University Place

>> It's a real honor to have Francis Shen here. His educational credentials alone are outstanding.

A Bachelor's degree in Econ

Economics and English from the University of Chicago with highest honors, and I presume that means summa cum laude.

laughs

A Bachelor's degree in Econ

And then, he got that in 2000, and in 2006 he got a JD with honors from Harvard Law School. And then he stayed out at Harvard for a couple of years and got a PhD degree in 2008 in Government and Social Policy. So he has a JD and a PhD and he stayed on at Harvard for a bit to be a lecturer in the Department of Government, and he taught a course, which might appeal to some people in the audience, on how to win elections.

laughter

A Bachelor's degree in Econ

I think you win elections if you raise lots of money.

laughter

A Bachelor's degree in Econ

Then he went to UCSB, University of California at Santa Barbara, where he was a research fellow in the MacArthur Foundation Law and Neuroscience project. He did that for a year, and then he moved to Vanderbilt where he was the Associate Director of the Law and Neuroscience project. He moves a lot.

laughter

A Bachelor's degree in Econ

And then he went to Tulane where he was a visiting assistant professor, and he taught courses and I think this kind of started to define his then emerging interest. He taught a course in law and the brain and education law and policy. In 2012, he got tired of the warm weather and so he moved to Minnesota where he is now an Associate Professor, and he's a distinguished Associate Professor. He's a McKnight Land-Grant Professor, an award made to a select few of faculty because they are so outstanding and creative in their research and teaching. His courses at the law school are law and neuroscience, criminal law evidence, education law and policy, and student speech. And I'm not really quite sure what that means. Maybe you could help us with student speech. I trust they are all able to talk.

laughter

A Bachelor's degree in Econ

And then, once again, in January of this year, he went back to Harvard where he's a visiting scholar in the Petrie-Flom Center for Health, Law Policy, Biotechnology, and Bioethics. And, in fact, this presentation today may be a warm up for Tuesday because, back at Harvard, he's going to be participating in a panel on whether brain-based lie detection belongs in American courtrooms. The breadth of his interests is phenomenal. Who knows-- if anybody in the audience knows somebody whose publications have ranged from articles on war all the way to articles on public schools, please raise your hand because I've never met anybody who could write a series of articles on war and combat casualties and also a series of articles on public schools. So, he's very interested in public science policy, political science, and education. He's got a whole list of articles on public education. He'd really love it here in Wisconsin where there's essentially almost no public education left.

laughter

A Bachelor's degree in Econ

>>And he has published numerous articles in both of those areas, law and neuroscience, policy and education. In policy and education, he's the co-author of two books. He's also the co-author of a handbook for somebody who wants to teach a course on neuroscience and law. And topping it all off, he's a master hurdler.

laughter

A Bachelor's degree in Econ

So, I'm gonna expect him to bound up here when I get out of the way. And he competes in the 110- and 400-meter hurdles and he's been doing it for years. So, Francis. Thank you.

applause

A Bachelor's degree in Econ

>> Thank you very much for that introduction. I'm going to have you introduce me every time.

laughs

A Bachelor's degree in Econ

And thank you to the Kavli Foundation for sponsoring this lecture. Thank you to Tara who, I don't know if she's still in the room but has-- there you are-- has made today so logistically easy. And thank you to all of you for coming and attending on a Friday afternoon, in late spring no less, a talk on law and neuroscience. I wanna start with this image, which is a picture of my brain, or at least the way it looked as generated by an fMRI machine in the summer of 2009 when I was doing one of my jaunts elsewhere at the University of California Santa Barbara. And I'd like to start here because I think it raises the basic question, the fundamental question really, which is, why should someone interested in law or policy be interested in brain science? Why waste your time doing that when most certainly don't? Indeed, my graduate training up until middle of graduate school involved no neuroscience, and I found that, upon retrospect, to be striking. But why? I'm gonna try and answer that question a little bit in my remarks today but I think the core concern has

to do with this

to the extent that law cares about what humans do, why they do it, and to the extent that neuroscience may again broadly define brain sciences, the behavior sciences, decision-making sciences, might tell us more about why we do the things we do and why we think the way we think then the marriage seems, in some ways, obvious. We can make law more just and more reliable and better if we better understand those individuals that law is trying to regulate. That's at least the promise, but I, as we'll talk a little bit about today, I think there's also much peril. And that's in some ways-- this talk is called "The Future of Law and Neuroscience"-- I think balancing that promise and the peril is really what the future is about. I do also think, however, that there is an additional fundamental core, maybe for me the most important aspect of brain science and law, and that is about changing conversations. I run, I call it a lab, it's hardly a lab, but we have a logo, and it's called the Shen Neurolaw Lab,

