THE FUTURE OF LAW AND NEUROSCIENCE.

• Date: 01 March 2022
• Author: Jones, Owen D.
• Published date: 01 March 2022
• Author: Jones, Owen D.

TABLE OF CONTENTS

Introduction. 1319 I. Neuroscience. 1321 A. Technologies for Monitoring and Manipulating Brain States 1322 B. Techniques for Analyzing Brain Data 1324 C. Theoretical Advances from Further Integrating Relevant Fields 1325 II. Neurolaw 1326 A. Detecting Things Law Cares About. 1327 1. Detecting Brain Injuries 1327 2. Detecting, Validating, and Measuring Pain 1327 3. Detecting Additional Biomarkers Relevant to Assessments of Future Recidivism 1329 4. Detecting Memories. 1331 B. Individualizing Developmental Stages and Brain States. 1333 1. Brains of Adolescents and Young Adults 1333 2. Brains in Decline. 1336 3. Brains in Drug Addicts 1337 C. Evidence-Based Legal Reform. 1337 1. Assumptions About Solitary Confinement. 1338 2. Assumptions Underlying Evidentiary Rules 1339 3. Assumptions About Criminal Mental States 1340 D. Legal Decision-Making 1342 E. Brain-Brain Interfaces 1344 Conclusion. 1345 INTRODUCTION

The hosts of this Symposium asked presenters to offer their opinions about what might be happening in Law and Neuroscience ten years down the road. We must obviously approach the question with some humility. Because--despite remarkable discoveries in the brain sciences over the last couple decades--there's so much more that we don't know about the brain than that we do.

So this is a highly fraught exercise. And one that challenges us to somehow free our imaginations, while keeping our feet planted firmly on the ground. In that spirit, and with full recognition of how rarely the future chooses to comply with our predictions, I will attempt to extrapolate into this new future, as asked, in a few of the many important domains of Law and Neuroscience.

Before turning to the future, though, a few words on the past. The late Margaret Gruter, who founded the Gruter Institute for Law and Behavioral Research, (1) deserves a lot of credit for being--so far as I am aware--the first person to bring legal scholars, judges, evolutionary biologists, and neuroscientists together systematically. Margaret believed that the science of animal behavior was relevant to the science of human behavior, and that--if that were true--it would inevitably have implications both for brain sciences generally and for law specifically.

My own interests in animal behavior were sparked at a very young age, by informal observations among woods and lakes, and also by the fascinating books on animal behavior emerging at the time. My interests in law sparked later, in college. And I was not yet aware of Margaret's efforts when I wrote a college paper combining those interests on the relevance of behavioral biology to law. I then went to law school hoping I might be lucky enough to shape an academic career at that intersection. So I was delighted to learn of the Gruter Institute and to meet, through it, others with interests at this same intersection.

Margaret fostered a consistently rich exchange of ideas, typically in intimate conferences at Squaw Valley, California (many of which I attended, some of which I co-directed, and all of which I found illuminating). There, among the peaks of the Lake Tahoe region, we'd give presentations across the disciplinary divides, bat ideas around for days, and share meals, hikes, questions, and findings together.

As it happens, Stanford biologist and MacArthur Foundation Fellow Robert Sapolsky (a co-panelist for this Symposium) attended some of these Gruter Institute events. Which perhaps crucially influenced his response, years later, to then-President Jonathan Fanton's invitation (extended to MacArthur Fellow scientists) for important "big ideas" that the MacArthur Foundation might consider supporting financially, to help jumpstart.

Sapolsky proposed that the Foundation go big on the intersection of Law and Neuroscience. And I, having been working at the law/biology intersection for (at that point) roughly fifteen years, and having recently begun a neurolaw brain-imaging experiment at Vanderbilt University with neuroscientist Rene Marois, was asked to be among the reviewers of the Sapolsky proposal (a fact the Foundation tells me I'm at liberty to disclose). Apparently enough of us reviewers were enthusiastic about the importance of aiding the legal system's inevitable encounters with neuroscience that the Foundation decided to devote considerable resources to this nascent interdisciplinary field.

