And If Your Friends Jumped Off A Bridge, Would You Do It Too? : How Developmental Neuroscience Can Inform Legal Regimes Governing Adolescents

Legal models of adolescent autonomy and responsibility in various domains of law span a spectrum from categorical prohibitions of certain behaviors to recognitions of total adolescent autonomy. The piecemeal approach to the limited decision-making capacity of adolescents lacks an empirical foundation in the differences between adolescent and adult decision-making, leading to counterintuitive and inconsistent legal outcomes. The law limits adolescent autonomy with respect to some decisions that adolescents are perfectly competent to make, and in other areas, the law attributes adult responsibility and imposes adult punishments on adolescents for making decisions that implicate their unique volitional vulnerabilities. As developmental neuroscientists discover more about the biological underpinnings of juvenile decision-making, policymakers now have the opportunity to enhance consistency within and across the legal domains that regulate adolescent behavior. To serve this goal, our paper typologizes extant legal regimes that account for the limitations of adolescent decision making, reviews the neuroscientific evidence about how the brain’s developing structures and functions affect decision making, explores case studies of how certain youth behaviors that implicate the adolescent brain’s unique vulnerabilities intersect with the legal system, and proposes a matrix-based approach for the consistent legal evaluation of adolescent behavior

Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform the Law

What would the law do differently if it could see into the black box of the mind? One of the most valuable things it might do is reform the ways it deals with pain. Pain is ubiquitous in law, from tort to torture, from ERISA to expert evidence. Yet legal doctrines grapple with pain poorly, embodying concepts that are generations out of date and that cast suspicion on pain sufferers as having a problem that is “all in their heads.” Now, brain-imaging technologies are allowing scientists to see the brain in pain—and to reconceive of many types of pain as neurodegenerative diseases. Brain imaging proves that the problem is in sufferers’ heads: Long-term pain shrinks the brain and changes the way it functions. This new science has immediate practical and theoretical applications for the law. This Article first proposes reforms to disability law doctrines and their judicial interpretation. It then proposes ways in which pain neuroimaging ought to be handled as a matter of expert evidence in state, federal, and administrative proceedings. Drawing on work in evidence theory, it considers black letter evidence law as well as normative practices that shape how decision makers weigh evidence and credibility. It also offers limits on the use of brain images. In opening a window into how the brain generates subjective experiences, neuroimaging should lead to doctrinal and practice-based revisions that increase law’s accuracy and fairness. So doing, brain imaging should change the law’s mind about the nature of pain and may require the law to rethink its dualism between body and mind

Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law

Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been able to observe it directly.Now, pain is about to become visible. Neuroimaging is rendering pain, and potentially myriad other subjective states, at least partly ascertainable and quantifiable. How will – and how should – pain neuroimaging influence areas of legal doctrine that turn on presence and degree of physical pain?This emerging ability to ascertain and quantify subjective states is prompting a “hedonic” or a “subjectivist” turn in legal scholarship, which has sparked a vigorous debate among scholars as to whether, and why, the quantification of subjective states might affect legal theory and practice. Subjectivists argue that neuroimaging will lead to broad changes in legal theory: They contend that much values-talk in law has merely been a necessary but poor substitute for quantitative determinations of subjective states – determinations that will be possible in the law’s “experiential future.”This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on the author’s interviews and laboratory visits with pain neuroimaging researchers, this Article first shows the current and in-principle limitations of pain quantification through neuroimaging. It then presents close readings of statutes, case law, and treatises in two sets of case studies to show the heuristic role of pain discourse. The first set of case studies compares definitions of torture in criminal torture-murder and in state torture, while the second explores the role of pain rhetoric in recent Eighth Amendment challenges to execution by lethal injection and legislative restrictions on abortion based on putative fetal pain.Attempting to solve normatively-freighted legal problems through simple quantification would be profoundly misguided. Instead, the Article proposes a novel theory, the theory of “embodied morality,” to explain why statements about physical pain in law often serve a heuristic function. In describing the relationship between pain and empathy, the Article shows how moral conceptions of rights and duties are necessarily informed by human physicality and constrained by the limits of empathic identification. Pain measurement thus serves as the archetypal example of why it is necessary to understand embodied morality within the law to properly understand if, when, and how to adapt the findings of brain imaging to bodies of legal doctrine. Attempting to resolve values-laden issues with hedonic measurement techniques would be to buy into a measurement fallacy; this in turn would produce policy prescriptions as morally unconvincing as they would be practically infeasible

