However, in rare cases Zolpidem can apparently also cause sleep-walking, and, while sleep-walking, people sometimes commit crimes — for instance homicidal somnambulism (killing someone while sleep-walking). Go on, Google “homicidal somnambulism” right now. And now Google “stilnox defense”. Wicked, right? Google probably just spewed up a bunch of bizzare legal cases in which people took Zolpidem for insomnia; they then sleep-walked; while sleep-walking they evidently committed some crime; but then they got off scott free because they committed that crime while sleep-walking.

Admittedly, we might sometimes have good reason to suspect that a criminal defendant is lying when they claim that they committed their crime while sleep-walking. Heck, how convenient,… it if reduces their sentence, why not lie, right? (I’m reporting, not endorsing.) Or we might be suspicious about whether Zolpidem is what caused them to sleepwalk. Perhaps they’re just trying to find someone else to blame whom they can later sue for damages,… who knows! However, if the criminal defendant’s veracity is not doubted, then at least from one perspective the Stilnox defence seems reasonable. In essence, it’s a form of an automatism defence, since what the accused alleges is that their body’s movements should not even be viewed as actions (let alone as their actions) because they were not controlling their body’s movements (heck, they were not even aware of those movements since they were after all asleep), and hence that they should not be blamed for whatever their body did in their absence. So far, so good…

But what has started to worry me of late is how we can be certain that what we have in such Stilnox defence cases is indeed automatism? How do we know that we’re not in fact dealing with amnesia? After all, one of the side effects of Zolpidem is amnesia, so it is not inconceivable that that’s what Zolpidem does — that it makes people forget the things that they did, rather than making them run on autopilot like zombies. Now, I do not know the answer to this question — i.e. whether Stilnox defence cases involve automatism, amnesia, or sometimes one and sometimes the other. It’s an empirical question, and if you know of empirical studies that have investigated this question then please email me, k? But the reason why this worries me is because it is far from clear to me why amnesia should even be viewed as a defence?! For instance, why should we think that someone who has forgotten the murder that they committed – perhaps they murder someone but then they trip over, hit their head hard on the pavement, and forget having committed this crime – is less blameworthy and less deserving of punishment than someone who remembers it clearly? Why should memory matter?!

In a recent paper Annette Dufner argues that in cases of dementia-induced amnesia we might have good grounds to stop punishing (or to not start punishing) a person convicted of a crime. To me Dufner’s argument seems fair. My main objection is that even if a person can’t remember having committed a crime, it might still be reasonable to punish them for it if they can nevertheless be reasonably expected to accept our incontrovertible evidence (e.g. CCTV footage, perhaps) that they indeed committed that crime. I would view such assisted remembering as being on a par with normal remembering, though admittedly this may seldom apply to cases that Dufner discusses. But is Zolpidem-induced amnesia analogous to dementia-induced amnesia, at least for the purpose of criminal blame and punishment? Somehow to me the cases seem very different.

Furthermore, to my mind automatism seems like a water-tight defence, but amnesia… not so much. It would thus be great to see some empirical studies about what goes on in the brains of people who sleep-walk while on Zolpidem. For instance, if we found that Zolpidem interferes with memory consolidation, that might support the amnesia hypothesis. On the other hand, we might find that Zolpidem interferes with the normal mechanisms of conscious behavioural control, and that might support the automatism hypothesis.

My point is simply that if all that Stilnox does is to wipe away your memory of doing something, rather than to wipe you away temporarily and replace you with an autopilot, should people still be entitled to cite the Stilnox Defence? Or, should we develop better tests to help us distinguish these cases from each another? After all, everyone might sincerely believe that they sleep-walked while committing their crime, but only some might be right about this.

DEPENDENCY by KOSHEEN

feels like you’re watching me
everything i do and say
everywhere i go
feels like you’re inside me
seeing through my eyes
still telling me what to do
keep pulling me down
pushing me
don’t let me fall
you catch me
i’ll be around
if you ever need
just call me
dependency

if i try and hide
i know you’re going to find me
always a step behind
beathing down my neck again
tapping on my shoulders
trying to remind… me
keep pulling me down
pushing me
don’t let me fall
you catch me
i’ll be around
you remind me
just call me
dependency

just let me go
- just let me go
put me back where you found me
just let me go
- just let me go
just leave me there where you found me
just let me be
let me be me
define me
just let me go
just call me
dependency

So why make a big deal of it? Well, for as long as I remember I’ve always had trouble hearing words in songs. I could hear the singer’s voice all right, that wasn’t the problem, but I just couldn’t hear the words. It was all like mwah-mwah-mwaaahh-mwah. Essentially a voice instrument is all I heard.

