Abstract
Talking about neuroscience and law today no longer seems futuristic or bizarre. On the contrary it is the representation of a new sector of research, concisely referred to as neurolaw, that flourishes around the integration between two fields each characterized by a high complexity and stratification of elements, theories, links with other scientific fields. Neurolaw was born as a “branch” of bioethical and bio-juridical reflection but now it has become an autonomous sector based on an extensive spectrum of transversal and integrated knowledge. It is a work in progress whose thematic area goes from the traditional phases of the trial and of ‘law in action’ to the frontiers still to be explored of artificial intelligence. This paper tries to make a critical summary of the implications and problems that modern neuroscientific acquisitions pose to the legal dimension, starting from the fundamental theme of responsibility to the controversial perspectives opened by modern techniques of neuroenhancement and brain computer interfaces.
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Notes
- 1.
- 2.
For Shen (2016), pp. 496 and 519 ff., “this brain knowledge could be –will be- transformative”.
- 3.
See Marcus and Freeman (2015), p. XI.
- 4.
For O’Shea (2005–2012), p. 3, this will be the most challenging scientific problem of the twenty-first century. Also, for Morse (2019), p. 3, “Neuroimaging for general research is an infant science working on one of the hardest problems known to science, the relation of the brain to mental states such as intentions and to action”.
- 5.
Gazzaniga (2018–2019), pp. 83–84.
- 6.
See again Marcus and Freeman (2015), pp. XI, and 205.
- 7.
For Cominelli (2018), p. 135, neuroscience is a science “inherently interdisciplinary”.
- 8.
Damasio (1994–1995), p. 9.
- 9.
See Caruana and Borghi (2016), p. 32; Northoff (2016–2019), pp. X–XI, who wonders if it is enough to look at those areas of the brain that are coloured during experiments to probe the mystery of subjectivity, on which many disciplines, from literature to psychology to contemporary medicine have come and gone for years.
- 10.
The Economist (2002), p. 77.
- 11.
See Damasio, cit.
- 12.
See Edelman (1992), pp. 21, 85.
- 13.
- 14.
See also Tancredi (2005), p. 29, which claims that “the underlying foundation for morality appears more and more to be in our biology, hardwired in the brain”.
- 15.
See Damasio (1994–1995), pp. 248-251.
- 16.
See D’Aloia (2019).
- 17.
Gazzaniga (2018–2019), p. 22, recalls the famous definition of Marvin Minsky according to which the conscience is a ‘suitcase full of meanings’. Cfr. also, Miller (1962), p. 38, writes that consciousness is a word easily used by millions of people. According to the type of discourse chosen, it means a way of being, a substance, a process, a place, an epiphenomenon, an emerging aspect of matter, or the only true reality. We should perhaps banish this word for a decade or two, as long as we were able to come up with more precise definitions for the various situations that currently the term “conscience” includes.
- 18.
Hustvedt (2018), p. 168, according to which brains are also in bodies, which in turn are in the world. “[…] We human animals ingest the world in many ways, when we eat, and chew, and breathe. We take in the world with our eyes, ears and noses, we taste it with our tongues and we experience its texture on our skin […]. Are these natural processes separable from our thoughts and our words?” See also Damasio (1995), p. 176, according to which the mind is embodied, in the full sense of the term, not just embrained in the brain.
- 19.
- 20.
In these terms, see Jones and Wagner (2020), paper, 2.
- 21.
- 22.
The ‘Social-Institutional’ metaphor used by G Tononi is very interesting and full of suggestions (2014), p. 29, 30, according to which “[…] much of the cerebral mass is made up of thin wires through which its specialized elements talk to each other: always pushing up and pulling, forming coalitions that do not last for long, then changing alliances all the time, like the factions inside Florence. […] The brain is a democracy—there is no such thing, in the brain, as a prince or Pope, who sees and hears everything, […]. Consciousness needs the cooperation of many specialists, each one providing its unique contribution […]”. For similar considerations with a parallel between the organization of the brain and the organization of a company, and on the modulating and specialized structure of the brain, see Gazzaniga (2018–2019), pp. 118 and 124.
- 23.
- 24.
- 25.
- 26.
On this issue, see in the volume, the contribution of Gusmai.
- 27.
See, for example, on property, which ‘is more than a social invention; it is a series of feelings implanted in our brain to solve survival problems’, Stake (2004), pp. 1764, 1772; Fuselli (2014), p. 132. See also McGinnis (1997), p. 222, for which “if property is natural to man, a government that ignores the interests of mankind in property and exchange does so at its own peril”.
- 28.