Painful Disparities, Painful Realities

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

Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law

Important legal distinctions turn on the presence and degree of physical pain. Statutes refer to degrees of physical pain to define criminal offenses like torture-murder,1 while pain that rises to the level of cruelty draws the boundary between constitutionally permissible and impermissible punishment.2 Claims about pain motivate legislative action to protect previously unrecognized classes, such as in several states’ recent passage of statutes concerning fetal pain and fetal anesthesia during abortion.3 In legal domains ranging from tort to torture, pain and its degree do important definitional work by establishing boundaries of lawfulness and of entitlements. For all of the work done by pain as a term in statutes, treatises, constitutions, and administrative- and common-law jurisprudence, it has had a troubling lack of externally verifiable reality.4 Like other subjective, affective states, pain has been invisible and, frequently, unspeakable.5 Though we have been able to impute pain based on experience or knowledge or by observing expressions of it in behavior, we have not been able to observe or measure it directly.6 For this reason, claims of great pain come with great doubt

Adolescent Medical Decision Making and the Law of the Horse

Legal and ethical regimes relating to adolescent medical decision making resemble what Judge Frank H. Easterbrook derisively called “the Law of the Horse”: Many laws deal with horses, he wrote, but there is no such field as “horse law.” Similarly, even though the United States has juvenile and family courts, as well as pediatric and adolescent medical departments, there is not a distinct field of “adolescent medical decision-making law” or ethics; there are just many disparate policies that implicate or impinge upon decisions made by adolescents. These include state laws ranging from those that permit minors to seek treatment for substance misuse or mental illness without parental consent to those that prohibit tattoo parlors from serving minors even with parental consent. They also include ethical norms that inform hospital and clinic policies about whether minors may refuse life-extending medical treatment over their parents’ objections or whether parents may compel their children to have cosmetic procedures without the child’s agreement. At first glance, this range of policies might seem less coherent and productive to mine as a unified body of legal and ethical norms than even “horse law.” But there is a deeper connection between adolescent decision-making law and ethics and “the Law of the Horse,” one that suggests that adolescent decision making may not be the disparate collection of regimes that it appears to be. The legal and ethical norms relating to adolescent decision making illuminate more general issues about how legal and ethical doctrines incorporate scientific information about human cognition and development. Since the existence of separate laws and ethical norms for adolescents and adults is premised on actual differences between them, some kind of consensus about the nature of those differences ought to unify the “law and ethics of adolescent medical decision making.” But it does not. By working through examples of how legal and ethical doctrines interact with issues of adolescent decision making, we can elucidate a set of general questions about doctrinal reliance, or lack thereof, on neuroscientific evidence about human development and behavior. This piece serves as the Introduction to a symposium issue of the Journal of Health Care Law & Policy, which presents a collection of essays that coalesce around the regulation of adolescent decision making in light of current research on brain development

Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law

Important legal distinctions turn on the presence and degree of physical pain. Statutes refer to degrees of physical pain to define criminal offenses like torture-murder,1 while pain that rises to the level of cruelty draws the boundary between constitutionally permissible and impermissible punishment.2 Claims about pain motivate legislative action to protect previously unrecognized classes, such as in several states’ recent passage of statutes concerning fetal pain and fetal anesthesia during abortion.3 In legal domains ranging from tort to torture, pain and its degree do important definitional work by establishing boundaries of lawfulness and of entitlements. For all of the work done by pain as a term in statutes, treatises, constitutions, and administrative- and common-law jurisprudence, it has had a troubling lack of externally verifiable reality.4 Like other subjective, affective states, pain has been invisible and, frequently, unspeakable.5 Though we have been able to impute pain based on experience or knowledge or by observing expressions of it in behavior, we have not been able to observe or measure it directly.6 For this reason, claims of great pain come with great doubt