adult tortfeasors. Further, this bifurcated rule applies imposes an objective standard only on adults alleged to have acted negligently. A subjective standard applies to all parties in intentional torts and to children in negligence actions. Courts justify the bifurcated rule for adults on policy grounds, but these policy underpinnings are no longer valid in contemporary society. More accurate …

Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik

Amanda C Pustilnik

The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure …

Brain Trauma, Pet Scans And Forensic Complexity, Jane Moriarty, Daniel Langleben, James Provenzale

Jane Campbell Moriarty

Positron Emission Tomography (PET) is a medical imaging technique that can be used to show brain function. Courts have admitted PET scan evidence in cases involving brain damage, injury, toxic exposure, or illness ("brain trauma") and to support claims of diminished cognitive abilities and impulse control. Despite the limited data on the relationships between PET, brain trauma and behavior, many courts admit PET scan evidence without much critical analysis. This article examines the use of PET as proof of functional impairment and justification of abnormal behavior by explaining its diagnostic use and limitations, the limited support for claims of its …

Empathy For Psychopaths: Using Fmri Brain Scans To Plea For Leniency In Death Penalty Cases, Kimberly D. Phillips

Kimberly D Phillips

Toward A Neuroscience Model Of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, Jean Eggen, Eric Laury

Jean M. Eggen

The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort …

Using Brain Imaging For Lie Detection: Where Science, Law, And Policy Collide, Daniel D. Langleben, Jane Campbell Moriarty

Jane Campbell Moriarty

Progress in the use of functional magnetic resonance imaging (fMRI) of the brain to differentiate lying from truth-telling has created an expectation of a breakthrough in the search for objective methods of lie detection. In the last few years, litigants have attempted to introduce fMRI-based lie detection evidence in courts. Both the science and its possible use as courtroom evidence have spawned much scholarly discussion. This article contributes to the interdisciplinary debate by identifying the missing pieces of the scientific puzzle that need to be completed if fMRI-based lie detection is to meet the standards of either legal reliability or …

The Promise Principle And Contract Interpretation, Juliet P. Kostritsky

Juliet P Kostritsky

The promise principle and its roots in a certain type of morality of individual obligation, which play the central role in Charles Fried’s vision of Contract law, have importantly contributed to rescuing Contract law from absorption into Tort law and from the imposition of externally imposed standards that are collective in origin. It makes a mammoth contribution to alerting us to the tyranny of interference with individual self-determination. However, this essay questions whether a promise centered system derived from a moral philosophy of promising (without an observable and testable foundation in reality) and geared to internal individual obligation and duty …

Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik

Amanda C Pustilnik

Is there such a thing as a criminally "violent brain"? Does it make sense to speak of "the neurobiology of violence" or the "psychopathology of crime"? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances? This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases …

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

Amanda C Pustilnik

No abstract provided.

The Age Of Electoral Majority, Vivian E. Hamilton

Vivian E. Hamilton

Neuroscience, Law & Government: Foreword To The Symposium, Jane Moriarty

Jane Campbell Moriarty

The legal and legislative systems have begun to rely on neuroscience in various types of decision-making. Without question, the relationship between the disciplines will become more enmeshed as more data is generated by neuroscientists. Are we ready for this potential sea change that will be both rich and strange?

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …