Ethic Theory Moral Prac

DOI 10.1007/s10677-014-9501-4

Neurolaw: Neuroscience, Ethics, and Law. Review Essay

Gerben Meynen

Accepted: 20 February 2014

# Springer Science+Business Media Dordrecht 2014

Abstract Neurolaw is a new, rapidly developing area of interdisciplinary research on the

meaning and implications of neuroscience for the law and legal practices. In this article three
recently published volumes in this field will be reviewed.

Keywords Neuroethics . Neurolaw . Neuroscience . Law . Criminal responsibility

1 Introduction

According to Pardo and Patterson, “Interest in law and neuroscience has exploded and, with it,
the attention of scholars from a variety of disciplines”. (2013, p. ix) In this article three recently
published volumes in the new, rapidly developing field of neurolaw will be reviewed.
Neurolaw is an area of interdisciplinary research on the meaning and implications of neuro-
science for the law and legal practices (see also Vincent 2014). It could be considered merely a
branch of neuroethics, but that would not do justice to its central objective, which is examining
the impact of neuroscience on the law. Still, in part, it is a branch of neuroethics: many
neuroethical topics also feature in neurolaw, and many authors publishing in neuroethics also
publish in the field of neurolaw. For instance, one of the main neurolaw issues is brain-based
mind reading, yet this topic was already discussed by Neill Levy in his book Neuroethics.
Challenges for the 21st century (Levy 2007). In general, however, neurolaw deals in much
more legal detail with these issues than is done in neuroethics. For instance, neurolaw
considers questions like: given the specific legal tests for admissibility of evidence in the
USA, under what circumstances could brain based lie-detection be used in legal cases?
There are different areas of neurolaw research and in this article I distinguish between three
basic domains of investigation: revision, assessment, and intervention (see Table 1).1

1
I adapt Morse and Roskies’ (2013) view. They state that neuroscience “is poised to have a significant effect on
law in three ways” (2013, p. 240–1). The first way concerns brain-based assessment, which may be used for, e.g.,
prediction of recidivism. The second way is treatments and other interventions, for instance aimed at prevention
of crime. Thirdly, neuroscience may have impact on the law by changing “commonsense views about human
nature and the causes of human action” (2013, p. 241).
G. Meynen (*)
Faculty of Philosophy, VU University Amsterdam, De Boelelaan 1105, 1081HV Amsterdam, Netherlands
e-mail: g.meynen@vu.nl

G. Meynen
Tilburg Law School, Tilburg University, Tilburg, Netherlands
 G. Meynen

Table 1 Overview of neurolaw topics, divided in three domains

Topics Examples:

Revision • Neuroscience (allegedly) shows that free will is an illusion, therefore nobody is truly
responsible for his actions, and therefore criminal law has to be revised
(Greene and Cohen 2004)
• Neuroscience (allegedly) shows that adolescents’ brains are not fully mature, which
should be taken into account regarding culpability and sentencing (Feld et al. 2013).
Assessment • Brain-based mind reading, like evaluating biases in prospective jurors (Greely 2013)
• Measuring deviant sexual appetites in defendants (Gavaghan 2013)
• Risk assessment for future violence (Nadelhoffer et al. 2012)
• Assessment of criminal responsibility or legal insanity (Aharoni et al. 2008;
Meynen 2013)
Intervention
• Treatment • Legally coerced addiction treatment (Hall and Carter 2013)
• Enhancement • Enhancement of moral responsibility (Vincent 2013)
• Manipulation • Manipulating people to commit crimes (Bublitz and Merkel 2013)

