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Law, Mind and BrainReview - Law, Mind and Brain
by Michael Freeman and Oliver R. Goodenough (Editors)
Ashgate, 2009
Review by Charles Mpofu, MHsc (Hons)
Jul 5th 2011 (Volume 15, Issue 27)

This book, a results of cross disciplinary thinking, features a collection of scholarly work by the authors mainly from different schools of law in the US and Europe. The material derived materials from research, symposia and controversial social debates. On reading this book one may generally get an insight into the challenges and potentials related to relying on the brain for answers about problems that present dilemmas in law and social practice. This is because themes of most chapters focus on the link between neuroscience, law and human conduct. In this respect what I mainly found compelling were themes about the role of evidence derived from the human brain in making legal decisions.

 The chapters in this book have case examples and scenarios to illustrate arguments.  A comprehensive list of references is provided at the end of each chapter.

This 416 pages book begins with Chapter 1, an introduction by the editors followed by well argued research based chapters. This introduction by editors, Michael Freeman and Oliver R. Goodenough who are well published scholars in law and ethics, gives an overview of the book contents and argue about the potential emergence of the new discipline of "neurolaw".

Chapter 2 (Law, responsibility and the brain by Dean Mobs, Hakwan C. Lau, Owen D. Jones and Christpher D. Frith) begins by arguing the case for the role of the prefrontal cortex and the role of the temporal lobe including the amygdale in antisocial behaviour. After giving considerable evidence from both animal and human experimental studies they argue for the need for more research to elucidate the link between mental illness, neurological disorder and criminal conduct. They argue that modern brain imaging techniques may contribute to knowledge in this area. Most importantly they acknowledged that functional brain imaging is only one window given multiple factors that contribute to criminal behaviour.

 Chapter 3 (brain imaging and court room evidence: on the admissibility and persuasiveness of fMRI by Neal Feigenson) outlines the legal uses of functional magnetic resonance imaging (fMRI), a form of neuro-imaging  that can track the workings of the brain in real time. A critical analysis of the admissibility of such evidence is also done. The chapter concludes with case example to illustrate the concerns of this technology.

Chapter 4 (Mind the gap: Problems of mind, body and brain in the criminal law by Lisa Claydon) offers valuable insights into the field of criminal law that may shape discussions in issues around the implications of new scientific  and philosophical thinking about consciousness and voluntary action. In summary these holistic new ways of thinking include moving away from the classical dualistic notions that the mind and body  are separate. Court cases have been given to illustrate points in the discussion.

Chapter 5 (Self exclusion agreements: should we be free not to be free to ruin ourselves? Gambling self exclusion agreements and the brain by Florian Wagner-von Papp) has some focus on legal treatment of self –exclusion agreements between casinos and problems gamblers. In this chapter philosophical and legal questions about the limitation of future autonomy around this issue are addressed. The chapter starts by outlining the dimensions of problem gambling, followed by the discussion of questions of whether the law should allow the effective limitation of one's future autonomy. The chapter points the reader to a number of studies that give evidence that there are physiological dysfunctions suggesting that different neural processes to self exclude are involved.

Chapter 6 (The Problems with gambling by Theodore W. Blumoff) discusses the importance of and problems associated with blaming in the case of gambling. Blumoff does so by discussing the theory of blame and such issues as the link between the term character and the blaming culture. Issues discussed are illustrated by scenarios. This chapter offers some important insights to those concerned with moral philosophy and professionals who deal with gambling and other forms of addictions. 

Chapter 7 (why distinguish "mental" and "physical" illness in the law of involuntary treatment? - by John Dawson and George Szmukler), covers among other issues the pieces of legislation that cover treatment without consent. They argue that the current two track system (of physical and mental disorders) does not apply ethical principles consistently across medical law. The system is also not consistent with human rights of people with mental disorders. The other argument in this chapter is that while useful in a number of ways the current mental health legislation places less emphasis on individual autonomy. This chapter offers useful insights to those concerned with therapeutic jurisprudence, philosophy and social ethics in general.

Chapter 8 (A Stable paradigm: Revisiting capacity, vulnerability and the rights of Adolescents after Roper v. Simmons by Catherine J. Ross) discusses developmental limitations of adolescents in the face of the law as evidenced by MRI research especially the application of MRI evidence to teenagers as court evidence. There is specific discussion of the United States Supreme court judgement on the Roper V. Simmons in 2005 which utilised evidence from MRI research. Ross argues that teenage brains lack the capacity of typical adults to make decisions, avoid risks and understand consequences. Ross also discusses the questions about the relationship between capacity and rights as well as vulnerability and voice. Dominant schools of thought about the relationship between capacity and children's legal rights are considered.                         