Unofficial translation by the editors, in the text. See the original citation “Le neuroscienze stanno ammaestrando il giurista. Siamo dotati di neuroni che ci sospingono verso l’imitazione, che ci fanno sentire l’imitazione come dovuta (si pensi ai neuroni specchio)”, Sacco (2015), p. 57.
- 29.
- 30.
According Ferrari and Gallese (2007), p. 86, empathy transforms the other as an object into the other as another self.
- 31.
On cinema and empathy, v. Gallese and Guerra (2015), p. 27 ff.
- 32.
Hunt (2007–2010) pp. 33–34; also Hunt adds “novels worked on readers to make them more sympathetic towards others, rather than just self-absorbed, and therefore more moral, not less. […] Human rights could only flourished when people learned to think of others as their equals, as like them in some fundamental fashi. They learned this equality, at least in part, by experiencing identification with ordinary characters who seemed dramatically present and familiar, even if ultimately ficational”, pp. 54, 58.
- 33.
Damasio (2018), pp. 23 and 39.
- 34.
See Picozza (2011), p. 5.
- 35.
Taylor (1991).
- 36.
See Damasio (1994–1995), p. 45 ff.
- 37.
Shen (2016).
- 38.
Morse (2019).
- 39.
See Foley (2011), pp. 116–117, for the ‘Harvard criteria’: 1. Unreceptivity and Unresponsivity; 2. No movements or breathing; 3. No reflexes …; 4. Flat Electroencephalogram.
- 40.
Foley (2011), pp. 149–150, which proposes “to allowing individuals to choose their own definition of death, or at least to choose from among the four commonly accepted ways to define death”.
- 41.
See again Foley (2011), p. 122 ff.
- 42.
Jones (2017), p. 930 ff.
- 43.
- 44.
- 45.
Kolber (2014), pp. 828, 831–833.
- 46.
Posner (2008).
- 47.
See Johnson et al. (2016), p. 101 ff., whereby “empathy lies at the core of the capital trial”.
- 48.
Forza et al. (2017), pp. 31 ff., 123. Bloom (2019), p. 149 ff., reports some hearings of Justices of the Supreme Court of United States (such as Samuel Alito, and Clarence Thomas), who quietly declare that their contribution is certainly conditioned by the ability to put themselves in the shoes of the people who are invested by what the court decides, especially in cases involving minorities subjected to discrimination.
- 49.
Unofficial translation by the editors, in the text. See the original citation, “Egli (cioè il giudice) deve quindi emettere un giudizio sulla realtà: ora la realtà - il credibile - insinua le sue radici nelle parti più intimedell’io dipendenti dalla costituzione individuale del soggetto, dalla sua forza di volontà, dalla sua attenzione, dalle sue opinioni, e più ancora dalle condizioni subiettive che le determinano [...] La realtà ha dunque sempre un valore subiettivo, e quindi relativo, perchè è una proiezione del mondo esterno che giugnge al nostro io, deformato dai nostri sensi, e da tutti i nostri processi psichici”, Altavilla (1948), pp. 707–708.
- 50.
- 51.
For Johnson et al. (2016), p. 112, “Racial categorization can occur subliminally and within milliseconds. Because race is such a powerful salient cue of group membership, the race of an actor can greatly influence the observer’s ability to empathize. […] What Neuroscience adds to this picture is the likelihood that racially influenced decision making often is not rooted in conscious choice but stems from observably different reactions in the brain. This is not, of course, to say that racial favoritism is hardwired, or biologically determined, but rather to say that given that race is a strong predictor of perceptions of in-group and out-group membership in our society, differential triggering of emphatic responses will be common. This means –as the prior evidence also implies- that the racial composition of the jury in a minority-race capital defendant’s case may be dispositive. However, the legal system’s current mechanism for ferreting out bias … is unable to identify bias of which potential jurors are unaware”.
- 52.
Id., 105 and 120 ff.
- 53.
Capraro (2011), pp. 269–270.
- 54.
The expression is of Pizzetti (2012), p. 34.
- 55.
That is, each of us is little more than a “biochemical puppet”: so, Harris (2012), p. 47. See also Swaab (2015) and Eagleman (2011), p. 166, according to “the crux of the question is whether all of your actions are fundamentally on autopilot or whether there is some little bit that is free to choose, independent of the rules of biology […] the unique patterns of neurobiology inside each of our heads cannot qualify as choices; these are cards we’re dealt.” Eagleman wrote again that “blameworthiness … is merely a backward-looking concept that demands the impossible task of untangling the hopelessly complex web of genetics and environment that constructs the trajectory of a human life”.
- 56.
