Neuroeconomics, Law and Emotions

So, how could neuroeconomics affect law? See, e.g., Terrence Chorvat, Kevin McCabe, Vernon Smith, Law and Neuroeconomics, 13 The Supreme Court Economic Review 35 (2005); Terrence Chorvat and Kevin McCabe, The Brain and the Law, 359 Philosophical Transactions of the Royal Society of London, B: Biological Sciences, 1727 (2004); Terrence Chorvat and Kevin McCabe, The Neuroeconomics of Rationality, 80 Chicago Kent Law Review 1235 (2005); and Jedediah Purdy, The Promise (and Limits) of Neuroeconomics, 58 Alabama Law Review 1 (2006). More generally, neuroscience might affect criminal evidence, law, procedure, and testimony.

A conference on law and the emotions at Boalt Law School this past February featured a talk by Liz Phelps entitled, Emotion and the Brain: Potential Insights for Legal Decisions. On that same panel, Jeremy Blumenthal presented a talk entitled, Moral Passions or Passionate Morals? Emotion, Moral Decision-Making, and the Law. On another panel, Dan Kahan presented his forthcoming article, Two Conceptions of Emotion in Risk Regulation, critiquing Cass Sunstein's view that lay persons' emotions are irrational and should be replaced by experts' reflective judgments. Also as part of that panel, I presented Law and Human Flourishing: Happiness, Affective Neuroscience, and Paternalism.

My talk analyzed this question: are there particular decision-making environments for which categories of paternalism are justifiable by considerations of an individual’s ex post self-reported experienced happiness or subjective well-being? Recent affective neuroscientific data provides evidence of a disjunction between two brain systems: wanting and liking. There is a burgeoning literature demonstrating that across many diverse contexts, people make systematic mistakes in predictions about what will make them happy. See generally, Jeremy A. Blumenthal, Law and the Emotions: The Problems of Affective Forecasting, 80 Indiana Law Journal 155 (2005); and Daniel Gilbert, Stumbling on Happiness. According to Colin F. Camerer, Wanting, Liking, and Learning: Speculations on Neuroscience and Paternalism, 73 University of Chicago Law Review 87 (2006); a gap between wanting and liking supplies a scientific language for normative and positive theories of paternalism. The talk examined policy consequences of such empirical findings in affective neuroscience, happiness research, and positive psychology for a recent debate among some behavioral economists and legal scholars about if and when paternalism is desirable or justifiable. Much of this debate focuses on people being subject to cognitive biases and utilizing heuristics as rationales for some type of paternalism. A noteworthy exception to such cognitively-based paternalism is Jeremy A. Blumenthal, Emotional Paternalism, 35 Florida State University Law Review (forthcoming). Instead of stressing cognitive mechanisms of bounded rationality, the presentation highlighted alternative roles that affect, emotions, and moods play in helping or hindering learning and markets to close gaps between wanting and learning.

A New Book About Neuroeconomics

I just received from Amazon.com a copy of Your Money and Your Brain: How the New Science of Neuroeconomics Can Help Make You Rich by financial journalist Jason Zweig. We met last Sept. during the annual conference for the Society for Neuroeconomics. He mentioned this book & e-mailed a draft manuscript of it. It was a pleasure to read, being not only informative, but also transformative. You can see other favorable reviews of it by Danny Kahneman, Peter Bernstein, Publisher's Weekly, David Dreman, and William Bernstein at its Amazon.com website as well as an excerpt of its first chapter. Chapter 2 entitled Thinking and Feeling discusses what researchers in judgment and decision making refer to as the jellybean syndrome. A final chapter about happiness provides an introduction to a burgeoning literature about subjective well-being. Three appendices provide helpful checklists for investing. There is a collection of colorful brain scan images that should appeal to, as neuroscientist Liz Phelps likes to say, those "cognitive paparazzi" among us. Finally, there are detailed endnotes with references for those who desire to follow-up in more depth.

Beyond Food and Evil

This is lecture of mine published at 56 Duke L.J. 1581 (2007), and posted on SSRN at http://papers.ssrn.com/abstract=1005001:

The mass marketing of foods derived from organisms modified through recombinant DNA technology has put extreme pressure on the interpretation and implementation of the United States' basic food safety law, the venerable Food, Drug & Cosmetic Act. In its classic form, the FD&CA reflects its Progressive and New Deal roots. It vests enormous trust in a specialized agency, the Food and Drug Administration, which is presumed to have nonpareil expertise over food safety. The political reality of GM foods, however, has placed the FD&CA and its implementation by the FDA in severe tension with the Organic Foods Production Act and with commercial speech doctrine.

Fear about food is one of the most deeply seated forms of behavioral protection against the natural world. It is precisely here, where food comes into contact with notions of good and evil, that the classic regulatory state must take its stand. The FDA's regulation of foods using rDNA technology upholds the best of the Progressive regulatory tradition and deserves to survive the challenge posed by the OFPA, the revived commercial speech doctrine, and contemporary consumer distrust of governmentally supervised review of science and safety.

Lula Discovers The Rainforest

Since he was elected President of Brazil in 2003, the policies of Luiz Inácio Lula da Silva have generally failed to see both the forest and the trees of the Amazon. Brazil hosts the greatest wonder of the sylvan world: the Amazon rainforest. This vast forest is the largest remaining rainforest on earth, and the last refuge of up to a third of all living taxa. However, as a consequence of Lula's drive to turn Brazil from an impoverished straggler into an economic power, Lula has consistently sided with development at the expense of conservation. The obvious result has been rampant deforestation; a more insidious consequence may be the exacerbation of global, and local, climate change. As the title of a recent New York Times article vividly announced, "Brazil, Alarmed, Reconsiders Policy on Climate Change".

To complement his misinformed, Bush II-like stance on the causes and consequences of global climate change (Lula's Environmental Lulus), Lula has consistently resisted international pressure to conserve the Amazon rainforest, preferring, instead, vigorously to reassert Brazil's sovereignty over the Amazon, and blaming the developed world for its loss of rainforest. Meanwhile, mostly as a result of this deforestation, Brazil has rocketed up the league tables of carbon emissions, having now achieved the dubious honor of fourth place in the world.

Lula and his policies are a significant obstacle to conserving Brazil's rainforest and the hyperdiversity it houses, in significant part because innovative suggestions for achieving conservation have consistently been rejected. Part of the problem appears to be ignorance of environmental issues reminiscent of Bush II prior to his Heiligendamm conversion (A More Convenient Truth). The New York Times recently characterized Lula as a man "whose knowledge of the technical details of the debate is widely described as sketchy".

However, as the rainforest has disappeared, so too has the rain. Drought and extreme weather have afflicted parts of Brazil accustomed to reliable rainfall and relatively benign conditions. In a sign that Lula may finally be on the verge of his own Heiligendamm conversion on deforestation and global climate change, "[in] April, he saw Al Gore’s film “An Inconvenient Truth” in Brasília in the company of some of Brazil’s leading environmentalists". One hopes that, like Bush II, Lula can right his course towards more environmentally rational policies. To prevent irreversible damage to the Amazon rainforest and its surroundings, Brazil urgently needs Lula to live up to his surname by opening his eyes to both the forest and the trees.