1 Norris, David G., Principles of Magnetic Resonance Assessment of Brain Function, 23 J. Magnetic Resonance Imaging 794, 794 (2006).CrossRefGoogle ScholarPubMed

2 See Stacey A. Tovino, Functional Neuroimaging Information: A Case for Neuro Exceptionalism?, 34 Fla. St. U. L. Rev. (forthcoming 2007) (manuscript at Part II, on file with author).

3 See, e.g., Sandra J. Ackerman, Hard Science, Hard Choices: Facts, Ethics, and Policies Guiding Brain Science Today (2006); Michael S. Gazzaniga, The Ethical Brain (2005); Neuroethics: Defining the Issues in Theory, Practice, and Policy (Judy Illes ed., 2006); Neuroethics: Mapping the Field (Steven J. Marcus ed., 2002); Neuroscience and the Law: Brain, Mind, and the Scales of Justice (Brent Garland ed., 2004); Dai Rees & Steven Rose, The New Brain Sciences: Perils and Prospects (2004); Steven Rose, The Future of the Brain: The Promise and Perils of Tomorrow's Neuroscience (2005); Laurence Tancredi, Hardwired Behavior: What Neuroscience Reveals about Morality (2005); Semir Zeki & Oliver Goodenough, Law and the Brain (2006); Symposium, Brain Imaging and the Law, 33 Am. J. L. & Med. (2007)Google Scholar; Symposium, Neuroethics, 32 J. Med. Ethics 65 (2006)Google Scholar; Symposium, Neuroethics, Am. J. Bioethics, Mar.-Apr. 2005, at 1-63; Symposium, Neuroethics, 50 Brain & Cognition 341 (2002).CrossRefGoogle Scholar

4 An examination of other methods of brain study, including lesion studies, electroencephalography, magnetoencephalography, and computer-assisted tomography, likely would reveal similar themes. See generally Brain Mapping: The Methods (Arthur W. Toga & John C. Mazziotta eds., 2d ed. 2002) (providing background information on various methods of brain study).

5 See infra notes 31-39.

6 See infra note 42.

7 See infra notes 41-43.

8 See infra notes 41-43, 139-147.

9 See infra notes 95-102 and accompanying text.

10 See infra notes 95, 127-132.

11 See infra notes 88, 90.

12 See infra notes 116-123 and accompanying text.

13 See infra notes 123-119 and accompanying text.

14 See infra notes 158-168.

15 See infra note 165.

16 See infra notes 169-184.

17 See infra note 184.

18 See infra notes 213-232.

19 See infra notes 194 and 209.

20 See infra notes 194-210.

21 See infra notes 218-234.

22 See Parts IV and V, infra.

23 See Parts VI(A)-(D), infra.

24 William R. Uttal, The New Phrenology: The Limits of Localizing Cognitive Processes in the Brain 1 (2001).

25 Christine Temple, The Brain: An Introduction to the Psychology of the Human Brain and Behaviour 22-23 (1993); William J. Winslade, Confronting Traumatic Brain Injury: Devastation, Hope, and Healing 18 (1998).

26 Hippocrates, On Injuries of the Head, in The Genuine Works of Hippocrates 157-58 (trans. and ed. Francis Adams, 1868); see also Marshall, John C. & Fink, Gereon R., Cerebral Localization, Then and Now, 20 NeuroImage S2, S2 (2003)CrossRefGoogle Scholar (“Hippocrates … was well aware that the brain was the material substrate underlying all cognitive, affective, and conative powers and processes.”).

27 Walther Riese, A History of Neurology 81 (1959).

28 Id.

29 Arthur L. Benton & Robert J. Joynt, Early Descriptions of Aphasia, 3 Archives of Neurology, Aug. 1960, at 209.

30 Fransson, Sven-Göran & Rubboli, Andrea, Antonio Maria Valsalva, 26 Clinical Cardiology 102 (Feb. 2003).Google ScholarPubMed

31 Madeleine B. Stern, Heads and Headlines: The Phrenological Fowlers x (1971).

32 John D. Davies, Phrenology: Fad and Science; A 19th-Century American Crusade 6-7 (1955); Schlag, Pierre, Law and Phrenology, 110 Harv. L. Rev. 877, 880 (1997).CrossRefGoogle Scholar

33 Id.

34 Franz Josef Gall, Letter from Dr. F. J. Gall to Joseph Fr[eiherr] von Retzer, upon the Functions of the Brain, in Man and Animals, in David G. Goyder, My Battle for Life: The Autobiography of a Phrenologist 143-52 (1857).

