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O'Neill on Mirror Neurons & the Law

By Lawrence Solum

Timothy P. O'Neill (John Marshall Law School) has posted Mirror Neurons, the New Neuroscience, and the Law: Some Preliminary Observations (Southwestern University Law Review, Vol. 39, No. 3, 2010) on SSRN. Here is the abstract:

V.S. Ramachandran has written that we are in the midst of a new revolution of scientific thought: the neuroscience revolution. Since 1995, a group of scientists have studied what they refer to as "mirror neurons," certain nerve cells in the brain that enable a person to see the world from another person's perspective. These scientists believe that mirror neurons may provide a neurobiological explanation for precisely how humans empathize.

This Essay first applies this insight to the role of empathy in judging. The concept of mirror neurons shows that the issue is not whether empathy has a role in judging, but rather how significant a role empathy actually plays. In reaching judicial decisions, "reason" and "emotion" complement, rather than oppose, one another. As Jonah Lehrer has stated, "Reason without emotion is impotent." Mirror neurons provide a tool for beginning a more sophisticated discussion of the nature of judging.

The Essay then turns to how mirror neurons can aid in understanding the decision-making of juries. It considers a closing argument technique called "channeling," in which the lawyer pretends to actually be the victim in the case who is describing his personal pain and suffering. Mirror neurons suggest that the profound effect this technique can have on jurors may be less rhetorical than it is neurobiological. The Essay posits that the role played by mirror neurons may indeed suggest a scientific basis for Plato's argument in "The Republic" that all imitative poets should be banned from the city.

The Essay concludes by encouraging legal theorists to consider the role neuroscience can play in legal reform.

Full post as published by Legal Theory Blog on September 06, 2010 (boomark / email).