In the intervention domain, three kinds are highlighted

The revision domain covers research on the need—arising from neuroscientific findings—to
revise, or even eliminate, parts of the law. The proposed revision of the law and legal practices
may be drastic, or subtle. A central issue in this domain is the compatibility of moral and legal
responsibility with neuroscience results like those observed in Benjamin Libet’s famous exper-
iments.2 Some argue that based on converging neuroscientific evidence we should abandon
certain notions about agency that are considered foundational for criminal law (Davies 2013),
while others hold that given current neuroscientific knowledge, there is no need to revise the law
and its basic concepts (Morse 2013). Publications in this domain tend to be more conceptual in
nature than publications dealing with the domains ‘assessment’ or ‘intervention’.
The second domain, assessment, concerns evaluations of the state of mind/brain of
individuals, most likely defendants and prisoners, but potentially also jurors. In the future,
people’s brains may be analyzed using neuroscientific techniques to answer questions about,
e.g., lying (defendants), insanity (defendants), risk of recidivism (defendants and prisoners), or
bias (prospective jurors) (Greely 2013). With respect to such assessments, the reliability and
validity of neuroscience techniques, not just in research settings but specifically in criminal law
cases, is a central topic of debate. Much research has been done on ‘mind reading’, in
particular on lie-detection. But is it really possible to make people lie in an experimental
situation? As Pardo and Patterson show (see below), lying is not identical to not speaking the
truth. Secondly, even if lying could be reliably tested using neuroscience techniques in the
laboratory, would it be possible for defendants to take ‘counter measures’ that distort or even
manipulate the measurements? In addition, suppose that results of specific neuroscience
techniques would be admissible as evidence in the court, could these techniques under US
law be used without a defendant’s consent? Such questions give rise to different types of
answers: some conceptual, some practical in nature. For instance, Pardo and Patterson
conceptually analyze lying, concluding that it may be much harder to study lying than people
think. Other arguments focus on limitations of neuroscientific techniques and study designs,
yet other arguments explore legal rules to answer these and similar questions.
2
Libet and co-workers reported that specific neural activity can be detected (recording the so-called readiness
potential) before subjects are aware that they are about to perform an action (Libet 2002).
Neurolaw: Neuroscience, Ethics, and Law

The third domain concerns all types of brain-based and law-related interventions. In this
domain, brains are not so much analyzed or interpreted, but changed. Three types of inter-
vention are highlighted: treatment, enhancement, and manipulation.3 Treatment (or restoration)
may concern addicts in so-called drug courts: to what extent can or should they be coerced to
follow treatment? The second type, enhancement, is discussed by Vincent who asks whether
people’s moral and legal responsibility could be increased when their capacities would be
significantly enhanced by neuroscientific interventions. The third type is manipulation. Brain-
based interventions may also be deployed in a perfidious way. People may find ways to make
other people commit crimes. Can people who commit crimes because of brain-manipulation—
for instance by deep brain stimulation—be held responsible for their actions? Is the law
prepared for this kind of scenario? (Bublitz and Merkel 2013)
In fact, while the revision domain concerns the impact of neuroscience on the law and legal
theory, the other two categories (assessment and intervention) basically concern direct impact
on individuals, in particular defendants and prisoners. Still, the availability of brain-based
assessment techniques and interventions may lead to changes in the law, which is a form of
revision. Moreover, a single case in which a defendant is assessed using neuroscience
techniques may end up in the Supreme Court, leading to a revision of legal practices.
Therefore, the three domains cannot be completely separated. They will be further illustrated
by the discussion of three recent books on neuroscience and the law.

2 Three Books on Neurolaw

Nicole Vincent’s (Ed.) Neuroscience and legal responsibility (2013) is an excellent collec-
tion of 14 chapters that, from very different perspectives, explore the implications of neuro-
science for the law. It is divided in five parts, preceded by a thorough introductory chapter on
the historical and conceptual context of law and neuroscience. Much attention is paid to the
possibility that in the future neuroscience may lead to law revision.
The first two parts of the volume deal with responsibility, mental capacity, and agency.
Although many contributions in the three books are cautionary regarding the legal or moral
implications of neuroscientific findings, the chapter by Paul Sheldon Davies is an exception:
“The findings of neuroscience cast grave doubts on the view of human agency implicit in the
law.” (p.113) According to Davies, this becomes clear when we recognize that although no
isolated neuroscience finding may be decisive, converging evidence from neuroscience and
other disciplines forces us to be skeptical about ourselves as the sort of agents implicit in the
law, in particular regarding the element of “voluntariness”. Based on such converging evidence
Davies arrives at the conclusion that “for any action we perform, we cannot justifiably claim to
know from the first-person point of view the actual causes of our action.” (p. 125) We may
have true beliefs, he concedes, but we are not in a position to tell true from false beliefs in these
matters. Davies then responds to the objection that if this would be true all forms of rational
debate would become impossible, because, if we consider philosophical reasoning as an
action, it is impossible to accept any theory because we cannot justifiably claim to know the
reasons for arriving at that theory. Davies then provides reasons why such a far-reaching
objection would be “wide of the mark”. Meanwhile, he concludes his chapter, stating: “Finally,
there is the question of whether we have the stomach for periods of conceptual confusion, for
not knowing how to think or feel ourselves as agents, and whether we will respond with

