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Abstract:
Neuroscientists have made significant advances in identifying drugs to dampen the intensity of traumatic memories. Such drugs hold promise for victims of terrorism, military conflict, assault, car accidents, and natural disasters who might otherwise suffer for many years from intense, painful memories. In 2003, the President's Council on Bioethics released a report entitled Beyond Therapy: Biotechnology and the Pursuit of Happiness, which analyzed memory dampening in some detail. While the Council acknowledged the potential benefits of memory dampening, some Council members were concerned that it may: (1) discourage us from authentically coping with trauma, (2) tamper with personal identity, (3) demean the genuineness of human life and experience, (4) encourage us to forget memories that we are obligated to keep, and (5) inure us to the pain of others.

In this Article, I describe possible legal and ethical implications of memory dampening. For example, I note that traumatic events frequently lead to legal proceedings that rely on memories of those events. Drugs that dampen traumatic memories may someday test the boundaries between an individual's right to medically modify his memories and society's right to stop him from altering valuable evidence. More broadly, I respond to the Council by arguing that many of its concerns are founded on controversial premises that unjustifiably privilege our natural cognitive abilities. While memory dampening may eventually require thoughtful regulation, broad-brushed restrictions are unjustified: We have a deeply personal interest in controlling our own minds that entitles us to a certain freedom of memory.

Memory, Memory Dampening, Propranolol, Bioethics, Neuroethics, President's Council on Bioethics

Abstract:
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences.

I make two central claims: First, a successful justification of punishment must take account of offenders' subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now.

I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.

Punishment, Retributivism, Consequentialism, Experience, Subjective, Neuroethics

Abstract:
Placebo treatments, like sugar pills and saline injections, are effective in treating pain and perhaps a host of other conditions. To use placebos most effectively, however, doctors must mislead patients into believing that they are receiving active medications. While placebo deception is surprisingly common, its legality has rarely been tested. In November 2006, the American Medical Association (AMA) adopted a new ethics provision categorically prohibiting doctors from using placebos deceptively. In so doing, the AMA shifted the legal landscape, making it almost certain that courts will decide that placebo deception violates informed consent requirements.

I argue that the AMA's new policy is overbroad, insensitive to patient preferences, and likely to have unforeseen consequences. While deception is often exploitative, placebo deception can genuinely benefit patients. Absent stronger evidence to justify a ban than we currently have, deceptive placebos should be treated as scarce medical resources--used sparingly but not categorically prohibited.

Bioethics, Placebo, Deception, Health Law

Abstract:
Pain is a fundamentally subjective experience. We have uniquely direct access to our own pain but can only make rough inferences about the pain of others. Nevertheless, such inferences are made all the time by doctors, insurers, judges, juries, and administrative agencies. Advances in brain imaging may someday improve our pain assessments by bolstering the claims of those genuinely experiencing pain while impugning the claims of those who are faking or exaggerating symptoms. These possibilities raise concerns about the privacy of our pain. I suggest that while the use of neuroimaging to detect pain implicates significant privacy concerns, our interests in keeping pain private are likely to be weaker than our interests in keeping private certain other subjective experiences that permit more intrusive inferences about our thoughts and character.

Neuroimaging, Neuroethics, Pain, Subjective Experience, Privacy

Abstract:
The law typically treats great apes and other non-humans as property and not as persons. This is so, even though great apes have cognitive abilities that exceed those of some mentally-deficient humans. Nevertheless, these humans are entitled to the full range of personhood rights, while apes are entitled to none of them. Without attempting to resolve this discrepancy, I suggest more modestly that those rights we do extend to apes under the Animal Welfare Act might be more easily safeguarded if we were to extend legal standing to apes, allowing suit to be brought on their behalf by human guardians. Doing so would not require us to view apes as persons but would provide increased protections for these surprisingly intelligent creatures.

Animal Rights, Standing, Apes, Peter Singer, Sentience

Abstract:
Our assessments of the severity of prison sentences rest on a fundamental mistake. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions. While doing so puts the inmates into identical situations, it does not change their situations equally unless they started out in identical circumstances. It is the amount by which we change offenders’ circumstances that determines the severity of their sentences.

In tort and contract law, we understand what a defendant has done to a plaintiff by examining the change in the plaintiff’s condition caused by the defendant. To assess the amount of an injury, we compare an injured party’s condition relative to the condition the party would have been in under other circumstances. For some reason, however, when we consider the treatment of prisoners, we ignore their baseline conditions.