Alces (2018), pp. 35, 43 and 210. For this A., folk psychology is illusory, incoherent and fallacious, brain science will reshape what we understand to be meaning of being human (page. 3, 6, 100). For a critique of the radical positions of Alces, v. Patterson (2018), p. 3 ff.; Pardo and Patterson (2010), pp. 1225–1226, whereby “behaviour is something only a human being (or other animal) can engage in. Brain functions and activities are not behaviours (and persons are not their brains). Yes, it is necessary that one have a brain in order to engage in behaviour. But the reduction of a psychological attribute to a cortical attribute is a fallacious move from whole to part”.
- 57.
Morse ironically writes (2011), p. 2, “genes do not have mental states and do not commit crimes; people do. […] A genetic predisposition to criminal conduct does not per se mitigate or excuse. […] neither genetics nor any other science at present remotely proves that our mental states are causally inert”.
- 58.
- 59.
- 60.
For Northoff (2016–2019), “the neural activity itself is ‘social’; there is no longer any sharp distinction between neural levels and social levels; the brain and its CMS (medial cortical structures) are intrinsically, or by default, neurosocial. Neural or social […] is a false dichotomy”, pp. 77–78.
- 61.
Jones et al. (2009), p. 7 ff, also for consideration that “Today’s brain is not yesterday’s brain”.
- 62.
Patterson (2018), pp. 14, 29–30.
- 63.
- 64.
Flick (2014), p. 4.
- 65.
On the Libet’s experiment, see Caruana (2010), pp. 337 ff.
- 66.
See Fuselli (2014), pp. 156–157. See also Cominelli (2018), p. 140, according which “while free will in its fullest sense would be an illusion, we would still have a veto power. Even if neural activity precedes awareness, we still retain some flexibility in choosing a course of action, and this shows that there is, after all, a role for conscious intention: the neural activity that precedes awareness, would offer a set of alternatives, however limited they may be, making it possible for us to disengage from the chain of the events that on the basis of Libet’s studies would seem unavoidable”.
- 67.
Contrary, for Soon et al. (2008), p. 3, “the lead times are too long to be explained by any timing inaccuracies in reporting the onset of awareness, which was a major criticism of previous studies”.
- 68.
Flanagan (1996), p. 53 ff.
- 69.
See also Forza (2012), p. 1381, according to which ‘the concept of causality that operates in the neurosciences is not necessarily the same that operates in the juridical sphere’ (unofficial translation by the editors; see the original citation “il concetto di causalità che opera nelle neuroscienze non è necessariamente lo stesso che opera in ambito giuridico”.
- 70.
Morse (2004), p. 5.
- 71.
On this position of Morse, see Kolber (2014), pp. 829–830, that writes: “I am more optimistic than Morse about the pace of neurotechnological progress. It is sometimes said that we overestimate the rate of technological change in the near term but underestimate technological change in the long term […] many of Morse’s concerns about the state of neurotechnology will gradually be ameliorated. For example, Morse notes that fMRI studies should have more subjects with more varied demographics. These concerns will gradually abate as scanning becomes cheaper, enabling studies with more subjects and greater population diversity”.
- 72.
- 73.
Thus, the classic work of—Green and Cohen (2004), p. 1775 ff., which also starts from the premise that “new neuroscience will undermine people’s common sense, libertarian conception of free will and the retributivist thinking that depends on it”. See also Jones et al. (2009), p. 7, in which “Legal responsibility for behavior is a legal conclusion, not a scientific finding”.
- 74.
Denno and McGivney (2011), p. 2.
- 75.
Ibid.
- 76.
536 U.S. 304, del 2002.
- 77.
543 U.S. 551, (2005).
- 78.
Unofficial translation by the editors, in the text. See the original citation “Avanzate immagini di risonanza…hanno rivelato che in adolescenza il cervello è estremamente influenzato dal sistema limbico e dall’amigdala, il centro delle emozioni, e che, mentre negli adulti la corteccia prefrontale agisce da filtro e controllo delle emozioni, negli adolescenti l’area prefrontale non risulta ancora in grado di modulare le reazioni emozionali determinando un’instabilità emotiva che è propriadell’adolescenza”, Moretta (2017). In Justice Kennedy’s opinion (569) it reads that “poor decision-making recklessness, vulnerability to peer influence, and underdeveloped character, … together preclude juveniles from having the extraordinary moral culpability required for death penalty”.
- 79.
The decisions referred to are raham v. Florida (560 U.S. 48, del 2010), and Miller v. Alabama (567 U.S. 460, del 2012); see Tennison and Pustilnik (2015), p. 543 ff.
- 80.
See Jones and Wagner (2020), paper, 8.
- 81.
Damasio (1994-1995), pp. 31 ff., 40, “Gage’s story hinted an amazing fact: [...] the observance of previously acquired social conventions and ethical rules could be lost as a result of brain damage, even when neither basic intellect nor language seemed compromise.” See also, for more recent cases, 71 ff., 92 ff.: “the attempt to understand both Elliot and Gage promised access to the neurobiology of rationality”.
