COLLECTIVE COGNITIVE CAPITAL.

AuthorMurphy, Emily R.D.
PositionImagining the Future of Law and Neuroscience

TABLE OF CONTENTS

Introduction. 1351 I. The Contours of "Cognitive" and the Aggregation of "Collective" 1358 A. Defining the Broad Scope of "Cognitive". 1358 B. Defining and Justifying "Collective" 1360 C. Defining the Substance of the Framework. 1361 1. The "Biological" Subcomponents of "Cognitive": Development, Plasticity, Reserve, and Resilience 1362 2. The Core "Functional" Components of "Cognitive" 1368 a. General Intelligence, Reasoning, and Executive Functioning 1368 b. Emotional and Social Regulation 1370 II. Using the Framework to Translate the Gains of Brain and Behavioral Science into Policies for Collective Benefit 1372 A. Collective Cognitive Capital as Capital, and Related Stories. 1372 B. Behavior and Brain Science in Law and Policy Can Do Better than Behavioral Economics. 1377 C. Collective Cognitive Capital as an Analytic and Framing r Tool, and Some Modest Examples. 1383 Example 1: Administrative Burdens and "Sludge" as Wasting Collective Cognitive Capital. 1387 Example 2: "Welfare"Reframed as Investment in Collective Cognitive Capital. 1390 Example 3: Access to Fundamental Rights Without Paying a Price in Collective Cognitive Capital 1391 Example 4: Environmental Insults Can Directly and Indirectly Damage Collective Cognitive Capital. 1392 III. Collective Cognitive Capital Should Be Maximized by Law and Policy. 1395 IV. Limitations, Caveats, and Risks. 1402 A. Limitations. 1402 B. Caveats 1404 C. Risks. 1405 Conclusion. 1407 INTRODUCTION

This Symposium issue asks: What is the future of neuroscience in the law? Some scholars imagine technologically sophisticated futures of brain implants and mind reading, raising concerns about mental privacy and state intervention. (1) Others imagine perfect (or good enough) prediction of behavior, or forensic fact development for the courtroom. (2) Many return to fundamental challenges to common law notions of personhood and responsibility (3) A handful have suggested larger structural changes in legislation, legal categories, and political understanding of how particular groups of people behave and are classified by the state. (4) But what if the future of law and neuroscience is in some ways much less high tech or movie scriptworthy, and still affects vastly more people and makes use of a much broader swath of brain and behavioral science research? What if the application of brain science to law aimed to improve society through brain-prioritizing policy, rather than through one-off adjudication, private deployment of technology, or direct brain interventions in individuals?

This Article calls for a new project for "law and neuroscience." It outlines structural, not individual, application of brain science. That is, aligned with the general goal of basic science research into brain mechanisms and behavioral outcomes: improving the lives of citizens with a better understanding of the human experience. It asks brain and behavioral science (5) to move explicitly into public policy territory, and specifically onto ground more traditionally occupied by economists--but in ways the project of "behavioral economics" has not yet ventured. Put simply, policy analysts should focus on brains--"collective cognitive capital"--with the same intensity with which they focus on money, rights, or other policy metrics.

To that end, this Article introduces and explores the novel framework of "collective cognitive capital": a way of thinking of brain health and brain function as an aggregated resource. Collective cognitive capital is a conceptual framework for synthesizing brain and behavioral data and using it to assess the impacts of policy choices. It is analogous to a measure of welfare, a maximizable metric used to evaluate policy choices.

The core thesis for this future of "law and neuroscience" is simple: we can and should use brain and behavioral science to evaluate public policy decisions by how they affect the cognitive (and emotional) functioning of the people. Normatively, policies should seek to maximize collective cognitive capital because it is inherently valuable. Cognitive and emotional functioning, and overall brain health, subserve and maximize individual agency and freedom.

The timing for a concept like this is ripe. Collective cognitive capital builds on important ideas from development and health economics, including the capabilities approach. (8) Important for the audience of this special issue, it also brings behavioral and brain science into dialogue with law and policy in ways that have not yet been attempted in "law and behavioral economics."