3
In part following Vincent (2013, p. 326) who distinguishes between denying, assessing, restoring and
enhancing responsibility.
 G. Meynen

creativity to better conform our beliefs and practices to the way the world actually is, or
whether we will panic and revert to conservatism…” (p. 130) So, in a way, Davies acknowl-
edges far-reaching implications of his skeptical view. Clearly, at least one question arises: what
to do with criminal law in the mean time, during such a period of conceptual confusion? Until
we have arrived at the creative response to the scientific data, how should we deal with
defendants, and in particular with the evaluation of the voluntariness of their action? Davies’
chapter provides an interesting example of a skeptical and rigorously revisionary neurolaw
argument. His chapter in a way stands out because he explicitly relies on converging evidence,
while most authors in the three books carefully examine specific neuroscience evidence and
arguments, showing flaws and confusions in how particular findings have been interpreted.
Based on psychological Bias Research, Leora Dahan-Katz’s chapter makes a case for
revising the legal ‘reasonable person’ standard. Humans turn out to be less reasonable and
more biased than we—including judges—appear to assume. For instance, in general, humans
tend to be overoptimistic with respect to ourselves, “creating naïve feelings such as: “it would
never happen to me.”” (2013, p.139). Dahan-Katz emphasizes the “ingrained nature” of such
biases; they cannot just be shaken off. The gist of bias research is that “the mechanisms of the
human mind often prevent a person from judging reality properly, consequently affecting
human behavior.” (p. 143) This is legally relevant as well. While we may assume that the
reasonable person perceives the situation as it is, biases and related cognitive mechanisms may
prevent real persons from perceiving the circumstances as they are. Dahan-Katz discusses a
criminal case in which a driver, Andrew Keech, “had turned westbound onto the eastbound
section of a highway” at a point where the eastbound part of the highway was invisible. Keech
then “formed a mistaken hypothesis that he was driving on the correct side of the road”. (p. 141)
For more than eight miles he drove in the wrong direction while several drivers tried to warn
him by waving, but Keech only waved back. Finally, Keech caused a fatal accident and was
found guilty of involuntary manslaughter. The court argues that although he did not know what
he was doing, “he should have known of the risk his conduct created”. (p. 142, emphasis added)
Dahan-Katz disagrees with the court, stating that bias research shows that in cases “where a person
is under the impression that a hypothesis is correct, indications to the contrary are not necessarily
“rationally” considered—beliefs tend to persevere more than they ought.” And she draws the
conclusion that “Keech is simply not morally responsible for having caused the accident…
Consequently… the law should not have imposed criminal responsibility upon such an agent.”
In this chapter, Bias Research—although not much neuroscience—is elegantly linked to moral
responsibility as well as to legal responsibility, arguing for a specific revision of the law, or at least
legal practice. Of course, her proposal raises the practical question: how should courts distinguish
between defendants who are reckless or indifferent towards the safety of other people, and those
defendants who themselves are the ‘victims’ of ingrained human biases? (see also p. 151).
In the part ‘assessment’ Colin Cavaghan considers detecting ‘deviant appetites’, in partic-
ular pedophilia. Cavaghan not only shows that the neuroscientific data on pedophilia are scant,
but emphasizes that pedophilia “is neither a necessary nor a sufficient condition for the
commission of child sexual abuse”, although ““pedophile” and “child abuser” are commonly
used synonymously.” (p. 221) The danger, he continues, is that “juries could be inappropriately
swayed by neuroevidence pertaining to the presence (or, indeed, the absence) of pedophilic
urges.” (p. 221). This is especially relevant in view of a legal case, analyzed by Gavaghan, in
which the defense basically argued that because of the fact that the defendant was not sexually
interested in children, “he could not have committed the crime.” (p. 213)
Hall and Carter look at legal interventions with respect to addiction, in particular legally
coerced addiction treatment. They argue that this should be done in “ways that allow offenders
(1) a choice of whether or not they participate in treatment… and (2) a choice as to the type of
Neurolaw: Neuroscience, Ethics, and Law

