tag:theconversation.com,2011:/us/topics/neuroscience-and-the-law-67795/articlesNeuroscience and the law – The Conversation2023-02-13T13:25:42Ztag:theconversation.com,2011:article/1994652023-02-13T13:25:42Z2023-02-13T13:25:42ZA less biased way to determine trademark infringement? Asking the brain directly<figure><img src="https://images.theconversation.com/files/509283/original/file-20230209-20-ofkear.jpg?ixlib=rb-1.1.0&rect=117%2C203%2C1930%2C1203&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Neuroimaging could help the courts better distinguish between two similar trademarks.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/young-business-boys-with-crazy-ideas-royalty-free-image/1295534832">RichVintage/E+ via Getty Images</a></span></figcaption></figure><p>Does the toothpaste Colddate infringe upon the trademark of Colgate? Some might think this is a no-brainer. But in a <a href="https://scholar.google.com/scholar_case?case=14430877341980589843&q=Colgate-Palmolive+Company+v.%C2%A0J.M.D.+All-Star+Import,+486+F.%C2%A0Supp.%C2%A02d+286+(Dist.+Court,+2007).&hl=en&as_sdt=6,47">2007 lawsuit</a> between the two brands, Colgate-Palmolive lost on the grounds that the two brands were “similar” but not “substantially indistinguishable.” </p>
<p>Determining trademark infringement can often be challenging and fraught with controversy. The reason is that, at its core, a verdict for infringement requires proof that the two brands are confusingly similar. And yet the existing approach primarily relies on self-report, which is known to be vulnerable to <a href="https://digitalcommons.law.uga.edu/glr/vol53/iss2/5">biases and manipulation</a>.</p>
<p>But this challenge also provides an interesting lens into the complex yet fascinating relationship between scientific evidence and legal practices. I am a <a href="https://scholar.google.com.hk/citations?user=4qKYm5AAAAAJ&hl=en">marketing professor</a> with a background in cognitive neuroscience, and one of my research interests is in using neuroscientific tools to study consumer behavior. In our <a href="https://doi.org/10.1126/sciadv.abo1095">recently published study</a>, my colleagues and I demonstrated how looking directly into the brain may help solve the conundrum of how to measure similarity between trademarks. </p>
<h2>Determining trademark infringement is messy</h2>
<p>In most legal systems, trademark infringement decisions revolve around whether a “<a href="https://scholarship.law.wm.edu/facpubs/194">reasonable person</a>” would find two trademarks similar enough to cause confusion. While this may sound straightforward and intuitive, judges have found it incredibly difficult to translate such a criterion into concrete guidance for legal decision-making. <a href="https://doi.org/10.1093/oso/9780198852940.003.0009">Many legal scholars</a> have lamented the lack of a clear definition of a “reasonable person,” or what factors contribute to “similarity” and their relative importance. </p>
<p>This ambiguity is further compounded by the <a href="https://www.britannica.com/topic/adversary-procedure">adversarial legal system</a> in the U.S. and many other countries. In such a system, two opposing parties each hire their own attorneys and expert witnesses who present their own evidence. Often that evidence takes the form of consumer surveys conducted by an expert witness hired by a party, which can be <a href="https://digitalcommons.law.uga.edu/glr/vol53/iss2/5">susceptible to manipulation</a> – for example, through the use of leading questions. Not surprisingly, plaintiffs are known to present surveys finding that two trademarks are similar, while defendants present competing surveys showing they are different.</p>
<p>This unfortunate situation arises largely because there is <a href="https://ssrn.com/abstract=3135260">no legal gold standard</a> about what types of background information survey respondents should receive, how the questions should be phrased and what criteria of “similarity” should be followed – all factors that can change the results substantially. For example, parties could include instructions on how respondents should evaluate similarity.</p>
<p>As a result, judges have developed some degree of cynicism. It is not uncommon that some simply <a href="https://www.casemine.com/judgement/us/5914bdd8add7b049347a4cf3">discard the evidence from both sides</a> and go with their own judgment – which could risk replacing one set of biases with another, despite their best intentions.</p>
