The Overlooked History of Neurolaw

29 Pages Posted: 18 Jan 2017

See all articles by Francis X. Shen

Francis X. Shen

University of Minnesota Law School; MGH Center for Law, Brain & Behavior

Date Written: January 13, 2017


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

Suggested Citation

Shen, Francis X., The Overlooked History of Neurolaw (January 13, 2017). 84 Fordham Law Review 667 (2016), Available at SSRN:

Francis X. Shen (Contact Author)

University of Minnesota Law School ( email )

Minneapolis, MN
United States

MGH Center for Law, Brain & Behavior ( email )

55 Fruit Street
Boston, MA 02114
United States

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