treatment used” (p. 285) This is an interesting proposal, although the question arises to what
extent the term ‘legally coerced drug treatment’ would still be appropriate if these choices would
be granted to offenders. Then, Hall and Carter examine the plausibility of ‘the brain disease
model of addiction’. In their view, this model “overstates the degree of compulsion that is
experienced by most addicted individuals”, while the moral view “ignores the effects that chronic
drug use may have on brain function and the biological and social obstacles that many addicted
individuals face in becoming and remaining abstinent.” (p. 289) They argue that the way in
which, at least in Australia, the law deals with addiction—addiction treatment as an alternative
for punishment in some cases—may be “a reasonable compromise between the brain disease and
moral models”. (p. 290) So, from a practical perspective, the Australian legal system may thus
strike the golden mean between the neuroscientific and the moral view of addiction.
Starting with the idea that ‘responsibility tracks capacity’, Vincent explores the intriguing
possibility that neuroscience-based interventions will lead to agents with enhanced moral and
legal responsibility. So, although in neurolaw literature much attention is paid to the potential
role of neuroscience with respect to evaluating diminished capacity, e.g., because of mental
disorder or brain lesions, Vincent looks at the possibility of neuroscientifically enhanced
capacities and their bearing on responsibility. First, Vincent presents four examples of some
form of hypercapacity. For instance, a bright child that is ahead of his peers may disappoint us at
some point and we may say, as Vincent puts it: “I expected more of you”. (p. 307) Next, she
considers eight(!) objections to the claim that responsibility tracks such hypercapacity, like: ‘it is
wrong to expect more of precocious developers’, because “it seems unfair to rob them of their
childhood” in this way. (p. 310) Then she rebuts the eight objections, showing that, at least in
some cases, it does make sense to say that a person’s responsibilities are enhanced. The
implications are that, indeed, neuroscience may lead not just to enhanced capacities but also
to increased responsibility. Such enhanced people may be “expected to satisfy higher stan-
dards… and they may even be deemed negligent or reckless for failure or refusal to do so, and
possibly even sanctioned.” (p. 329) In this way, enhancement could lead to revision of criminal
law and legal practice.
In the final chapter, Bublitz and Merkel consider the legal implications of brain-based
manipulation, e.g., via deep brain stimulation. They offer the following example: “Rumors
have it that some Casinos secretly spray the odorless substance oxytocin in gambling halls to
increase players’ trust in their luck. … What if they commit illicit acts under oxytocin’s
influence—are they responsible?” (p. 335) Bublitz and Merkel aim to show that manipulation
in itself does not lead to (full) exculpation, because a manipulated person is not sufficiently
different from a non-manipulated individual: “We cannot find categorical differences. Rather,
we conceive of manipulation cases as time-condensed, fast-forwarded stories and mishaps of
ordinary human life. What happens there in one treacherous act is what otherwise may happen
in an extended biographical course of human development” (p. 365) Humans are continuously
influenced by all kinds of factors, so in that respect, according to Bublitz and Merkel,
manipulation is not crucially different from normal life—and thus cannot result in exculpation.
The issue the law should focus on, therefore, is not a specific characteristic of the manipulated
person, but the actions of the treacherous manipulator. Bublitz and Merkel argue for introduc-
ing severe manipulation as a crime in the law (‘criminal offence against the mind’).
Manipulators would also have to bear consequences of harms done to other parties as a result
of the manipulation. So, their argument eventually leads to a proposed revision of criminal law.
Michael Pardo and Dennis Patterson’s Minds, brains, and law. The conceptual
foundations of law and neuroscience (2013). The book is the most philosophical and most
cohesive of the three books. It is written by just two authors together in a lively, engaging,
sometimes almost polemic style, responding—often by close reading—to arguments made by
 G. Meynen