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<a href="https://images.theconversation.com/files/509545/original/file-20230210-28-frhy41.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Functional magnetic resonance image of brain, showing activity in the areas of the brain involved in repetition suppression" src="https://images.theconversation.com/files/509545/original/file-20230210-28-frhy41.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/509545/original/file-20230210-28-frhy41.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=274&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509545/original/file-20230210-28-frhy41.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=274&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509545/original/file-20230210-28-frhy41.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=274&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509545/original/file-20230210-28-frhy41.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=344&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509545/original/file-20230210-28-frhy41.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=344&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509545/original/file-20230210-28-frhy41.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=344&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Brain scans could provide information that descriptions of personal experience can’t. This image shows activity in the areas of the brain specializing in processing visual objects. Signals from these brain regions could provide measures of visual similarity less susceptible to biases in self-reports.</span>
<span class="attribution"><a class="source" href="https://doi.org/10.1126/sciadv.abo1095">Zhihao Zhang et al./Science Advances</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
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<h2>Asking the brain, not the person</h2>
<p>Neuroscience may provide a way out of the dilemma: What if courts measured perceived similarity directly from the brain, instead of asking people to describe what they think?</p>
<p>To test this, we leveraged a well-known phenomenon of the brain called <a href="https://doi.org/10.1098/rstb.2015.0355">repetition suppression</a>. When the brain sees or hears the same thing over and over again, its response to the repeated stimulus becomes weaker each time, as if it’s losing interest or doesn’t find the information as important. </p>
<p>Imagine you hear a really loud noise and your brain responds by triggering a fear response. But if you hear that same loud noise over and over again, your brain will start to get used to it and you won’t feel as scared anymore. This repetition suppression is thought to help the brain focus better on new or important information. Scientists have seen this happening in <a href="https://doi.org/10.1098/rstb.2015.0355">different parts of the brain</a>, including those that process sight, sound, attention and memory.</p>
<p>In <a href="https://doi.org/10.1126/sciadv.abo1095">our experiment</a>, we rapidly showed participants pairs of images consisting of a target brand (such as “Reese’s”) and a supposed copycat (such as “Reese’s Sticks”) and used MRI scanners to examine activity in the part of the brain that processes visual objects.</p>
<p>Given repetition suppression, we would expect a maximum amount of response reduction if the second brand is exactly the same as the first one, minimum reduction if the two are completely different and somewhere in between if they are somewhat similar. By measuring the degree of response reduction, we could then determine how similar, in the brain’s perspective, the two brands are.</p>
<p>This approach provides the important benefit of bypassing the need to ask people to judge how similar they find two brands, or defining what it means to be similar, which can be highly contentious in trademark lawsuits. A person might not even be conscious of the brain’s repetition suppression response.</p>
<p>Across the whole set of brands we tested, we compared the neuroimaging results against the results of surveys designed to favor the plaintiff, to favor the defendant or to be more neutral. We found that the brain-based measure can reliably pick out the more neutral survey results, supporting the idea that brain scans could improve the quality of legal evidence in these cases.</p>
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<figcaption><span class="caption">There are ongoing ethical and practical questions surrounding the use of neuroscience in the courts.</span></figcaption>
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<h2>Applying neuroscience to legal problems</h2>
<p>It is crucial to note that looking into the brain doesn’t mean a legal decision automatically results from such data. Our method provides a better ruler to measure similarity, but it still falls on the judge to determine where to draw the line for infringement. Neuroimaging is also costlier than consumer surveys and can’t easily be done on as large a sample of people.</p>
<p>Interdisciplinary discussions and a better understanding of neuroimaging techniques are necessary before broader uses can be integrated into the legal system. The courts play a crucial role in deciding when new insights from neuroimaging <a href="https://www.law.cornell.edu/wex/daubert_standard">should be considered in a case</a> and how they should influence its outcome. Therefore, it is becoming increasingly important for judges and lawyers to have a working knowledge of neuroscientific techniques.</p>
