By David F. Morrill
A Q&A with Professor Peter A. Alces on his new book about neuroscience and the law.
Peter A. Alces, Rita Rollins Professor of Law and Cabell Research Professor of Law at William & Mary Law School, is one of the nation’s leading commercial law scholars. He is known for his in-depth research on a wide range of complex legal issues, from commercial law to the philosophical foundations of contract law, about which he has written influential articles and a book. His most recent book, The Moral Conflict of Law and Neuroscience, was published by the University of Chicago Press in January 2018.
As a commercial law expert, how did you become interested in neuroscience and the law?
About the year 2000, I decided to change my focus from commercial law to bigger normative questions—moral questions—behind the law of consensual relations that are the basis of contract, and that just started me on a whole new path. I’ve taught jurisprudence here a few times. The idea was to learn the subject by teaching it, and I pretty quickly saw what I thought were the limitations of standard moral theory. So I thought there’s got to be something better, and I started to find more answers in evolutionary theory, in more mechanical understandings of just how we function.
I thought that probably the best way to understand what the doctrine should be, and to predict how the doctrine will operate, is to understand the subject of doctrine’s operation, the human agent—us. That got me reading in neuroscience, because neuroscience is at a more elemental level pretty much natural selection, what Darwin figured out. It’s an elaboration of it, but the premises seem quite similar; at the same time people were starting to study brain law, what impact the nature of the brain could have on what the law can be. The earliest applications were figuring out what damages should be when there is brain injury. Those studies were revealing how the brain gets injured, what it means for the brain to get injured, the difference between emotional and physical injury. (Of course, there isn’t one, ultimately.)
But that first inquiry in 2000, the sense that I’d better start focusing on the bigger issues now rather than waiting forever, got me started on the path that so far culminated in the book, which I hope will proceed further with the next book or two.
How fast is neuroscience changing our perceptions of human behavior?
In Moore’s Law a chip capacity doubles every two years. Neuroscience isn’t quite like that, because it’s dependent upon a different kind of scientific discovery, but I don’t think anybody has pinned down how quick the evolution is proceeding. My bet is it reaches a plateau. People putter around at that plateau—and then somebody figures out something, and it springs, it jumps, perhaps like the course of life forms did—you know, hit a plateau and then something new, and then a whole new life form.
One of the challenges of this book was to write it given what the science told us about the law today, knowing that before I got to the final stages just before publication, I was going to have to go back to take account of developments during the three years it took to write the book. That was a challenge and made it more fun. There really was a sense for the first time that in writing about what seemed like dry legal topics I was at the cutting edge of something, because many discoveries do have an impact on the nature of the human agent, and why the law is affected by the nature of human agency.
Can you give me an example of recent discoveries?
When I was two-thirds of the way through the book, scientists realized that they could find the brain signature of pain, a way to objectify pain in a brain scan. Now, there are all kinds of limitations, but that changes tort law. That changes measuring damages for pain and suffering; it gives pain and suffering a new reality, a new concreteness. It also challenges distinctions in the tort law between emotional injury and physical injury, because the tort law does draw that distinction. So that was one where I was able to write about this new discovery, the impact it would have particularly on tort law, the impact it would have on tort doctrine, and just imagine what the implications might be at the same time as I’m trying to imagine what the limitations are.
Another example would be discoveries that have been made about—and they were established before I started writing the book—the way we consent to something, what it means for us to consent, because there were some important cases that would suggest if you click “I agree” on your screen, you are as bound as if you are negotiating a contract and sign it. I think those are problematic. But there were more studies that demonstrated the real empirical difference between ignoring disclosures that are inserted with your credit card and the way that we negotiate over the price of a car. And there are neuroscientific, concrete differences that I think should probably matter to the contract law’s conception of consent, and those were further explored over the time that I was writing the book.
The ability to see pain in a brain signature seems like such a science fiction concept.
It’s almost as if our imagination from 30 years ago is determining our research agenda. I think to some extent it is, and a lot of this probably started with phrenological conceptions years ago—the idea that we could look at the bumps on your head and predict something about your character. That was wrong, but it was also provocative, the idea that there was some objective way to literally get into your head. Well, we have one; we don’t look at the bumps on your head any more, but we can look at malformations in different portions of your brain. We can’t say that if you have an arachnoid cyst on your frontal lobe it’s going to affect your behavior in this particular way, but we can recognize there are tendencies that some kind of lesions or neural insults may manifest in particular behavior and intellectual deficiencies. That changes our understanding of what we can want the law to do.
