The Overlooked History of Neurolaw

Abstract

This Article, part of a symposium on neuroscience and the law at Fordham Law School, argues that the field of neurolaw should more readily acknowledge that there is a history to law and neuroscience. The Article does not endeavor to provide a comprehensive history of brain science and law but rather to highlight a series of four important, yet often overlooked, “moments.” These moments are (1) foundational medico-legal dialogue in the nineteenth and early twentieth centuries, (2) the introduction of electroencephalography evidence into the legal system in the mid-twentieth century, (3) the use of psychosurgery for violence prevention in the 1960s and 1970s, and, most recently, (4) the development of neurolaw in personal injury litigation in the late 1980s and 1990s.

Although the terminology and technology change over time, these four moments make clear that there is a rich and complicated history of neurolaw. On the one hand, the history of law and neuroscience offers encouragement that law and policy can be improved through advances in brain science. On the other hand, however, this history offers caution about the limits of using brain science to address legal problems. I argue that we should learn from our past mistakes, build on our past successes, and forge a future of increasingly productive interdisciplinary conversation.

Keywords: neurolaw, law and neuroscience, history of science, neuroscience, criminal law, brain injury, psychosurgery