By Henry T. Greely, Edelman Johnson Professor of Law, Stanford Law School; Professor (by courtesy) of Genetics, Stanford Medical School; Director, Program in Neuroscience & Society, Stanford University

The recent meeting at Harvard on neuroimaging, pain, and the law demonstrated powerfully that the offering of neuroimaging as evidence of pain, in court and in administrative hearings, is growing closer. The science for identifying a likely pattern of neuroimaging results strongly associated with the subjective sensation of pain keeps improving. Two companies (and here) recently were founded to provide electro-encephalography (EEG) evidence of the existence of pain. And at least one neuroscientist has been providing expert testimony that a particular neuroimaging signal detected using functional magnetic resonance imaging (fMRI) is useful evidence of the existence of pain, as discussed recently in Nature.

If nothing more is done, neuroimaging evidence of pain will be offered, accepted, rejected, relied upon, and discounted in the normal, chaotic course of the law’s evolution. A “good” result, permitting appropriate use of some valid neuroimaging evidence and rejecting inappropriate use of other such evidence, might come about. Or it might not.

We can do better than this existing non-system. And the time to start planning a better approach is now. (Read on for more on how)  Continue reading »

By Frank Pasquale, Professor of Law, University of Maryland Carey School of Law

Many thanks to Amanda for the opportunity to post as a guest in this symposium. I was thinking more about neuroethics half a decade ago, and my scholarly agenda has, since then, focused mainly on algorithms, automation, and health IT. But there is an important common thread: The unintended consequences of technology. With that in mind, I want to discuss a context where the measurement of pain (algometry?) might be further algorithmatized or systematized, and if so, who will be helped, who will be harmed, and what individual and social phenomena we may miss as we focus on new and compelling pictures.  Continue reading »

By Diane Hoffmann, Director, Law & Health Care Program; Professor of Law, University of Maryland School of Law

As someone who has been greatly concerned about and devoted much of my scholarship to legal obstacles to the treatment of pain, I applaud Professor Pustilnik for increasing attention to the role of neuroimaging in our efforts to understand our experience of pain and how the law does or does not adequately take into account such experience. Pustilnik has written eloquently about this issue in several published articles but her efforts to bring together scientists, medical experts, legal academics, and judges (see also here) deserves high praise as a method for illuminating what we know and do not know about pain and the brain and to what extent brain imaging can serve as a diagnostic tool or an external validator of pain experience.

In this post, I discuss how DNA testing serves as a precedent for how to develop responsible uses of new technologies in law, including, potentially, brain imaging for pain detection. The ethical, legal, and social implications (ELSI) of DNA research and testing were integral to developing national protocols and rules about DNA. Brain imaging of pain needs its own ELSI initiative, before zealous adoption outpaces both the technology and the thinking about the right guiding principles and limitations.

Continue reading »

By Drake Bennett | Bloomberg Business | August 4, 2015

There was something odd, Doug Williams recalls, about the clean-cut young man who came to see him on Feb. 21, 2013. When Brian Luley had called two weeks earlier, he’d introduced himself as a deputy sheriff in Virginia applying for a job with U.S. Customs and Border Protection. To get the job, Luley needed to pass a polygraph test, and there were “a couple of reasons” he thought that might be a problem.

“I will get you ready,” Williams had promised. A former police detective and a man congenitally unencumbered by doubt, he claimed he’d already helped thousands of people beat the polygraph. In pictures on his website, polygraph.com, the goateed 67-year-old sat at a desk in a suit with his hands clasped, his silver hair slicked back from a tanned and furrowed brow. “Nervous or not, lying or not, no matter what,” he assured his clients, they would pass. The site had a manual and an instructional DVD for purchase, but if you really wanted to be sure, Williams would teach you one-on-one. Luley wanted to be sure.

Many of the people who sought out Williams over the years had secrets: marital indiscretions or professional lapses, drug busts or sex crimes. Williams never asked for details—those weren’t his concern. He has no affection for crooked cops or sexual predators, but what he hates above all else is the polygraph machine, an “insidious Orwellian instrument of torture,” as he calls it, that sows fear and mistrust, ruining careers by tarring truthful people as liars. “It is no more accurate than the toss of a coin,” he likes to say. When he’s feeling less generous, he’ll say a coin works better.  Continue reading »

By Francis X. Shen, Professor of Law, University of Minnesota Law School

Earlier this month the Supreme Court of New South Wales ruled that an individual who experienced post-traumatic stress disorder (PTSD) as the result of an airplane crash could recover damages under the Montreal Convention. The case was important because many courts have previously ruled that PTSD, absent any other “bodily injury,” was not covered by the bodily injury provisions of the international agreement.

The case is illustrative of the way in which courts across the world continue to find a meaningful distinction between “physical” (or “bodily”) injury/pain and “mental” (or “emotional”) injury/pain. Continue reading »