Don’t know whether this means I’ve got some cool exotic disorder with a name of its own and all, but in any case it meant that I was forever surprised whenever people told me that this song or that song was about something or other. And it was also kind of embarrassing to tell someone “Hey, I really love this song, you’ve got to listen to it!” and they’d say “Yeah? What’s it about?” and I’d be like “Uhm,… well,… I don’t actually know coz I don’t hear lyrics.” =( It’s embarrassing to have to admit that sort of stuff; that after playing a song many times over all I could still discern were a few isolated words here and there and the rest was just mwah-mwah-mwah.

So, of late I acquired KOSHEEN’s recent album “Independence”, and one of the tracks “Dependency” is a real ear-worm for me, especially at the points where there’s singing (two minutes in from the start, and then two and a half minutes before the end). So after playing it non-stop for a day I finally tried to find the lyrics to figure out what it’s about, but for the life of me I couldn’t find them anywhere. So after a fruitless search I decided to see whether I could discern the words if I paid really close attention. And guess what, I think I succeeded!

Chances are that I’ve still mis-heard stuff, so please let me know if you spot an error. But hey, it’s the first time I’ve managed to hear all of the words in a song without relying on the interwebs to provide the lyrics first. Hurrah! =D

On the web site you’ll also find a downloadable version of this programme as well as the original conference CFP. Please download it, print it out, and post it throughout your departmental corridor. More importantly, submit an abstract, or at least come along and join us, k? Oh, and note that the programme may still change – what’s shown above is just the current draft version – so please check back on the conference web site for the definitive version.

As you can see, a total of seven papers will be presented over the course of two days. All papers will be critical of some aspect of Stephen Morse’s work in neurolaw. For instance, Jeanette Kennett and I will present a paper (co-authored with Anke Snoek) which challenges Morse’s views on drug addiction and criminal responsibility. But don’t tell him that yet, since we’d like to catch him by surprise. ;)

After each paper, Morse will get first right of response, and the floor will then be open for further questions and discussion with the audience. The conference will end with a short presentation where Morse will offer his reflections on how the papers have challenged his thinking.

This article is particularly dear to me because it’s actually an embryonic version of a book that I’m working on by the same title. In this article I outline what I see as a number of shortcomings with compatibilist responsibility theory, and then I hint at how I think that these shortcomings might be addressed. Many other problems don’t get a mention, and the solutions that I propose really are just sketches (and in some cases they are merely promissory notes). But there’s only that much you can fit into a journal article, which is why this thing is getting written up as a book.

Here’s the abstract:

Philosophical compatibilism reconciles moral responsibility with determinism, and some neurolaw scholars think that it can also reconcile legal views about responsibility with scientific findings about the neurophysiological basis of human action. I too am a compatibilist, but in this paper I will argue that philosophical compatibilism can not simply be transplanted “as-is” from philosophy into law. Rather, before compatibilism can be re-deployed, it must first be modified to take account of differences between legal versus moral responsibility and a scientific versus deterministic world view, and to address a range of conceptual, normative, empirical and doctrinal problems that orbit its capacitarian core.

So if you’d like an early preview of the sort of argument that the book-length version of CTLR is going to contain then follow me on twitter (link at the bottom-right of this page) as I’ll tweet about it when the article is available for download. And since it will be published with Open Access, you’ll be able to download it for free.

Three years ago I developed my own syllabus for a neurolaw course. The syllabus (available here if you’re interested) could benefit from being refreshed, since it’s missing several excellent papers that have been published in the last three years, but instead of refreshing it I’m now actually thinking of jumping ship. What’s changed of late is that as the field of neurolaw has matured, a number of scholars connected to the MacArthur Foundation’s Research Network on Law and Neuroscience have started putting together what to me look like awesome neurolaw course textbooks. Here’s a couple that I’m particularly enthused about:

• A Primer on Criminal Law and Neuroscience by Morse & Roskies (eds)
• Law and Neuroscience: a Coursebook by Jones, Schall & Shen (eds)

The not invented here syndrome is just as tempting in academia as it is in the corporate world. Who wouldn’t want to put their stamp of individuality onto the courses that they teach, right? However, I’ve always been struck by the fact that while the physical sciences and disciplines like mathematics and logic have very well developed standard syllabi, in philosophy we often re-invent the wheel.

