How should brain and behavioural science impact law, society, and policy? Some thinkers in this area imagine technologically sophisticated futures of brain implants and mind reading, raising concerns about mental privacy and state intervention. Others imagine perfect (or good enough) prediction of behaviour, or forensic fact development for the courtroom, including brain scans providing evidence of memories and lies. Many return to fundamental challenges to common law notions of personhood and responsibility, arguing that brain science undermines core ideas of criminal punishment. In the policy domain, “behavioural economics” and “nudging” have been the dominant discourse and intervention applying behavioural science. Nudges attempt to influence individuals’ decision-making within an existing political or institutional status quo, but do not invite engagement with the core policy choices necessitating nudges towards compliance.
Brain and behavioural science can and should do more, and to that end this lecture introduces and elaborates on an idea called “collective cognitive capital.” The core thesis is simple: we can and should use brain and behavioural science to evaluate public policy decisions by how they affect the brain functioning of the people. Collective cognitive capital is a conceptual framework for synthesizing a wealth of brain and behavioural data and using it to assess the impacts of policy choices and legal mechanisms. Normatively, states should seek to maximize “collective cognitive capital” because it is inherently valuable. Cognitive and emotional functioning, and overall brain health, subserve and maximize agency and freedom. This collective resource is necessary for pluralistic, democratic self-governance. Collective cognitive capital calls for behavioural and brain sciences to move from basic or clinical research programs to an applied, cooperative one directed towards impact in law, society, and policy.
Professor Emily Murphy is an Associate Professor of Law at the University of California Hastings College of the Law in San Francisco. She earned her PhD in behavioral neuroscience from the University of Cambridge (Trinity College) as a Gates Cambridge Scholar, her JD from Stanford Law School, and her undergraduate degree in Psychology/Mind, Brain, Behavior from Harvard University. She teaches law and interdisciplinary behavioral/brain science courses, and she researches and writes about the impact of brain and behavioral science on law and society.
This will be a hybrid event.