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The Diversity of Norm Psychologies: A Challenge for the Law
Get PDFCan we craft a coherent set of laws applicable to populations with deep cultural diversity? The full force of this question—call it the generalization challenge—has emerged recently thanks to advances in the sciences of the human, especially theories of neuroscience and psychology framed by theories of biological and especially cultural evolution. The goal of this Article is to describe enough of those advances to make clear the force of the challenge. The motivation is simple: as we endeavor to imagine the future of law in light of discoveries in neuroscience and related disciplines, being apprised of the generalization challenge may increase our chances of discovering an effective solution
How Experts Have Dominated the Neuroscience Narrative in Criminal Cases for Twelve Decades: a Warning for the Future
Get PDFPhineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage\u27s post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.
This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, especially insanity cases, which often concern a defendant’s brain damage or abnormality. To support these arguments, this Article reports the results of my original Twelve-Decade Neuroscience Study (“The Study”) examining the criminal justice system\u27s use of the insanity defense in all criminal cases—totaling 8,358—which involved neuroscientific evidence from 1900 to 2020.
The Study shows that, despite the increasing influx of neuroscientific evidence and its purportedly greater objectivity into the criminal justice system, experts still sway how that evidence is cast when it concerns a defendant claiming insanity. The Study’s results also explain how experts for the defense and the prosecution vary in their approaches. For example, defense experts employ narratives to emphasize the impact of neuroscientific evidence on a defendant\u27s brain and behavior for purposes of mitigating punishment. In contrast, prosecutors increasingly use accusations of malingering in their attempts to win cases—claiming that defendants are lying about their disorders. This Article concludes that in years hence, courts may expect seemingly more impartial information derived from neuroscientific tests to incorporate more accurate and precise indicators of the human mental condition. Whether the field of neuroscience will succeed in that quest will be one more question for the future and the experts who still may try to shape it
The Future of Law and Neuroscience
Get PDFI was asked to speculate about where the field of Law and Neuroscience may be ten years from now. In that spirit (and while recognizing that the future rarely complies with our predictions) I attempt here some extrapolations. I first consider potential advances in the technologies for monitoring and manipulating brain states, the techniques for analyzing brain data, and the efforts to further integrate relevant fields. I then consider potential neurolaw developments relevant to: (1) detecting things law cares about; (2) individualizing developmental states and brain states; (3) evidence-based legal reforms; (4) legal decision-making; and (5) brain-brain interfaces
Abortion, Sterilization, and the Universe of Reproductive Rights
Get PDFIn recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.
Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number of lower federal court judges have referenced the alleged links between abortion, contraception, and eugenics in their defense of abortion restrictions.
The effort to link abortion and contraception to the racialized logic of the eugenics movement is interesting on a number of fronts. As I have written elsewhere, this narrative is at once a potent defense of abortion restrictions and a more calculated effort to recast the social meaning of reproductive rights from a question of gender equality to one of racial inequality. But equally noteworthy is the narrative’s utter neglect of the eugenics movement’s investment in coercive sterilization—not abortion or contraception—as its preferred vehicle of reproductive control and social engineering.
With all of this in mind, this Article seeks to reframe the interest in reproductive rights, racism, and eugenics to include a more robust discussion of sterilization practices. To do so, the Article supplements the historical narrative to clarify that the eugenics movement’s interest in racial betterment was primarily directed at improving and purifying the white race. To the extent the eugenics movement focused on abortion and contraception, it was in limiting middle- and upper-class white women’s access to these vehicles of reproductive freedom on the ground that the reproduction of these constituencies was vital to the future of the white race. Insofar as eugenicists were interested in limiting reproduction, their interest was directed toward those individuals who possessed traits deemed unsuitable for the propagation of the white race—and meaningfully, their preferred vehicle for limiting reproduction among the “unfit” was not contraception or abortion, but rather, sterilization.
And even as popular interest in eugenics waned in the 1940s, the state’s interest in sterilization as a means of reproductive control did not abate. Indeed, as the Civil Rights Movement and the welfare rights movement dawned, many states repurposed sterilization to limit the reproductive capacities of those deemed sexually immoral or unduly dependent on the public fisc, usually poor women of color.
To underscore the relationship between race, class, dependence, and state-endorsed sterilization, the Article highlights Cox v. Stanton, a challenge to North Carolina’s sterilization program litigated by Ruth Bader Ginsburg, Brenda Feigen Fasteau, and the ACLU’s Women’s Rights Project in the 1970s. Although Cox did not result in the invalidation of state sterilization programs, it—and other contemporary challenges to sterilization abuse—made clear the centrality of sterilization as a technology of reproductive control, as well as sterilization abuse’s racialized impact. In this regard, the nascent effort to associate abortion and contraception with eugenic racism not only equates state-sponsored reproductive abuses with an individual’s decision to terminate or avoid pregnancy, but also overlooks—and indeed, further obscures—the significant history of racialized sterilization abuse in the United States
No Child Left Behind Bars: Applying the Principles of Strict Scrutiny When Sentencing Juveniles Tried as Adults
Get PDFThe Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.
Therefore, this Note proposes a new judicial policy to guide judges in Virginia, before they exercise their discretion to sentence a juvenile offender in adult court. Judges operating under the proposed standard must adopt the principles of strict scrutiny when deciding the individual sentence of a juvenile offender tried as an adult. Accordingly, judges must ensure that their sentences are narrowly tailored to serve a compelling governmental interest. This Note argues that juvenile offenders are a suspect class under Carolene Products’ Footnote Four, and thereby deserve such heightened scrutiny over the judicial review of laws that affect their rights under the Equal Protection Clause of the Fourteenth Amendment. Simply put, if judges fail to abide by the principles of strict scrutiny when deciding upon a sentence, appellate judges must strike the sentence down as unconstitutional if the sentence is subsequently appealed
Wolf Law Library: First Floor Reading Room (December 2022)
No full textIn December 2022, the first floor reading room was remodeled. This image shows the west side (looking east) with the collection of coffee table books.https://scholarship.law.wm.edu/libraryhistory/1036/thumbnail.jp
Georgia Asylum and Immigration Network in Atlanta, Georgia
No full textLeanna Gibson [1L] will intern with the Georgia Asylum and Immigration Network, a non-profit organization aiding survivors of persecution who seek refuge in the United States. GAIN represents people seeking asylum and provides them opportunities to become productive members of their communities
Patent Prophylaxis: Expanding Access to PrEP Through 28 U.S.C. § 1498
No full textPart I of this Note details the discovery of Truvada for PrEP [pre-exposure prophylaxis] and the ongoing patent infringement litigation brought by HHS [United States Department of Health and Human Services], discusses the patents currently held by CDC and Gilead, and examines the shortcomings of infringement litigation as a means to expand access to the drug. Part II analyzes the mechanism of march-in rights under the Bayh-Dole Act and discusses two previously attempted applications for the HIV-management drug ritonavir to demonstrate why march-in rights will always fail to expand access to life-saving medications or reduce costs to consumers. Part III discusses the unique legal right conferred to the government under § 1498 and demonstrates why § 1498 is the correct course of action to expand access to PrEP. PrEP is a life-saving and life-altering medication. Patient access is an issue to address proactively--and prophylactically--through established intellectual property regimes.
This abstract has been adapted from the author\u27s introduction