Don’t get me wrong, individuality is lovely. But there is something to be said for standardizing course syllabi, especially once a field like neurolaw starts to mature. For this reason I will probably make liberal use of the above two volumes when I teach the Spring 2014 graduate seminar in neurolaw at GSU, and then I’ll supplement them with interesting current/recent legal cases, top recent journal articles, and chapters from my collection Neuroscience and Legal Responsibility. Then I’ll return to my own syllabus and think about whether to refresh it or whether the above books have made it obsolete.

So if you’re thinking of studying neurolaw next year, and you want to give yourself a head start, then check out the above four resources. And if you’re thinking of coming to GSU to study neurolaw then get in touch — it’ll be awesome to have you in my class. Oh, and stay tuned for a link to the course listing on GoSOLAR, GSU’s online student registration system.

Law & Neuroscience: the work of Stephen J. Morse
10 June 2013 | 0900h-1700h | European University Institute
Sala Triaria | Villa Schifanoia | Via Boccaccio, 121 | Florence | Italy

Jeanette KENNETT Macquarie University, Department of Philosophy
Michael MOORE University of Illinois, College of Law
Stephen J. MORSE UPenn, Law School
Michael S. PRADO University of Alabama, School of Law
Dennis PATTERSON European University Institute, Department of Law
Katrina SIFFERD Elmhurst College, Department of Philosophy
Nicole A VINCENT Macquarie University & TU Delft, Departments of Philosophy
Henrik WALTER Charité Universitätsmedizin Berlin, Department of Psychiatry

Further details to follow, meanwhile send an email to Sofia Moratti.

• from 7pm one day till 1pm the next I have no internet access;
• my phone is in flight mode, so you won’t get me there either;
• I might answer the door, if you’re lucky, but probably not.

If you have a problem with that then consider this. Dealing with email will drain all the energy you throw at it, it will dump more email in others’ inboxes, in retribution they will dump yet more email in your inbox, and both your and their productivity and creative output will be shipwrecked.

If this makes any sense to you then read the following before sending another email to anyone: http://www.emailcharter.org/

Information about the workshop, including a list of confirmed participants and directions for submitting an abstract can be found here.

Abstract submission deadline: 15 February 2013

The article goes on to cite Hank Greely from the Stanford Center for Law and the Biosciences saying that “[t]hese brain scans are poker chips—if you can throw in some more evidence, it might confuse the jury, and it increases the calculation about when one settles”. “Many of these cases are appeals where defendants argue they had ineffective counsel after they’ve been convicted. They say the trial lawyer was an idiot because he didn’t get my brain scanned.”

So far so good. I’m a fan of Farahany’s and Greely’s work in the field of neurolaw, and it’s great to see this work being reported upon. But what got me feeling all spiky was the next sentence in which the reporter states: “The use of neuroscience as a defense is different from that of a psychological defense, or an insanity plea, because the diagnoses depend on the physical makeup of or damage to the brain, not a psychiatric evaluation” (emphasis added).

Different? What exactly is supposed to make it different?

In my opinion it is highly debatable whether there is any substantial conceptual difference between the use of neuroscience and of (e.g.) psychological findings or a sad narrative about the defendant’s terrible upbringing as a defense. All three (neuroscience, psychology and narrative) aim to provide an aetiology that explains something, and whether the explanation should be accepted as a legitimate excuse (or at least as a factor that diminishes guilt, or maybe only as a mitigating factor at sentencing) depends on its relevance as a factor that affects responsibility and desert (and possibly other punitive aims such as deterrence, rehabilitation, etc).

Thus, if it is not explained how the neuroscientific evidence (whatever that means, see the next paragraph) is meant to connect to cognitive and volitional (and perhaps other) criteria for responsibility, or how it is meant to provide an acceptable excuse, or to act as a mitigating factor (e.g. by highlighting relevant mental disorders), then the main difference will stem simply from the fact that it is not apparent why such evidence should even be seen as relevant. As Stephen Morse often points out, merely having a hole in your head is not an excuse; rather, it’s what the hole evidently does to one’s mental capacities that matters.

