Adam J. Kolber, the Experiential Future of the Law

• Publication year: 2011

THE EXPERIENTIAL FUTURE OF THE LAW

Adam J. Kolber^*

ABSTRACT

Pain, suffering, anxiety, and other experiences are fundamentally important to civil and criminal law. Despite their importance, we have limited ability to measure experiences, even though legal proceedings turn on such measurements every day. Fortunately, technological advances in neuroscience are improving our ability to measure experiences and will do so more dramatically in what I call "the experiential future."

In this Article, I describe how new technologies will improve our assessments of physical pain, emotional distress, and a variety of psychiatric disorders. I also describe more particular techniques to help determine whether: (1) a patient is in a persistent vegetative state, (2) a placebo treatment relieves pain, (3) an alleged victim has been abused as a child, (4) an inmate being executed is in pain, (5) an interrogatee has been tortured, and more. I argue that as new technologies emerge to better reveal people's experiences, virtually every area of the law should do more to take these experiences into account.

INTRODUCTION .............................................................................................. 587

I. THE IMPORTANCE OF SUBJECTIVE EXPERIENCE ................................. 590

II. THE EXPERIENTIAL PRESENT .............................................................. 595

A. Measuring Physical Pain ........................................................... 596

B. "Mind Reading" Technologies ................................................... 601

1. Diagnosing Disorders of Consciousness .............................. 601

2. Lie Detection ........................................................................ 602

III. THE EXPERIENTIAL FUTURE ............................................................... 604

A. Tort Contexts .............................................................................. 605

1. Physical Pain ........................................................................ 608 a. Incorporating New Technologies into Law ................... 609 b. Novel Legal Questions About Pain Compensation ........ 611 c. Measuring Baselines ...................................................... 612 d. Administrative Compensation Schemes ......................... 614 e. Pain Relief and False Advertising ................................. 615

2. Emotional Distress ............................................................... 618

a. Damages for "Suffering" .............................................. 618 b. Intentional Infliction of Emotional Distress .................. 620 c. Negligent Infliction of Emotional Distress .................... 621

B. Punishment Contexts .................................................................. 622

1. Blameworthiness .................................................................. 623 a. Whether a Crime Occurred ........................................... 623 i. Child Physical and Sexual Abuse ........................... 624

b. How Much Blame .......................................................... 627

i. Retributivists ........................................................... 628 ii. Consequentialists .................................................... 631 iii. How Sentencing Downplays Subjective

Experience .............................................................. 632

2. Punishment Severity ............................................................. 632 a. Our Mostly Non-Experiential Punishment Practices .... 635 b. The Special Case of Lethal Injection ............................. 640

3. Interrogation and Torture .................................................... 644

C. The Experiential Gap Between Tort and Criminal Law ............. 647

D. Why the Experiential Future Matters Now ................................. 648

CONCLUSION .................................................................................................. 651

INTRODUCTION

Subjective experience is fundamentally important to the law. We craft laws to make us feel happier and safer and help us avoid conflicts that cause misery and grief. When conflicts inevitably arise, litigants frequently claim that they have been wrongfully made to feel pain, sadness, fear, or anxiety. The outcomes of legal adjudication can also cause negative experiences, as when courts issue injunctions or sentence offenders to prison. There are few generalizations that apply to the law as a whole, but one is that virtually every aspect of the law affects people's feelings, emotions, and other experiences.

Though our experiences are critically important to the law, they cannot be observed directly. People try to express their feelings and emotions, but we are suspicious of their claims, especially when they have financial incentives to lie or exaggerate. Even when speaking truthfully, the nature and intensity of one's feelings are very difficult to convey. Despite our limited ability to judge the experiences of others, legal proceedings turn on such judgments every day.

Fortunately, technological advances in neuroscience are beginning to provide more accurate methods of measuring experiences. In 2007, I described how, in principle, brain imaging techniques could be used to more objectively assess a litigant's pain.¹One year later, a patent was granted on an alleged method of using brain imaging to measure pain.²During that same year, brain imaging evidence of pain was readied for battle in a worker's compensation dispute, though the case settled soon thereafter.³In early 2010, the Applied fMRI Institute became the first commercial enterprise to offer brain scanning services to assess pain.⁴And pain is just one of the many experiences, like distress, depression, and anxiety, for which we are working to develop more objective measurements. While there is much debate about when these technologies will be ready for courtroom use, litigants will no doubt seek to introduce such evidence in the near future.

In this Article, I describe some of the ways in which new technologies are shifting the way we measure experiences and will continue to do so more dramatically over the next thirty years. I discuss in general terms how new technologies may improve our assessments of physical pain, pain relief, emotional distress, and a variety of psychiatric disorders. I also discuss more particular applications of such technologies to assess whether: (1) a patient is in a persistent vegetative state, (2) a placebo treatment relieves pain, (3) an alleged victim has been abused as a child, (4) an inmate being executed is in pain, (5) an interrogatee has been tortured, and others.

My central claim is that as new technologies emerge to better reveal people's experiences, the law ought to do more to take these experiences into account. In tort and criminal law, we often ignore or downplay the importance of subjective experience. This is no surprise. During the hundreds of years in which these bodies of law developed, we had very poor methods of making inferences about the experiences of others. As we get better at measuring experiences, however, I make the normative claim that we ought to change fundamental aspects of the law to take better account of people's experiences.

In Part I, "The Importance of Subjective Experience," I briefly explain why subjective experience is so important to the law. Indeed, if classical utilitarianism is correct, everything of value depends on subjective experience, and the law should help us maximize good experiences. But even if classical utilitarians overstate the importance of subjective experience, the nature and quality of our experiences are undoubtedly critical to any account of what makes our lives valuable. For the law to connect with the important aspects of our lives, it must attend to subjective experience.

While some of the most exciting technologies to help us assess experiences are nowhere near ready for forensic use, in Part II, "The Experiential Present," I describe some of the assessment technologies already available in our primitive experiential present. For example, though we do not typically think that an X-ray of a broken leg reveals subjective experience, it surely tells us something about a person's pain. Emerging technologies will enable us to make inferences about others' experiences more frequently and with greater precision. These technologies may never be perfect. But they don't have to be. They need only be cost-effective supplements to the very crude methods we use today.

In Part III, "The Experiential Future," I argue that as better methods of measuring experiences emerge, they can and should revolutionize many areas of civil and criminal litigation. In the tort context, this argument is easy to make. Both current law and our best theories of tort law treat experiences like pain and suffering as generally relevant to damage assessments. If we remain consistent with this prevailing view in the future, the content of the law should change in rather dramatic ways. Instead of the rough proxy measures of experience that have become embedded in the law over many years, we can turn to new technologies that help us measure experience more directly.

In criminal justice contexts, by contrast, there is a conflict between prevailing law and our best theories of why we punish offenders. Prevailing law suggests that we can generally ignore victim and offender experiences or consider them to a very limited degree. I will argue that prevailing law is misguided and inconsistent with our best efforts to justify punishment. If we seek just punishment practices, then we must consider subjective experience more than we do now. The experiential future will make it easier to measure both the amount of harm caused by crime perpetrators and the amount of punishment they should subsequently receive.

Given the breadth of this Article, I can only scratch the surface of the many areas of the law...