How neuroscience might advance the lawIntroductionThe development and challenges of law and biologyHow can neuroscience help?ConclusionREFERENCESPublished online 26 November 2004How neuroscience might advance the lawErin Ann O’HaraVanderbilt University Law School, 131 21st Avenue, South Nashville, TN 37240, USA ([email protected])This essay discusses the strengths and limitations of the new, growing field of law and biology and suggeststhat advancements in neuroscience can help to bolster that field. It also briefly discusses some ways that neu-roscience can help to improve the workings of law more generally.Keywords: legal policy; interdisciplinary research; neuroscience1. INTRODUCTIONThese are exciting times for the curious and the contempla-tive, because the mysteries of the brain are beginning to beunderstood. The popular press is full of stories about stu-dies attempting to locate the places in the brain wherethoughts, perceptions, feelings and motivations areformed. For social scientists who create models of humanbehaviour, these findings have enormous potential theor-etical value. For legal academics striving to find ways touse the law to maximize the beneficial effects of humantendencies, neuroscientific developments are potentiallyimmensely important.This essay proffers just a few of the myriad ways in whichneuroscientific knowledge might be able to improve thelaw. I approach the topic as a law professor who attempts toincorporate knowledge developed in other disciplines into abehavioural model that informs decisions about legal pol-icy. As a specialist in law and a student of neuroscience myscientific understanding is comparatively weak. In the spiritof attempting to promote interdisciplinary collaboration,however, this essay will nevertheless discuss some ways inwhich neuroscience carries the potential to help informboth our models of human behaviour and legal policy. Inparticular, this essay will discuss some ways in which neu-roscience can help bolster and refine some of the implica-tions of evolutionary theory for law. The first section of thisessay will provide a brief description of the recent develop-ment, as well as some of the challenges and limitations, ofthe field of law and biology. The second section will discussa few ways in which developments in neuroscience can beused to help overcome some of the challenges faced bythose interested in using scientific knowledge to advanceour understanding of human behaviour.2. THE DEVELOPMENT AND CHALLENGES OF LAWAND BIOLOGYDespite the enormous potential for law and biology, themovement was a little slow to move forward. The GruterInstitute for Law and Behavioral Research, founded byMargaret Gruter, has fostered research in law and biologysince 19811but attention to the field by the mainstreamlegal academy has been limited to the past five or so years.Today there are many very talented individuals engaged inlaw and biology, and they have tapped into significantresources to advance our understanding of how beha-vioural biology informs legal policy-making.2As interest in law and biology developed, the field attrac-ted three different types of law professor. First were thoselaw professors who were really natural scientists at heart.These professors probably should have explored careers inzoology or marine biology, as evidenced by the fact thatthey seem to know and care much more about the skeletalstructures of mammals than they do about the UniformCommercial Code or the Rule Against Perpetuities. Fortenured law professors who missed their true calling, lawand biology has become a mechanism by which they canturn avocation into vocation. While I must admit that Igreatly enjoy talking with this group of individuals at con-ferences, these members are poorly suited to convincingthe mainstream legal academy of the importance of evol-utionary insights for the law. These professors tend not tobe terribly interested in careful legal applications, with theresult that others reading their work can too easily dismissthe movement as at best a marginally relevant inter-disciplinary fad. Environmental, food and drug, andhealth-care policies might be important exceptions to char-ges of irrelevance, however, because much of the effective-ness of these policies turns on a careful understanding ofcurrent scientific knowledge. Although environmental andhealth-care lawyers are very much interested in biology,microbiology tends to be more directly useful to them thandoes evolutionary theory. Evolutionary theory can never-theless help these policy makers to understand and predicthow human behaviours such as antibiotic and pesticide usecreate evolutionary pressures on both humans and non-human organisms. In any event, the ‘science buffs’ havehad little impact on how other law professors think abouthuman behaviour.A second group of law professors interested in evolution-ary theory include those whose normative views lack strongsocial scientific support. These scholars seem pre-commit-ted to strong ideological agendas. On the right, many com-plain that political correctness in the social sciencesprevents honest discussion of such topics as the role ofwomen in combat, racial differences in sports and academ-ic performance, and the inevitability of workplace sexualharassment. On the left, where the crime control model,based on notions of deterrence and retribution, is beingOne contribution of 16 to a Theme Issue ’Law and the brain’.Phil. Trans. R. Soc. Lond. B (2004) 359, 1677–1684 1677#2004 The Royal Societydoi:10.1098/rstb.2004.1541fought, the assumptions of free will and personal responsi-bility that underlie current legal structures are weakened byinsights from evolutionary theory. In both cases, scholarsappear to be attracted to the perceived determinism of thetheory.Why does evolutionary theory attract ideologicalextremes? The theory itself is positive, and of course, nopositive theory can prove the soundness of a normative pos-ition. Moreover, nothing in the theory itself suggests thatideologically extreme positions are any more likely to fol-low from the theory than are more moderate positions.Instead, I believe that the extreme positions are betterexplained by what I will term a search cost theory of inter-disciplinary work. Far too often, law professors start with anormative viewpoint that they wish to justify by referenceto supporting interdisciplinary research. A writer who startswith an ideological viewpoint, or