The Experiential Future of the Law

Abstract

Pain, suffering, anxiety, and other experiences are fundamentally important to civil and criminal law. Despite their importance, we have limited ability to measure experiences, even though legal proceedings turn on such measurements every day. Fortunately, technological advances in neuroscience are improving our ability to measure experiences and will do so more dramatically in what I call “the experiential future.”

In this article, I describe how new technologies will improve our assessments of physical pain, emotional distress, and a variety of psychiatric disorders. I also describe more particular techniques to assess whether: (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) an inmate being executed is in pain, (5) an interrogatee has been tortured, and more. I argue that as new technologies emerge to better reveal people’s experiences, virtually every area of the law should do more to take these experiences into account.

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