and we also have a motto

every story is a brain story. And I'm gonna try and argue today that sometimes just reframing things as a brain story matters. Even if we don't have the diagnostic tool, even if we don't have the biomarker, even if we don't yet know how to treat someone differently than we do-- did yesterday, simply reframing the discussion in brain terms might aid law conceptually and might aid us in our inner relationships with one another. But that motto is a bit deceiving because although I do believe that every story is a brain story, also every story is also a history story and a politics story and an oxygen story because we need all of those things and we operate in a historical, political, social, economic world. And so, a grand challenge for neurolaw is to figure out what is the value added? What is the value added with some precision of adding neuroscience to legal and policy discussions? And I'll try to offer some answers for that as well, but I think sometimes the answer is frankly zero. I think there are many instances, indeed some that are proffered somewhat regularly, where at least at present the introduction of neuroscience, whether it's a technique or a finding or just the phraseology of brain science, offers at present nothing to law, and, again, I think that's kind of where we are at present and where we'll wrestle with as we go into the future. Where's the wheat and where is the chaff? Now here's what I'd like to do today. We're going to do sort of a past, present, and future with just a moment at the beginning to talk a little bit more about this why question. And then I wanna spend most of my time on the future and I'm going to get to the future by talking about just some of the things that we're doing in Minnesota in my lab that I've been interested in. Sort of, if you're an economist, my revealed preferences, what I'm actually spending my time doing because I think that's where the future lies in part. But one more just kind of conversation about this why. Dr. Kleio mentioned that I was at Tulane for a year. Part of all that traveling, by the way, for those of you who are familiar with two body problems, had to do with that. I didn't live with my spouse for, in the same city for five years as we crisscrossed, and now she's also on the tenure track in Minnesota, so that's made life quite good. But we enjoyed Tulane, and I particularly enjoyed this slide. This is a slide that if you're an undergraduate at Tulane and you have an interest in law school, you go to the pre-law counselors and they'll say go check out this website. And I'll read you the first line. You'll see why I like this as a lawyer. "The law is a respected profession." Yes, someone saying that. It's not true, but it's nice.

laughter

and we also have a motto

But here's the part that

matters for this

"Which arose out of the basic need for an orderly society and a body of rules and procedures to govern human relationships." Law deals with humans. In fact, law is made by humans dealing with humans and law is administered by humans. And therefore, again, if we go back to this core idea we might wanna know something about how humans make laws and how humans govern with those laws, how they apply them and, of course, how individuals are governed by those laws. How do they respond to incentives? How do they respond to incarceration? How do they respond to any number of penalties, carrots, or sticks that the law, either informal or formal, provides? And that's the promise. The challenge is that it's really, really difficult to get in at that intersection. I've been lucky enough to work with a number of senior colleagues at the MacArthur Foundation Research Network on Law and Neuroscience and I know that a number of my colleagues have been here and it's really an honor to follow in their footsteps. Including my co-author and colleague Owen Jones, who directs this research network at Vanderbilt. And I can tell you that part of the early part of that experience when I went out to California and we were the postdocs, they had this nice term research fellow but you're glorified postdoc and so, after all those degrees I was doing, you know, the things that we postdocs do like make copies and make sure that the coffee's there for the meeting and I was observing a lot. And one of the things that was obvious is that we just needed time as a group to talk because neuroscientists and philosophers and judges and lawyers weren't even using the same language. It's a difficult, and has been difficult, to explain that to funders sometimes. Why don't you have this solution yet? Why isn't the marriage working? Well, we're just trying to develop some conversation. So it's ongoing, and I would encourage any of you who have an interest in this and maybe aren't familiar with it yet, though many of you are, I know,

to check out

lawandneuro.org. There are a lot of great resources, a big bibliography that you can search, links to conferences, and resources and the like. So, I think that's the promise. Again, we can learn more about humans that are so central to the legal system, and maybe neuroscience tells us something. I think this challenge is it's really difficult to know, again, where is the wheat and where is the chaff? So, let's talk about the future. But before, let's talk about the past. This is a pet project of mine. Someday it will be an article. No time soon, I imagine. But it's the overlooked history of neurolaw. I am always amazed when I talk to my colleagues that this isn't a better and more prominent part of our conversation. And I'm gonna pick a little bit on my friend Adrian Raine who wrote, in 2013, a book called "The Anatomy of Violence", and it's online. You can find a little commentary that I wrote, and he responded to it. And I said one of the striking things about his book, which is all about trying to understand the neurobiology of aggression and interpersonal violence, is that he didn't

even cite this work

"Violence and the Brain" by Vernon Mark and Frank Ervin, two Harvard scholars who, on the basis of a lot of work in the '60s and into the early '70s, were trying to do the same thing. And it wasn't just an academic book. This book, like some of the work today, made the front pages of, you know, what was the equivalent of sort of your Time or Newsweek. And let me give you a description from this Fortune magazine article of what they were trying to do. Again, this is circa 1970s. 1973.

Quote

"A broad interdisciplinary effort is getting underway to explore the biological nature in origins of violence. Biologists, biochemists, neurophysiologists, geneticists, and other natural scientists are probing with increasingly precise tools and techniques in a field where supposition and speculation long prevailed. Their work is beginning to provide new clues to the complex ways in which the brain shapes violent behavior. In time, these insights and discoveries could lead to practical action that may inhibit violent acts." Boy, that sure sounds familiar. Familiar to what I just claimed to you is this sort of central promise of neurolaw. We have this challenge of violence, we wanna better understand it. And here are some individuals who are gonna come along, and again Harvard scientists no less, with a, you know, a big research program, many published findings, and they say, "A-ha, we can help you." I'm gonna show you a couple images. They might be a little disturbing if you haven't seen them before. This is from their work. You're not allowed to do this anymore, but this is what they did. Patient Julia. These are some of their famous images. What they did, they used remote electrical stimulation. They stimulated the amygdala, and what did they find?

