Thursday, August 30, 2007

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.


Anonymous Patrick S. O'Donnell said...

From some perspectives in philosophy of mind, the ways in which the literature from neuroscience is being exploited is troubling. Anyone in the legal profession enchanted by such literature would be well-served by a dose a scepticism, and better served by acquaintance with more philosophically sophisticated appraisals of this literature, especially if it is thought to be relevant to the law and public policy questions in general. Among the titles one might read: M.R. Bennett and P.M.S. Hacker, Philosophical Foundations of Neuroscience (Malden, MA: Blackwell, 2003), Sunny Auyang, Mind in Everyday Life and Cognitive Science (Cambridge, MA: MIT Press, 2001), Vincent Descombes, The Mind's Provisions: A Critique of Cognitivism (Princeton, NJ: Princeton University Press, 2001), as well as many of the books Hilary Putnam has written since Reason, Truth and History (1981). I think it is very important that we understand that the mind is not reducible to the brain (or at least that there are strong reasons for not believing in mind/brain identity and/or being crystal clear as to the sorts of inferences [i.e., circumscribing more strongly than has been the practice to date] that might be drawn from inductively discovering strong "correlates" between neural activity and mental states). To be sure, not a few philosophies regnant today are more or less "scientistic," but there are philosophical viewpoints on the mind and brain that question in the first instance some of the claims coming from neuroscientists about the relevance of their findings, let alone the claims of those outside neuroscience proper who are eager to apply these findings to their own intellectual fields of inquiry or socio-economic and political worlds. For instance, and briefly if not paradigmatically, to speak of "wanting" and "liking" in terms of the brain (or 'brain systems') makes no sense whatsoever, for the brain neither wants nor likes. (This elementary fact is thoroughly explored in the Bennett and Hacker volume; the former is an esteemed neuroscientist, the latter is a distinguished philosopher.)

Incidentally, the fact the literature in an area is burgeoining, becoming something of a cottage industry, is not a testament to its plausibility or worthiness. There's an enormous amount of literature in the field of Evolutionary Psychology, and much of it is of dubious or little scientific merit: the claims are often extragavant, and the philosophical (philosophy of science) presuppositions and assumptions are often tenuous or eminently arguable in a way not routinely acknowledged or understood by many of its foremost or well-known practitioners.

So, again, before we get too excited about the findings from neuroscience, let's take a deep breath and delve a bit more deeply into some of the philosophical issues that are sometimes hidden, forgotten or otherwise worthy of address....

8/30/2007 12:41 PM  

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