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Course on neuroscience and law examines how new scientific developments may affect our legal system

June 01, 2015

As technology advances, scientists and scholars are gaining even more understanding about how the brain works. This spring, for the first time ever, Penn Law offered a seminar called “Law and Neuroscience,” taught by Law School professors Stephen J. Morse and Amy Wax, which examined the conceptual and practical links between the new neuroscience and legal doctrine, practice, and policy.

Morse is the Ferdinand Wakeman Hubbell Professor of Law, Professor of Psychology and Law in Psychiatry, and the Associate Director of the Center for Neuroscience & Society. In addition to his law degree, he also holds a PhD is psychology. Morse’s scholarship addresses the relevance of social and neuroscience to issues of responsibility and social control.

Wax, the Robert Mundheim Professor of Law, argued 15 cases in the U.S. Supreme Court as an Assistant to the Solicitor General and also holds a medical degree in addition to her JD. Her legal scholarship focuses on issues in social welfare law and policy as well as the relationship of the family, the workplace, and labor markets.

The idea for the course came from the work Morse and Wax did together as part of the MacArthur Foundation’s Law and Neuroscience Project. The three-year project brought together an interdisciplinary group of lawyers, neuroscientists and philosophers to examine how to integrate new developments in neuroscience into the U.S. legal system.

As a result of the project, Morse and Wax began discussing the possibility of teaching a class on law and neuroscience. They conceived of the seminar as a truly interdisciplinary venture which would take advantage of experts in departments across the University of Pennsylvania.

“One of the reasons we thought it would be a great venture is that we have such depth and richness in the faculty at Penn across different areas and fields from which we could draw,” said Wax.

Morse and Wax convinced scholars from departments throughout Penn to visit the class. Over the course of the seminar, Professor Angela Duckworth from the Department of Psychology spoke on the psychology of self-control; Professor Adrian Raine of the Criminology and Psychiatry Departments, spoke on the psychology of crime; Dr. Geoffrey Aguirre of the Neurology Department spoke on the basics of imaging and research design; and Professor Martha J. Farah, Director of the Center for Neuroscience & Society, spoke about deprivation and inequality — just to name a few of the visitors.

Some of the students in the course have a background in science, but some don’t, explained Wax. The readings can be challenging — including scientific papers and technical material — and the course has dealt with sophisticated concepts such as causation, motivation, free will, and responsibility.

But Wax noted that the students tackled the difficult material head-on. “They’ve definitely risen to the challenge of understanding those issues,” she said.

Many of the new advances in neuroscience have been made possible by advances in brain scanning technology. In the early 1990s, functional magnetic resonance imaging, or fMRI, was developed. fMRI allowed scientists to image brain activity in real time.

“We’re interested in the neuroscience that might shed light on acting human beings and the law’s concerns,” said Morse. “The task of neuroscience is not to explain away our personhood, but to explain it.”

Morse described one experiment at Stanford University in which students were given cameras to wear around their necks for a month that took pictures at different intervals. The students were then shown images — some from their camera, some not — while receiving an fMRI scan. They were asked to identify if the pictures were from their camera or not — in essence, they were asked to separate real memories from false ones.

The researchers learned that patterns of brain activity were strongly correlated with accurate and false memories and could be used to determine if the memory was accurate. Memory is known to be very fallible, and a way to know when a witness’s memories are accurate would be extremely valuable for legal decision making.

There are a number of ways that neuroscience could affect the law, from lie detection to understanding pain, but one of the key aspects of the course has been teaching students to be skeptical of alleged breakthroughs and to avoid what Morse calls “Brain Overclaim Syndrome.”

“One of the things our students are learning is to be wary of some of the claims that are being made about what’s new that neuroscience brings to law beyond the conceptual work that’s already been done by legal theorists,” said Wax.

Part of the students’ training is to learn how to avoid being mesmerized by neuroscience that may not hold up as good science and to understand when neuroscience is genuinely legally relevant and not just “rhetorically relevant.”

Siri Carlson L’16 decided to enroll in the course after taking the foundations course in the Social, Cognitive, and Affective Neuroscience (SCAN) Certificate program, one of the interdisciplinary certificate programs offered by the Law School.

“Neuroscience’s understanding, and thus society’s understanding, of the brain will only become more robust and prevalent,” said Carlson. “Like most people, the discoveries made by neuroscientists about how the brain works fascinate me, but in my future practice, I know I will consistently need to step back and ask the ‘so what?’ questions.”

Morse and Wax are looking toward teaching the class again sometime in the future. And in addition to inaugurating the “Law and Neuroscience” course, this year, both Morse and Wax were recognized for their outstanding teaching.

Morse was the recipient of the Elizabeth Hurlock Beckman Award, which recognizes leading scholars in the fields of medicine, law, and psychology who have inspired their students, and Wax was the recipient of the Christian R. and Mary F. Lindback Award for Distinguished Teaching from the University of Pennsylvania, which honors teaching excellence across the university.