Figure seven

Julia after this brain stimulation, rage behavior, attacking wall suddenly and unexpectedly. And on the basis of this, again, the understanding of why would she act like this, then take the next leap a-ha, law, policymakers, we've got an intervention. It's psychosurgery. We can remove that part of the brain, and they were focused heavily on the amygdala amongst some other areas, and we will solve your violence problem. Professor Shen, didn't you just say that you wanted to better understand human behavior, like violence, and then improve law by changing the way that you intervene? Yes, I did. Boy, then this seems to sound like a great idea, only it wasn't. Let's go back another 40 years. 1933. Egas Moniz, Nobel laureate for, as many of you know, the prefrontal lobotomy. How did law respond at that time? Let me quote to you from the Yale Law Journal, which for those not familiar with legal literature is the science or nature of our publishing world. I mean if you publish there you have made it. Here's what an article there said. This is 1948 article.

Quote

"Psychosurgery has starling implications for rehabilitation, and it is proving successful in an increasing number of cases. Perfection of so relatively simple and inexpensive rehabilitative technique as the prefrontal lobotomy promises to be a major contribution to the cure of criminals." And indeed as we know, and somewhat tragically, a number of these surgeries were done and some in the criminal justice system before we realized we didn't quite know enough. So, back to the future of neurolaw. At what point do we know enough in science to change law and policy? At what point should the criminal justice system say, "A-ha, you have a Nobel Prize, you have published papers in Science and Nature, you have many fancy degrees, so we are gonna change the way that we operate." Challenging questions. I'm not here to suggest that Dr. Raine's work or our current work in neurolaw is necessarily going down these paths. Indeed, I hope that we're doing it differently, but I start here to keep us honest and to say we have sort of been down this path before. Let's make sure we learn from that. Let me give you one other historical example. I wanna use this because it's not all about criminal law. A lot of the examples that I'll talk about in my work don't have to do with the criminal law. Let's talk about epilepsy for a moment. Epilepsy, for many years, not all that long ago and indeed in some countries even today, was thought to be caused by evil demons, take-- and which gives, you know-- you can kind of understand because with no other explanation, suddenly someone has a violent seizure and falls on the ground. And so there were exorcisms and other attempts to remove those demons. Today, because of advancing brain science over a dec-- or a century-- we know that you can go to the Epilepsy Foundation and they will tell you the human brain is the source of all human epilepsy. In addition, if you're in Minnesota, you know Coach Jerry Kill. You won't-- might not know him here, but you might have read about him not because of his prowess as a coach, though he's a good coach, but because he is an epileptic and has had seizures on the sidelines of games, and I've been at some of those games. What's amazing is that we don't think it's demon, that 40,000 people in TCF Bank Stadium didn't go oh, no. Of course we wanted to get him care and wanted to care for him, but said it's all right, we can treat that, we understand epilepsy. And so you get scenes like this. Epilepsy Foundation out at

the game

We're chasing dreams with Coach Kill. This is an example, I think, of a way in which we've changed our understanding of epilepsy because we understand the root causes. Again, it wasn't all that long ago that, because we didn't understand epilepsy, we thought it could be transmitted to others just by being near someone. They were quarantined. They're-- some places, not allowed to marry. In some cases there were immigration restrictions based on this. We've improved our understanding. Yet at the same time, we haven't been able to do quite everything. Let me give you just a little bit of detail. This is more detail than you'll want from Social Security Disability Administration, but I think it'll make a point. EEG, of course, has been with us since the 1920s. There's actually an interesting history of EEG and the law. Similar to what we're seeing in fMRI and the law. I won't mention that,

but I will mention this

here is what, in 1980, was required to get social security disability benefits for a certain type of epilepsy. And I'm quoting now from these-- from the requirements. Epilepsy, major motor seizures, etc., documented by EEG and by detailed description of atypical seizure pattern, and it goes on. Well, what began to happen in courts is that there were cases where there was a normal EEG but all the other evidence seemed to point to science of seizures and courts had to figure out what to do. What do you do if the brain data doesn't match up with the behavioral data? Well, courts began to realize we're gonna go with the behavioral data, and so much so that the regulations themselves were later changed. This is quoting 2002 updates to the rules. In the neurological body system listing for adults and children we made a number of changes, including,

here it is

with the exception of non-convulsive epilepsy in children, we will no longer require that an EEG be part of the documentation needed to support the presence of epilepsy. I mention that because I think epilepsy tells us, on one hand, we can understand we can change dramatically the way that we engage with an understand epileptics even if the brain signs doesn't provide us, at least in a large number of cases, the definitive biomarker, the definitive test of whether or not you have epilepsy or not, and those things, those tests, may one day come. A range of ways in which neuroscience may affect the law. Indeed, a range of ways in which neuroscience has already affected the law for good and for bad over the past century. A little bit of past. There's more to say, but we need to move on to the present. The present argument is pretty simple. And I'll whip through these slides 'cause I know you'll agree with me that the brain has taken center stage. It is all over the place. Just ripped from the headlines. When I teach the class, I always start with this, and I can't help myself because I just-- I always give myself the test. Let's just look like a week, two weeks before. Can you find brain law articles? And you always can. So,

