The Costs of Changing Our Minds

• Citation: Vol. 69 No. 1
• Publication year: 2019

The Costs of Changing Our Minds

Nita A. Farahany

THE COSTS OF CHANGING OUR MINDS

Nita A. Farahany^*

ABSTRACT

The neuroscience revolution poses profound challenges to the doctrine of avoidable consequences in tort law and exposes deep theoretical riddles about the right to our own mental experiences and memories. To address this profound question, this Article begins with a deceptively simple principle of tort law: A victim of tortious wrongdoing by another is held responsible for mitigating her own physical injuries. This Article addresses whether that same doctrine should require a tort victim to likewise mitigate her emotional injuries. The answer to that question is of great and increasing importance because it goes to the heart of how society should address dramatic advances in neuroscience that enable us to change our own minds. This Article proposes a revolutionary way to understand both the answer to this question and to bring daylight to many puzzling doctrines in law—through the right to cognitive liberty. Through an introduction to the groundbreaking concept of cognitive liberty, the confusion plaguing the doctrine of avoidable consequences in tort law for emotional distress injuries is solved and new insights are developed with respect to other doctrines in law. These implications are as far-ranging as the deliberative privilege afforded to judges to the forced competency of prisoners. It quickly becomes apparent that cognitive liberty is the interest upon which many of our most cherished freedoms are secured.

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INTRODUCTION ............................................................................................... 77

I. CHANGING YOUR MIND ...................................................................... 81

A. Memories Can Be Changed ........................................................ 81
B. The Pandora's Box of Memory Modification ............................. 84

II. LEGALLY AVOIDING PAIN AND SUFFERING .........................................86

A. Bodily Pain and Mental Distress ................................................ 86
B. The Doctrine of Avoidable Consequences .................................. 88
C. How Courts Address Mitigating Emotional Injuries .................. 90

1. Treating Emotional Distress Damages Differently .............. 91
2. Treating Emotional Distress Damages the Same ................. 94
3. Analogous Physical Tort Law Cases .................................... 95

III. THE RIGHT TO COGNITIVE LIBERTY .................................................... 98

A. Defining Cognitive Liberty ......................................................... 98
B. Applying Cognitive Liberty to Tort Law................................... 101
C. The Role of Cognitive Liberty Across Law ............................... 104

CONCLUSION ................................................................................................. 108

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INTRODUCTION

Rape kits do not yet include propranolol, but they soon may. Propranolol, a beta-blocker drug developed in the 1960s as a treatment for high blood pressure, could blunt or even altogether extinguish the fear and emotional memory of a recent rape.¹ When the victim presents in the emergency room just hours after her assault, her physician cannot then predict if she will become one of the one-third of rape victims who will develop post-traumatic stress disorder (PTSD). If she does develop PTSD, then even years later the smallest trigger—a sound, the refrain of a song, a smell—could recall for her in full force the anguish of her attack, as if it were yesterday. While the physician cannot initially predict the victim's likelihood of future psychological trauma, he can know that her memories of the attack, just like all newly formed memories, are extremely fragile² —so fragile that if the physician could somehow help her alter her brain activity then and there, she might never form the long-term fear memory associated with her assault.³

Propranolol may offer precisely that. If the physician administers propranolol to her in those early hours after her assault, her memory of that horrific experience may soon fade, so that she might come to observe that terrible day as just another day long passed. This may sound like a medical miracle—and it very well may be—but with those prospects, would anyone reasonably refuse the drug? The answer to that question brings daylight to an increasingly critical issue in society—the role of cognitive liberty in our law and lives.