35 Madeleine B. Stern, A Phrenological Dictionary of Nineteenth-Century Americans x (1982); Riese, supra note 27, at 92; Stern, supra note 31, at xi.

36 Gall, Letter, supra note 34, at 152.

37 Andrew E. Norman, Introduction to Orson Squire Fowler & Lorenzo Niles Fowler, Phrenology: A Practical Guide to Your Head, at vi (1969).

38 Temple, supra note 25, at 26; Davies, supra note 32, at 7; Norman, supra note 37, at vi.

39 The word phrenology is derived from two Greek words meaning mind and discourse. Johann Gaspar Spurzheim, Outlines of Phrenology 1 (1832), reprinted in Significant Contributions to the History of Psychology, 1750-1920 (Daniel N. Robinson ed., 1978).

40 Franz Josef Gall & Johann Gaspar Spurzheim, Anatomie et Physiologie du Système Nerveux en Général et du Cerveau en Particulier (vol. 1, 1810); Franz Josef Gall & Johann Gaspar Spurzheim, Anatomie et Physiologie du Système Nerveux en Général et du Cerveau en Particulier (vol. 2, 1812); Franz Josef Gall, Anatomie et Physiologie du Système Nerveux en Général et du Cerveau en Particulier (vol. 3, 1818); Franz Josef Gall, Anatomie et Physiologie du Système Nerveux en Général et du Cerveau en Particulier (vol. 4, 1819).

41 Franz Josef Gall, Sur les Fonctions du Cerveau et Sur Celles de Chacune de ces Parties (vol. 1-6, 1822-25); Franz Josef Gall, On the Functions of the Brain and of Each of Its Parts (Winslow Lewis trans., vol. 1-6, 1835).

42 Davies, supra note 32, at 8.

43 Id.

44 Id.

45 Id.

46 Id. at 39-40.

47 Id. at 40.

48 Id. at 8.

49 Johann Gaspar Spurzheim, The Physiognomical System of Drs. Gall and Spurzheim: Founded on an Anatomical and Physiological Examination of the Nervous System in General, and of the Brain in Particular, and Indicating the Dispositions and Manifestations of the Mind (1815).

50 Davies, supra note 32, at 8.

51 Spurzheim, supra note 23, at 25-72 (identifying thirty-five different faculties).

52 Gordon, John, The Doctrines of Gall and Spurzheim, 25 Edinburgh Rev. 263 (June 1815).Google Scholar

53 Davies, supra note 32, at 10.

54 Temple, supra note 25, at 27.

55 Id.

56 Stern, supra note 35, at x.

57 Norman, supra note 37, at vi-vii.; Davies, supra note 32, at 31; Stern, supra note 35, at xiii.

58 Norman, supra note 37, at vii; Davies, supra note 32, at 32.

59 Norman, supra note 37, at vii.

60 Stern, supra note 35, at xiv; Norman, supra note 37, at vi.

61 E-mail from Joel Huizenga, Chief Executive Officer, No Lie MRI, to Stacey Tovino (May 23, 2006; 12:36:00 p.m.) (on file with Boston University School of Law). See generally No Lie MRI, available at http://www.noliemri.com/default.htm (last visited Oct. 21, 2006).

62 Stern, supra note 31, at 17.

63 Id.

64 Id.

65 Id.

66 Norman, supra note 37, at xviii.

67 Christine Temple, Developmental Cognitive Neuropsychology 255 (1997).

68 Norman, supra note 37, at xviii.

69 Id.

70 Id. at xix.

71 Orson Squire Fowler & Lorenzo Niles Fowler, Phrenology Proved, Illustrated, and Applied, Accompanied by a Chart, Together with a View of the Moral and Theological Bearing of the Science (1836).

72 Stern, supra note 35, at xiii. The Journal was edited by the Fowler brothers and, eventually, their children until it ceased publication in 1911. Id.