March 31st

"new brain scanning techniques may offer an objective snapshot of chronic pain, but are they ready for use in medicine or the courtroom?" My colleague Larry Steinberg,

just March 30th

"The Boston bomber's brain, adolescent or adult?" This is making a lot of headlines as that jury decides whether he will be sentenced to death or life without parole. Thursday, April 9th,

just yesterday

"Why brain scans aren't always what they seem". And I had to throw one in from the Minnesota Star Tribune and unfortunately, one to just poke a little

fun

"Headstrong: five ways to boost your brain from neurobics to walnuts".

laughter

fun

So, there's a whole range of this stuff. It's all over. Our President has gotten in the mix as well through the brain initiative. But you don't have to watch the President. You could just be watching TV, and if you were watching TV in Pittsburgh, you would have seen this public service announcement sometime in the last few years.

Video

This is a baby's brain. This is a baby's brain on books.

laughter

Video

Nine percent of a baby's brain growth happens between the ages of birth and age five. You can help your baby's brain get ready for learning by reading to your baby every day. Sharing books helps you make a connection with your child that will last a lifetime.

Go to

MakeWayForBooks.org. Make sure your baby's brain is ready to learn. >> So, you know that that's not the way that a baby's brain looks when they're on books.

laughter

Go to

So, is that a misuse of the brain science or not? Let me give you a hypothetical. I'll refer back to this. I don't have the answer. I'm a law professor, so I just throw these out. What if, let's just say, a good number of parents saw that and, for whatever reasons, they were persuaded by that type of argument and they said all right, I'm going to read to my kid a little bit more. And because they read to their kid a little bit more, that kid did a little bit better in school and that kid had a little bit better life outcomes. All because of the way that that brain science was used. And, clearly, that's not the way that a baby's brain works, you know, on reading. Is that a good use of the science? Should we encourage that? Should we be concerned? By what principles do we draw? What about this one?

Video

I've got emails, phone calls, news to stay up on. It's like my brain is under siege out there. I just needed an edge, and Lumosity has all these games based on neuroscience. >> Based on neuroscience. I can really tell the difference. I'm still under siege, I'm just better on it. Any brain can get better, and Lumosity.com can help. It's like a personal trainer for your brain, improving your performance with the science of neuroplasticity but in a way that just feels like games. Start training with Lumosity.com right now and discover.

laughter

Video

>> So, this stuff is all over. You cannot escape it, and it's-- I mentioned this. You can keep-- this is the neurobics, by the way.

You can see

"Keep your brain alive, 83 neurobic exercises". I saw this one at my local Kinko's. This is what you see at CVS. Neuro Optimizer, NeuroMax, Neuro Clear, Neuro1 Mental Performance Formula and no, I have no idea what they do. Even bananas are getting into the mix. This is an actual label

that's been used

brain fuel. So what do we do with all this? Well, I do all that, sort of lead up, yeah it's kind of fun, but it also is the preface for the interest in neurolaw. Neurolaw emerges, as does neuroeconomics and neuroethics and neuro everything, out of the rise of brain science. And we've seen a lot of interest in neurolaw. I won't go through all the details. This is the book that Professor Kleio kindly mentioned. It's a new course book. 800 pages long, "Neuroscience". It's being taught in some law schools, and it really ranges. We cover some brain basics but then we talk about things like everything from brain injury to brain death, criminal responsibility, free will, emotions, judging, the veteran's brain, the adolescent brain, and so on and so forth. There's a lot of interest, a lot of publications. This is a chart of the number of publications in law and neuroscience, a rough estimate, in 2013. And you'll see there's been a marked increase. Now, I'm someone who doesn't

have tenure so my worry is

what happens

laughs

have tenure so my worry is

a little bit after that? Does it flatten out or are we about to roller coaster down? Which is why I'm very wary of that past. I don't have the answer for that, but I do have some speculations. I wanna mention just a couple other things that are happening in the present. One is that there is an active education group going on. Dr. Konex and I were talking this morning. He's worked with judges. I run, as Executive Director of the Education Outreach Program for the MacArthur Foundation Research Network on Law and Neuroscience, run a program for judges, and there's a real demand for this. Now to give you a sense, I don't know if you know any federal judges, but they don't like to be told to do anything much less apply, we make them apply for our program, and for 20 slots, we had 70 applicants. So there's a real demand because these judges are aware of what may be coming into their courtroom, what they're already seeing in their courtroom, and the cutting edge judges are looking for the next thing. They're often disappointed when we don't have the magic treatment for their addicted offenders in front of them, but they're coming to learn and I think that's important. They're coming and learning in part because we're seeing more and more data, more and more neuroscientific evidence in courts. Nita Farahany has good data on this just published in the National Bioethics Commission report. And we've seen, in the literature,