others in the neurolaw field, e.g., by neuroscientists and philosophers. They often pick out
representatives of certain positions whose arguments or statements are analyzed and criticized.
For instance, they argue against Greene and Cohen (2004) that neuroscience findings call for
major revisions of criminal law, but their argument can be considered directed towards many
others who have made similar claims with respect to neuroscience, free will and (legal)
responsibility.
The book starts with chapters on the nature of mind and on the mind-brain relationship. The
arguments are supported by footnotes dealing with an impressive body of (recent) philosoph-
ical, neuroscientific, and legal literature. Although both Pardo and Patterson are legal scholars,
they make explicit that “[f]irst and foremost, this book is a philosophical project” (p. 208),
even conceiving of “philosophy as a therapeutic or corrective endeavor”. (p. 209)
Nevertheless, there is ample detailed legal analysis in this book concerning, for example, the
Daubert test, Frye test, and the Fourth and Fifth Amendment. Pardo and Patterson reject, as
many do, Cartesian dualism as well as neuro-reductionism. They conceptualize mind as follows:
“To have a mind is to possess an array of rational and emotional powers, capacities, and abilities
exhibited in thought, feeling, and action.” (p. 44) Such a definition “implies important limitations
on how neuroscience can contribute to law,” they claim (p. 45). For instance, “neuroscience
cannot tell us where the brain thinks, believes, knows, intends, or makes decisions. People (not
brains) think, believe, know, intend, and make decisions.” (p. 46) Their arguments are often in
line with, or based on, Bennett and Hacker’s influential Philosophical foundations of neurosci-
ence (Bennett and Hacker 2003). Pardo and Patterson repeatedly refer to their ‘mereological
fallacy’ argument which comes down to ascribing properties or capacities to the brain, or to parts
of it, that can only be ascribed to persons as a whole. For example: the prefrontal cortex decides or
deliberates about what to do. This is fallacious because “[p]eople, not their brains, lie, deceive,
know, and remember.” (p. 105) They particularly resist the use of phrases like knowledge is
“stored” or “encoded” in the brain (p. 103). Knowledge, like the mind, is understood in terms of
what a person can do (like responding to questions) and locating knowledge in parts of the brain,
therefore, does not make sense.
In the first part of their book, Pardo and Patterson are basically putting neuroscience at some
distance from central concepts in criminal law. The message is that a conceptual gap exists
between the brain on the one hand and the concepts the law is ultimately interested in—like
knowledge, lying, deciding, and deceiving—on the other. These concepts concern capacities of
persons—not their brains. And in order to draw the right conclusions from neuroscience findings
with respect to the law, we need to be clear about the concepts we use first. Shortcuts between
neuroimaging findings and such concepts, Pardo and Patterson warn, may lead to mistakes both
in theoretical arguments and legal practice (p. 105), and should be resisted.
Of particular interest is their careful answer to the question: “Are the participants in the
fMRI experiments lying?” They argue that there may be more to brain based-lie deception
experiments than meets the eye (see also Greely 2013). What makes the experiments on lie-
detection tricky, is that whether or not a statement is a lie is context-dependent. “As Don Fallis
notes in an insightful article, the difference that makes “I am the Prince of Denmark” a lie
when told at a dinner party but not a lie when told on stage at a play are the norms of
conversation in effect.” (p. 109) Crucial to lying, on Fallis’ account, according to Pardo and
Patterson, is that lies are made “in a context where the following norm of conversation is in
effect: Do not make statements that you believe to be false.” This creates a considerable
complication for lie-detection research, because participants in fMRI studies on lie-detection
are specifically instructed to make false statements. Because of this exceptional context, such
false statements cannot be considered lies, because in this context the norm is not “Do not
make statements that you believe to be false.” The context is exactly the opposite: you have to
Neurolaw: Neuroscience, Ethics, and Law