- 82.
For some of these cases, v. D. Eagleman (2011), which states, with particular reference to such contexts, that “It is not clear how much of the conscious you - instead of the generic and neutral you - are able to make decisions.” (p. 46); and Cominelli (2018), p. 143 ff., which quotes the case Unites States v. Hinckley, from 1982, concerning the attack on President Reagan (the discovery, by means of CT scan, of a brain atrophy that could be connected to a condition of schizophrenia, convinced the Court to acquit, considering the insanity of the attacker).
- 83.
- 84.
Codognotto and Sartori (2010), p. 269 ff.
- 85.
See Sammicheli and Lavazza (2014), p. 83.
- 86.
Court of Como (Italy), 2011, on the Albertani case; see, in particular, Collica (2012), p. 21 ff.
- 87.
Denno (2015), pp. 502, and 545 ff. for statistical data.
- 88.
Gaudet and Marchant (2016), pp. 623, 654 ff.
- 89.
See also Cominelli (2018), p. 145.
- 90.
Gaudet and Marchant (2016), p. 655.
- 91.
Capraro (2011), p. 255.
- 92.
For this author, it is necessary to put on a hypothetical box containing these investigation techniques “a place a sign such as the kind of used on explosive shipments: “Attention, here is dynamite!”, Where it is clear that the warning sign does not imply any blame for the explosives, of undoubted utility”.
- 93.
See also Capraro (2011), p. 273. About the complexity of these investigations, see Sahakian and Gottwald (2017), p. 8, which also emphasizes that “The brain contains about 86 billion neurons which are organized in different areas and networks. We cannot measure the activity of single neuron with fMRI, but we can break the brain down into smaller cubes –so called voxels. The voxel size depends on the technology which is used for the experiment, but usually a voxel measures a few millimetres in each of the three dimensions. A voxel can contain about a million neurons, depending on its size and the brain region involved”. For the consideration that functional brain imaging is not mind reading, and above all “fMRI brain images do not speak for themselves”, however, they must be interpreted, see Jones et al. (2009), p. 9.
- 94.
- 95.
See also Shen (2013), p. 658, according which “humans … are natural mind readers”.
- 96.
Kolber (2014), p. 836.
- 97.
A critic on this motivation by Kolber (2014), p. 837, reveals that “excluding accurate lie-detection information to protect the province of the jury makes a mockery of the justice system. The most important role of trials is to uncover the truth as best we can. To do so, we ought to use the best technology that cost-effectively helps us do so”.
- 98.
Again Kolber (2014), p. 845, speaks of “neurolaw of responsibility”, and as a “neurolaw of technology”, adding that “there will be a technology-driven neurolaw revolution. The law will change in many ways, and I focus on three hypotheses: (1) the differences in how the law treats emotional and physical injuries; (2) new methods of mind reading will lead us to have less thought privacy laws; and (3) as autonomous and semiautonomous machines become more integrated into human life, they will have systematic effects on the law and its interpretation, perhaps by increasing the concretization of the law”.
- 99.
For Santosuosso and Bottalico (2010), pp. 313 ff., 320, “it may be thought that the age-old debate on the existence of free will is not the most important point” (unofficial translation by the editors; see the original citation “si può pensare che l’annoso dibattito sull’esistenza del libero arbitrio non sia il punto di maggior rilievo”.
- 100.
- 101.
For Kolber (2014), p. 839, “even if accurate mind-reading techniques are still decades away, we already have reason to think about their implications because of what I call the technological look-back principle”.
- 102.
Attiah and Farah (2014), p. 2 ff.
- 103.
See Goodenough and Tucker (2010), p. 68.
- 104.
Kolber (2014), p. 835.
- 105.
Owen (2017–2019), writes “[…] we felt like astronomers looking for extra-terrestrial life who had sent a beep deep into outer space. Except in our case we were sending a beep deep into inner space. And the beep had come back”, p. 31.
- 106.
See Pizzetti (2012), p. 34.
- 107.
Id., 40–41.
- 108.
- 109.
Shen (2016), p. 693.
- 110.
The bio-ethical questions on human brain surrogates and on organoids are grouped by Greely into 7 categories, which in this case I limit myself only to indicate, referring to the interesting and fascinating contribution of the American scholar: (1) the welfare of the surrogates; (2) the consent and the welfare of the human part of the surrogates; (3) possible non-research implications of the research; (4) possible non-research use of the surrogates; (5) Humanization of non-humans; (6) The rights of the surrogates; (7) The role, and rights, of societies in making decisions about the surrogates.