<p>Our approach also opens the door to the possibility of applying neuroscience to a variety of legal cases centering on the “reasonable person,” such as copyright infringement, obscenity and negligence. More broadly, it offers a novel perspective on the burgeoning field of <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2280500">neurolaw</a>, which seeks to refine and reform legal thinking using insights from neuroscience.</p>
<p>Most existing work in law and neuroscience focuses on criminal culpability, or evaluating someone’s mental state while making a certain action. But little attention has been paid to seemingly more mundane questions in civil law that could arguably have an even broader impact on people’s everyday lives. We believe that broadening the ways neuroscience can contribute to the law could help improve legal decision-making.</p><img src="https://counter.theconversation.com/content/199465/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zhihao Zhang is listed as an inventor on a provisional patent application related to the findings discussed in this article.</span></em></p>How do you determine whether one brand is similar enough to another to infringe on its trademark? Researchers propose that comparing brain scans could be an option.Zhihao Zhang, Assistant Professor of Business Administration, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1130882019-04-02T10:40:48Z2019-04-02T10:40:48ZBrain scan evidence in criminal sentencing: A blessing and a curse<figure><img src="https://images.theconversation.com/files/266421/original/file-20190328-139341-f9fshr.jpg?ixlib=rb-1.1.0&rect=2362%2C0%2C3026%2C2029&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Which way does neurobiological evidence tip the scales in sentencing?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/statue-justice-lady-iustitia-justitia-roman-598268906?src=kZkJ7JPoM75s1nmHUzmaqA-1-1">Alexander Kirch/Shutterstock.com</a></span></figcaption></figure><p>Brain evidence is playing an <a href="https://scholarship.law.duke.edu/faculty_scholarship/3578/">increasing role in criminal trials</a> in the United States. An analysis indicates that brain evidence such as MRI or CAT scans – meant to provide proof of abnormalities, brain damage or disorder in defendants – was used for leniency in approximately 5 percent of murder cases at the appellate level. This number jumps to an astounding 25 percent in death penalty trials. In these cases, the evidence is meant to show that the defendant lacked the capacity to control his action. In essence, “My brain made me do it.” </p>
<p>But does evidence of neurobiological disorder or abnormality tend to help or hurt the defendant? </p>
<p>Legal theorists have <a href="https://doi.org/10.1007/978-3-642-21541-4_19">previously portrayed physical evidence of brain dysfunction</a> as <a href="https://doi.org/10.1177/009885880703300214">a double-edged sword</a>. On the one hand, it might decrease a judge’s or juror’s desire to punish by minimizing the offender’s perceived responsibility for his transgressions. The thinking would be that the crime resulted from disordered brain activity, not any choice on the part of the offender. </p>
<p>On the other hand, brain evidence could increase punitive motivations toward the offender by making him seem more dangerous. That is, if the offender’s brain truly “made him” commit the crime, there is an increased risk such behavior could occur again, even multiple times, in the future. </p>
<p>To tease apart these conflicting motivations, <a href="https://scholar.google.com/citations?user=RKrUH5YAAAAJ&hl=en&oi=ao">our</a> <a href="https://scholar.google.com/citations?user=tnhHv3UAAAAJ&hl=en&oi=ao">team</a> of <a href="https://scholar.google.com/citations?user=0kgaYeoAAAAJ&hl=en&oi=sra">cognitive neuroscientists</a>, a <a href="https://www.bcm.edu/people/view/jennifer-blumenthal-barby-ph-d-m-a/b18fdd06-ffed-11e2-be68-080027880ca6">medical bioethicist</a> and a <a href="https://scholar.google.com/citations?user=lbxbspMAAAAJ&hl=en&oi=sra">philosopher</a> investigated how people tend to <a href="https://doi.org/10.1371/journal.pone.0210584">weigh neurobiological evidence</a> when deciding on criminal sentences.</p>
<h2>Less prison, more involuntary hospitalization</h2>
<p>For this experiment, our team recruited 330 volunteers to read through a criminal case summary describing a defendant found guilty of sexual assault. Before introducing any mental health evidence, we asked for an initial sentence recommendation: If our volunteers were really deciding this case, what would they have wanted to see happen to the defendant? This provided us with a baseline estimate of how much they wanted to punish the defendant.</p>
<p>Next, we filled participants in on the defendant’s mental health status using evidence of an impulse control disorder described either as neurobiological or psychological, and treatable or untreatable. (These experimental conditions were also accompanied by a control condition in which the defendant was deemed healthy.) Participants could then alter their original criminal sentencing judgments by allocating time between prison sentencing and involuntary hospitalization, however they saw fit.</p>