lots of questions like this

"My brain tumor made me do it." That's a wall magnet that you can buy, by the way. And "Did my neurons make me do it?" "Do I have free will?" My work doesn't concern much of that. In fact, I think that the future of law and neuroscience has gotta get beyond some of these questions, not because they aren't interesting, not because they won't always be with us, but because there are a lot of other things that we need to spend our time doing. But let me give you just a couple types of illustrative cases in the here and now. So one is-- this is an example of a man in Virginia, well-known case that we teach to our judges. It goes something like this. Regularly normal guy suddenly starts molesting his daughter. It turns out he has a brain tumor. They take out the tumor, he stops doing it. Tumor grows back, he starts doing it again. Did he choose to do it? Let the debate begin, right? Here's another one. Herbert Weinstein, we devote a chapter in our book to him. Early 1990s, this former ad executive strangles his wife in New York, throws her out of their 13-story window to make it look like it was her suicide. He-- it turns out he's got an arachnoid cyst, and that's his PET scan image, pressing up on his frontal lobes. His argument, your honor, is I want to introduce this evidence as part of my insanity defense. I couldn't appreciate the wrongfulness, the rightfulness of what I was doing, and notable because the judge actually was going to admit that evidence. It raises questions of admissibility. I teach evidence, so we ask these things. Should it be admitted? Important questions. Important questions. And ongoing. Finally, one more. This is an often-cited case, and we give a lot of pages in the book to this as well, in part because we've got good data on it. This is a picture of Grady Nelson. Grady Nelson did horrible things in Florida. There was no question about it. Stabbed his wife over 60 times, sexually assaulted and almost killed two of his children, and he was guilty beyond a reasonable doubt. There was no question about that. The only question for this group of 12 jurors, much like the Boston Marathon bombing jury, is whether or not he was gonna have life without the possibility of parole or the death sentence. And, as part of that sentencing phase, his attorney, a guy named Terry Lenamon, called a Dr. Thatcher, who is a QEEG expert, to the stand, and they used data gotten from Mr. Grady Nelson's brain to argue that he had a broken brain. Those were the words that Terry Lenamon used. We're on record as saying this is problematic, but at least some of the jurors bought it. Indeed, I will give you the quotes of the jurors, and it went 6-6, which means that Mr. Nelson is not on death row. He is serving life in Florida. And here's what they said. Juror Delores Cannon,

a hospital secretary

"When the brain evidence came in, the facts about the QEEG, some of us changed our mind." Juror John Howard,

airport fleet services worker

"The QEEG evidence turned my decision all the way around. The technology really swayed me. After seeing the brain scans, I was convinced this guy had some sort of brain problem." Now, there was one who, on record, said it didn't matter. This is Juror Leon Benbow, retired mailman,

and I like his quote

"All that scientific testimony, that was a waste of taxpayer money. That's phony."

laughter

and I like his quote

"There's nothing wrong with that guy's brain." But, raises the questions, what do we do with cases like that? Do you admit the evidence? What-- how persuasive will it be to jurors? These are things that we're seeing already. Just a couple other things that you're seeing already in the present concussions all over the place, and we'll see more of that, and this is just a fun one because I've got a little story that goes with it. This is DHA omega 3 supports brain health. So says Horizon Organic. When I first saw this and I was teaching at Tulane, I said to my students, you know, someone ought to sue them. And then lo and behold.

laughter

and I like his quote

Horizon Organics sued over claims that milk is good for you brain. And this is a class action suit. I think it's still sort of tied up. I've never been able to figure out where this has led. But you're seeing these types of things, and that's not unexpected. That's what lawyers do. So, what are lawyers going to do in the future? Let's get to the future. That's the fun stuff. I'm gonna talk about what we're doing in our lab, and I think you'll see it's a little different than what some of the field is doing. I wanna first acknowledge the members of-- and I say lab. We don't have students. It's one of the challenges, actually, the core challenges of interdisciplinary work. I'm in a law school. I don't have any PhD students. I have intrepid undergrads. I have JDs we are willing to work with me. I have recruited PhD students from Econ and Political Science up there. And if you want to come join us we're happy to have you, too. Our pay is tremendously low but--