- 111.
Santosuosso and Bottalico (2010), p. 321.
- 112.
Tran-Trin Tran (2015), p. 102.
- 113.
Farah et al. (2004), p. 421.
- 114.
As far as neuroenhancement is concerned, a fairly broad definition is that offered by Greely (2008), p. 1140, whereby neuroenhancement would be defined as “a change to the human brain that we do intentionally for the purpose not of making the disabled normal or well, but of making normal people better than well or of making disabled people not just normal, but beyond normal”.
- 115.
Tran-Trin Tran (2015), p. 107.
- 116.
On these techniques, see the document Novel technologies: intervening in the brain, Nuffield Council on Bioethics, 2013, p. 10 ff.
- 117.
Blitz (2017), p. 41.
- 118.
See Donoghue (2015), pp. 231–232, according to him “As neurotechnology redefines what is possible, it will fundamentally reinvent the already profound debate about the boundary between man and machine”.
- 119.
See, in this book, Sommaggio and others. On the so called ‘Intellectual Privacy’, as “protection from surveillance of interference when we are engaged in the processes of gene rating ideas –thinking, reading, and speaking with confidants before our ideas are ready for public consumption”, see Blitz (2017), pp. 7 and 37.
- 120.
Tran-Trin Tran (2015), p. 117, claiming to admit the use of cognitive enhancers “would likely send the message that the U.S. Government still has faith and trusts each individual to make the right choice for himself/herself”. On the implications—affirmative and negative—of cognitive liberty, see, in this book, the chapter of Sommaggio and others.
- 121.
- 122.
- 123.
Tran-Trin Tran (2015), pp. 103 ff., 113 ff.
- 124.
Provocatively, Greely (2008), p. 1152, inquires “should an employer be allowed to say, ‘Take these memory-improving pills or you will be fired’?”.
- 125.
Sommaggio and others, cite the example of surgeons and pilots.
- 126.
Dogliani and Giorgi (2017), p. 3.
- 127.
They are the ones that Greely (2008), p. 1148 ff., calls “long-term social effects”.
- 128.
In these terms, v. CNB’s (Italian Committee for Bioethics), opinion about Neuroscience and pharmacological cognitive enhancement: bioethical profiles, 22 February 2013, 19, where it also reads: “The bioethical problem does not only concern harmfulness to health; it also calls into question the consideration of basic political and social values such as equal opportunities, fairness, cooperation. […] if free use of PCF was accepted, perhaps difficult to find and/or particularly expensive, this could give rise to other forms of undue advantage to the benefit of those who may have recourse to it, both in scholastic-academic and work contexts, accentuating existing inequalities and altering even more the sense of common citizenship and social solidarity”.
Instead, for Tran-Trin Tran (2015), p. 117, the proposal of (de)regulating neuroenhancement, not only “would likely promote individualism and align with our Constitution’s guaranty of freedom”, especially “will likely in positive net effects on our society”, including “more innovation and technological advancements…”.
- 129.
Tomasi (2019), p. 344.
- 130.
The document, dated 22 February 2013, is titled “Human Rights, Medical Ethics and Enhancement technologies in military field”.
- 131.
Caruana and Borghi (2016), p. 123.
- 132.
Rizzolatti and Gnoli (2016), p. 178.
- 133.
Unofficial translation by the editors, in the text; see the original citation “Empatia non significa buonismo”, Ibid., 104 and 133.
- 134.
See Bloom’s provocative book (2016–2019), whereby “empathy is like cholesterol, there is a good type and a bad type” (19); see also, Id., 104, 137 ff. In reality, as Hustvedt writes (2018), p. 230, “mirror systems give us access to other people and animals that are somewhat similar to us. This vicarious action plays a role in our bonds with other people, but the full understanding of the self-other dynamic continues to elude us.”
- 135.
- 136.
Cominelli (2018), p. 149, wrote: “Imitation is a form of social glue, because it unwittingly leads to better relationships, mutual appreciation, and simpler interactions. Priming dynamics also demonstrate the unconscious effect of relational dynamics which are apparently irrelevant to the substance of the relationship, but which actually have a noticeable impact on intellectual performance and interpersonal behaviours”.
- 137.
Carroll (2005), p. 85.