<p>It turned out that neurobiological evidence elicited both shorter prison sentences and longer involuntary hospitalization terms compared to equivalent psychological evidence. That is, for the same mental disorder, people assigned different levels of blame, moral responsibility and punishment based on whether they had a neurologist’s testimony versus a psychologist’s testimony to support the diagnosis.</p>
<p><iframe id="ZwPyH" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/ZwPyH/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Our key discovery was that when mental health evidence was presented as having a neurobiological cause, laypeople assigned more importance to it. Paradoxically, this effect both favored and disfavored the defendant, depending on the punitive options available. So while prison sentences may be mitigated by the presentation of neurobiological evidence, the same evidence may increase the defendant’s risk of being involuntarily hospitalized.</p>
<p>Treatable disorders elicited both shorter prison sentences and involuntary hospitalization terms compared to untreatable disorders, yet this pattern could not account for the double-edged effect of neurobiological evidence.</p>
<h2>Punishment versus protection</h2>
<p>Previous research has searched for this apparent <a href="https://doi.org/10.1126/science.1219569">double-edged effect of neurobiological evidence</a> – that it may have both aggravating and mitigating effects on criminal sentences. But prior studies have been inconclusive.</p>
<p>One possible reason for previous failures to observe the double-edged effect could be that participants were restricted to simplistic punishment measures. By relying on only a single type of punishment – in most cases, prison sentencing – earlier studies might have missed the dual competing motivations: to get justice versus to protect society. </p>
<p>We accounted for this possibility by offering participants two punishment options: commitment to prison versus mental hospital. That’s how we were able to identify that neurobiological evidence seems likely to result in a shorter prison sentence or a longer involuntary commitment to a mental hospital.</p>
<p>The effects we observed may have far-reaching implications for the law, which regularly confronts questions about the <a href="https://doi.org/10.1038/s41398-018-0274-8">quality and presentation format of mental health evidence</a>. For example, how can policymakers best manage evidentiary presentation bias? Should neurobiological evidence always be accompanied by corresponding psychological or behavioral evidence, or even warnings of potential biasing effects? If a defendant were to be excused in the case of mental illness, should jurors be made aware of treatment options? Should judges receive a legal education on neurobiological evidence?</p>
<p>Brain evidence will likely become even more common in the years ahead, and the judicial system will need to grapple with how best to use it.</p><img src="https://counter.theconversation.com/content/113088/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Corey Hill Allen received support from a grant from the John Templeton Foundation (<a href="http://www.templeton.org">www.templeton.org</a>) via the Summer Seminars on Neuroscience and Philosophy at Duke University (Subaward #: 283-0635). The opinions expressed in this publication are those of the author and do not necessarily reflect the views of the John Templeton Foundation. The funders had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.</span></em></p><p class="fine-print"><em><span>Eyal Aharoni received support from a grant from the John Templeton Foundation (<a href="http://www.templeton.org">www.templeton.org</a>) via the Summer Seminars on Neuroscience and Philosophy at Duke University (Subaward #: 283-0635). The opinions expressed in this publication are those of the author and do not necessarily reflect the views of the John Templeton Foundation. The funders had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.</span></em></p>How do jurors use different kinds of information about mental illness when making sentencing decisions? An experiment finds that neurobiological evidence could harm or help defendants.Corey Hill Allen, Ph.D. Candidate in Neuroscience, Georgia State UniversityEyal Aharoni, Assistant Professor of Psychology, Philosophy, and Neuroscience, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/910402018-04-03T10:44:49Z2018-04-03T10:44:49ZIt’s not my fault, my brain implant made me do it<figure><img src="https://images.theconversation.com/files/212717/original/file-20180329-189810-cbug78.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Probes that can transmit electricity inside the skull raise questions about personal autonomy and responsibility.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Tiefe_Hirnstimulation_-_Sonden_RoeSchaedel_seitl.jpg">Hellerhoff</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p><a href="https://www.theguardian.com/music/2014/may/27/johnny-cash-deep-brain-stimulation-urge-listen">Mr. B loves Johnny Cash</a>, except when he doesn’t. Mr. X has <a href="http://www.sciencemag.org/news/2014/04/scienceshot-deep-brain-stimulation-triggers-hallucinations">watched his doctors morph into Italian chefs</a> right before his eyes.</p>
