The Punitive Pregnancy Matrix

The DIGEST National Italian American Bar Association Law Journal ARTICLES Cognitive Law: An Introduction . Luca Arnaudo U.S. Mortgages and Global Financial Markets: A Need for Better Authentication . Robin Paul Malloy The Punitive Pregnancy Matrix: Thinking Critically About the Patriarchal Motivations behind Child Abuse Prosecutions for Prenatal Drug Use among American Mothers . Lia A. Mandaglio Book Review – Diritto Dell’Unione Europea by Professor Luigi Daniele. Elizabeth F. Defeis CASE COMMENTS 2011 Case Comments . Editorial Staff ATTENTION SUBSCRIBERS The Digest is the law journal of the National Italian American Bar Association (NIABA). The Digest is a professional journal publishing articles of general interest to the profession with a special focus on Roman Law, Civil Law, Italian Law, Legal His- tory, and all areas of property law (from real property to intel- lectual property, cultural property, land use, and the law of historic preservation). The journal publishes articles, essays, commentary, and book reviews. You may submit a paper to us to consider by e-mailing it as a Word attachment and sending it to: [email protected]. Papers should be submitted in En- glish. Citations should comply with the most current edition of the Uniform System of Citation (The “Bluebook”). THE DIGEST The Law Journal of the National Italian American Bar Association THE NATIONAL ITALIAN AMERICAN BAR ASSOCIATION 2011-2012 OFFICERS AND BOARD MEMBERS FRANK JOSEPH SCHIRO President PAUL V. SCIOCCHETTI PETER S. BALISTRERI Executive V.P. Secretary SIGISMONDO F. RENDA P. CHARLES DILORENZO Treasurer Historian Regional Vice-Presidents New England: SALLY ANN JANULEVICUS Midwest: JOSEPH D. FRINZI Mid Atlantic: LORRAINE C. CORSA West: ALFRED A. AFFINITO Southern: DANIEL J. STALLONE Canada: DINO MAZZONE Board of Directors LOUIS R. AIDALA ANTHONY J. GINAFRANCESCO* PHILIP R. BONCORE*PROF. ROBIN P. MALLOY CIRINO M. BRUNO*CAROL ANN MARTINELLI MARK CAMELI RAYMOND A. PACIA* MARIO CAPANO PROF. PETER A. PREVITE HON. ANTHONY J. CUTRONA*MICHAEL C. RAINONE* RAYMOND DETTORE, JR.JOHN C. SCIACCOTTA HON. JOSEPH N. GIAMBOI*JOSEPH SENA * Past Presidents The DIGEST National Italian American Bar Association Law Journal National Italian American Bar Association The Digest • Suite 410 • Syracuse University College of Law • Syracuse, NY 13244-1030 2010-2011 Editorial Staff Editor-in-Chief PROFESSOR ROBIN PAUL MALLOY Student Board of Editors Managing Editor JENNIFER M. RECINE Associate Managing Editor MEGAN E. DODGE Case Comments Editor Chief Form & Accuracy Editor CJ M. SKWIERSKY ANDREW L. BOUGHRUM Form & Accuracy Editors Business & Technology Editor STEPHEN J. BUCKELY FADY BISHAY JOHN R. THEADORE Third Year Associate Editors VICTORIA E. MUNIAN MARC DIMATTEO DENNISON D. MARZOCCO DAVID SOPHRIN Second Year Associate Editors VICKI BELSTADT MINJUN HUANG ISHPREET CHADHA BRADLEY DAVID MORIEN ANDREW CHO AMBER N. MUFALE MATTHEW CREEGER ABRAM MURANTE JOHN RYAN D. CUMMINGS CASEY D. PHILIPS AMARA EL-HAJ JENNIFER SHELLEY SYDNEY GUENTHER R. RENEE YAWORSKY Men and Women Sharing a Chosen Profession and a Common Heritage THE DIGEST Two-Thousand and Eleven ARTICLES Cognitive Law: An Introduction .......................... Luca Arnaudo 1 U.S. Mortgages and Global Financial Markets: A Need for Better Authentication ....................Robin Paul Malloy 13 The Punitive Pregnancy Matrix: Thinking Critically About the Patriarchal Motivations behind Child Abuse Prosecutions for Prenatal Drug Use among American Mothers ............................. Lia A. Mandaglio 27 Book Review – Diritto Dell’Unione Europea by Professor Luigi Daniele ...........................Elizabeth F. Defeis 47 CASE COMMENTS 2011 Case Comments .....................................Editorial Staff 51 Published annually by the members of the NATIONAL ITALIAN-AMERICAN BAR ASSOCIATION, Washington, D.C. Editorial Office: NIABA, 2020 Pennsylvania Avenue N.W., Suite 932, Washington, D.C. 20006. Publication Office: Joe Christensen, Inc., P.O. Box 81269, 1450 Adams St., Lincoln, NE 68501. Single issue volumes are available through the Editorial Office at a price of $25.00. Rates for bulk copies quoted on request. POSTMASTER: Send change of address and new subscriptions to THE DIGEST, National Italian-American Bar Association, 2020 Pennsylvania Avenue N.W., Suite 932, Washington, D.C. 20006, at least 45 days before the date of the issues with which it is to take effect. Duplicate copies will not be sent without charge. The views expressed in THE DIGEST are those of the authors and do not necessarily reflect the views of the National Italian-American Bar Association, its members or staff. COPYRIGHT 2011. NIABA Cognitive Law: An Introduction* LUCA ARNAUDO** “You may call it ‘nonsense’ if you like,” she said, “but I’ve heard