References
Alces P (2018) The moral conflict of law and neuroscience. University of Chicago Press, Chicago
Altavilla E (1948) Psicologia giudiziaria, III ediz. Torino, pp 707–708
Amar AR, Lettow RB (1995) Fifth amendment first principles: the self-incrimination clause. Mich Law Rev 93:857–928
Attiah MA, Farah MJ (2014) Minds, motherboards, and money: futurism and realism in the neuroethics of BCI technologies. Front Syst Neurosci 8(86). https://doi.org/10.3389/fnsys.2014.00086
Blitz MJ (2017) Searching minds by scanning brains. Palgrave Macmillan. https://doi.org/10.1007/978-3-319-50004-1
Bloom P (2016) Against empathy. The case for rational compassion. Harper Collins, New York. Italian version: Bloom P (2019) Contro l’empatia. Una difesa della razionalità (trans: Silenzi M). Liberi Libri, Macerata
Capraro L (2011) Problematiche relative al diritto processuale penale. In: Picozza E (ed) Neurodiritto: una introduzione. Torino, 2011. English edition: Capraro L (2011) Criminal procedure issues. In: Picozza (ed) Neurolaw. An introduction. Springer Nature
Carroll J (2005) Human nature and literary meaning: a theoretical model illustrated with a critique of pride and prejudice. In: Gottshall J, Wilson DS (eds) The literary animal: evolution and the nature of the narrative. Northwestern University Press, Evanston
Caruana F (2010) Quali problemi sull’utilizzo delle neuroscienze in giurisprudenza. Sistemi intelligenti 2:337–346. https://doi.org/10.1422/32630
Caruana F, Borghi A (2016) Il cervello in azione. Il Mulino, Bologna
Codognotto S, Sartori G (2010) Neuroscienze in tribunale: la sentenza di Trieste. Sistemi intelligenti 2:269–280. https://doi.org/10.1422/32625
Cohen IG (2015) This is your brain on human rights: moral enhancement and human rights. Law Ethics Hum Rights 9(1):1–41
Collica MT (2012) Il riconoscimento del ruolo delle neuroscienze nel giudizio di imputabilità. Diritto penale Contemporaneo, available https://www.penalecontemporaneo.it/d/1264-il-riconoscimento-del-ruolo-delle-neuroscienze-nel-giudizio-di-imputabilita. Accessed 26 Aug 2019
Cominelli L (2018) Cognition of the law. Toward a cognitive sociology of law and behavior. Springer
D’Aloia A (2014) Oltre la malattia: metamorfosi del diritto alla salute. Biolaw Journal-Rivista di biodiritto 1:87–100. https://doi.org/10.15168/2284-4503-10
D’Aloia A (2019) Il diritto verso il “mondo nuovo”. Le sfide dell’intelligenza artificiale. Biolaw Journal-Rivista di Biodiritto 1:3–31. https://doi.org/10.15168/2284-4503-349
Damasio A (1994) Descartes’ error. Emotion, reason and human brain. Putnam, New York. Italian version: Damasio A (1995) L’errore di Cartesio. Emozione, ragione e cervello umano (trans: Macaluso F). Adelphi, Milan
Damasio A (2018) The strange order of the things. Pantheon Books, New York. Italian version: Damasio A (2018) Lo strano ordine delle cose (trans: Ferraresi S). Adelphi, Milan
Denno DW (2015) The myth of the double-edged sword: an empirical study of neuroscience evidence in criminal cases. Boston Coll Law Rev 56:493–551
Denno DW, McGivney A (2011) Changing law’s mind: how neuroscience can help us punish criminals more fairly and effectively. Fordham University School of Law. http://ssrn.com/abstract
Dogliani M, Giorgi C (2017) Art. 3. Laterza, Rome-Bari
Donoghue J (2015) Neurotechnology. In: Marcus G, Freeman J (eds) The future of brain. Princeton University Press, Princeton
Eagleman D (2011) Incognito: the secret lives of others. Pantheon Books, New York
Edelman GM (1992) Bright air, brilliant fire. On the matter of the mind. Basic Books, New York. Italian edition: Edelman GM (1993) La materia della mente. Adelphi, Milan
Farah MJ, Illes J, Cook-Degan R et al (2004) Neurocognitive enhancement: what can we do and what should we do? Nat Rev Neurosci 5(5):421–425. https://doi.org/10.1038/nrn1390
Fernandez A (2005) Diritto e natura umana: la funzione sociale-adattiva del comportamento normativo. I-lex, available http://www.i-lex.it/articles/volume1/issue3/atahualpa.pdf. Accessed 26 Aug 2019
Ferrari PF, Gallese V (2007) Mirror neurons and intersubjectivity. In: Braten S (ed) On being moved: from mirror neurons to emphaty. John Benjamins Publishing Company, Amsterdam