<p>The link between the two? Both Mr. B and Mr. X received deep brain stimulation (<a href="https://doi.org/10.1038/507290a">DBS</a>), a procedure involving an implant that sends electric impulses to specific targets in the brain to alter neural activity. While brain implants aim to <a href="https://doi.org/10.1038/nature.2017.23031">treat neural dysfunction</a>, cases like these demonstrate that they may influence an individual’s perception of the world and behavior in undesired ways. </p>
<p>Mr. B received DBS as treatment for his severe obsessive compulsive disorder. He’d never been a music lover until, <a href="https://doi.org/10.3389/fnbeh.2014.00152">under DBS</a>, he developed a distinct and entirely new music preference for Johnny Cash. When the device was turned off, the preference disappeared. </p>
<p>Mr. X, an epilepsy patient, received DBS as part of an investigation to locate the origin of his seizures. During DBS, he hallucinated that doctors became chefs with aprons before the stimulation ended and the scene faded. </p>
<p>In both of these real-world cases, DBS clearly triggered the changed perception. And that introduces a host of thorny questions. As neurotechnologies like this become more common, the behaviors of people with DBS and other kinds of brain implants might challenge current societal views on responsibility.</p>
<p>Lawyers, philosophers and ethicists have labored to define the conditions under which individuals are to be judged legally and morally responsible for their actions. The brain is generally regarded as the center of control, rational thinking and emotion – it orchestrates people’s actions and behaviors. As such, the brain is key to agency, autonomy and responsibility. </p>
<p>Where does responsibility lie if a person acts under the influence of their brain implant? As <a href="http://www.bioethics.msu.edu/73-people/300-cabrera">a neuroethicist</a> and <a href="http://www.law.msu.edu/faculty_staff/profile.php?prof=723">a legal expert</a>, we suggest that society should start grappling with these questions now, before they must be decided in a court of law. </p>
<h2>Who’s to blame if something goes wrong?</h2>
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<a href="https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212719/original/file-20180329-189824-17tsjlv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">An uncontrollable urge to aim right for them?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/fabiovenni/2065036619">Fabio Venni</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<p>Imagine that Ms. Q was driving one day and had a sudden urge to swerve into a crowded bus stop. As a result, she ended up injuring several people and damaging the bus stop. During their investigation, police found that Ms. Q had a brain implant to treat her Parkinson’s disease. This implant malfunctioned at the time the urge occurred. Furthermore, Ms. Q claims that the bus stop was not there when she acted on the impulse to swerve.</p>
<p>As brain stimulating technology advances, a hypothetical case like Ms. Q’s raises questions about moral and legal responsibility. Is Ms. Q solely responsible for her actions? Can we attribute any blame to the device? What about to the engineers who designed it or the manufacturer? The neurosurgeon who implanted it or the neurologist who programmed the device parameters?</p>
<p>Historically, moral and legal responsibility have largely focused on the autonomous individual – that is, someone with the capacity to deliberate or act on the basis of one’s own desires and plans, free of distorting external forces. However, with modern technological advances, many hands may be involved in the operation of these brain implants, <a href="https://doi.org/10.1038/nature.2017.23031">including artificial intelligence programs directly influencing the brain</a>. </p>
<p>This external influence raises questions about the degree to which someone with an implant can control their actions and behaviors. If brain implants influence someone’s decisions and behaviors, do they undermine the person’s autonomy? If autonomy is undermined, can we attribute responsibility to the individual? </p>
<p>Society needs to discuss what happens when science and technology start challenging those long-held assumptions.</p>
<h2>So many shades of gray</h2>
<p>There are different legal distinctions concerning responsibility, such as causal responsibility and liability responsibility.</p>
<p>Using this distinction, one may say that the implant is causally responsible, but that Ms. Q still has liability for her actions. One might be tempted to split the liability in this way because Ms. Q still acted on the urge – especially if she knew the risk of brain implant side effects. Perhaps Ms. Q still bears all primary responsibility but the influence of the implant should mitigate some of her punishment.</p>
