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Neurolaw Today – a Systematic Review of the Recent Law and Neuroscience Literature

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International Journal of Law and Psychiatry 65 (2019) 101341 Contents lists available at ScienceDirect International Journal of Law and Psychiatry Neurolaw today – A systematic review of the recent law and neuroscience literature Jennifer A. Chandler a,⁎,NeilHarrela, Tijana Potkonjak b a Faculty of Law, University of Ottawa, Canada b University of Ottawa, Canada Contents 1. Introduction............................................................... 2 2. Method................................................................. 2 2.1. Objective............................................................. 2 2.2. Searchstrategy.......................................................... 2 2.3. Inclusionandexclusioncriteria................................................... 2 2.4. Analysis............................................................. 3 2.5. Limitations............................................................ 4 3. Results................................................................. 4 3.1. Criminallaw(n=54)....................................................... 4 3.1.1. Adults – criminalresponsibilityandsentencing(n=12)................................... 5 3.1.2. Adults – proceduralandcorrectionalimplications(n=8)................................... 5 3.1.3. Juveniles – criminalresponsibilityandsentencing(n=11).................................. 5 3.1.4. Juveniles – proceduralandcorrectionalimplications(n=23)................................. 5 3.2. Healthlawandpublichealthlaw(n=27).............................................. 6 3.2.1. Addiction(n=11).................................................... 6 3.2.2. Regulationofneurotechnology(n=9)........................................... 6 3.2.3. Miscellaneoushealthlaw(n=7).............................................. 6 3.3. Legalconceptsandlegaldecision-making(n=22).......................................... 7 3.3.1. Moralandlegalresponsibility(n=11)........................................... 7 3.3.2. Moralandlegalreasoning(n=6)............................................. 7 3.3.3. Thepsychologyoflegislationandregulation(n=3)..................................... 7 3.3.4. Legaleducation(n=3).................................................. 7 3.4. Evidencelaw(n=17)....................................................... 8 3.4.1. The uses, limitations and admissibility of neuroscientificevidence(n=10)......................... 8 3.4.2. Systematic reviews of the use of neuroscientificevidence(n=5)............................... 8 3.4.3. Impact of neuroscientificevidenceonjudicialorjurydecision-making(n=2)......................... 8 3.5. Humanrightslawandpubliclaw(n=17)............................................. 8 3.5.1. Humanrightslaw(n=10)................................................ 8 3.5.2. Domesticandinternationalpubliclaw(n=7)........................................ 9 3.6. Privatelaw(n=15)........................................................ 9 3.6.1. Tortlaw(n=5)..................................................... 9 3.6.2. Alternativedisputeresolution(ADR)(n=4)........................................ 9 3.6.3. Childreninacivillawcontext(n=4)........................................... 9 3.6.4. Businessandcommercelaw(n=2)............................................ 9 3.7. Generaldiscussionsoflawandneuroscience(n=4)......................................... 9 4. Discussion................................................................ 10 5. Conclusion............................................................... 10 References.................................................................. 10 ⁎ Corresponding author. E-mail address: [email protected] (J.A. Chandler). https://doi.org/10.1016/j.ijlp.2018.04.002 0160-2527/© 2018 Elsevier Ltd. All rights reserved. 2 J.A. Chandler et al. / International Journal of Law and Psychiatry 65 (2019) 101341 1. Introduction existing surveys of “neurolaw,” as well as the MacArthur Law and Neuroscience bibliography (Shen, 2010) to understand the potential We are in the midst of a resurgence of interest in the biological dimen- scope of what might constitute “law and neuroscience” literature. sion of human behaviour and mental states, as exemplified by the rise of We wish to capture work that explores the intersection of (1) knowl- biosocial criminology and of biological psychiatry. Much of this work edge or techniques from the brain sciences and technology with (2) con- seeks to understand human behaviour and mental states at the level of cepts, rules, institutions and procedures of the law or justice system. This the brain, and, in particular, the interaction of the biological substrate at broadly-defined area of inquiry could potentially draw upon writing from various levels (genetics, cells, brain structures and circuits) with the envi- a huge range of disciplines (e.g. legal sociology, criminology, philosophy), ronment (including the social and physical environments). This interest but we have chosen to restrict it to the legal literature, by which we and this manner of understanding human behaviour and experience are mean articles whose predominant concern is a specific legal concept, much broader than criminology and psychiatry, of course. It is reflected rule, institution or procedure. in the proliferation of research sub-disciplines in the social sciences and Given our focus on legally-oriented writing, we chose to search four humanities such as neuroeconomics, neuroethics, neuroesthetics, leading legal databases: HeinOnline, Westlaw, LegalSource and LegalTrac. neuromarketing, neuroeducation, neuropolitics, and neurotheology to These four databases cover in total over 3000 journals and publications name only a few. from more than 30 countries. These four databases provideextensivecov- The law too – as a social creation and institution – reflects the zeitgeist. erage of English language academic legal journal publications. We do not Previous waves of biologically-oriented theories about behaviour and the attempt to include literature in other languages in this scoping review. mind have been incorporated into the legal sphere over the years (Shen, While we originally intended to offer a systematic review from 1990 2016d). The ebb and flow of the brain as an object of legal interest has to 2017, we would have been forced to significantly narrow our search been driven by the continuing evolution of biological theories of human strategy to ensure a manageable number of results. Instead, we decided behaviour and mental states, as well as by the technologies available for that we would prefer a comprehensive picture of a “slice in time” in this examining the brain (e.g. through electroencephalography and imaging) area of work rather than a narrower search that might reveal evolution and intervening in the brain (e.g. chemically or physically). over time. We thus limit our search to articles published in 2016. In recent years, the number of scholarly publications situated at the Consistent with our attempt not to prejudge the contents of a field of intersection of law and neuroscience has increased (Shen, 2010; Shen, inquiry, we have chosen a broad and inclusive search string (brain OR 2016d) and topics related to law and neuroscience also appear regularly neuro!) (using “!” or the equivalent truncation character in each data- in the popular media. In our view, it is time to take a systematic base). We did not include legal search terms since we were searching approach to characterizing the work in this field, in order to begin to indices for legal literature. identify the main themes and gaps in the work so far. In this article, The searches generated 5638 results (see Fig. 1). Abstracts and meta- we seek to describe the breadth of this literature by providing a system- data were imported into reference management software (Citavi). atic review of English language publications in the year 2016. We do Using automated and manual methods, we removed duplicates and not try to characterize the evolution of the field over time given our non-English language results, leaving 3476 results. methodological choice to prefer a detailed and systematic review of one slice of time. Future work could broaden the inquiry into previous 2.3. Inclusion and exclusion criteria and subsequent years, as well as into other adjacent scholarly disciplines that study legal matters such as legal sociology, criminology, or philoso- All of the results were then screened by two reviewers on the basis phy, among others. of the title and abstract (or introductory paragraphs of the full text We have found that neuroscience is being cited in relation to many where no abstract was provided). Articles were included or excluded different domains of law and regulation, legal concepts and theories, on the basis of the criteria described here. Disagreements were resolved as well as in relation to legal decision-making. The dominant themes by discussion between the two reviewers. at the intersection of law and neuroscience come from criminal law, Our inclusion and exclusion criteria are based on an analytical choice health and public health law, and legal theory and decision-making. that the law and neuroscience literature must include both legal content Other common categories are evidence law, public and human rights and neuroscientific content, and that there must be an engagement or law and private law. intersection between the two. We made another choice to be more de- manding about the level of legal content than about the neuroscientific 2. Method content. This was
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