Will Neuroscience Radically Transform the Legal System?

Although academic fields will often enjoy more than Andy Warhol’s famous 15 minutes of fame, they too are subject to today’s ever-hungry machinery of hype. Like people, bands, diets, and everything else, a field gets discovered, plucked from obscurity, thrown into the spotlight, and quickly replaced as it becomes yesterday’s news.

Neuroscience is now the popular plat de jour, or, perhaps better, the prefixde jour, and neurolaw is one of the main beneficiaries—and victims. Neuroscience will have important and even dramatic effects on our society and, as a result, on our laws. But not yet, and not as dramatically as some envision.

First, consider timing. Many of the most interesting neuroscience results come from functional magnetic resonance imaging (fMRI). This technique allows us to see what parts of the brain are working and when, and thus to begin to correlate subjective mental states with physical brain states. The use of fMRI on humans goes back about 15 years, and although about 5,000 peer-reviewed scientific articles involving fMRI will be published this year, we are still trying to figure out how it works—or doesn’t. The fMRI results showing apparently purposeful brain activity in dead salmon are a wonderfully funny example of some of the limits of this technology, and fMRI is one of the oldest of the “new” neuroscience technologies. Half of what neuroscience is teaching us about human brain function will be shown, in the next 20 years, to be wrong—and we will need each of those 20 years to figure out which half.

But, second, we need a sense of proportion. Neuroscience will provide tools that will change the law in some important ways, but those tools will be neither perfect nor used in isolation, and those changes are not likely to strike at the law’s roots.