Navigating Lawyering in the Age of Neuroscience: Why Lawyers Can No Longer Do Without Emotions (Nor Could They Ever)

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Notes

1 The Ongwen case before the International Criminal Court is instructive in this respect; on this and similar cases, see Windell Nortje and Noëlle Quénivet, Child Soldiers and the Defence of Duress under International Criminal Law (Palgrave Macmillan 2020); Everisto Benyera, ‘Child Victim, Loyal War Spirit Medium or War Criminal: Shifting the Geography and Logic of Historical Accountability in Dominic Ongwen’s ICC Trial’ (2021) African Identities, first published online 23 November 2021 <https://doi.org/10.1080/14725843.2021.2005537>.

2 Paradoxically, this trend is fostered by the international discourse on human rights; refer to Mattia Pinto, ‘Historical Trends of Human Rights Gone Criminal’ (2020) 42(4) Human Rights Quarterly 729.

3 For a most recent illustrative case on bail from another common-law jurisdiction, check Hong Kong Court of Final Appeal, HKSAR v Lai Chee Ying (黎智英), FACC No 1 of 2021 on appeal from HCCP Nos 727 and 738 of 2020, [2021] HKCFA 3.

4 See Riccardo Vecellio Segate, ‘Cognitive Bias, Privacy Rights, and Digital Evidence in International Criminal Proceedings: Demystifying the Double-Edged AI Revolution’ (2021) 21(2) International Criminal Law Review 242.

5 At 156, for instance, Wettergren and Blix hypothesise that Italian judges’ ‘ …  masculinity allow[s] them to act more emotional and still be deemed rational’ compared to Swedish ones. Quite shamefully, at 204, Carbone and Cahn lament that ‘[t]oday’s custody system seeks to encourage two-parent involvement before and after a break-up, and thus rewards men (regardless of their actual emotional investment in their relationship with the children), while curtailing what had been mothers’ frequently unilateral decision-making authority’ (emphasis added). Virtually every chapter incapsulates one-sided blank assertions, grievances, and scaremongering of this sort. Of course, this book’s topic itself concedes to high risks of subjectivation, extremisation, speculatory exercises, and undue generalisation of privatised experience, which is exactly why, to enhance its credibility as an academic project, I advise recourse to extra doses of caution and self-restraint. This is of the essence in order to refrain from hyperbolic conclusions which land themselves to combative impressions rather than informative scholarship, and to focus on true societal distortions and human suffering rather than pseudo-intellectual feminist polemics.

6 Specular reasoning for the field of international criminal law is provided in Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13(3) European Journal of International Law 561. Check also her subsequent work.

7 It looks like she has already started developing it. Refer e.g. to Federica Coppola, ‘We are More Than our Executive Functions: On the Emotional and Situational Aspects of Criminal Responsibility and Punishment’ (2021) Criminal Law and Philosophy, first published online 22 July 2021 <https://doi.org/10.1007/s11572-021-09594-5>.

8 Check e.g. the impressive iteration of these formulas in the passage from ‘ …  the person is reduced to his or her cognitive abilities’ to ‘ …  his or her social identity is obscured by punitive mechanisms that are legitimised by the fact that he or she chose to commit an offence’ at 86–87.

9 67 from the US, 3 from the UK, 2 from the Council of Europe’s court, none from the rest of the globe.

10 Saliently here, Article 5(1) of the European Commission’s draft proposal for a regulation on AI prohibits algorithms exploiting subliminal techniques; refer to Maria Renske ‘Marietje’ Schaake, ‘The European Commission’s Artificial Intelligence Act’ (June 2021) Stanford University’s Institute on Human-Centered Artificial Intelligence <https://hai.stanford.edu/sites/default/files/2021-06/HAI_Issue-Brief_The-European-Commissions-Artificial-Intelligence-Act.pdf>; Eleonore Fournier-Tombs, ‘Towards a United Nations Internal Regulation for Artificial Intelligence’ (2021) Big Data & Society, first published online 30 August 2021 <https://doi.org/10.1177/20539517211039493>, 3; Jakob Mökander and others, ‘Conformity Assessments and Post-market Monitoring: A Guide to the Role of Auditing in the Proposed European AI Regulation’ (2021) Minds and Machines, first published online 5 November 2021 <https://doi.org/10.1007/s11023-021-09577-4>, 19–20.

11 One of the gravest is at page 194, with ‘serotonin inhibitors’ being mentioned in lieu of serotonin reuptake inhibitors, whose functioning is exactly the opposite! In the same page, ampakines are misspelled as ‘ampachines’; to make things more tragic, this chapter is by one of the editors! As for the Chinese experiment mentioned at page 376, it was rejected by Western journals out of animal-rights concerns, and not owing to doubts over the research output. The expression ‘prefrontal lobes’ (361) is no longer employed: ‘prefrontal cortex’ and ‘frontal lobe’ can be used instead. At 354, Ragone and Vimercati write that ‘ …  brain imaging  …  involves the use of contrast fluids injected inside the cerebral organ’: first, brain imaging does not necessarily entail the use of contrast agents; second, they are not injected in the cerebral organ, but elsewhere and they reach the organ therefrom. Unfortunately, the errors I mention here are but a few, and to put it straight, some of them cannot be accepted in a scholarly work – especially on this topic.

12 Wonhye Lee and others, ‘Non-invasive Transmission of Sensorimotor Information in Humans Using an EEG/Focused Ultrasound Brain-To-brain Interface’ (2017) 12(6) PLoS ONE e0178476.

13 Elisabeth Hildt, ‘Multi-Person Brain-To-Brain Interfaces: Ethical Issues’ (5 November 2019) Frontiers in Neuroscience, frontiersin.org <https://doi.org/10.3389/fnins.2019.01177>.

14 Linxing Jiang and others, ‘BrainNet: A Multi-Person Brain-to-Brain Interface for Direct Collaboration Between Brains’ (2019) 9 Scientific Reports <https://doi.org/10.1038/s41598-019-41895-7>.

15 cf Antonio Gusmai, ‘Le neuroscienze come strumento di “emersione” del diritto muto’ (2017) 11(3) BioLaw Journal—Rivista di BioDiritto 7.

16 Indeed, scholars and physicians maintain we should ‘ …  emphasize the importance of both psychiatric and neurologic perspectives in the present and future of FND clinical care and research’: Indrit Bègue and others, ‘Psychiatry’s Modern Role in Functional Neurological Disorder: Join the Renaissance’ (2021) 51(12) Psychological Medicine 1961, 1962.

17 A few – if elementary – insights on this connection could be retrieved from e.g. Delphine Rabet, ‘The Political Economy of Neurolaw: Can Neurolaw Destabilize the Neoliberal Discourse About Human Behavior?’ in Marc de Leeuw and Sonja van Wichelen (eds), Personhood in the Age of Biolegality (Palgrave Macmillan 2020) 39–54.

18 In this sense, read also Tara L White and Meghan A Gonsalves, ‘Dignity Neuroscience: Universal Rights are Rooted in Human Brain Science’ (2021) 1505(1) Annals of the New York Academy of Science 40; Alexander Sieber, ‘Digital Barbarism: The New Colonization of the Mind’ (2021) Critical Arts: South-North Cultural and Media Studies, first published online 2 November 2021 <https://doi.org/10.1080/02560046.2021.1986560>; Silvia Inglese and Andrea Lavazza, ‘What Should We Do With People Who Cannot or Do Not Want to Be Protected From Neurotechnological Threats?’ (4 August 2021) Frontiers in Human Neuroscience, www.frontiersin.org <https://doi.org/10.3389/fnhum.2021.703092>.