The Dopamine Made Me Do It
That was the title of a presentation I heard a couple of years ago at a Gruter Institute meeting called “Law, Behavior, and the Brain.” It was a lively conference, with top-flight chimp people, neuroscientists, and a few law professors. There were neurological skits after dinner. (You'll just have to imagine.)
The heart and soul (and brain) of that conference and many other similar conferences was/is Owen Jones of Vanderbilt. Today the NYT Magazine ran a piece by Jeff Rosen about Owen's work and its implications: “The Brain on the Stand.” Rosen captured the gee-whiz character of some of the discussion very well — many of the people involved are very excited about their work and can't wait to tell you all about it. But he also conveyed the fascinating potential of neurolaw.
If it turns out that humans strongly, fundamentally want to cooperate and share (and take a look at “A Brain for All Seasons: Human Evolution & Abrupt Climate Change,” a wonderful book by William Calvin, in this connection), then maybe expanding intellectual property law doesn't make cognitive sense. Now, how will we know about this human desire? Will we really look at pictures of the brain reacting to IP claims?
Perhaps. That's the thing about neurolaw. A lot of the work now focuses on pictures of the brain in action, reacting to various stimuli. Right now we're seeing blotches of color, and people make arguments about what those blotches mean. Rosen focuses on brain-oriented defenses to liability, criminal and otherwise, and his story about seeing his own brain light up in response to scenarios and punishment choices is worth remembering. We don't know a lot about the import of those blotches (”just a lot of pretty pictures”), but we're making progress.
Whether to blame the behavior or the brain is an enormous question. (A related question comes up in cyberlaw– whether to blame the technology or how it is used.) Owen Jones's work may help us answer the question. (Bravo to him for all the grants and the years of focused research.)
Rosen wisely winds things up by reminding us that judges will make the decisions in this area. It's clear that they'll be looking at a lot of visuals.