<p>These are important gradations to reckon with, because the way we as a society divide liability may force patients to choose between potential criminal liability and treating a debilitating brain condition.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212718/original/file-20180329-189830-pslzsp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Would the surgeon bear some responsibility? Or the device manufacturer?</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:Peds_DBS.jpg">Allurimd (talk)</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Questions also arise about product liability for companies, professional responsibility issues for researchers and technology developers, and medical malpractice for the health professionals who placed and programmed the device. Even if multiple actors share responsibility, the question regarding how to distribute responsibility among multiple actors still remains. </p>
<p>Adding an additional layer is the potential for malicious interference of these implants by criminals. Newer implants may have <a href="https://www.scientificamerican.com/article/wireless-brain-implant-allows-ldquo-locked-in-rdquo-woman-to-communicate/">wireless connectivity</a>. Hackers could attack such implants to use Ms. Q for their own (possibly nefarious) purposes, posing more challenges to questions of responsibility. </p>
<p>Insulin pumps and implantable cardiac defibrillators have already been hacked in real life. While there have not been any reports of malicious interference with brain implants, their increasing adoption brings greater opportunity for tech-savvy individuals <a href="https://doi.org/10.1016/j.wneu.2016.05.010">to potentially use the technology for evil</a>.</p>
<p>Considering the impact brain implants can have on moral and legal notions of responsibility, it’s time to discuss whether and when brain interventions should excuse people. New technologies often require some modification or extension of existing legal mechanisms. For example, assisted reproductive technologies have required society to <a href="https://www.uscis.gov/news/uscis-expands-definition-mother-and-parent-include-gestational-mothers-using-assisted-reproductive-technology-art">redefine what it means to be a “parent.”</a></p>
<p>It’s possible that soon we will start hearing in courtrooms: “It’s not my fault. My brain implant made me do it.”</p><img src="https://counter.theconversation.com/content/91040/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Where does responsibility lie if a person acts under the influence of their brain implant? As neurotechnologies advance, a neuroethicist and a legal expert write that now’s the time to hash it out.Laura Y. Cabrera, Assistant Professor of Neuroethics, Michigan State UniversityJennifer Carter-Johnson, Associate Professor of Law, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/335322014-12-12T11:33:39Z2014-12-12T11:33:39ZMy brain made me do it, but does that matter?<figure><img src="https://images.theconversation.com/files/66780/original/image-20141209-14567-s0uvnr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Your brain is still you.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/a_mason/4006709/">Andrew Mason</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Imagine that Brian promises to drive you to the airport but never shows up, and you miss your flight. When you confront Brian, he tells you that he remembered his promise but decided to watch a movie instead. Would you be angry? You betcha!</p>
<p>But then suppose Brian pleads, “Don’t be angry at me. My brain made me do it. I wanted to watch the movie, and my desires are lodged in my brain. Moreover, I don’t care that much about you, but that is only because my neurons do not fire very fast when I think of you. My brain makes me act as I do, so I’m not responsible.” This plea will not quell your anger. Why not?</p>
<h2>Your brain is still you</h2>
<p>Brian is correct that his brain made him do it. It was not his legs or eyes that made him watch the movie. If his neurons had been wired differently, then he would have driven you as he promised. It also wasn’t the movie or another person that made him do it. It was his desires, which are in his brain (assuming that minds are not separate substances), so his brain is what caused him to do it.</p>
<p>Nonetheless, what really matters is which part of his brain made him do it. What made him let you down was activation levels in those parts of his brain that constitute Brian’s desires. That fact is just a pseudo-scientific way of saying that he did it because he wanted to. It doesn’t change when he re-describes his desires in terms of brain states. </p>
