By Amanda C. Pustilnik, Professor of Law, University of Maryland Carey School of Law

What should the future look like for brain-based pain measurement in the law?  This is the question tackled by our concluding three contributors:  Diane Hoffmann, Henry (“Hank”) T. Greely, and Frank Pasquale. Professors Hoffmann and Greely are among the founders of the fields of health law and law & biosciences. Both discuss parallels to the development of DNA evidence in court and the need for similar standards, practices, and ethical frameworks in the brain imaging area.  Professor Pasquale is an innovative younger scholar who brings great theoretical depth, as well as technological savvy, to these fields.  Their perspectives on the use of brain imaging in legal settings, particularly for pain measurement, illuminate different facets of this issue.

This post describes their provocative contributions – which stake out different visions but also reinforce each other.  The post also highlights the forthcoming conference-based book with Oxford University Press and introduces future directions for the use of the brain imaging of pain – in areas as diverse as the law of torture, the death penalty, drug policy, criminal law, and animal rights and suffering.  Please read on!  Continue reading »

By Amanda Pustilnik

This week, the CLBB and the Petrie-Flom Center at Harvard Law School are hosting a series of posts on how brain imaging can help the law address issues of physical and emotional pain. Our contributors are world leaders in their fields, who participated on June 30, 2015, in the CLBB/Petrie-Flom conference Visible Solutions: How Brain Imaging Can Help Law Re-envision Pain.  They addressed questions including:

• Can brain imaging can be a “painometer” to prove pain in legal cases?
• Can neuroimaging help law do better at understanding what pain is?
• How do emotion and pain relate to each other?
• Does brain imaging showing emotional pain prompt us to reconsider law’s mind/body divide?

Professor Irene Tracey, D.Phil., a pioneer in pain neuroimaging and director of the Oxford Centre for Functional Magnetic Resonance Imaging of the Brain, opened the conference with a keynote explaining what happens when the brain is in pain.

Professor Hank T. Greely, Edelman Johnson Professor of Law and Director of the Program in Neuroscience and Society at Stanford Law School, provided a keynote explaining the many implications of brain imaging for the law.

This conference was the culmination of CLBB’s year of work on pain neuroimaging and law. As the first CLBB-Petrie-Flom Center Senior Fellow on Law & Applied Neuroscience, I focused on pain because it is one of the largest social, economic, and legal problems that can be addressed through new insights into the brain. Pain imaging can be a test case for how neuroscience can contribute positively to law and culture.  (Full conference video proceedings are available here.)  Please read on below!

Pain is also a huge cause of suffering in the world, and it would be honorable if law and science working together could reduce that suffering, even just a little. On a human and economic level, pain is the single largest cause of disability globally and in the US. On the legal level, the US and other legal systems are not effective at evaluating physical and emotional pain, identifying its long-term effects, and sorting genuine claims from false ones.

I also am passionate about pain neuroscience on a personal level: After a routine outpatient procedure that went wrong, nearly a decade ago, my sister developed life-changing pain. The injury healed but the pain endured. This very common type of pain is inexplicable under the old model but readily explicable, and treatable, neurologically. Her years of challenge and recovery opened my eyes to the suffering of millions who endure the double burden of pain and of pain’s invisibility, which often leads to it being dismissed. This project is dedicated to her, and to everyone who has had or will have pain – which is all of us.

I hope you will tune in this week for contributions from:

• Karen Davis
• Martha Farah
• Hank Greely
• Diane Hoffmann
• Francis Shen
• Irene Tracey
• Frank Pasquale
• David Seminowicz
• Tor Wager
• … and more

This post is part of the series on pain, brain imaging, and the law sponsored by the MGH Center for Law, Brain & Behavior, the Petrie-Flom Center, and Harvard University’s Mind/Brain/Behavior Initiative. Contributors participated in the conference Visible Solutions: Now Neuroimaging Helps Law Reenvision Pain. For inquiries, please contact the organizer Amanda C. Pustilnik (@apustilnik on Twitter).

CLBB Faculty and Senior Fellow in Law & Applied Neuroscience Amanda Pustilnik was sought out for her expert opinion on whether corrective brain implants could make the death penalty obsolete, in response to a recent article. In her words, “The story is speculative and interesting, but it gets a bunch of things wrong.”

Criminals are not neurologically different than the rest of us—they are a product of environment and opportunity…. the average criminal smoked a little weed, or stole a car, or shoplifted, or never had good behavioral modeling at home so they punched someone in the face. Most people don’t need brain implants. They are not them—they are us.

There’s such a sexiness around neuroscience, and I love it, but that sometimes deflects us from easier, cheaper, more effective things we could do more efficiently, both now or in the future.

Read the rest of piece from Popular Science, “Could we give Criminals Corrective Brain Implants?“, by Alexandra Ossola, published July 24, 2015.

On June 30, 2015, CLBB and the Petrie-Flom Center hosted a public symposium bringing together the leading experts in neuroscience and law to wrestle with the critical question: what can, and should, the law do with what we know about pain and the brain? To answer this, panelists discussed whether brain imaging can be a “pain-o-meter” that tells courts when a person is in pain, if fMRI technologies can help give us a new perspective on intractable chronic pain, and how to understand the intimate relationship between pain and emotion, if there even is such a distinction. Together, experts and audience members explored how the law can use brain science to get smarter about a subject that touches everyone.  Continue reading »

Click to view event poster.

Law – particularly criminal law – is infused with moral judgment and calls upon prosecutors, judges, and and jurors to make morally-informed decisions. But where does morality come from? How do we “do” moral decision-making?

At this lunchtime seminar, experimental philosopher and neuroscientist Fiery Cushman led a fascinating and provocative discussion of the current state of neuroscience research on morality. Dr. Cushman presented his computational models of learning and moral decision-making to describe how we learn what morality is within our own cultures, how we internalize moral rules, and how we make moral judgments about others. Amanda Pustilnik, Senior Fellow in Law and Applied Neuroscience at the Petrie-Flom Center and CLBB, responded.

The event was held on April 8, 2015 at Harvard Law School. Continue reading »