Minds, Brains, and Law

The Conceptual Foundations of Law and Neuroscience

Michael S. Pardo and Dennis Patterson

Assesses the philosophical questions that arise when neuroscientific research and technology are applied in the legal system
Examines the concept of the mind and the implications of this model for determinism, free will, law, and other issues
Examines the arguments favoring the increased use of neuroscience in law, the means for assessing its reliability in legal proceedings, and the integration of neuroscientific research into substantive legal doctrines

New to this Edition:

Features a new Preface to the Paperback Edition

Minds, Brains, and Law

The Conceptual Foundations of Law and Neuroscience

Michael S. Pardo and Dennis Patterson

Description

Cognitive neuroscientists have deepened our understanding of the complex relationship between mind and brain and complicated the relationship between mental attributes and law. New arguments and conclusions based on functional magnetic resonance imaging (fMRI), electroencephalography (EEG), and other increasingly sophisticated technologies are being applied to debates and processes in the legal field, from lie detection to legal doctrine surrounding criminal law, including the insanity defense to legal theory.

In Minds, Brains, and Law, Michael S. Pardo and Dennis Patterson analyze questions that lie at the core of implementing neuroscientific research and technology within the legal system. They examine the arguments favoring increased use of neuroscience in law, the scientific evidence available for the reliability of neuroscientific evidence in legal proceedings, and the integration of neuroscientific research into substantive legal doctrines.

The authors also explore the basic philosophical questions that lie at the intersection of law, mind, and neuroscience. In doing so, they argue that mistaken inferences and conceptual errors arise from mismatched concepts, such as the disconnect between lying and what constitutes "lying" in many neuroscientific studies. The empirical, practical, ethical, and conceptual issues that Pardo and Patterson seek to redress will deeply influence how we negotiate and implement the fruits of neuroscience in law and policy in the future.

This paperback edition contain a new Preface covering developments in this subject since the hardcover edition published in 2013.

Minds, Brains, and Law

The Conceptual Foundations of Law and Neuroscience

Michael S. Pardo and Dennis Patterson

Preface to the Paperback Edition

Preface to the Hardcover Edition

Introduction

Chapter One: Philosophical Issues
I. The Conceptual and the Empirical
II. Criterial and Inductive Evidence
III. Unconscious Rule Following
IV. Interpretation
V. Knowledge
VI. The Mereological Fallacy

Chapter Two: The Concept of Mind
I. Neuro-Reductionism
II. Eliminative Materialism and the "Theory" of Folk Psychology
III. Two Examples of Neuro-Reductionism and Its Implications for Law
IV. Conceptions of Mind and the Role of Neuroscience in Law

Chapter Three: Neuroscience and Legal Theory: Jurisprudence, Morality, and Economics
I. Jurisprudence
II. Emotion and Moral Judgments
III. Mind, Moral Grammar, and Knowledge
IV. Neuroeconomics

Chapter Four: Brain-Based Lie Detection
I. fMRI Lie Detection
II. EEG Lie Detection ("Brain Fingerprinting")
III. Analysis: Empirical, Conceptual, and Practical Issues

Chapter Five: Criminal Law Doctrine
I. Actus reus
II. Mens rea
III. Insanity

Chapter Six: Criminal Procedure
I. Fourth Amendment
II. Fifth Amendment
III. Due Process

Chapter Seven: Theories of Criminal Punishment
I. A Brief Taxonomy of Theories of Criminal Punishment
II. The First Challenge: Brains and Punishment Decisions
III. The Second Challenge: Neuroscience and Intuitions about Punishment

Conclusion

Bibliography
Table of Cases
Index

Minds, Brains, and Law

The Conceptual Foundations of Law and Neuroscience

Michael S. Pardo and Dennis Patterson

Author Information

Michael S. Pardo is the Henry Upson Sims Professor of Law at the University of Alabama School of Law. His scholarship explores epistemological issues in the areas of evidence, criminal procedure, civil procedure, and jurisprudence, with a specific focus on legal proof. He is a co-author of the fifth edition of Evidence: Text, Problems, and Cases (2011, with Allen, Kuhns, Swift, and Schwartz), and the author of numerous articles in distinguished law reviews and legal philosophy journals. He received his JD from Northwestern University School of Law.