make statements you believe to be false. This makes it difficult, they conclude, to use results
from such fMRI studies in legal cases where people do make statements in a context where
“Do not make statements that you believe to be false” applies. In other words, whatever
participants are doing in fMRI lie-detection experiments, it does not appear to be actual lying.
Pardo and Patterson nicely show how conceptual analysis of what lying actually is, may
inform legal decisions about the helpfulness of fMRI lie-detection techniques in criminal cases.
Pardo and Patterson are quite critical towards many claims about the impact of neurosci-
ence on the law and legal procedures. They contend that neuroscience, with a few exceptions,
is not ready for application in legal cases and that, at present, neuroscience findings do not
warrant law revisions. For instance, in their view, the actus reus requirement in criminal law is
not threatened by neuroscience findings on brain activity preceding conscious intentions, as
(allegedly) found in Benjamin Libet’s famous experiments (Libet 2002). At the same time, they
emphasize that they are not dismissive towards neuroscience as a potentially valuable factor in
criminal law. For instance, they make explicit that in the future “neuroscience may contribute to
more humane punishment” (p. 206, footnote 114), adding that they “share what we believe to be
the sentiment of Greene and Cohen that criminal punishment ought to be more humane” (p.
206). In this non-trivial way, they criticize the law. Interestingly, they identify legal insanity as
“one of the more plausible avenues by which neuroscience may contribute to the law.” (p. 140)
Still, it is clear that they devote much more time and energy to criticizing neuroscience claims
than to specifying the potential value of neuroscience for the law.
Now suppose that, based on neuroscience findings, in the future we conclude that defen-
dants are not truly responsible for their actions, and therefore we would revise the law in a way
that consequentialism replaces retributivism. Would this lead to more humane sentences?
Interestingly, both Pardo and Patterson (2013) and Morse and Roskies (2013) emphasize that,
in spite of suggestions to the contrary, abandoning desert as justification for punishment, does
not necessarily result in milder sentences. As Pardo and Patterson state: “Although Greene and
Cohen predict that abandoning retributivist reasons for punishment will reduce punishment, a
brief history of actual criminal-sentencing practices in the United States during the past
thirty years suggests the converse to be true.” (p. 205) Morse joins this view: “(…) most of
the most draconian aspects of punishment have been motivated by consequential concerns.
Striking examples are recidivist sentencing enhancements, the approval of strict liability
crimes, the “war on drugs”…and mandatory minimum sentences. None of these can be
retributively justified, and all punish disproportionately to desert.” (Morse 2013, p. 46)
In Chapter 6, on criminal procedure, Pardo and Patterson basically argue that, although
there are certainly obstacles with respect to the application of neuroscience against a defen-
dant’s will, there is some room for such use of brain-based techniques. This chapter is, much
more than the chapters on mind-brain and lie-detection, specifically relevant to the United
States legal system. However, this does not mean that the considerations are completely
irrelevant to a non-US readership because other legal systems are likely to have similar
provisions, e.g., protecting the defendant against self-incrimination.
Stephen Morse and Adina Roskies’ (Eds.) A primer on criminal law and neuroscience
(2013). The Foreword and Introduction of this book suggest that lawyers are the intended
audience. Still, Rosen’s advance praise on the cover reads: “For lawyers, scientists, and
informed citizens, it offers the best introduction to this fascinating subject.” Apparently, the
audience is wider than just lawyers. In addition, Morse and Newsome state: “Readers of this
primer will primarily be judges and attorneys actively engaged with criminal cases (…), but
some readers may be legal novices.” (p. 150) And given the fact that the book is published in
the Oxford series in neuroscience, law, and philosophy the audience should be wider, including
philosophers as well. The wider scope is also reflected in the contents of this volume: we find,
 G. Meynen

