Published online 26 November 2004 How neuroscience might advance the law Erin Ann O Hara Vanderbilt University Law School 131 21st Avenue South Nashville TN 37240 USA erin ohara law vanderbilt edu This essay discusses the strengths and limitations of the new growing field of law and biology and suggests that advancements in neuroscience can help to bolster that field It also briefly discusses some ways that neuroscience can help to improve the workings of law more generally Keywords legal policy interdisciplinary research neuroscience 1 INTRODUCTION These are exciting times for the curious and the contemplative because the mysteries of the brain are beginning to be understood The popular press is full of stories about studies attempting to locate the places in the brain where thoughts perceptions feelings and motivations are formed For social scientists who create models of human behaviour these findings have enormous potential theoretical value For legal academics striving to find ways to use the law to maximize the beneficial effects of human tendencies neuroscientific developments are potentially immensely important This essay proffers just a few of the myriad ways in which neuroscientific knowledge might be able to improve the law I approach the topic as a law professor who attempts to incorporate knowledge developed in other disciplines into a behavioural model that informs decisions about legal policy As a specialist in law and a student of neuroscience my scientific understanding is comparatively weak In the spirit of attempting to promote interdisciplinary collaboration however this essay will nevertheless discuss some ways in which neuroscience carries the potential to help inform both our models of human behaviour and legal policy In particular this essay will discuss some ways in which neuroscience can help bolster and refine some of the implications of evolutionary theory for law The first section of this essay will provide a brief description of the recent development as well as some of the challenges and limitations of the field of law and biology The second section will discuss a few ways in which developments in neuroscience can be used to help overcome some of the challenges faced by those interested in using scientific knowledge to advance our understanding of human behaviour 2 THE DEVELOPMENT AND CHALLENGES OF LAW AND BIOLOGY Despite the enormous potential for law and biology the movement was a little slow to move forward The Gruter Institute for Law and Behavioral Research founded by Margaret Gruter has fostered research in law and biology since 19811 but attention to the field by the mainstream legal academy has been limited to the past five or so years Today there are many very talented individuals engaged in One contribution of 16 to a Theme Issue Law and the brain Phil Trans R Soc Lond B 2004 359 1677 1684 doi 10 1098 rstb 2004 1541 law and biology and they have tapped into significant resources to advance our understanding of how behavioural biology informs legal policy making 2 As interest in law and biology developed the field attracted three different types of law professor First were those law professors who were really natural scientists at heart These professors probably should have explored careers in zoology or marine biology as evidenced by the fact that they seem to know and care much more about the skeletal structures of mammals than they do about the Uniform Commercial Code or the Rule Against Perpetuities For tenured law professors who missed their true calling law and biology has become a mechanism by which they can turn avocation into vocation While I must admit that I greatly enjoy talking with this group of individuals at conferences these members are poorly suited to convincing the mainstream legal academy of the importance of evolutionary insights for the law These professors tend not to be terribly interested in careful legal applications with the result that others reading their work can too easily dismiss the movement as at best a marginally relevant interdisciplinary fad Environmental food and drug and health care policies might be important exceptions to charges of irrelevance however because much of the effectiveness of these policies turns on a careful understanding of current scientific knowledge Although environmental and health care lawyers are very much interested in biology microbiology tends to be more directly useful to them than does evolutionary theory Evolutionary theory can nevertheless help these policy makers to understand and predict how human behaviours such as antibiotic and pesticide use create evolutionary pressures on both humans and nonhuman organisms In any event the science buffs have had little impact on how other law professors think about human behaviour A second group of law professors interested in evolutionary theory include those whose normative views lack strong social scientific support These scholars seem pre committed to strong ideological agendas On the right many complain that political correctness in the social sciences prevents honest discussion of such topics as the role of women in combat racial differences in sports and academic performance and the inevitability of workplace sexual harassment On the left where the crime control model based on notions of deterrence and retribution is being 1677 2004 The Royal Society 1678 E A O Hara How neuroscience might advance the law fought the assumptions of free will and personal responsibility that underlie current legal structures are weakened by insights from evolutionary theory In both cases scholars appear to be attracted to the perceived determinism of the theory Why does evolutionary theory attract ideological extremes The theory itself is positive and of course no positive theory can prove the soundness of a normative position Moreover nothing in the theory itself suggests that ideologically extreme positions are any more likely to follow from the theory than are more moderate positions Instead I believe that the extreme positions are better explained by what I will term a search cost theory of interdisciplinary work Far too often law professors start with a normative viewpoint that they wish to justify by reference to supporting interdisciplinary research A writer who starts with an ideological viewpoint or a set of priors formed from ideological beliefs will tend to search only as far afield from legal literature as is necessary to find