It would be hard to overstate the importance of the MacArthur Foundation in stimulating national--and later international--work at the law/neuroscience intersection. The Foundation made two major independent, but topically related, investments totaling roughly fifteen million dollars. The first was in the MacArthur Foundation Law and Neuroscience Project (Michael Gazzaniga, director), of which I served as a co-director and later director. The second was in the MacArthur Foundation Research Network on Law and Neuroscience, which I had the honor to design and direct. (2)

There isn't room here to do justice to each individual, each collaborative team, and each larger working group that through hard and regular work helped develop common concepts and vocabulary, build bridges, explore implications, discover limitations, pilot projects, co-design experiments, and co-write and co-publish the results across the last two decades.' But it's fair to say that a great many prominent scholars, across many of this country's most prominent universities, together with a number of accomplished and deeply thoughtful judges, worked in common enterprise on this entirely new frontier--which had been occasioned, in part, by the intersection of law's perennial questions about responsibility, veracity, memory, and the like with new brain-imaging technologies that enabled the noninvasive study of brain function and decisionmaking in human subjects.

Although so much has been accomplished to date, the task assigned to us today (against the background just told) is to think about the future. To get started, I want to spend a few moments, in Part I, discussing what I think we're likely to see coming from the science side of things in the next ten years. I'll then offer, in Part II, some remarks about potential futures in five of the many categories of contexts in which neuroscience may offer value to the legal system. They are: (1) detecting things law cares about, (2) individualizing developmental stages and brain states, (3) evidencebased legal reforms, (4) legal decision-making, and (5) brain-brain interfaces.

1. NEUROSCIENCE

   Here I'll give examples of potential developments of three sorts, across three Sections. I'll discuss technologies for monitoring and manipulating brains, techniques for analyzing data collected from and about the brain, and theoretical advances from the continued integration of relevant fields. (4)

   1. Technologies for Monitoring and Manipulating Brain States

      2018 marked a significant achievement in neuroscience, by which researchers managed to compile an extremely detailed brain map of every single synapse in the entire brain of a fruitfly.'' Obviously there is a massive difference in scale between the diminutive weight of the fruitfly brain, at roughly one-half of one milligram, and the far larger human brain, averaging about 1.35 kilograms (which is therefore roughly 2,700,000 times as heavy), (6) let alone the even much larger brains of elephants and, say, sperm whales, at 4 kilograms and 8 kilograms respectively.'

      But it does not seem to me at all implausible, given the pace of past neuroscientific and computational progress, to think that within the next ten years we might achieve the same synaptic mapping of a human brain. The insights such a map might provide won't speak for themselves, of course. But a map of such fine-grained detail would likely afford us the opportunity to probe those brain data in ways that could lead to some very significant discoveries.

      In addition, the recent and tremendous (and at times shockingly troublesome (8) ) advances in gene-editing techniques, such as those using CRISPR, suggest that, across the next ten years, researchers will start genetically manipulating brain form and function in animal models. To the extent those animal models may be from species that have close, common evolutionary underpinnings with our own species, this suggests a tremendous avenue for discovery, some of it potentially law-relevant, about the human condition. And also about the extent to which such techniques might someday be used in humans, to good effect.

      With respect to Brain Machine Interfaces, we've seen a lot of development over the last decade in their use in medical contexts, often with paraplegics. Some techniques implant an array of sensing electrodes on the surface of the brain--in the area of the motor cortex, for instance--and connect it to a wireless transmitter, powered by a simple watch battery tucked beneath a flap of scalp skin. (9) This enables people to control the movements of a robot, with remarkably fine precision, simply by manipulating their thoughts alone. (10) 1 believe we'll see more widespread use, with finer and finer sensitivities and controls, in the next ten years.

      I also expect considerably expanded use of technologies to monitor not just the hemodynamic (blood flow) responses in the brain, but also the deeper brain electrical signals (which are not reliably monitored by electroencephalograph (EEG) scalp monitors) and the neurotransmitters active between synapses. These latter two capabilities are currently being achieved by Epilepsy Monitoring Units (EMUs), which are surgically implanted in patients with epilepsy. (11) Some of those patients have begun serving as subjects in research studies. And the ability to supplement fMRI and PET brain imaging with deep brain monitoring of electrical and neurotransmitter monitoring promises to enrich our understanding of brain function.

      These are just some examples of the kinds of technologies in which...