Scanning for Justice: Using Neuroscience to Create a More Inclusive Legal System

Rosenthal, Hilary

Although they may seem to be worlds apart, on further inspection, neuroscience and the law are not so discordant. Neurolaw is an emerging interdisciplinary field that undertakes to examine how an increased understanding of the human nervous system can lead to a more precise explanation for human behavior, which in turn could inform the law, legislation, and policy. While increased dependence on neuroscience in the courtroom raises evidentiary and normative concerns, its use can also have significant implications for civil and human rights by opening doors for plaintiffs to bring claims that historically have been difficult to prove. One such example is the way neuroscience can obviate the outmoded physical-mental divide in tort law. Courts in the United States have been skeptical of awarding damages for “invisible” injuries, such as PTSD, concussions, neurodegenerative diseases, and emotional pain and suffering, all of which can alter brain structure and function, but often do not manifest physically until it is too late for a person suffering those harms to recover damages in a courtroom. However, as neuroscience technology improves, it can help detect these previously hidden or latent injuries, especially for those in marginalized communities, and begin to uproot entrenched policies that perpetuate health inequality. This Note argues that neuroscience, while not without its shortcomings, has become an increasingly important


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Columbia Human Rights Law Review

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May 5, 2022