Jeffery Rosen has an interesting piece about neurolaw in the New York Times. He walks us through various research projects that, he thinks, might eventually force lawyers and to reconsider some of the deeply-held assumptions about the law.
Like aeroman, I think some of the neurolaw boosters Rosen profiles many be overselling the near-term legal applications of their research. However, the author hears out both knowledgeable skeptics and serious enthusiasts.
Rosen participates in one series of experiments in which subjects are asked to do moral reasoning inside an MRI. Scientists record their brain activity as they decide what punishment would fit each hypothetical crime. The researchers are trying to figure out what goes on in our brains as we reason about justice and punishment. They're trying to learn what's different about the brain of a calculating, rational decision-maker compared vs. someone who follows their gut. This research could be useful for developing methods of persuasion geared towards specific types of decision-makers. Advertisers and market researchers are already exploring the possibilities of targeted persuasion. I'm sure the neurolaw people aren't far behind.
[The two scientists] talked excitedly about the implications of their experiments for the legal system. If they discovered a significant gap between people’s hard-wired sense of how severely certain crimes should be punished and the actual punishments assigned by law, federal sentencing guidelines might be revised, on the principle that the law shouldn’t diverge too far from deeply shared beliefs. [NYT]
A) I'm not sure the world would be a better place if we let the lizard brain dictate our criminal sentencing guidelines. B) On a practical level, why do we need brain scans to ascertain how people feel about crime and punishment. Why not just skip the MRI and go straight to the public opinion polling?
Rosen also worries about whether a more sophisticated understanding of the brain will force us to abandon our traditional conception of free will. I don't see why understanding the brain would be any more or less threatening to the concept of free will or personal responsibility than our prior understanding of determinism and indeterminism. We understood the underlying logical problems a long time ago, now we're just working more of the details of the causal chain inside the head.
There's lots of interesting stuff in this article, especially the sections about measuring implicit biases. What's lacking in the piece is a sense of why the relatively new neuro side of this research is so important for the law. Psychologists have been pursuing similar research programs by studying outwardly observable behaviors for years.
It's neat that our imaging techniques have evolved to the point where we can watch the fireworks in the brain, but these imaging studies don't seem to be telling the legal profession very much over and above what the law and psychology specialists have been studying for years.
That's not to denigrate these brain imaging research programs. Studying the brain is worthwhile for its own sake. However, some brain imaging scientists seem tempted to oversell the practical applications of their work in order to get grants for the very expensive equipment they need.