A cool article in the Emory Law Journal about how the law should take note of developing technologies that can scan a person’s brain to reveal their experiences. Here is the 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.
From the Article:
My central claim is that as new technologies emerge to better reveal people’s experiences, the law ought to do more to take these experiences into account. In tort and criminal law, we often ignore or downplay the importance of subjective experience. This is no surprise. During the hundreds of years in which these bodies of law developed, we had very poor methods of making inferences about the experiences of others. As we get better at measuring experiences, however, I make the normative claim that we ought to change fundamental aspects of the law to take better account of people’s experiences.