to some extent, similar topics in this book that are also addressed by Vincent (Ed.) and Pardo
and Patterson, like a discussions of Greene and Cohen (2004), responsibility, capacity/
competence, and disease and disorder. Still, Morse and Roskies’ primer is more legally
oriented than the other two books. In comparison, its style in several chapters tends to be
more instructive and practical than argumentative and conceptual. Still, in the final sentence of
the primer, Morse and Roskies highlight the relevance of conceptual issues: “Thus, neurosci-
ence may have the most far-reaching consequences for the law by putting pressure on our
intuitive notions of responsibility, agency, and liberty.” (Morse and Roskies 2013, p. 255) This
illustrates that, amidst many neurobiological and legal details and technicalities, conceptual
concerns are at the heart of neurolaw.
Surprisingly, the primer’s first 88 pages (after the Introduction) are devoted to basic
neuroscience. Whereas Pardo and Patterson start out with chapters on conceptual issues,
Morse and Roskies start with an elaborate, profound and illustrated introduction in neurosci-
ence, especially paying attention to neuroscience techniques potentially relevant to the law
(there is even a glossary, from Acetylcholine to Working memory). Perhaps, these chapters on
neuroscience are a little dense for lawyers and others not familiar with axons, dendrites,
neurotransmitters, and EEG. Of particular interest in this neuroscience part of the book is the
section ‘Dispelling common errors’, which is introduced as follows: “Many laypeople tend to
overestimate the degree to which we understand the brain, as well as to misunderstand the
nature of the mind-body relationship. Here we flag and attempt to dispel a few common
misconceptions.” (p. 32) In fact, showing the limitations of neuroscience with respect to
criminal law applications is a central—if not the central—theme in the primer. But this cannot
be a surprise given the fact that one of the editors coined the ‘Brain Overclaim Syndrome’
(Morse 2005). Time after time we read phrases like: ‘With regard to topic X, neuroscience
could be useful, yet, at present, neuroscience lacks precision, specificity, sensitivity etcetera, to
be helpful.’ On the other hand, there is a sense of urgency as well: “Despite all these cautions,
neuroscience is developing so rapidly that modest speculation about future developments is
warranted.” (p. 151) The introduction in neuroscience is followed by a practical and detailed
chapter by Faigman on ‘admissibility of neuroscientific expert testimony’. Although this may
be primarily relevant for lawyers, the topic is, of course, also highly interesting for
neuroethicists and neuroscientists who consider the potential legal consequences of neurosci-
ence developments.
The composition of Greely’s chapter on mind-reading in the primer is excellent, starting
with what neuroscientists do know and are able to show: “If a person claimed to be deaf, the
absence of any activation in his or her auditory cortex upon exposure to sound would be
strong, and probably conclusive, evidence of deafness.” (p. 122) Then Greely moves on to
areas of mind reading where a contribution of neuroscience, now or even in the near future, is
much more doubtful: lie-detection, detecting memory, and detecting recognition. He articulates
seven issues to keep in mind for a judge when dealing with neuroscience, among which
replication (has the study been replicated in another laboratory?), number and diversity of
subjects (are the subjects very different from the defendant?), and the possibility that counter
measures taken by the defendant may distort the outcome of the test. Studies already suggest
that such measures could be very effective. Morse and Roskies even consider the possibility of
an “arms race” (p. 245), where countermeasures taken by defendants lead to further detection
tests for such measures, which in turn may lead to more sophisticated counter measures. This
nicely illustrates that new techniques will lead to responses to such techniques, especially in
the context of criminal law, where the stakes are high and where hiding or distorting
information may seem the best defense strategy. Greely points to the fact that mind reading
could not only be used in defendants, but also to detect possible biases in jurors, for instance
Neurolaw: Neuroscience, Ethics, and Law

concerning race or sex. He emphasizes the value of neuroscience techniques that would enable
us to detect pain in claimants in, e.g., disability claims. It would be very important to be able to
tell whether a claimant is actually suffering: “A good test for whether a person is in pain and, if
so, how much pain, could help resolve—or prevent, through early settlement—hundreds of
thousands of proceedings each year.” (p. 131) It is noteworthy that in some of these cases “the
evidentiary rules will not apply in their full rigor, possibly making the admission of such
evidence more likely.” (p. 131) This is an interesting remark. Although it may seem natural to
think about application of neuroscience techniques in criminal cases, it could be that they will
be introduced in such civil cases first.
In a highly informative chapter on adolescent culpability, Feld, Casey, and Hurd describe the
impact of neuroscientific findings on how criminal law deals with youths. Discussing several
landmark cases, they state with respect to Graham, a case concerning juveniles convicted of
non-homicide crimes in the US, that “neuroscience provided one more piece of confirmatory
data in the Court’s holding”. (p.184) This illustrates that neuroscience may affect legal decisions
not by providing hundred percent conclusive evidence, but by adding a relevant piece of data.
Over time, adding piece after piece to legal decisions, the impact of neuroscience may become
considerable, even if neuroscience is not able to produce any data with complete certainty.

