Legal Research

Neuroeconomics, Neuromancy? and Law

By Simon Fodden

Well, not yet neuromancy, William Gibson notwithstanding: we can’t yet hack our heads enough to predict the future. But neuroeconomics, yes, apparently.

I’m no big fan of economists and have long wondered why law, and legal academics in particular, give them and their theories such (or, indeed, any) credit. I’m convinced that it’ll turn out to be one of the great mysteries as to why in this era we all allowed economics to be mistaken for what is most important in society — but that’s verging on neuromancy.

Vox, a European site, offers “Research-based policy analysis and commentary from leading economists,” one instance of which is “Neuroeconomic theory: Using neuroscience to understand the bounds of rationality” by Isabelle Brocas and Juan D. Carrillo. Turns out that economists are puzzled by the fact that people make “irrational” choices, meaning that they’re unpredictable, which in turn casts “a grey cloud over economics.” Fortunately, or not:

Neuroeconomics offers a solution through an additional set of data obtained via a series of measurements of brain activity at the time of decisions.

This is, of course, an incursion into the field of psychology, a science no less rigorous than that of economics and one, I should have thought, that would appeal to law far more than it’s “dismal” cousin. And, as you can see, it is also a mere axon or dendrite away from an incursion into law itself:

Neuroeconomic theory proposes to build brain-based models capable of predicting observed behaviour.

Law is already in bed head with brain scanning, of course. There are consultants who offer their services as forensic neuropsychologists, academic articles on what neuroscience might mean for juristic concepts of responsibility, and even the odd outlier of a judgment in which a court accepts brain scans as evidence of guilt. But now that economics is limbering up the PET, CT, and MRI machines, it’s seriously likely that the law will welcome the ghost out of the machine much more warmly. Or am I being irrational?

Full post as published by Slaw.ca on March 30, 2010 (boomark / email).