nonsense, compared with which that would be as sensible as a dictionary!” —Lewis Carroll, Through the Looking Glass, and What Alice Found There 1. SURFING THE NEUROSCIENCE WAVE Since the turning of the millennium an increasing interest towards cognitive neuroscience has been observed. In fact, not even one day goes by without a new cognitive marriage between disciplines being proposed: from economics to aesthetics, from ethics to politology, these marriages have been experimented by a wide array of sciences so far interested only by professional meetings with mathematics or still proudly entrenched in the Castalia of humanae litterae. Law is no exception to this, since, as we will see, several studies on the subject have already been carried out (although almost exclusively from a common law perspective with regards to criminal issues). But let us approach the subject step by step and start by defining some general principles in order to clarify the present discussion. By neuroscience we mean the series of scientific research studies on the central and peripheral nervous system, with a particular interest on its structure and function. Although aimed at different purposes, these research studies all fol- low the experimental method and are aimed at highlighting the biological bases of mental and behavioral expressions of living beings.1 As far as the subgroup of cognitive neuroscience is concerned, we can quite rightly say that it is composed of those studies interested in cognitive decision- making processes carried on by the central nervous system. During the last de- cades of the twentieth century, important technological developments have been able to redefine the research methods applied to these processes. Because use- * This essay is the first result of an ongoing research project related to experimental law and cognitive neuroscience: a summary of it has also been recently published by an Italian law journal (Diritto cognitivo. Prolegomeni a una ricerca, 41 POLITICA DEL DIRITTO, 101-135 (2010)). ** PhD candidate in Law and Economics, Luiss Guido Carli University, Rome; senior officer at the Italian Competition Authority, Rome. The author wishes to thank Professor Robin Paul Malloy for his support to the publication of the essay and his invaluable help during a research stay at Syracuse University. Please send comments to [email protected]. 1. The foundation of the Society for Neuroscience (SfN), which was established in 1969, conven- tionally represents the institutional consecration of neuroscience. From the point of view of scientific research, Nobel Prize winner John Eccles’ work (since the 1950s mainly focused on the connections between neurobiology and neurochemistry) is usually seen as the starting off point. For further informa- tion about SfN’s work, which now has 40,000 members worldwide and manages over 300 research projects, See SOCIETY FOR NEUROSCIENCE, http://www.sfn.org. 1 2NAT’L ITALIAN AMERICAN BAR ASS’N JOURNAL [Vol. 19:1 ful reviews of such developments are easily available,2 our aim here is only to underline how much broader than the better known electroencephalography (EEG), functional magnetic resonance imaging (fMRI), and positron emission tomography (PET), often criticized for the limitations they encounter in terms of speed or spatial resolution and depth in recording neural activities. In particular, in addition to new experimental technologies still under development, such as transcranial magnetic stimulation (TMS) and the diffusion tensor imaging (DTI), we have long witnessed the emergence of useful combinations of different techniques of neuroimaging and research methods. We can here mention, for example, the eye-tracking process, which, through the layout of the eye movement in relation to images aimed at stimulating an attention reaction, reveals underlying cognitive operations. We can also mention pupil dilation, palm sweating, epidermal conductance, and hormonal reaction, all of which are aimed at recording the involuntary reactions of individuals under observation.3 Last but not least, new achievements obtained by the so-called optogenetics have to be mentioned here, as they seem to open exciting scenarios related to real-time and highly precise scans of brain activities, due to the unprecedented possibilities to control genetically targeted neurons within intact neural circuits made available by such techniques.4 2. A reference textbook is MICHAEL S. GAZZANIGA, RICHARD B. IVRY & GEORGE R. MANGUN, COGNITIVE NEUROSCIENCE: THE BIOLOGY OF THE MIND (3rd ed. 2008). For a very short but brilliant introduction to some recent, important findings of cognitive neuroscience, see Israel Rosenfield & Edward Ziff, How the Mind Works: Revelations, 55 N.Y. REV. BOOKS (June

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