73 Orson Squire Fowler & Lorenzo Niles Fowler, Phrenology: A Practical Guide to Your Head 85 (1969).

74 Id.

75 Id. at 101.

76 Id.

77 Stern, supra note 35, at xiv, xviii, 14-19, 33-39.

78 Davies, supra note 32, at 123-24; Norman, supra note 37, at x.

79 Stern, supra note 31, at 18.

80 Stern, supra note 35, at xiv.

81 Id. at xv.

82 Id.

83 Id.

84 Id. at xviii.

85 Id.

86 Id.

87 Id. at xix.

88 Id.

89 Id. at xi.

90 Fowler & Fowler, supra note 71, at 200; Stern, supra note 35, at xi.

91 Id.

92 Norman, supra note 37, at x.

93 Davies, supra note 32, at 39; Stern, supra note 35, at x.

94 Stern, supra note 31, at xiv.

95 5 Miss. 459, 1840 WL 2421 (Miss. Err. & App. 1840).

96 Id. at *6. Counsel also recognized, however, that not everyone agreed with the principles of phrenology: “But whether phrenology is or is not the only true physiology of the brain …” Id.

97 2 Ohio St. 54 (1853).

98 Id.

99 Id. at 60.

100 Id. (“Whether phrenology is a science or a delusion, we shall not judicially undertake to pronounce… . “). Five years after Farrer, Judge Ellsworth of the Supreme Court of Errors of Connecticut continued to struggle with the issue whether the scales of justice could rely on phrenology: “The particular physical theory too of the human mind adopted by some persons, very greatly influences their views about insanity; as for instance, the phrenologists, who maintain that the mind is not a unit …” In re Dunham, 27 Conn. 192, 1858 WL 1044, *6 (Conn. 1858) (“as for instance, the phrenologists, who maintain that the mind is not a unit, and that it often is diseased and enfeebled in some of its faculties or organs of manifestation while it is sound and healthy in others, and as to these sound faculties is properly chargeable with responsibility for their exercise while it is not as to the others.”).

101 Russell v. Russell, 37 Pa. Super. 348, 351 (1908).

102 See, e.g., United States v. Freeman, 357 F.2d 606, 616 (2d Cir. 1966) (“In the pre-M’Naghten period, the concepts of phrenology and monomania were being developed and had significant influence on the right and wrong test. Phrenologists believed that the human brain was divided into thirty-five separate areas, each with its own peculiar mental function. Thesixth area for example, was designated ‘destructiveness.’ It was located, we are told, above theear because this was the widest part of the skull of the carnivorous animals.”); Anderson v.State, 276 So.2d 17, 20 (1973) (same); State v. Johnson, 399 A.2d 469, 472 & n.2 (R.I. 1979)(same).

103 Scott A. Huettel et al., Functional Magnetic Resonance Imaging 1 (2004); Davies, supra note 32, at 174.

104 Davies, supra note 32, at 174.

105 Id.

106 Thomas Sewall, An Examination of Phrenology (1838).

107 Id.; Davies, supra note 32, at 141.

108 Riese, supra note 27, at 96.

109 Huettel et al., supra note 103, at 1. See generally Schlag, supra note 32, at 886-96 (1997) (examining the critique of phrenology).

110 Stern, supra note 35, at xix.

111 See, e.g., General Electric Co. v. Joiner, 522 U.S. 136, 153 & n.6 (1997) (Stevens, J., concurring) (“An example of ‘junk science’ that should be excluded … as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant's future dangerousness based on the contours of the defendant's skull.”).

112 Simpson, Donald, Phrenology and the Neurosciences: Contributions of F. J. Gall and J. G. Spurzheim, 75 ANZ J. Surgery 475 (2005).CrossRefGoogle Scholar

113 Davies, supra note 32, at ix.

114 United States v. Freeman, 357 F.2d 606, 616 (2d Cir. 1966).

115 Ga. Code Ann. § 36-1-15 (2006) (“The county governing authority may by proper ordinance prohibit … the practice of fortunetelling, phrenology, astrology, clairvoyance, palmistry, or other kindred practices, businesses, or professions where a charge is made or a donation accepted for the services and where the practice is carried on outside the corporate limits of the municipality.”).

116 Lincoln, Nebraska Municipal Ordinances § 9.40.030 (1997), cited in Argello v. City of Lincoln, 143 F.3d 1152, 1152 (1998). See also Azusa Municipal Code § 8.52.060 (“No person shall practice or profess to practice or engage in the business or art of … phrenology … or any similar business or art, who either solicits or receives a gift or fee or other consideration for such practice, or where admission is charged for such practice.”), cited in Spiritual Psychic Science Church v. City of Azusa, 39 Cal. 3d 501, 506 (1985).

117 S.C. Code Ann. § 16-17-690 (2006).

118 1 Virgin Islands Op. A.G. 229, interpreting 14 V.I. Code § 221(a)(6) (2006).