Also, something else, actually, that puts together those two points. It seems that psychopathy may have a neural signature. We can look at the amygdala and see almost like the Grinch’s shrunken heart; we can see a shrunken amygdala and perhaps be able to predict who will be a psychopath. And what’s troubling is we might be able to do it for early adolescents, and then what do we do? If we discover at the age of 12 that chances are you are going to have the tendencies of a psychopath? We can’t fix it. There’s nothing in law and neuroscience that’s necessarily bleeding-heart liberal, that is, let people off if you can fix their brains. If you can’t fix their brains, you don’t let them off just because they’ve paid their debt to society, because they may still be a threat to society. So there’s not a political position the science takes. Science isn’t political; it can cut in troubling directions.
What were some surprises in your research for this book?
My research was not the scientific research. I’ve never been in the lab. The conclusion I came to—grudgingly—and only about halfway or two-thirds of the way through the book, and I know I’m compelled to reach this conclusion—was that there is no such thing as moral responsibility. I remember saying to a friend of mine who teaches in the philosophy department here that my next book is going to be called “Against Moral Philosophy.” And he said it’s already been written; a philosopher at Youngstown State, a guy named Bruce Waller, wrote it. And then I realized that the law demonstrates the significance of the fact that there is no such thing as moral responsibility, because the law assumes moral responsibility. But I am convinced that there is no such thing as moral responsibility. That was an awakening.
What are some of the internal contradictions of extant legal doctrine?
Actually, a defining characteristic of the Law is that it’s internally inconsistent throughout. Contract law is inconsistent in requiring consent to the assumption of contract liability, but then finding consent when there really is none. Tort law is inconsistent in basing negligence liability on failure to act as a reasonable person when indeed when somebody acts negligently they are not acting unreasonably; they're not acting as other people would, but given their neural formation they are acting in the absolute best way they could have acted at that moment. And criminal law’s reliance on the idea of paying a debt to society—retribution, deontological conceptions of fault, desert—just are not pertinent when you realize that the function of the criminal law ought to be to reduce the harm that is caused by crime, and that’s all. The criminal law in sentencing actually causes crime, results in our training criminals, probably results in our sentencing people to lives of chemical addiction, things that are really inconsistent with what you would imagine the object of the criminal law would be. So to a large extent this book kind of writes large. It talks about the fundamental things that criminal law gets wrong, the fundamental things that contract and tort get wrong—and they are profound.
What are some examples of the law already considering select cognitive realities in evaluating questions of agency and responsibility?
We now understand that PTSD is a physical injury even if there has never been a direct impact. If you haven’t been hit by a bullet, but you have witnessed the massacre, your brain is changed, differently, perhaps, than if you were ever hit with a bullet, but physically. The law is now coming to recognize that PTSD is a physical injury, and that enters under certain disability regimes, veterans benefits, tort liability; that’s one example. We are probably expanding helpfully what we might understand to be excuses for criminal liability. We understand that what we used to refer to as ‘mental retardation’ (now referred to as ‘diminished intellectual capacity’) could be an excuse for some kind of criminal liability, but many states have laws that say, of course, it has to manifest before the age of 10 or 15. Well, now we are understanding that that kind of intellectual disability could manifest at 27 and be caused by an injury. It's every bit as real if you were born with that mental deficiency, so the law should treat you the same way. We are beginning to see at least a sensitivity to that even if not a change in the law in that regard. So those would be a couple of examples.
Presumably this would also apply to CTE injuries in football?
It's not just football. It’s soccer, it’s hockey. The problem there is who is the defendant? The parents that got you to start playing football at the age of five because you were big and fast? If you said, well, at five your parents weren’t responsible, at 15, though, you decided to play, or at 17 you decided to play in high school. But your learning had already been affected from the age of five. It's easier to quit smoking if you haven't been a smoker for 15 years because smoking for 15 years changes your brain. Playing football for 15 years changes your brain. So a lot of the research on CTE I think is going to have an impact on the tort law beyond head injuries in football.