Chapter 9 (Thinking like a child: legal implications of recent developments in brain research for Juvenile offenders by Katherine Hunt Ferderle and Paul Skendelas) discusses similar issues covered by Catherine J. Ross in Chapter 8 as they also refer to the Roper V. Simmons case. This chapter extends discussion about the concepts of culpability, accountability and punishment in the light of the increasingly criminalised juvenile justice system and the environment of imposition of adult sanctions on young offenders.    

CHAPTER 10 (Legal implications of memory-dampening by Adam Kolber), takes a slightly an interesting  focus on memory dampening, the subject which is not much researched on and yet potentially controversial. He looks at the role that the memory serves in the legal system.

Chapter 11 (Reframing the good death: enhancing choice in dying, neuroscience, end of life research and the potential of psychedelics in palliative care by Robin Mackenzie) explores some of the legal and ethical issues associated with research into the neuroscience of the dying brain and technologies such as brain imaging tools which measure neurological activities associated with dying. Among other things Mackenzie argues that research into the neuroscience of dying may enable choreographing the death process.

Chapter 12 (Equality in exchange revisited: From an evolutionary (Genetic and cultural view) point of view by Bart Du Laing) is in the developing field of evolutionary analysis in law. It shows how why evolutionary analysis in law could benefit from incorporating culture and evolutionary theory which goes along with it. The chapter does so by drawing on the legal example of equality in exchange in contract law as well as on research on human cooperative behaviour. Mackenzie concludes by discussing how the gene-culture co-evolutionary framework could be used to illuminate the issues surrounding universality and diversity in comparative legal theory.

Chapter 13 (Just (and efficient?) compensation for governmental expropriations by Jeffrey Evans Stake) is, in simple language, on issues around the use of power by the government to acquire land from citizens. An illustration is made by referring to some expropriation cases in the US. Among other issues Stake addresses the question of how much of compensation can be seen as just. Like in other chapters the role of brain imaging in determining the emotional reactions of those being compensated is briefly discussed and also research into the role of brain imaging to determine attachment to property is proposed. Also discussed is the issue of the subjective views of losses incurred by those whose land has been expropriated i.e. the harms of displacement and the role of experimental psychology in determining owner's subjective value and market value of the expropriated property.

Chapter 14 (Examining the biological bases of family law: Lessons learned from evolutional analysis of family law by June Carborne and Naomi Cahn) examines the relationship between family law and family stability as seen from the insights in the field of biology of attachment including evolutionary analysis and neuroscience. This chapter to has relevance extended even to current social debates about the emergence of alternative family parenting systems.

Chapter 15 (Why do good people steal intellectual property by Oliver Goodenough and Gregory Decker) looks into the problem of our intellectual property systems and these authors contend that the field of cognitive science can be useful in providing insights in this area of law. Like authors in most chapters in the book, they extend the discussion about the role of emotions in our thoughts and actions in an interesting way. The authors also pin point possible paths for law reform and research into this issue.

Chapter 16 (Cues in the court room: when do they improve juror's decisions by Cheryl Boudreau) raises some important issues especially in the current context in the US and other parts of the Western world where some sectors of the society have provoked debates about doing away with citizens juries. The chapter presents an experiment to argue that regardless of juror's level of legal and scientific sophistication they can learn what they need to know from the characteristics of court room settings. One example given is how they are able to learn from the attorney's and witnesses' statements in order to make informed decisions.

Chapter 17 (Reflections on reading: words pictures and the law by Christina Spiesel) explores the intellectual implications of visual aids used today in the practice of law for such purposes as evidence, demonstratives, arguments etc. Ideas from eye movement research have been used to  build  the argument made  in  this  chapter.

This book is a perfect fit for medical law and ethics readers. Those in traditional fields of medicine, psychology and law will also find it very useful especially for the depth with which the issues are covered. I must also stress that background in the aforementioned fields may not be necessary for one to understand the contents. The book would also be highly recommended for those in specialist fields of practice who are interested in the depth of coverage of issues. In formal academic institutions this book would be highly recommended for postgraduate students not only because of the level of readership it was pitched for but mainly because most chapters in this book identify current research gasps in knowledge either implicitly or explicitly.

 

© 2011 Charles Mpofu

 

Charles Mpofu, MHsc (Hons), PhD Cand., AUT University, faculty of health sciences, Auckland , New Zealand.  He is a lecturer with interests in social justice and empowerment as well as ethics and health law. His research methodologies are empowerment oriented. Has taught mainly in the school of public health, School of occupation and rehabilitation and now teaches in interdisciplinary studies health care practice.

 


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Metapsychology Online Reviews
ISSN 1931-5716