119 National Association of Broadcasters, The Television Code §§ IV(12) and IX(10) (19th ed. 1976), cited in Gemini Enterprises, Inc. v. WFMY Television Corp., 470 F. Supp. 559, 562 (1979).

120 Fla. Stat. § 205.41 (1941) (“Every … phrenologist … shall pay a license tax of one hundred dollars; provided, that this section shall not be construed to require members of any recognized christian denomination who pray for the sick to obtain a license.”), cited in Curley v. State, 153 Fla. 773, 776-77 (1943).

121 Henry County, Virginia, Code art. III, ch. 5, § 5-10 (1983), cited in Adams v. Board of Supervisors, 569 F. Supp. 20, 21 (1983).

122 Ga. Code Ann. § 36-1-15 (2006) (“The county governing authority may by proper ordinance … regulate, or tax the practice of fortunetelling, phrenology, astrology, clairvoyance, palmistry, or other kindred practices, businesses, or professions where a charge is made or a donation accepted for the services and where the practice is carried on outside the corporate limits of the municipality.”).

123 See, e.g., United States v. Gipson, 24 M.J. 246, 249 (1987) (“At the bottom [of the scientific evidence hierarchy] lies a junk pile of contraptions, practices, techniques, etc., that have been so universally discredited that a trial judge may safely decline even to consider them, as a matter of law. To that level have been relegated such enterprises as phrenology, astrology, and voodoo. In the middle is that range of scientific and technical endeavor that can neither be accepted nor rejected out of hand. To this group, based on the information available to us, we assign the polygraph.”); Jack B. Weinstein & Margaret A. Berger, 4 Weinstein's Federal Evidence § 702.05[3] (Joseph M. McLaughlin, ed., 2d ed. 1997) (“The reliability requirement is designed to exclude so-called “junk science”—conjuring up memories of the phrenology craze where the bumps on a person's head were felt in order to determine character traits--from federal courts. At the very least, scientific opinions offered under Rule 702 must be based on sound scientific methods and valid procedures.”), cited in Logerquist v. McVey, 196 Ariz. 470, 481 (2000).

124 Davies, supra note 32, at 71; Stern, supra note 35, at ix.

125 The American Phrenological Journal for 1849, 11 Phrenological J. 12 (1849).Google Scholar

126 Stern, supra note 35, at xi.

127 Stern, supra note 31, at 167.

128 Id.

129 Stern, supra note 35, at xi.

130 Id.

131 Id.

132 Id.

133 Stern, supra note 35, at xi.

134 George Combe, Lectures on Popular Education (1834); Johann Gaspar Spurzheim, Education, Its Elementary Principles Founded on the Nature of Man (1847); Orson Squire Fowler, Education and Self-Improvement (1847).

135 Stern, supra note 35, at xi.

136 Stern, supra note 31, at 190.

137 Id.

138 Stern, supra note 35, at xi.

139 Orson Squire Fowler, Education and Self-Improvement 43 (vol. 1, 1847).

140 Stern, supra note 35, at xii (“’Phrenology enables us to retain a proper balance between our physical and mental functions, to restore loss equilibrium, and to treat successful the various phases of insanity and other disorders.’”).

141 Isaac Ray, A Treatise on the Medical Jurisprudence of Insanity (1838).

142 Isaac Ray, Mental Hygiene (1863).

143 Davies, supra note 32, at 98.

144 Id. at 99.

145 Id.

146 Gall, supra note 34, at 311-32.

147 Davies, supra note 32, at 103.

148 Uttal, supra note 24, at 20; Huettel et al., supra note 103, at 2.

149 Stern, supra note 35, at xii; Stern, supra note 31, at 34.

150 Frankel, Richard I., Centennial of Röntgen's Discovery of X-rays, 164 W.J. Med. 498 (June 1996)Google ScholarPubMed; Bettyann Holtzmann Kevles, Naked to the Bone: Medical Imaging in the Twentieth Century 2 (1997).