How do we not have free will? Can you give an example or two?
I would ask how we have free will. Free will presupposes that we are godlike, that we are uncaused causes, and that there is no cause beyond our control for most everything we do—genetic, epigenetic, social. The real problem is there is no such thing as the self. We are only the confluence of forces; we are not a separate entity acted upon. So without a self, if we are just a product of forces, where is the room for free will? One of my favorite movies I mention in neuroscience class is Men in Black. One of the characters dies. His head opens up and there’s a little green man—a homunculus. That’s our perception, that there is something sitting between our eyes above our nose that’s really looking at everything on the screen and making decisions for us. Of course where is the homunculus’s homunculus?
I think the battle over free will has been fought and won, and compatibilists and libertarian free will believers are in the last throes of defense. The bigger question is what do we do with humankind that we know is not free? The last chapter of the book is called “An Age of Realization.” It’s the realization that we don't have free will and that human agents are not free actors. That doesn’t mean we don’t believe we are. It doesn’t mean it’s not efficacious that we believe we are. But we are not.
I think part of the pushback from that idea is from philosophy. It’s because most people who are practicing professional philosophers now were trained in the age of Kant. Their training was in Kantian deontology, and that has been undermined by the last 15 to 20 years of neuroscience, way after they had tenure and became senior faculty members of philosophy departments all over the country. That generation is leaving the academy to be replaced by those whose perspectives are more materialistic. I suspect that in 25 years the study of Kantian deontology and free will theory will be the history of philosophy, not the contemporary philosophy.
What have been the consequences of the law getting it wrong?
More crime. A lot of money wasted on tort regimes and, frankly, fault-based tort law. A lot of overreaching and accumulation of monopoly profits in the contracts setting, rent seeking, exchanges that do not maximize welfare. So, pretty much everything that a consequentialist, instrumentalist theory of law would value is undermined by the kind of folk psychological, deontological understanding of legal doctrine that has informed the law we have.
What might a legal regime based on emerging neuroscientific insight look like?
I think it will change each doctrinal area. I suspect we figure out what we want to do with tort law; we want to reduce the cost of accidents. It probably doesn't make sense to have a tort litigation system do that because of the tremendous cost involved, and it would only be serendipitous if the monetary injury suffered by any particular plaintiff were equal in amount to what it would take to deter that torturous behavior by the defendant. If somebody runs into me with their $300,000 Ferrari and they have to pay for the cost of my Civic, what it would cost to replace my Civic isn’t going to have an impact on whether they’re going to drive that way. They’re probably not going to drive that dangerously in the future because they don’t want to hurt their Ferrari. So a tort system that requires us to litigate that at great expense and great delay, I think, would probably have to be replaced by a social liability system, a single-payer system, which, of course, would be as unpopular in this political regime as a single-payer health system.
Our contract law I think could probably improve just by taking consent seriously, by being impatient with manipulation of consent, and letting people make bad choices, but still probably emphasizing consent the way it was when contract first emerged 400 or so years ago from tort. So it might require something of a retrenchment in contracts.
And as for the criminal law, I suspect there are, believe it or not, a lot less expensive and easier ways to do what we want the criminal law to do. We can vindicate some of the benefits of so-called restorative justice, non-penal blaming and fault allocation systems at much, much less cost to the community, and much less cost to the individuals concerned, and probably in a much more humane way generally. There are already the kernels of ideas of change across those three primary areas of the legal regime that are the focuses of the book. It would probably be a matter of our better appreciating how those changes should proceed apace.
You mentioned a sequel?
I don’t know if it will be a sequel or a prequel; I haven’t figured it out yet. I won’t know the ending until I write it. But right now there’s a tremendous gulf between those who think neuroscience can transform the law—and I’m certainly in that camp—and those who think it’s a fad. Legal minds looking at it, and I would say for the most part lawyers who have written about this, are skeptical. I don’t think there is anybody who has staked out a more extreme position from a legal perspective than I do. That would be my contribution, actually, to the conversation. I think the next book is going to suggest all the areas upon which those two different groups could find agreement, and then perhaps by finding common ground try to expand that ground over time as the science proceeds and matures.