Regarding the question of precisely what gets classified as “neuroscientific evidence”, I flag this issue because when “neuropsychological testing” (which is basically behavioural testing with some neuropsych theory sitting around in the background about how the observed behaviour might relate to brain features) and claims like “Alcohol affects the brain’s function” get picked up in database searches as instances of “neuroscientific evidence”, then this makes me wonder whether what we’re really seeing is not an increase in the prevalence of neuroscientific evidence used in courtrooms, but rather an increase in the prevalence of neurolanguage used in courtrooms. As the public becomes more familiar with brain-based terminology, they’ll undoubtedly say things like “My brain is all confused” rather than “My mind is all over the place”, but unless the mere use of this brain-based terminology actually has some appreciable and unjustified/undesirable effect on people’s reasoning – e.g. unless people will suddenly be more likely to say things like “Oh, well if it’s your brain that got confused, rather than just your mind, then hey that’s OK that you failed to make that all-important decision” – then I just can’t see why this is something that we should be that worried about.

Naturally, none of this takes anything away from the fantastic work that Nita Farahany and Hank Greely are doing. It does however provide a better context for understanding what might be significant or important about Nita’s findings — namely, that mere neurobabble (whether this takes the form of failing to connect brain scan anomalies with legally-relevant criteria, or the form of swapping more familiar terms like “mental disorder” for less familiar terms like “brain anomaly”) should not be permitted to influence the outcomes of legal cases. Neurobabble must be relevant before we permit it to do this.

So, in retribution, here it is again, this time on my blog. Take that interwebs! Now who’s laughing, huh?!

Compatibilism, Capacities and Mechanisms
Dr Nicole Vincent, Philosophy Departments at Macquarie University (AU) and TU Delft (NL)

John Fischer and Mark Ravizza’s compatibilist theory predicates responsibility not on metaphysial freedom but on mental capacities which (roughly-speaking) they embody in so-called “moderately reasons-responsive mechanisms”. On their account, we are responsible for those actions that issue from our own moderately reasons-responsive mechanisms, or when we are responsible for the fact that those mechanisms are not moderately reasons-responsive.

However, for the same reason why incompatibilists are unlikely to buy the idea that responsibility hinges on mental capacities – namely, because the only sense in which a deterministic universe seems to accommodate capacities is the “unfolding” sense in which the future is yet to unfold – so too they are unlikely to buy the idea that mechanisms can be moderately reasons-responsive. After all, in a deterministic setting in any given situation a given mechanism either will or will not recognize and respond to sufficient reasons that were present, and this leaves little room for moderateness.

On my account, the core problem with Fischer and Ravizza’s story is their synchronic analysis of “moderateness” in terms of what happens – in this case, to reasons-responsive mechanisms – in this time slice in other possible worlds. This analysis is problematic in my view because it makes it sound as if in addition to certain kinds of mechanisms, at the time of acting responsible agents also need something like a power to choose whether to engage those mechanisms, and that when someone is blamed it is precisely because they failed to engage those mechanisms when they could have engaged them at that very moment in time.

In a deterministic universe a given mechanism does whatever it does, and in my view it is highly counter-productive and confusing to talk about what capacities, powers, abilities, potentialities (or whatever else) a given mechanism has or had. Such talk just re-introduces the very same kind of modal language which compatibilists who are serious about tackling the threat of determinism head-on should avoid. I am guilty of peddling such confusion in my own previous work, and to make amends in this paper I propose an alternative account of what it means for a mechanism to be moderately reasons responsive, or, if we must use modal language, for it to have a given capacity. In a nut shell, while Fischer and Ravizza test for moderate reasons responsiveness by checking how a mechanism behaves in a given time slice across a range of possible worlds, on my account we should ask how that mechanism behaves in this world over a span of time — specifically, whether it responds to reasons on a sufficient number of occasions, where what qualifies as sufficient is a thoroughly normative issue. My diachronic account of moderateness in regards to reasons responsiveness – or, employing yet again the shunned terminology, my account of capacity – is intended as a drop-in replacement for Fischer and Ravizza’s synchronic account.