The Status of Neurolaw: A Plea for Current Modesty and Future Cautious Optimism

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In a 2002 editorial published in The Economist, the following warning was given: “Genetics may yet threaten privacy, kill autonomy, make society homogeneous and gut the concept of human nature. But neuroscience could do all of these things first.” The genome was fully sequenced in 2001, and there has not been one resulting major advance in therapeutic medicine since. Thus, even in its most natural applied domain—medicine—genetics has not had the far-reaching consequences that were envisioned. The same has been true of various other sciences that were predicted to revolutionize the law, including behavioral psychology, sociology, and psychodynamic psychology, to name but a few. This will also be true of neuroscience, which is simply the newest science on the block. Neuroscience is not going to do the terrible things The Economist fears, at least not in the foreseeable future. Neuroscience has many things to say, but not nearly as much as people would hope, especially in relation to law. At most, in the near to intermediate term, neuroscience may make modest contributions to legal policy and case adjudication. Nonetheless, there has been irrational exuberance about the potential contribution of neuroscience, an issue I have addressed previously and referred to as “brain overclaim syndrome.” I first address the law’s motivation and the motivation of some advocates to turn to science to solve the very hard normative problems that law addresses. The next part discusses the law’s psychology and its concepts of the person and responsibility. Then I consider the general relation of neuroscience to law, which I characterize as the issue of “translation.” The following part canvasses various distractions that have bedeviled clear thinking about the relation of scientific, causal accounts of behavior to responsibility. Next, I examine the limits of neurolaw and consider why neurolaw does not pose a genuinely radical challenge to the law’s concepts of the person and responsibility. The penultimate part makes a case for cautious optimism about the contribution that neuroscience may make to law in the near and intermediate term. A brief conclusion follows.

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Court Review

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50 Court Rev. 94 (2014)

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