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Ethics: Neuroethics and Law
"Science" on the Stanford Pain Conference
By Adam Kolber
Greg Miller has written an interesting one-page article in Science (limited access here) describing the recent conference at Stanford Law School on the use of brain imaging to assess pain. You can access some more commentary about the conference, along with the audio recordings here.
I will also use this opportunity to address a couple of claims in the article attributed to me. The article states that I argued "that pain detection is more likely to be the first fMRI application to find widespread use in the courtroom, in part because the neuroscience of pain is better understood."
Let me clarify/expand: I don't know if pain detection will be the first fMRI application to find widespread use in the courtroom, but compared to brain-based lie detection technologies, I do think that brain-based methods of pain detection (including both functional and structural neuroimaging) have certain distinct advantages. First, unlike lies, which can be made in a fraction of a second, the kind of pain that would likely be relevant in the courtroom is likely to extend over long periods of time. That may make pain a little bit easier to reliably detect. That is, we're observing a phenomenon that doesn't require precise time resolution. Second, we already have some evidence of correlations between chronic pain conditions and structural changes in the brain. If these correlations can reliably be detected and if these structural changes are not observed in subjects lacking pain, then we may have a way of detecting certain kinds of malingering. Assuming that it is difficult to deliberately fake the pertinent structural changes in the brain, countermeasures to the technology will be harder to come by. By contrast, it seems likely that there will be a number of countermeasures one can use against functional MRI.
As for whether the neuroscience of pain is better understood than the neuroscience of lies, I'm not sure if that's true. I'm happy to defer to neuroscientists on the matter. I do know that I have asked many neuroscientists about the relative plausibility of brain-based lie detection relative to brain-based pain detection. I would say that most, but not all, seem to concur with my general sentiments. More interestingly, though, few neuroscientists so far seem sufficiently versed in both technologies to make the comparison.
The article also says that "Kolber estimates that pain is an issue in about half of all tort cases, which include personal injury cases." What I think I said (or at least meant to convey) is the claim that I mention in this article about pain imaging that "pain and suffering awards may represent about half of personal injury damage awards" (sources on p.434). This figure is just an estimate, but it does reinforce the central point that lots of money changes hands in the legal system over hard-to-verify claims about pain and other subjective experiences.
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