laughter

and I like his quote

but you can get a nice T-shirt, so. And this is some work we did at the Minnesota State Fair. We go out there and recruit subjects. But those are the folks. I'm gonna talk about-- I'm gonna mention five things that we're doing quickly, and then I'm going to talk about the other five things in a little bit more in depth. One project with Adam Steiner, who's a postdoc that I thankfully got out of David Redish's lab, who's a neuroscientist. We, Adam and I, think vehemently that we oughta be rethinking brain death in light of work such as Adrian Owens and others who are working with fMRI and EEG to engage with those in various states of minimally conscious state. So that's ongoing work. I think brain injury litigation, there's more to be written there. This is attorney Michael Neff, prominent Atlanta trial attorney. We're working on a project. And there's a long history on the civil side of neurologists and others in the brain sciences working. That's not new either. But there are new questions. Owen Jones, when he was here, may have talked about some of our work that I work with him on mens rea, trying to assess criminal mental state. It's a big project involving, indeed, some imaging in Rene Marois lab. Exciting stuff. Amanda Pustilnik of Maryland and at Harvard now is working on a neuroimaging of pain project, and we joined that working group to help out there. And I wanted to just mention one little thing, another pet project of ours, the fMRI fetish, which is not a knock on imagers at all but is a caution to those of us who write about neuroscience to move beyond just fMRI. From neurotechnologies that are interventions and modulations to other wearable technologies. This is a shout-out to my friend Phillip Low there on the right and his iBrain that Stephen Hawking has demonstrated. There are other wearable technologies that are collecting massive amounts of data and that I think are gonna be a real part of the future of neurolaw. So, those are some quick ones. Let me now talk a little bit about these five in a little bit more depth. And this reflects some of my interests both in the law, sort of traditional courtroom law, but also the politics and the policy side which is, quite frankly, where a lot of the big questions are gonna be decided. So let's start with the politics of neurolaw. This is a Washington blog post from just this past February. My colleague Dena Gromet and I did a paper on the politics of neurolaw, and I'll show you just a little bit of that data. But the headline captures it. Right now no one knows about neuroscience, no one knows about neurolaw. If any of you have had a conversation, you say, oh, I'm in a program of neuroscience and law, neuroscience and public policy, they might look at you, as they do to me all the time, and say what is that? You know, how do those go together? So, nobody knows, which is kind of a nice thing because since nobody knows it's not politicized. This is some data, and I can replicate this data any time I ask the question generally, and you can ask it a variety of ways, that can compares self-reported knowledge of science and self-reported knowledge of neuroscience. And the thing to notice that the green bar is basic science knowledge and you get something like a normal distribution but, skewed left is knowledge of neuroscience. That is, the vast majority of people will readily admit to you that they don't know anything about brain science. As a result, there's sort of a blank slate in some ways and it turns out that this blank slate doesn't have much of an idea of any sort or care much about neurolaw. In the study, we asked a national sample and said do you approve or disapprove of neuroscience based legal reforms? And this is purple are independents, blue democrat, and red republicans. There are no significant differences statistically, at least at this basic level, and frankly there's not a lot of interest. Three is neither approve or disapprove. That's the modal response. You know, some people have a little bit of an interest, but by and large, we're flying under the radar. However, we ran an experiment and said, well, what if it were framed a certain way? Would this move public opinion? And the answer is yes. If you frame it as neurolaw is here, neuroscience based reform are here, primarily to help criminal defendants, you lose Republican support and you actually-- it's almost statistically significant, in some other models it is-- you lose independent support. And I think it's worthwhile, and we're continuing this line of research in some other ways, to think about as neurolaw expands, how does it get defined? To me, it's a heterogeneous mix of many ways and many technologies in which neuroscience and law and policy may combine. I think it's problematic for our future if it gets

pigeonholed into only

This is the new technology that criminal defendants can use to reduce their sentences. It's much more than that, but if it becomes just that, I think you lose support and that might bleed over into support or lack thereof for other areas. Another space we spend a lot of time, and I think it's going to be a big part of the future of neurolaw, concerns what I call neuroscience narratives and the legislative link. And it recognizes and starts from this premise, that the statehouse is just as important as the courthouse. Almost all neurolaw scholarship has conceived of law as court-made law, judge-made law. There's just one problem with that. For instance, in the law of criminal law almost all new law is not judge-made. It's made by state legislatures. And that's just, you know, the way things are right now. And therefore, the lever of policy change is as much in these places as it is in courthouses and individuals judges. Of course, clever lobbyists recognize that and indeed so do others and we've come up with the-- my model says well, how do you ask, sort of, how does lab neuroscience become law in the statehouse? It's not the case that state senators, state reps, or even their staffers are reading "Science or Nature" or "Journal of Neuroscience". So there must be some narrative that's shaped there. By the way, there's also a separate project which, you know, probably hits too close to home, but how those legislators, especially at the federal level, enable or hinder research through funding and funding mechanisms. But here are some of the players. The lawyers involved, the lobbyists, laypeople who are still formulating their opinion eventually getting to legislator neuroscience with the media, schools, and outreach interacting. And I'll give you just one example, I've got a paper on this, of the ways in which, for instance, lobbyists and neuroscience may take neuroscience and approach legislators. This is from the National Juvenile Justice Network. I'm gonna move ahead a little bit on this group right here. Here's what they say. And this is a report for advocates. How to use brain science to get the policies you want in statehouses.

What this-- they say

"Many researchers argue that there is just much more that we do not yet know and, thus, it is just too early to start using this research to inform policy."

Here's their response

"Juvenile justice advocates have found that this research is nothing short of compelling because the brain science opens the doors to legislators' offices who never before thought about progressive juvenile justice reform and because the science 'gives advocates and lawyers working on behalf of juveniles scientific proof for their claims.'" Conveniently enough, scientific proof for the claims that this particular group advocates and, again, you may be for their claims. What narratives do we want to shape? I contend that the narratives that are shaped are going to have a significant impact one way or the other in the way that this policy gets formed. I'll mention that it's on both sides of the aisle. If you've been following fetal pain legislation which has swept across many of states and you read those bills front and center is discussion of the pain system in preterm