3 Discussion

The three books are different with respect to the exact topics dealt with, the approach and style,
but each of them offers a clear, challenging and well-informed perspective on crucial neurolaw
issues. Neurolaw not only covers very different areas of study (see Table 1), it also consists of
different approaches, some more philosophical, some more legal, some more neurobiological.
As said, compared to neuroethics, a characteristic of neurolaw is that, in general, issues are
analyzed in much more practical detail—not only in neurobiological and legal detail, but also
in terms of costs. For instance, Greely estimates the costs of actually introducing fMRI mind
reading in legal cases: “in the long run the parties will have to bear the cost, which could easily
be more than $20,000.” (2013, p. 142)
A sense of urgency is also present in many of the contributions, as well as caveats:
neuroscientists claim a lot, but they only seldomly deliver (at least in a way that is relevant
to actual criminal cases). Some features of neuroscience tend to be highlighted in the
cautionary statements: neuroscience findings concern the group level, not the individual (while
criminal law deals with individual defendants); findings in laboratory settings may not be
applicable to real life situations in the court. For example, making false statements in an fMRI
experiment on lie-detection after being instructed to do so, is considerably different from lying
in court while under oath. Taken together, in these books readers are far more often warned
against using unhelpful neuroscience data, than against not using helpful neuroscience data. In
a way this is understandable, since so much has been claimed about the value of neuroscience
that overstates what neuroscience can actually deliver.
Conceptually, the difference and distance between the law and neuroscience is articulated in
different ways. Pardo and Patterson make use of the view that persons, not brains, decide, know,
lie etcetera, which keeps neuroscience at a distance, since the law deals with deciding, knowing,
lying, etcetera. In Morse and Roskies’ primer we read that legal criteria (e.g., for diminished
responsibility p. 174) are behavioral (describing what people should or should not do) not
neuroscientific—which also keeps neuroscience at a distance. Meanwhile, Craigie and Coram
state, partially in response to Morse, that “a dependence on behavioral level explanations is
often considered a weakness in assessments of culpability, and neuroscience has been proposed
 G. Meynen

as a means to address such problems.” (Craigie and Coram 2013, p. 99) In other words,
although behavioral criteria are currently used in the law or legal procedures, this may not be
because behavioral criteria are ‘ideal’, but because at present nothing better is available.
Therefore, the law could in principle be revised based on—stronger—neuroscientific findings.
There is one general and basic issue that complicates neurolaw research: the law is bound to
a specific legal system. Laws and regulations may change significantly when crossing the
border between two legal systems (e.g., countries). For instance, several contributions to the
books discussed refer to the insanity defense. But the rules and regulations for this defense
differ considerably between legal systems, and in some jurisdictions insanity is not even a
defense (Simon and Ahn-Redding 2006; Meynen and Oei 2011). Differences exist with
respect to other aspects of the law as well, such as admissibility of testimony and rights
against self-incrimination. Some authors in the three volumes carefully consider the details of
admissibility of evidence and rights against self-incrimination, but this is done in the US legal
context. This means that Daubert, Frye and the Fifth Amendment are examined. Yet, outside
the US legal system, laws and regulations are different (and even in the US there are
differences between states). This constitutes, then, a limitation of these three books, at least
where they deal with specific elements of the US legal system or any other particular legal
system (such as drug courts in Australia). Therefore, efforts like Spranger’s (Ed.) International
neurolaw. A comparative analysis (Spranger 2012), paying attention to various legal systems,
are very important. The legal context in an individual legal system has to be analyzed in order
to assess the implications of neuroscience for that legal system. This implies a lot of research.
Therefore, in my view, one of the biggest challenges for neurolaw is how to deal with the
differences in legal systems, knowing that the legal details—e.g., regarding admissibility of
testimony—may make the difference.
In conclusion, neurolaw is a rapidly developing interdisciplinary field that aims to carefully
analyze the ethical and in particular legal implications of (future) neuroscience developments.
The books discussed, although different in many respects, are valuable contributions to this
emerging field of research.

References

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Books

Morse SJ, Roskies AL (eds) (2013) A primer on criminal law and neuroscience. A contribution of the law and
neuroscience project, supported by the MacArthur Foundation. Oxford University Press, New York. 320
pages. ISBN 978-0-19-985917-7. Price: £48.99
Pardo MS, Patterson D (2013) Minds, brains, and law. The conceptual foundations of law and neuroscience.
Oxford University Press, New York. 240 pages ISBN 978-0-19-981213-4. Price: £55.00
Vincent NA (ed) (2013) Neuroscience and legal responsibility. Oxford University Press, New York. 368 pages.
ISBN 978-0-19-992560-5. Price: £38.99