Flanagan O (1996) Self expressions: mind, morals, and the meaning of life. Oxford University Press, New York
Flick GM (2014) Neuroscienze (diritto penale). Rivista AIC 4. Available https://www.rivistaaic.it/it/rivista/ultimi-contributi-pubblicati/giovanni-maria-flick/neuroscienze-diritto-penale. Accessed 26 Aug 2019
Foley E (2011) The law of life and death. Harvard University Press, Cambridge
Forza A (2012) La sfida delle neuroscienze: verso un cambiamento di paradigma? Dir. pen. e processo 11:1376–1383
Forza A, Menegon G, Rumiati R (2017) Il giudice emotivo. La decisione tra ragione ed emozione. Il Mulino, Bologna
Fruehwald E (2008) Behavorial biology and constitutional analysis. Oklahoma City Univ. Law Review, Spring 2008; Hofstra Univ. Legal Studies Research Paper No. 07–32. Available at SSRN https://ssrn.com/abstract=1023782
Fuselli S (2014) Diritto Neuroscienze Filosofia. Un itinerario. Francoangeli, Milan
Gallese V, Guerra M (2015) Lo schermo empatico. Cinema e neuroscienze. Raffaello Cortina Editore, Milan
Gaudet LM, Marchant GE (2016) Under the radar: neuroimaging evidence in the Criminal Courtroom. Drake Law Rev 64:577–661
Gazzaniga M (2011) Who’s in charge? Free will and the science of the brain. Harper Collins, New York. Italian version: Gazzaniga M (2013) Chi comanda? Scienza, mente e libero arbitrio. Codice edizioni, Turin
Gazzaniga M (2018) The consciousness instict unraveling the mystery of how the brain makes. Farrar, Straus & Giroux, New York. Italian version: Gazzaniga M (2019) La coscienza è un istinto. Il legame misterioso tra il cervello e la mente. Raffaello Cortina Editore, Milan
Goodenough O, Tucker M (2010) Law and cognitive neuroscience. Annu Rev Law Soc Sci 6(1):61–92. https://doi.org/10.1146/annurev.lawsocsci.093008.131523
Greely H (2008) Remarks on human biological enhancement. Kansas Law Rev 56(5):1139–1157. https://doi.org/10.17161/1808.20018
Green J, Cohen J (2004) For the law, neuroscience changes nothing and everything. Philos Trans R Soc Lond B Biol Sci 359(1451):1775–1785. https://doi.org/10.1098/rstb.2004.1546
Harris S (2010) The moral landscape. How science can determine human values. Free Press, New York
Harris S (2012) Free will. Free Press, New York
Hauser MD (2008) Moral minds: how nature designed our universal sense of right and wrong. Harper Collins, London
Honneth A (2019) Riconoscimento. Un’idea europea. Feltrinelli, Milan
Hunt L (2007) Inventing human rights. W.W. Norton and Company, New York. Italian edition: (2010) La forza dell’empatia. Una storia dei diritti dell’uomo. Laterza, Roma-Bari
Hustvedt S (2016) The delusions of certainty. Simon&Schuster, New York. Italian version: Hustvedt S (2018) Le illusioni della certezza. Einaudi, Turin
Johnson SL, Hritz AC, Royer CE, Blume JH (2016) When empathy bites back: cautionary tales from neuroscience for capital sentencing. Fordham Law Rev 85(2):573–598
Jones OD (2017) Law and the brain – past, present and future. Ariz State Law J 48:917–933
Jones OD, Wagner AD (2020) Law and neuroscience: progress, promise, and pitfalls (April 1, 2018). In: Gazzaniga MS, Mangun GR, Poeppel D (eds) The cognitive neurosciences, Vanderbilt Law Research Paper 18–32, 6th edn. MIT Press, Cambridge. https://ssrn.com/abstract=3178272 (April 2020, Forthcoming)
Jones OD, Buckholtz JW, Schall JD, Marois R (2009) Brain imaging for legal thinkers: a guide for the perplexed. Stanf Technol Law Rev 5
Kolber AJ (2014) Will there be a neurolaw revolution? Indiana Law J 89:807–845
Marcus G, Freeman J (2015) The future of brain. Princeton University Press, Princeton
McGinnis J (1997) The human constitution and law: a prolegomenon. J Contemp Law Issues 8:211–240
Miller GA (1962) Psychology. The science of mental life. Harper & Row, New York. Italian edition: Miller GA (1965) I problemi della psicologia. La scienza della vita mentale. Mondadori, Milan
Moretta F (2017) Pena di morte e minori. Biolaw Journal-Rivista di Biodiritto 3:199–232. https://doi.org/10.15168/2284-4503-266
Morse SJ (2004) New neuroscience, old problems: legal implications of brain science. Cerebrum 6(4):81–90
