On his Neuroethics & Law Blog, editor Adam Kolber has convened its first online book symposium. His guest bloggers, who include CLBB faculty member Amanda Pustilnik, will discuss the recently published Minds, Brains, and the Law by Michael Pardo and Dennis Patterson.

In her post, Pustilnik focuses on questions taken up in the book on whether neuroscience could be used to answer normative questions about responsibility, in legal and criminal settings. For example, could brain scans be used to identify a distinct neural signature for diminished capacity? Highlighting the differences between social (i.e., law) and natural (i.e., neuroscientific) categories, Pustilnik argues that answers to particular normative problems can’t be directly resolved by “looking in the brain.” However, she does think that psychiatry and neuroscience have an important role to play in elucidating empirical impairments for those normative states, and in communicating to law and society what we could reasonably expect from people with those impairments. Read Pustilnik’s post “Norms & Neurons” below.

Michael Pardo and Dennis Patterson have written a Big Book, an ambitious book, on the relationship between neuroscience and law.  Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience is the book, or at least one of the books, that the field of law and neuroscience has needed.  To say that neuroscience is or even could be relevant to law rests on important presuppositions about the relationship between brain and mind, the nature of mind, the nature and purposes of law, and the relationship between mind and law.  The theoretical and epistemological underpinnings of these enterprises remain under-examined in law and neuroscience scholarship.  This is not because authors in the field are philosophically naïve – far from.  Rather, it is because of the richness of the material and the newness of the field.  There is much work to be done, and there will be for some time.

P&P great contribution with this work to law and neuroscience scholarship is to offer a non-reductionist argument for the possibility of a meaningful interrelationship between neuroscience and law.  While accepting the materialist premise (there is no ghost in the machine), P&P take aim at a form of reductionism, eliminative materialism, that lies at the heart of much law & neuroscience scholarship.  In so doing, they offer a strong case for the need to understand brains not as the fundamental unit of analysis and bearers of meaning but as components both in and shaped by an integrated system of signs and meanings.  To take possibly unjustified poetic license with their work: Our astrocytes are as stars that live as much in the nomos as in the cosmos.

Read the full post here, on the Neuroethics & Law Blog.

By Amanda Pustilnik | University of Maryland Legal Studies Research | 10 March 2014

Abstract:

Legal doctrines and decisional norms treat chronic claims pain differently than other kinds of disability or damages claims because of bias and confusion about whether chronic pain is real. This is law’s painful disparity. Now, breakthrough neuroimaging can make pain visible, shedding light on these mysterious ills. Neuroimaging shows these conditions are, as sufferers have known all along, painfully real. This Article is about where law ought to change because of innovations in structural and functional imaging of the brain in pain. It describes cutting-edge scientific developments and the impact they should make on evidence law and disability law, and, eventually the law’s norms about pain. It suggests that pain neuroimaging will solve current legal problems and also open the door to reconsiderations of law’s treatment of other subjective phenomena like mental states and emotions, going to the theoretical heart of legal doctrines about body and mind.

Read the full paper here.

By Alexandra O. Cohen and BJ Casey | February 2014 | Trends in Cognitive Sciences

The past decade has been marked by historic opinions regarding the culpability of juveniles by the US Supreme Court. In 2005, the death penalty was abolished, 5 years later, life without parole for crimes, other than homicide, was banned, and then just last year, mandatory life sentences for any crime was abolished. The court referenced developmental science in all these cases. In this article, we highlight new scientific findings and their relevance to law and policy.

The past decade has witnessed a series of US Supreme Court decisions relevant to differential treatment of juvenile versus adult offenders that reference developmental science. In 2005 (Roper v. Simmons, 543 U.S. 551) the majority held that execution of offenders under the age of 18 violated the Eighth Amendment barring ‘cruel and unusual punishments’. That decision moved nearly 100 inmates off death row in a dozen states. In Graham v. Florida (2010), the Court held that juvenile offenders could not be sentenced to life in prison without parole for nonhomicide crimes. At that time, an estimated 100 inmates were serving Juvenile life without parole sentences for nonhomicide offenses. The 2000 or more inmates serving Juvenile life without parole for homicide were unaffected. Then, just last year (2012) in Miller v. Alabama and Jackson v. Hobbs, the Supreme Court held that mandatory sentences of life without parole for juveniles violate the Eighth Amendment. The ruling only stated that a juvenile could not be subjected to a mandatory sentence of life without parole. Therefore, inconsistencies in the treatment of juveniles remain, because these laws are regulated predominantly by the state that allows jurisdictions to impose different penalties on juvenile offenders. Continue reading »

By Owen Jones, Rene Marois, Martha Farah, and Hank Greely | The Journal of Neuroscience | November 2013

Abstract

Law and neuroscience seem strange bedfellows. But the engagement of law with neuroscientific evidence was inevitable. For one thing, the effectiveness of legal systems in regulating behavior and meting out justice often depends on weighing evidence about how and why a person behaved as he or she did. And these are things that neuroscience can sometimes illuminate. For another, lawyers are ethically bound to champion their clients’ interests. So they remain alert for new, relevant, or potentially persuasive information, such as neuroscience may at times offer, that could help to explain or contextualize behavior of their clients. In light of this, and in the wake of remarkable growth in and visibility of neuroscientific research, a distinct field of Law & Neuroscience (sometimes called “neurolaw”) has emerged in barely a decade.

Whether this engagement is ultimately more for better or for worse (there will be both) will depend in large measure on the effectiveness of transdisciplinary partnerships between neuroscientists and legal scholars. How can they best help the legal system to understand both the promise and the perils of using neuroscientific evidence in legal proceedings? And how can they help legal decision-makers draw only legally and scientifically sound inferences about the relationships between particular neuroscientific evidence and particular behaviors?

In this article, we highlight some efforts to establish and expand such partnerships. We identify some of the key reasons why neuroscience may be useful to law, providing examples along the way. In doing so, we hope to further stimulate interdisciplinary communication and collaborative research in this area.

Read the full paper here.

By Eraka Bath, MD, Shawn Sidhu, MD, and Sofia Stepanyan, BA | July 2013 | Journal of the American Academy of Child & Adolescent Psychiatry

Over the past decade, a series of U.S. Supreme Court cases have enhanced the legal rights for youth involved in the juvenile and criminal justice systems. These cases, considered landmark cases in psychiatry and the law, reflect an evolving understanding of the interplay among culpability, neurocognitive development, and adolescent behavior. Fortunately, these legislative trends represent significant gains in improving due-process protections for juveniles and have shifted the pendulum toward a more neurodevelopmental approach in thinking about culpability and rehabilitation in young offenders, a vulnerable population with high levels of psychiatric morbidity. Continue reading »