Dennis Patterson is Board of Governors Professor of Law and Philosophy at Rutgers University School of Law. He holds the Chair in Legal Philosophy and Legal Theory at the European University Institute, and a Chair in Jurisprudence and International Trade at Swansea University. His scholarship includes legal theory, commercial law, and trade law. Patterson is the author of Law and Truth (Oxford University Press, 1996) and The New Global Trading Order (2008, with Ari Afilalo). He is the series editor of The Oxford Introductions to U.S. Law and the general editor of The Blackwell Companion to the Philosophy of Law and Legal Theory. He has published widely in jurisprudence, commercial law, trade law, and EU law. He received his JD and PhD (Philosophy) from the University at Buffalo.

Minds, Brains, and Law

The Conceptual Foundations of Law and Neuroscience

Michael S. Pardo and Dennis Patterson

Reviews and Awards

"The subject of neuro-legal studies has developed rapidly in the wake of advances in cognitive neuroscience . Its relevance to and bearing upon the law and legal proceedings, and upon the admissibility of neurological evidence in criminal law are of the greatest importance. Professors Pardo and Patterson have written a most timely book that subjects neuro-legal studies to meticulous conceptual scrutiny. They bring to bear impressive knowledge of neuroscience and law, as well as first-rate philosophical acumen. They write lucidly and present their opponents' case fairly. Their critical arguments are powerful and convincing, and will profoundly affect the current perception of the relation between law and neuroscience. This book should be studied by all lawyers and judges concerned with the relevance of cognitive neuroscience to the law, and by all students of law." --P.M.S. Hacker, St. John's College, Oxford

"Not only is this book a masterful blending of highly knowledgeable law, neuroscience, and philosophy, but it also avoids both the excess claims and the excess skepticism that plague the literature on this increasingly important topic. The book will serve both as a valuable introduction to those who are new to neuroscience and law, and also as a set of distinctive positions that will engage those who are already involved with the subject." --Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia

"Pardo and Patterson have powerfully and sophisticatedly constructed the skeptical argument concerning the relevance of neuroscience to law. Minds, Brains and Law will justifiably provoke controversy and debate and it should be required reading for anyone interested in this field." --Stephen J. Morse, Professor of Law and Psychiatry, University of Pennsylvania

"Two conceptual difficulties bedevil neuroscience at present. One of these involves attributing psychological capacities to parts of the brain and not to the human being whose brain it is. The other involves on the one hand the claim that there are discrete regions of the association cortex that support particular psychological capacities; and on the other hand the claim that such capacities are discrete. These assumptions have profound implications for the interpretation of non-invasive brain images. This wonderful book sets out such caveats concerning the admissibility of neuroscience in courts of law." --Maxwell R. Bennett AO, Professor of Neuroscience, Adjunct Professor of Neuropsychiatry, Founding Director Brain and Mind Research Institute, University of Sydney

"The book's breadth, clarity, and generally on-point criticisms make it useful to a wide audience, worth reading for anyone working on what has come to be called 'neurolaw,' 'neuroethics,' or 'experimental philosophy,' but also of interest to moral and legal philosophers interested in developments in neuroscience (as arguably all moral and legal philosophers should be), and both academic and non-academic lawyers whose work engages neuroscientific evidence. There are also general lessons to be learned about how empirical evidence bears on philosophical claims, and Pardo and Patterson are generally good teachers." -Alexander Guerrero, University of Pennsylvania, Notre Dame Philosophical Reviews

"[The British Society for Literature and Science] members researching numerous fields including the social and legal history of crime, psychology, philosophy, the emotions, literature and film will find food for thought in this impressive volume. Perhaps most importantly, Minds, Brains, and Law entreats us, as participants in interdisciplinary and international discourses, to think more carefully about the language we use, and its different contexts and connotations. By doing so, we may forge more effective collaborations in the future, from co-authored publications and interdisciplinary conferences to the trial of terror suspects." - Helen Holloway, University of London, The British Society for Literature and Science