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). 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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 com- mon 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 cen- tral 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 particu- lar, 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 differ- ent 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