babies and the question is

can we reliably think based on science? Now the consensus is no but there are some scientists who have joined forces with some legislators to say yes, that babies can feel pain, fetuses can feel pain at a certain number of weeks and therefore we oughta draw back the line. This is gonna go up to the Supreme Court, I imagine. Another intersection of neuroscience and law in the legislature very much raising similar questions. That is, what can the science tell us, with what reliability, and how much or how little should legislators rely on that when changing laws and policy? So, I would challenge you as well, before I move to the last couple of pieces, to think about where you fit in this slide. You're a select group, a self-selected group, who has some interest in this intersection. Most neuroscientists, most scientists in general, are perfectly fine and perfectly appropriately in the lab and only in the lab, and their work is intended only for others in other labs. But someone, somewhere, somehow has gotta translate that stuff. And if it's not you it's going to be someone else and maybe that's okay but maybe there's some role for you to play. Especially those of you who have the scientific knowledge and can credibly do that. All right, this is one of my fun ones. I wish I had more times to talk to it, and this is death to dualism. It's a straightforward message. Mental injury is bodily injury. That's not a new message for neuroscientists. Indeed, that's a slide that you never need to show to a neuroscience audience. But you would be amazed how much law and how much policy and how much social interaction still relies fundamentally and heavily on the distinction between bodily and mental injury. I give you one case that illustrates it, but before I get to that case, next time you look at your auto insurance, look for the bodily injury waiver provision, which a bodily injury coverage provision, which might provide, say, $100,000 for each instance of bodily injury. Courts have to wrestle with the question of whether or not, if a parent sees their child killed, the parent clearly suffers tremendous trauma from the auto accident, but there's nary a scratch on them. Did that constitute a bodily injury? Here's a great case that's come up. We'll go to Bloomfield Hills, Michigan. Beautiful Bloomfield Hills, Michigan. Not so beautiful on this day when train conductor Charles Allen is conducting that train and hits-- not exactly that train and not that bus-- but that's the image of what happened. A school bus very negligently swerves out ahead of the crossing guard and

smacks hands

babies and the question is

before Mr. Allen can stop the train, they hit. Now, when trains meet buses, trains win. So, conductor Allen gets out of this without a scratch on him. He's, in some sense fine, but he rushes. Thankfully there are no kids on the bus, but there is a very injured school bus driver. Mr. Allen gets diagnosed, and I think appropriately so, with PTSD. And he wants to sue Bloomfield Hills and the state of Michigan, but there's a government immunity statute, which in many states reads similarly, that says you can only recover for bodily injury. So the courts were wrestling with this question. Is his PTSD bodily injury? It's a great case for the courts because, again, he was in this train. You know, there's nothing there but, at the same time, it's clearly very traumatic. District court listens to the argument, Mr. Allen's argument, and he gets a neuroscientist to come and testify and he says, well, PTSD is clearly instantiated in the brain, the brain are physical cells, they're neurons, it's physical, it's bodily, how can it not be? District court says wait a second, imagine the slippery slope. Then every mental injury would be bodily. We're not gonna go there. We've never gone there. We can't do that. Appellate court says we like that logic. We're gonna let you go forward with your claim, and it went up to the Michigan Supreme Court. There were amici briefs from insurance who saw the perils of going down this line from the plaintiff's bar and it settled. So we don't know what they decided. But it's questions like these that are going to start facing the courts and it's questions like these that I've been exploring. Courts, at present, think, generally, that we-- it's not an interesting question. Everybody knows whether something is bodily injury or not. So we did a little study. We did some other versions of this as well, but I'll show you a little bit of it. And we had these different injuries. Broken leg, broken ribs, memory loss, recurring headaches, PTSD, concussions, sprained wrist, and if it's just so obvious, if, when you see one of these, you know, oh yeah, that's bodily injury or that's not, then you should be able to pick one, definitely not bodily injury, or five, definitely bodily injury. Well, here's what people actually do if you ask Americans. They don't know. That is, they don't know for things that are in the middle. They know that a broken leg, except for one person in this sample--

laughter

babies and the question is

did not think that was a bodily injury and maybe it's something to do with definition of injury or maybe he's just playing around with us. I don't know. But for the most part, you see a clustering of things that are bodily injury. But things like memory loss, headaches, PTSD, depression we don't know. And indeed, this summary statistic mask what's actually a normal-- almost a normal-- distribution. I've got subjects who'll say PTSD definitely a bodily injury. And others will say PTSD definitely not a bodily injury. That has tremendous legal implications. It also, of course, has implications for the way that we engage with one another and the way that we view those with mental harms. There's more I could say. I'd be happy to talk afterward about it, but that's part of our project. I think it's a big part of the future of law and neuroscience. I'm fascinated by lie detection. I'll just mention a case and had to do with an fMRI for-profit lie detection company, not No Lie MRI, though they've got a case, too. This had to do with Cephos. A guy named Steven Laken in Massachusetts, and this was a case, US v Semrau. Mr. Semrau, pictured there, Dr. Semrau was caught pretty red-handed overbilling Medicare. He had the billing codes and he would submit billing codes that would get him more money than he really should get. And he said, well, you know, I didn't really know what I was doing. I called the 800 number, it was confusing, I didn't know. And that was his defense, and indeed the government would have to show that he knowingly devised this scheme, he knowingly defrauded. So amongst all the evidence that he tried to proffer, he also introduced testimony, wanted to introduce testimony from Dr. Steven Laken. Steven Laken runs Cephos Company, and they don't do this anymore, but they used to run a lie detection wing. And they brought Dr. Semrau out, they ran him through the fMRI, and I'm on record saying there were all sorts of problems with this approach.