<p>Critics retort “But he doesn’t control when his neurons fire!” Actually, he does. Brian does not think about his neurons. Nonetheless, if he chooses to watch the movie, then some of his neurons fire — the ones that turn his head toward the movie. And if he chooses not to watch the movie, then other neurons fire — the ones that make his hand reach for the car keys. His desires and choices, thus, do affect what his brain does. Since he — or his desires and choices — controls what he does, the fact that his brain also made him do it is no excuse at all.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/66781/original/image-20141209-32168-3ccty9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/66781/original/image-20141209-32168-3ccty9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/66781/original/image-20141209-32168-3ccty9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=480&fit=crop&dpr=1 600w, https://images.theconversation.com/files/66781/original/image-20141209-32168-3ccty9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=480&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/66781/original/image-20141209-32168-3ccty9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=480&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/66781/original/image-20141209-32168-3ccty9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=603&fit=crop&dpr=1 754w, https://images.theconversation.com/files/66781/original/image-20141209-32168-3ccty9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=603&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/66781/original/image-20141209-32168-3ccty9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=603&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The legal system grapples with how to divvy up responsibility between a brain and an individual.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/jsmoorman/2298671281/in/photolist-4v8hTt-oSKkgw-gyGMFG-7aHjkc-7L8bYf-aRrt1X-CFsTu-5uNcJ4-67qgtr-jCa4ff-aV3PxH-dveXaK-KoZ24-6ZBhpi-duT2qe-8DYMau-bLMH7a-7L45nF-dt1An7-g3beYT-5j7ff-asiq1f-frRBW-yhxvE-6XNEfp-dVTyF2-ajzocM-4x4hEu-8EdXYF-e1uG5H-4vcoWW-5WyRmQ-a5QJN-afWTZZ-4cKzdC-8EdXYM-f8VT8P-9y3EeR-73sord-iFzwo3-an6XKU-5yDnwK-g3kMfW-hCZ7uD-5KDZuu-8SEPqk-aEiAwN-bSf67t-adiAad-cF29pq">Scott*</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<h2>Brain blaming doesn’t erase responsibility</h2>
<p>Other kinds of brain states do excuse. Imagine that Brianna made the same promise as Brian, but she failed to pick you up only because she had a seizure that left her immobilized. Then Brianna is not responsible, and you should not be angry at her, because her seizure shows you nothing about her or her concern for you. She would not have been able to pick you up no matter how much she valued your welfare and her promise.</p>
<p>These extreme cases are easy. Despite some rhetoric, almost nobody really believes that the fact that your brain made you do it is by itself enough to excuse you from moral responsibility. On the other side, almost everybody agrees that some brain states, such as seizures, do remove moral responsibility. The real issues lie in the middle.</p>
<p>What about mental illnesses? Addictions? Compulsions? Brainwashing? Hypnosis? Tumors? Coercion? Alien hand syndrome? Multiple personality disorder? These cases are all tricky, so philosophers disagree about which people in these conditions are responsible — and why. Nonetheless, these difficult cases do not show that there is no difference between seizures and normal desires, just as twilight does not show that there is no difference between night and day. It is hard to draw a line, but that does not mean that there is no line.</p>
<p>The main problem with a simple slogan like “My brain made me do it” is that it is too abstract. When we talk about the brain in general, people think of some alien force that makes them do what they do not really want — like a seizure. That impression is terribly misleading, but it makes some people react differently to “My brain made me do it” than to “I did it.” Sometimes there is a difference (as in seizures), but sometimes there is no real difference (as with normal desires). Some kinds of activity in our brains are not separate from us — they are us. </p>
<p>What will happen when people get comfortable with talking about brains in this way? They will become less punitive in some cases, such as when a tumor turns a <a href="http://www.ncbi.nlm.nih.gov/pubmed/12633158">father into a pedophile</a>. However, a better understanding of neuroscience will also keep them from getting fooled by simple excuses like “My brain made me do it.” They will realize that sometimes I do it when my brain makes me do it. That is why their better understanding of neuroscience will not undermine responsibility in general.</p><img src="https://counter.theconversation.com/content/33532/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Walter Sinnott-Armstrong does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Imagine that Brian promises to drive you to the airport but never shows up, and you miss your flight. When you confront Brian, he tells you that he remembered his promise but decided to watch a movie instead…Walter Sinnott-Armstrong, Professor of Practical Ethics, Duke UniversityLicensed as Creative Commons – attribution, no derivatives.