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On Thursday evening, September 25, and all day Friday, September 26, the University of Akron Law School hosted a conference on Law and Neurosciience. The web site for the conference can be found at
The whole conference was captured in streaming video; the web site says the videos will be available at the site on October 1. I was a speaker at the conference and attended all the sessions; I thought it might be useful to convey briefly my summary and impressions.
The Thursday evening portion was limited to a reception and a keynote address. (What, by the way, why do we call them “keynotes” – I know what a keystone is, but not a key note.) The keynote speaker was old, but I hope that I nonetheless did a decent job in outlining how neuroscience is likely to affect the law, broken into five categories: prediction, responsibility, mind-reading (i.e., using neuroimaging to detect pain, bias, or deception), “treatment” for criminal behavior, and enhancement. I also stressed the need to balance talking about the possible implications of speculative technologies with asking always whether these technologies work or are likely to work.
Friday was organized into four panels. The first panel, moderated by Judge Jed Rakoff of the SDNY, focused on lie detection. It featured Steven Laken, CEO of Cephos; Daniel Langleben, Penn neuroscientist and one of the two or three leading fMRI lie detection researchers; and Jonathan Marks from Penn State. Laken discussed the lie detection method used by Cephos, some of their research under submission, and three of their commercial cases. Cephos is currently providing lie detection services for $4,000. They are working on several cases that they hope will lead to court decisions in favor of admissibility of their evidence late this year or early next. (Laken said, at one point, that Cephos was licensed by Massachusetts to do lie detection, but clarified, when asked, that this meant the company had a private investigator’s license, apparently required in Massachusetts for lie detectors.) Langleben, the inventor of the lie detection approached that Penn licensed to No Lie MRI (a firm with which Langleben no longer has any connection), seems to be optimistic about fMRI-based lie detection in the long run, but feels it is not ready for use yet. He noted the real problem of the absence of unbiased funding sources for good clinical trials. Marks spoke mainly of the uses and potential uses of this technology outside the court system, by the military and the intelligence. He had some powerful comments about the wide use but very limited value of polygraphy by American forces in Iraq.
The second panel, moderated by Michael Guttentag of Loyola (of Los Angeles) Law School, included Nita Farahany of Vanderbilt, Christiian Halliburton of Seattle University, and Michael Perlin of NY Law School. Farahany presented a really interesting paper distinguishing between what she calls “behavioral moralists” and the “law and evolutionary biology” school. She defined behavioral morality as the belief that “criminal behavior attributable to a physical cause is either not blameworthy or is less so.” She argues that behavioral moralists would make the determination of criminal responsibility entirely objective while criminal law generally takes an objective, “reasonable person,” view. Recognizing some value (or practical/political necessity?) for an insanity defense, she suggests looking at, for example, whether a person’s reactions fell two standard deviations past the population mean. Michael Perlin, a long time scholar of the insanity defense, among other things, gave a candid and practical view of how neuroimaging is affectiing and may affect such cases. Christian Halliburton is very interested in how the Fourth Amendment relates to “cognitive surveillance,” through neuroimaging or otherwise. He argues that the Fourth Amendment took a wrong turn with the Katz Court’s focus on a reasonable expectation of privacy and suggests a revival of a property-based strand of Fourth Amendment law, but using some of Peggy Radin’s views of property and personhood. I am particularly interested in seeing Farahany’s and Halliburton’s papers, as I think my time-zone befuddled brain did not capture all their subtleties.
Joëlle Anne Moreno of Florida International University School of Law moderated the third panel, which had presentations from Jane Campbell Moriarity, the host from Akron; Dov Fox, a D.Phil. and remarkably prolific 2L at Yale Law School; and Julie Seaman from Emory. Professor Moriarity (who may have the intellect but does not have the malevolent personality of the arch-enemy of the great Holmes – and, no, that’s not Oliver Wendell, Jr.), an expert in scientific evidence, tied together the treatment of forensic science, the polygraph, EEG-based lie detection (“brain fingerprinting” and “BEOS”) and DNA. She also discussed some worrisome aspects of the Military Commissions Act. Dov Fox talked about the Fifth Amendment’s possible applications to a hypothetical truly effective non-consensual lie or memory detector. He argued forcefully for a broad application of the Privilege Against Self-Incrimination. Julie Seaman made an argument that took me by surprise. She hypothesized a perfectly effective lie detector and pointed out that this could have implications for the doctrine of jury nullification. Currently, we can only very rarely point to a case of certain jury nullification – a very controversial idea – because i is rare (to unknown) to have a tried case where we cannot come up with some theory under which the black box that is the jury could have reached a decision consistent with the evidence. Truly effective lie detection (with respect to testimony of the defendant or of the witnesses) might lead to more cases where a jury verdict one way or the other is impossible to explain as other than nullification. By bringing the reality of nullification into the limelight, it may put that reality under stress. (I wonder, though, how many cases involving false testimony would actually get tried in the face of truly effective lie detection.)
The final panel was moderated by Elizabeth Reilly of Akron Law School and included Jay Aronson of CMU’s history department, Carter Snead of Notre Dame, and Stacey Tovino, formerly of Hamline but now at Drake. Aronson, an STS scholar who has previously worked on the history of forensic DNA, looked at the use of neuroscience evidence in disputes, judicial and legislative, about the death penalty for people who committed their crimes when juveniles. Carter Snead gave a talk based on his published work on the implications of neuroimaging for capital punishment. And Stacey Tovino had a fascinating paper on the use of neuroscience evidence in courts and, even more interestingly, before legislatures with respect to mental health issues that solely or disproportionately affect women. She found, for example, that decisions and statutes recognizing post-partum depression have made extensive use of neuroscience to “legitimize” the condition.
All in all it was an interesting and well-organized conference. Some (many?) of the talks should become papers in a symposium issue of the Akron Law Review. And I believe they are all going to be available in video on-line. My congratulations and thanks to Jane Campbell Moriarty and all of the University of Akron Law School for putting on this useful meeting.
— Hank Greely