To accurately assess punishment severity, I argue, we must compare an offender’s condition in prison relative to his baseline condition. This is the approach we use to measure the severity of certain kinds of punishment, like monetary fines. Fines specify an amount by which to change an offenders’ wealth. We never use fines to set equally culpable offenders’ net worth to the same level. But we do use prison to set equally blameworthy offenders’ liberties to the same level, even though offenders are deprived of liberty to different degrees depending on their baseline levels of liberty.

When we recognize the comparative nature of punishment, we see that, by putting two offenders in prison for equal durations, the offender with the better baseline condition may be punished more severely than the offender with the worse baseline condition. This means punishing one offender more severely than the other, even when they are equally culpable. I suspect that most people care little about correcting such inequalities. The bottom line, I suspect, is that people care less about true punishment equality and proportionality than they realize.

Punishment, Jurisprudence, Retributivism, Consequentialism

Abstract:
Emerging technologies raise the possibility that we may be able to treat trauma victims by pharmaceutically dampening factual or emotional aspects of their memories. Such technologies raise a panoply of legal and ethical issues. While many of these issues remain off in the distance, some have already arisen.

In this brief commentary for the journal Neuroethics, I discuss a real-life case of memory erasure. The case reveals why the contours of our freedom of memory -- our limited bundle of rights to control our memories and be free of outside control -- already merit some attention.

Memory, Neuroethics, Neurolaw, Memory Dampening, Freedom of Memory, Therapeutic Forgetting

Abstract:
Subjective experiences, like pain, sadness, anxiety, and panic, are fundamentally important to the law. Since we cannot observe these experiences directly, we often ignore them or rely on very rough assessments of their nature and quality. In this article, I explain why subjective experience is so important to the law and how technological advances in neuroscience and related fields are beginning to give us new tools to more accurately infer the experiences of others.

In the experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity. Emerging technologies may also help us assess whether, for example: (1) a patient is in a persistent vegetative state, (2) a placebo treatment relieves pain, (3) an alleged victim has been abused as a child, (4) a person being executed is in pain, and (5) an interrogatee has been tortured. While only some of these applications will pan out in the foreseeable future, I explain why thinking about our experiential future can help us better understand and apply the law today.

Subjective Experience, Torts, Punishment, Criminal Law, Hedonic Psychology, Torture, Placebo, Damages, Culpability

Abstract:
Thousands die each year in the United States alone due to a severe shortage of organs available for transplantation. In this article, I propose that we encourage people to register to donate organs upon death by offering them some priority to receive an organ should they need one during life. Such an incentive would save lives by encouraging many more people to donate, yet would not violate federal laws that prohibit organ donors from receiving financial compensation. In addition, I describe how priority incentives could, in theory, be structured to guarantee a distribution of organs that is pareto superior to our current one.

I respond to critics who say that priority incentives would weaken the altruistic nature of our current donation scheme and would unacceptably commodify the human body. A fuller conception of our property interests in cadaver organs, I argue, reveals the error of elevating such organs to a special place of honor reserved for property that should be inalienable through market-style exchange.

Organ donation, bioethics, transplantation

Abstract:
According to empirical desert advocates, lay moral intuitions support a retributive approach to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with lay intuitions.

I offer three challenges to empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. Second, they have yet to demonstrate the weight to assign the compliance induced by empirical desert relative to the weight of other consequentialist considerations. Third, empirical desert arguably exploits laypeople by using their “mistaken” beliefs about punishment to encourage their compliance with consequentialist goals. Such exploitation may trouble defenders of the “publicity condition,” which requires that a system of morality be based on principles that can be announced publicly without thereby undermining those same principles.

I do not describe precisely how empirical desert advocates should respond to these concerns, but empirical desert advocates will make substantial headway by more carefully distinguishing the use of widely-shared moral intuitions to make predictions about people’s behavior from the use of those intuitions to justify particular policies. (This article was written for the Brooklyn Law School Symposium, “Is Morality Universal and Should the Law Care?”.)

punishment, retributivism, consequentialism, empirical desert, intuition

Abstract:
According to Robert Nozick's famous "experience machine" argument, we would not choose to spend our lives with our brains connected to a machine that could deliver any set of experiences we desire. Because most of us would decline to live any variant of life in "The Matrix," so to speak, the thought experiment purportedly demonstrates that we value aspects of life other than just subjective experiences.

I argue that while most would not connect to the experience machine, many would not disconnect from it either if they were already connected. Unless we have a reason to privilege the views of those currently disconnected, Nozick fails to prove his broader point about the nature of value.

This article was published when I was an undergraduate. I am posting it now to SSRN because the topic has gained renewed interest among experimental philosophers and neuroethicists.

Hedonism, Robert Nozick, Experience Machine, Utilitarianism, Axiology, Matrix