Morse SJ (2011) Genetics and criminal responsibility. Trends Cogn Sci 15(9):378–380. https://doi.org/10.1016/j.tics.2011.06.009
Morse SJ (2019) Neurohype and the Law: a cautionary tale. In Raz A, Thibault R (eds) Casting light on the dark side of brain imaging. Elsevier
Northoff G (2019) La neurofilosofia e la mente sana. Imparare dal cervello malato. Raffaello Cortina Editore, Milan
Opderbeck DW (2014) The problem with neurolaw. Saint Louis Univ Law J 58(2):497–540. Available at https://scholarship.law.slu.edu/lj/vol58/iss2/7
O’Shea M (2005) The brain. Oxford University Press, Oxford. Italian version: O’Shea M (2012) Il cervello (trans: Faravelli E). Codice edizioni, Turin
Owen A (2017) Into the grey zone. Simon &Schuster, New York. Owen A (2019) Nella zona grigia (trans: Lazzari C). Mondadori, Milan
Pardo M, Patterson D (2010) Philosophical foundations of law and neuroscience. Univ Ill Law Rev 4:1211–1250
Patterson D (2018) Neuromania. J Law Biosci 5(2):440–456. https://doi.org/10.1093/jlb/lsy010
Pellegrini S, Pietrini P (2010) Siamo davvero liberi? Il comportamento tra geni e cervello. Sistemi intelligenti 2:281–294. https://doi.org/10.1422/32626
Picozza E (2011) Neurolaw. An introduction. Springer-Giappichelli, Turin
Pizzetti FG (2012) Neuroscienze forensi e diritti fondamentali: spunti costituzionali. Giappichelli, Turin
Posner RA (2008) How judges think. Harvard University Press, Cambridge
Rizzolatti G, Gnoli A (2016) In te mi specchio. Per una scienza dell’empatia. Bur editore, Milan
Sacco R (2015) Il diritto muto. Neuroscienze, conoscenza tacita, valori condivisi. Il Mulino, Bologna
Sahakian BJ, Gottwald J (2017) Sex, lies & brain scans. Oxford University Press, Oxford
Sammicheli L, Lavazza A (2014) Diritto e neuroscienze (II). Rivista Internazionale di Filosofia del Diritto 1(91):73–95
Santosuosso A, Bottalico B (2010) Neuroscienze. Connessioni e confini dell’individuo. Sistemi intelligenti 22(2):313–322
Shen FX (2013) Neuroscience, mental privacy and the law. Harv J Law Public Policy 36(2):653–713
Shen FX (2016) The overlooked history of neurolaw. Fordham Law Rev 85:667–695
Skene L, Wilkinson D, Kahane G, Savulescu J (2009) Neuroimaging and the withdrawal of life-sustaining tratment from patients in vegetative state. Med Law Rev 17(2):245–261. https://doi.org/10.1093/medlaw/fwp002
Smits J (2015) Does the law of delict have a future? On neuroscience and liability. In: Potgieter J, Knobel J, Jansen R-M (eds) Essays in honour of Johann Neethling. LexisNexis, Durban, pp 451–457
Soon CS, Brass M, Heinze HJ, Haynes JD (2008) Unconscious determinants of free decisions in the human brain. Nat Neurosci 11(5):543–545. https://doi.org/10.1038/nn.2112
Stake JE (2004) The property ‘instinct’. In: Zeki S, Goodenough O (eds) Law and the brain. Oxford University Press, London
Swaab DF (2015) We are our brains. From the womb to Alzheimer’s. Spiegel & Grau, New York
Tancredi L (2005) Hardwired behavior. What neuroscience reveals about morality. Cambridge University Press, Cambridge
Taylor JS, Harp JA, Elliott T (1991) Neuropsychologists and neurolawyers. Neuropsychology 5(4):293–305
Tennison MN, Pustilnik AC (2015) And if your friend jumped off a bridge, would you do it too?: How developmental neuroscience can inform regimes governing adolescents. Indiana Health Law Rev 12(2):533–590
Tomasi M (2019) Genetica e Costituzione. Esercizi di eguaglianza solidarietà e responsabilità. ESI, Naples
Tononi G (2014) Phi. Un viaggio dal cervello all’anima. Codice edizioni, Turin
Tran JL, Trin Tran D (2015) (De)regulating neuroenhancement. Univ La Verne Law Rev 37:101–124
Wasserman D, Johnston J (2014) Seeing responsibility: can neuroimaging teach us anything about moral and legal responsibility? Hastings Cent Rep 44(2):37–49. https://doi.org/10.1002/hast.297
The Economist (2002) The ethics of brain science. Open your mind. May 23rd, 2002
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D’Aloia, A. (2020). Law Challenged. Reasoning About Neuroscience and Law. In: D’Aloia, A., Errigo, M.C. (eds) Neuroscience and Law. Springer, Cham. https://doi.org/10.1007/978-3-030-38840-9_1
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