And the question was

should this testimony go in front of the jury? That's what the judge had to decide. Here's what Laken would

have said

"I conclude that Dr. Semrau's brain indicates he is telling the truth in regards to not cheating or defrauding the government." The judge, I think appropriately after what's called a Daubert hearing, an expert evidence hearing, should it be allowed in front of the jury said, "No, at least not yet." And that is the prevailing wisdom. I think that's right on this count, but I also think that in the future we might well have some situations in which, not this type of lie detection necessarily, but perhaps the detection of this sort. This is work by John Meixner and Peter Rosenfeld based on P300 memory detection recognition. Some of that might have a place. And we've got some projects that show empirically that jurors are not overly persuaded necessarily by brain-based lie detection. They might be able to handle themselves quite reasonably. And so, perhaps, there may be a future for something like this. I'd be-- I'm intrigued to find out. So that's a question mark in my mind, but at least an interesting one to pursue. All right, the last one and then some just quick final thoughts. Enhancement in the law, we haven't written anything on this but have given some presentations. This is a great cartoon. And, by the way, it's great-- gonna be great in 2016, but even now it's pretty neat. By 2016, this is Athelstan Spilhaus. He did this cartoon, this is the 1960s, a regular cartoon. By 2016, man's intelligence and intellect will be able to be increased by drugs and by linking human brains directly to computers. And he wasn't so off the beat. I mean, you know, we've got a million and one things we can put in the body, and a question that is raised that has legal implications, policy implications is, what about off-- label use or even prescribed use of Adderall and Ritalin and other such thought to be performance-enhancing drugs in the quote-unquote "healthy"? Is that cheating? Should it be encouraged? Is it any different or any more unnatural than the coffee that is not only not disallowed but encouraged at exam time because there's this table of coffee? What about all the other brain manipulations such as getting good sleep and spending all that time studying? Those are unnatural in some sense, yet we often applaud them an encourage them. Is there anything different from this type of pharmacological intervention? This is a question that is ripe. Why is it ripe now? Because there are-- and this is back from Minnesota a couple years ago, but I could have pulled any of a number of other examples, "Minnesota high schools students taking Adderall to boost academic performance". I like to joke that this tells us a little bit about why Lake Wobegon is the way it is. Everyone is a little bit above average.

laughter

have said

But it does raise, and this again, this ethical question that we're trying to wrestle with about what the appropriate response is. And it's not entirely clear to me that the appropriate response is to disallow it or to pooh-pooh it or to be unnecessarily against it, in part because of this quote that always stands out for me. It was a New York Times article about the case, and it was a clinical psychologist who worked in schools. And he said, "Well, if you've got a real problem, like ADHD, then it's okay for Adalin or Riterall-Adderall or Ritalin. But if your problem is not getting into Brown, then that's not good enough." So, who's to decide whose problems are good enough? And who's to say to the B student who says, "You know, I think I'm actually naturally a B+ or an A student. If I could just get this drug, then I would just be my natural self"-- which is, by the way, the logic that we use for a variety of disabilities and disability approaches. For extra time we say, "Well, it's not that that's giving someone a leg up, it's just evening the bar." So they're very difficult questions. I think they're going to come fast and furious, and I hope that law and neuroscience and neuroethics gets involved in that. Let me just say now these sort of quick predictions about the future and save maybe five minutes for questions here, five, ten minutes. Of course, all of these future predictions I'm sure will be wrong.

laughs

have said

That's the way these things go. But here's-- they're sort of general enough that they almost have to be true, at least some of them. By the way, one prediction is that we're gonna get more schools on this screen. So I've put up here the schools-- many of the schools that are heavily involved in this type of work. By the way, and it's particularly for this audience, there is one school somewhere down in North Carolina that I left off because we're not feeling too good about them right now.

laughter

have said

But everyone else is here. And you'll notice something about these schools. They're schools you've heard of, they're schools at the cutting edge, and either all these schools are making a catastrophic leap and investment into something that isn't going to pan out, which is certainly possible. I mean I think the past will give us some examples of that, or we are on to something. And I think we're on to something. Here, certainly, with your interdisciplinary program. It's evident we're gonna see more and more brain data. I think that is evident. We're gonna, I think, improve detection of a variety of sorts. Memory detection among them. Pain detection. I think we'll actually improve memory, not just in Alzheimer's patients, but then in others. We didn't talk about it, but we'll improve brain machine interfaces. Improve treatment as well. I certainly hope so. Improve cognition. Improve understanding which goes back to this core concern of mine. Even if we can't treat one better, we can understand them better and welcome them better, I hope. And I think we will improve law. I don't exactly know how. I think that we'll do all of these things. Not just yet, but soon and maybe sooner than we think. I like to think about neurolaw as being sort of in this way, and Bill Gates has a nice quote that I've always liked to describe what I think is a state of neurolaw. He says, "We often overestimate how much change there will be in two years from technology and often underestimate how much change there will be in ten years." I think it's a very apt statement. I think if you brought me back here in two years, I don't know how different my slide deck would be. I don't know how different my story would be. I certainly don't know how different the work of our lab would be. Give us a decade, maybe give us just a little bit more than a decade, and I think we would really be able to show you some science of a neurolaw revolution. I certainly

laughs

have said

hope so. And I look forward to your questions. Thanks so much for having us.

applause