Pain-O-Meters and Objective Pain Measurement: A Philosophical, Doctrinal, and Daubert-Centric Defense

70 Pages Posted: 22 Aug 2014 Last revised: 14 Oct 2015

Date Written: October 13, 2015

Abstract

Pain-o-meters rest on a reductionist view of mind that is contrary to the law’s traditional dualist view. Neurolaw skeptics accuse reductionism of fallaciously (1) identifying the mind and brain, (2) ignoring how behavioral abilities constitute the mind, (3) attributing to brains what is only attributable to persons, (4) conflating necessary and sufficient conditions, and (5) neglecting variability across persons and times in experiential responses to pain stimuli.

I articulate the reductionist foundations of pain-o-meters and defend them against these criticisms. I show how reductionism and the law make the same empirical and causal demands for recognizing pain. Both see pain as causally entangled with the physical world and reject pain that stands aloof from such entanglements. Given this shared premise, the law need only accept one other: that there is in principle a single neural parameter whose causal entanglements with the world cannot be experimentally distinguished from those of all our pains. This premise is rock solid: it reflects the simplest empirically adequate scientific theory, and there are no empirical or pragmatic dividends to the law from rejecting it. These two premises jointly render comparisons of pain across persons and times materially equivalent to comparisons of that neural parameter.

Keywords: brain, pain, pain-o-meters, neurolaw, reductionism

Suggested Citation

Sevilla, J.P., Pain-O-Meters and Objective Pain Measurement: A Philosophical, Doctrinal, and Daubert-Centric Defense (October 13, 2015). Available at SSRN: https://ssrn.com/abstract=2484002 or http://dx.doi.org/10.2139/ssrn.2484002

J.P. Sevilla (Contact Author)

Independent ( email )

No Address Available

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