Surely, if the drug is safe, then a rape victim should have the choice to lessen the lasting psychological trauma of her assault. But how should the legal system regard a decision by her to decline the drug? Had she been stabbed during a robbery instead of raped, we would consider it perverse for her to refuse reasonable medical treatment of her wounds. And in a tort suit against the robber, a judge or jury would limit her physical damages because of her failure to mitigate her own injuries. Is her refusal to take propranolol analogous? Or is there some societal and individual value to remembering her attack more clearly? Could blunting her suffering have the paradoxical effect of diminishing societal outrage to, and condemnation of, rape? could altering her memory

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render her an ineffective witness in the prosecution of the crime? Perhaps the police could take her statement the moment before she ingests propranolol. But would the use of her statement, which she has later partially forgotten, violate the alleged perpetrator's constitutional right to confront witnesses against him? Moreover, would she be better off remembering and then transcending her assault? How would memory modification impact her sense of self and her identity? Writers, public figures, artists, and others speak openly about how overcoming a pivotal adversity in their lives has enabled them to reach a new consciousness, gain new insight, or achieve new courage. Do these stories of transcendence impact how the law should consider her refusal?

This Article begins with a deceptively simple principle of tort law: A victim of tortious wrongdoing by another is held responsible for mitigating her own physical injuries. This Article then addresses whether that same doctrine should require a tort victim to likewise mitigate her emotional injuries. The answer to that question is of great and increasing importance because it goes to the heart of how society should address the dramatic advances in neuroscience that enable us to change our own minds.

Already, new discoveries in neuroscience enable us to selectively remember or forget past experiences by erasing parts of, or even entire memories from, our brains. With the advent of selective forgetting, rape victims, car accident victims, burn victims, and others may soon have to choose whether to numb their memories or have their civil damages reduced for failing to mitigate their own suffering. This prospect poses a deep puzzle that tort law and theory are ill-equipped to solve. Courts and commentators have almost entirely ignored the increasingly crucial issue of whether the doctrine of avoidable consequences should require a civil plaintiff to mitigate her own pain and suffering. This doctrine requires that an individual injured by the tortious acts of another exercise ordinary care under the circumstances to prevent the aggravation of her injuries.⁴ Courts and commentators all agree that a plaintiff must take reasonable steps to mitigate her ordinary physical injuries. But they remain utterly perplexed about whether or to what extent a plaintiff must similarly mitigate her pain and suffering.

Pain and suffering are the "invisible" injuries—the fright, anxiety, shock, humiliation, indignity, terror, or loss of enjoyment of life—that a tort victim endures because of the civil wrongdoing of another.⁵ While no sum of money

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can ever restore the peace of mind disturbed by assault, these compensatory damages "give to the injured person some pecuniary return for what he has suffered or is likely to suffer."⁶ These damages also reflect societal "disapproval of the harm caused by the tortfeasor," and "promote loss avoidance goals by sending a fuller deterrent signal."⁷

Some important scholarship has already articulated the role of agency in limiting the availability of emotional damages in tort law.⁸ But pharmacological advances like propranolol that mitigate invisible injuries by literally changing one's brain pose a theoretical riddle that pushes the issue several layers deeper. Only a few articles have addressed this issue at all, and none have attempted to locate it within its broader scientific, philosophical, and ethical context.

Judges, likewise, have not yet squarely addressed this issue. Those few courts that have considered what measures, if any, a plaintiff must take to mitigate her own emotional pain and suffering express deep ambivalence about the issue.⁹ Several courts have found a duty to mitigate emotional distress damages, but none have quite explained what that duty entails or how it might be breached.¹⁰ Other courts have intuited that something more is at stake in these cases—and have invoked concepts like self-determination and autonomy to conclude that the doctrine of avoidable consequences may not apply to pain and suffering.¹¹

The time has come for a systematic and thoroughgoing inquiry into the issue. Modern neuroscience and medicine have heralded stunning advances in our ability to understand and change the subconscious and conscious human experience—with meditation, psychotherapy, electrical stimulation, drugs, and more. Yet we have made almost no progress on deciding whether our legal regimes will encourage, or even oblige, individuals to alter their brains in such

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ways, lest they be deemed to have wrongfully failed to lessen their own suffering.

The answer to this question bears on far more than...