Law and Neuroscience 2.0

Abstract

Law and neuroscience is approaching an inflection point. It has been roughly ten years since the New York Times Magazine put neurolaw on its cover, since Stanford neuroscientist Robert Sapolsky wrote his seminal article, “The Frontal Cortex and the Criminal Justice System”; and since law professor Adam Kolber taught the first law and neuroscience course. The MacArthur Foundation Research Network on Law and Neuroscience, which has been one of the epicenters of the field over this same period, will wind down its primary research projects soon.

So what comes next?

In this Article, I sketch out a vision for “Law and Neuroscience 2.0.” Neurolaw has built a solid foundation for a lasting intellectual and policy endeavor. But to realize the promise of neuroscience for law and policy, we need to do more to productively encompass the wide variety of ideas, research, and activity that are on-going and forthcoming at the neuroscience-law intersection. At the ten-year mark, neurolaw too often focuses only on criminal responsibility, too infrequently explores technologies beyond fMRI, and has yet to explore many of the ways in which brain science already is posing legal challenges. In short, there is much to do.

The Article proceeds in four parts. Part I provides a brief review of the past decade of law and neuroscience research, distilling some of the lessons we have learned and some of the challenges we have faced. In Part II, I explore the landscape of future neurolaw possibility, offering fifteen different areas of potential investigation. Part III begins to develop a blueprint for how we can get from here to there, with an emphasis on the need for educating a new generation of neuroscience-informed legal thinkers, and creating viable career tracks for those graduates. I conclude in Part IV with a short reflection on why -- despite all its limitations -- the future of neurolaw is bright.

Keywords: neurolaw, law and neuroscience, science and law, evidence, criminal law, tort, brain injury, fMRI, brain