Toward a Neuroscience Model of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine

by Jean M. Eggen & Eric J. Laury
13 Colum. Sci. & Tech. L. Rev. 235 (Published Sept. 15, 2012)

Abstract

The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort law related to the variety of mental states, including intent, knowledge, recklessness, and negligence. As the courts become saturated with neurimaging evidence, it is imperative to be prepared with a framework for addressing the many legal questions that the new neuroscience will pose. Our proposed neuroscience model of tort law is both simple and complex. Its simplicity lies in a workable framework for allowing the law to move forward while incorporating functional neuroimaging evidence in tort law. Its complexity is in the challenges posed by the interpretation of the neuroscience data and by extrapolation from the evidence to the legal issues. Our model is intended to commence the discourse about ways in which tort law may be improved through an understanding of, and appropriate use of, information acquired through the newest technologies of functional neuroimaging. We intend this model to provide guidance to judges and attorneys when confronted with functional neuroimaging evidence in tort cases, and we anticipate that serious consideration of the model will propel courts toward incorporating these relevant social and scientific advances into the evolving principles of tort law.

About the Authors

Professor Eggen is the Distinguished Professor of Law at Widener University School of Law. She specializes in toxic torts, torts, and civil procedure. After joining the law faculty of Widener in 1986, she became one of the first legal academics to develop the new discipline of toxic torts and introduce it into the legal curriculum of a law school.

Her publications include a book, Toxic Torts in a Nutshell, now in its 4th edition, and numerous articles on topics such as federal preemption, toxic reproductive and genetic hazards, scientific evidence, mass torts, and medical device and tobacco litigation. Her articles have been cited by the highest courts of numerous states and by a Justice of the United States Supreme Court.

Eric Laury is a graduate of Widener University School of Law, and an associate at Minor & Brown, PC in Denver, Colorado. He is a member of the bar in Colorado, Pennsylvania, and New Jersey.

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