Legal Evidence of Subjective States: A Brain-Based Model of Chronic Pain Increases Accuracy and Fairness in Law.

Advances in structural and functional neuroimaging offer new ways to conceptualize chronic pain disorders and to prevent, diagnose, and treat chronic pain. Advances in pain science, though, do not entail changes in the concepts of chronic pain in law and culture. Authoritative legal and cultural conceptions of chronic pain continue to promote abstruse theories, characterizing these disorders as arising out of everything from a person's unmet need for love to resistance to "patriarchy." These constructs have consequences, impeding treatment and affecting whether individuals with chronic pain can obtain legal redress. Legal systems themselves are disadvantaged, as adjudicators struggle to make sense of regulations and presumptions at odds with the medical evidence that they must evaluate. Law's pain schema is so misdescriptive that, paradoxically, it can reward fraudulent claims and disadvantage legitimate ones. This review discusses advances in neuroimaging and related sciences that are contributing to an emerging neurological model of chronic pain. It then describes doctrines and cases in the United States and United Kingdom, demonstrating how law's pre-neurological model of pain complicates the legal process for all participants. It concludes with suggestions for doctrinal revisions, which may have broader effects on law's long-standing dualistic conception of body versus mind.

Pain as a fact and heuristic: how pain neuroimaging illuminates moral dimensions of law.

In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. Yet, for all the work done by pain as a term in legal texts and practice, it has a confounding lack of external verifiability. Now, neuroimaging is rendering pain and myriad other subjective states at least partly ascertainable. This emerging ability to ascertain and quantify subjective states is prompting a "hedonic" or a "subjectivist" turn in legal scholarship, which has sparked a vigorous debate as to whether the quantification of subjective states might affect legal theory and practice. Subjectivists contend that much values-talk in law has been a necessary but poor substitute for quantitative determinations of subjective states--determinations that will be possible in the law's "experiential future." This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on interviews and laboratory visits with neuroimaging researchers, this Article shows current and in-principle limitations of pain quantification through neuroimaging. It then presents case studies on torture-murder, torture, the death penalty, and abortion to show the largely heuristic role of pain discourse in law. Introducing the theory of "embodied morality," the Article describes how moral conceptions of rights and duties are informed by human physicality and constrained by the limits of empathic identification. Pain neuroimaging helps reveal this dual factual and heuristic nature of pain in the law, and thus itself points to the translational work required for neuroimaging to influence, much less transform, legal practice and doctrine.