Collective cognitive capital is a framework that shifts the focus of policy inquiry. In the applied program of law and behavioral economics, individuals' behavior is the object or target. It imports paternalistic ideas about how individuals should make decisions to maximize their welfare--given their assumed shortcomings in decision-making, which itself is a narrow version of cognitive capacity--within the existing political economy status quo. In contrast, the target in the framework of collective cognitive capital is the policy, rule, or institutional design and its effect on collective cognitive capital. The question is whether that rule or institution consumes more cognitive capital than necessary, or promotes development and preservation of cognitive capital. Unlike law and behavioral economics, which seek to "improve" individual decisionmaking, the political economy status quo is up for reevaluation under the rubric of collective cognitive capital. (7)

The framework of collective cognitive capital has the potential to engage policymakers in familiar territory. It offers coherent descriptive and normative accounts for policy making. It provides a concrete lens to focus on structural and contextual effects of policy on a populace, rather than putting the responsibility for public welfare on individual behavior. And it avoids some of the critiques and shortcomings of recent efforts in "behavioral public policy" while still making use of the research and insights into human cognition and behavior. Collective cognitive capital may also help define and clarify harm when government and regulated entities directly interact with people and consume--often waste--collective cognitive capital. Moreover, its normative definition of what is valuable--brain functioning that subserves and maximizes agency--is aligned with what makes us human.

Here is the high-level sketch of "collective cognitive capital," with expansion in the Parts that follow.

The "cognitive" aspect of the framework broadly means "derived from brain states." It envisions synthesis of group-based data on brain development and plasticity, general intelligence and fluid reasoning, cognitive control, and cognitive reserve. Importantly, "cognitive" also includes what are sometimes defined as "noncognitive" features and skills, such as emotional and social regulatory abilities.

"Collective" emphasizes that while brain/behavioral data is collected from individuals, it is most meaningful at the group level. It also captures the distinct property of the relational nature of cognition and a lot of behavior in important contexts; the collective resource is more than the sum of individual components.

The term "capital" conveys that the resource requires investment to maximize productivity, is capable of growth, is subject to fluctuations in response to surrounding conditions, and is harmed by underinvestment or withdrawals (such as neglect, trauma, stress, health, nutrition, toxins, and injury). "Capital" is an imperfect metaphor, but nevertheless a deliberate use of the dialect of the current political economy. Making the output of law and neuroscience interdisciplinary work actionable at a structural policy level may be facilitated by speaking the language of capital.

Cognitive capital would be accurately understood as something that everyone possesses, though in varying amounts, at varying points in time. It may be grown with investment without benchmarking as to any individual's unknowable maximum capability. Cognitive capital can be acutely spent on valuable activities that promote long-term growth, wastefully spent, or chronically diminished by disinvestment. The concept is broader than the narrow set of cognitive abilities that are already known to strongly predict formal academic success or high earnings in the knowledge economy. (8) It recognizes that success in life and in many sectors of the labor market--and in the non-compensated labor market, such as caregiving, relationship maintenance, self-care skills such as management of personal finances, and community-directed labor-like activities such as voting, civic engagement, and volunteering--requires a complex suite of abilities, including emotional and social capacities, as well as attentional and inhibitory control. The framework is not meant to be elitist or exclusionary of those with mental illness, neurological atypicality, cognitive disabilities, or below-average endowments of any of the four factors, because it should not be used to rank or convey relative worth or a measure of any individual's "cost" or "benefit" to society. (9) As an aggregate property, it accounts for the inherently social and relational nature of society. Others have defined something akin to sufficient cognitive capital as necessary for a functioning participatory democracy.

The utility of the collective cognitive capital framework is first in the "naming and framing" that is critical to uptake as a policy goal. With further model development, it could be a cross-disciplinary analytical tool like cost-benefit analysis. It could also help guide normative decisions about legislation and administration in the service of human flourishing. For example, the effects of climate change may be assessed with respect to the impact on collective cognitive capital (rather than strictly economic measures). A recent study...

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