151 Frankel, supra note 150, at 498.

152 Id.

153 Id.

154 Id.

155 Id.

156 Stasiak, Andrzej, Broken Symmetry, 2 EMBO Rep. 562 (2001).CrossRefGoogle Scholar

157 Frankel, supra note 150, at 498.

158 Kevles, supra note 150, at 27; Hessenbruch, Arne, A Brief History of X-Rays, 26:4 Endeavour 137 (December 1, 2002).CrossRefGoogle ScholarPubMed

159 Lisa Cartwright, Screening the Body: Tracing Medicine's Visual Culture 122 (1995).

160 Hessenbruch, supra note 158, at 137.

161 Kevles, supra note 150, at 27.

162 Id.

163 Id. at 29; Cartwright, supra note 159, at 122.

164 Kevles, supra note 150, at 28.

165 See, e.g., id. at 27 & n.14; Goodman, Philip C., The New Light: Discovery and Introduction of the X-Ray, 165 Am. J. Roentgenology 1041, 1043 (1995).CrossRefGoogle ScholarPubMed But see Joel D. Howell, Technology in the Hospital: Transforming Patient Care in the Early Twentieth Century 142 & n.39 (1995) (“There is no record of the bill's passage; in fact, there is reason to doubt whether the bill was actually ever introduced.”).

166 Cartwright, supra note 159, at 154.

167 Kevles, supra note 150, at 30.

168 Cartwright, supra note 159, at 155.

169 Kevles, supra note 150, at 30-31.

170 Id.

171 Id.

172 Id.

173 Id.

174 Id. at 31.

175 Id. at 32 & n.17.

176 Id. at 32 & n.18.

177 Bruce v. Beall, 41 S.W. 445, 446-47 (Tenn. 1897).

178 Id. at 446.

179 Id. (“Maps and diagrams of the locus in quo drawn by hand are often used to aid a judge or a jury to an intelligent conception of the matters to be determined, and no one would think of questioning the competency of the testimony of a witness …”).

180 Id. at 447. See also Varner v. Varner, 9 Ohio C.D. 273, 1898 WL 579, *3 (Ohio Cir. 1898) (“It is settled beyond dispute, that in proper cases, maps of places, photographs of places-scenes, lands, machinery, of persons as to identity may be introduced to aid the jury in applying the other evidence … . But their introduction must be preceded by some proof of the correctness of the map or the photograph, for there is no legal presumption that they are correct.”); Jameson v. Weld, 45 A. 299, 303 (Me. 1899) (“We think it is within the discretion of the presiding judge to admit an X-ray photograph. Whether it is sufficiently verified, whether it appears to be fairly representative of the object portrayed, and whether it may be useful to the jury, are preliminary questions addressed to him …”); Miller v. Dumon, 64 P. 804, 805 (Wash. 1901) (“Photographs taken by the common processes are generally held admissible as evidence, and there would seem to be no reason for making a distinction between an X-ray and a common photograph; that is, either is admissible as evidence when verified by proof that it is a true representation of an object which is the subject of the inquiry.”). Today, the verification of x-rays prior to their introduction as evidence may require additional proof. See, e.g., D.E. Ytreberg, Preliminary Proof, Verification, or Authentication of X-rays Requisite to their Introduction in Evidence in Civil Cases, 5 A.L.R.3d 303, 303 (1966) (listing the types of proof that may be required).

181 Hampton v. Norfolk & W.R. Co., 27 S.E. 96, 98 (N.C. 1897) (Clark, J., dissenting).

182 Id. at 98-99 (Clark, J., dissenting).

183 Tish v. Welker, 5 Ohio Dec. 725, 1897 WL 762, *7 (Ohio Com. Pl. 1897).

184 See, e.g., Eckels v. Boylan, 136 Ill. App. 258, 1907 WL 2183, *4 (Ill. App. 1 Dist. 1907) (“The law of evidence must be kept up with the advance of science.”); Lupton v. Southern Express Co., 86 S.E. 614, 615 (N.C. 1915) (“’The administration of justice profits by the progress of science …’”); People v. Sallow, 165 N.Y.S. 915, 100 Misc. Rep. 447 (1917) (publication page references not available) (“Nor does the fact that it [finger print impressions] presents to the court novel questions preclude its admission upon common-law principles. The same thing was true of … X-ray photographs, and yet the reception of such evidence is a common occurrence in our courts.”); Demopolis Telephone Co. v. Hood, 102 So. 35, 37 (Ala. 1924) (“The evidence afforded by the advance in science, in making discovery of the hitherto unseen and unknown, is generally admitted in American jurisprudence.”).

185 Mauch v. City of Hartford, 87 N.W. 816, 819 (Wis. 1901). See also State v. Matheson, 103 N.W. 137, 139 (Iowa 1905) (same).

186 Miller v. Minturn, 83 S.W. 918, 919 (Ark. 1904) (“[T]hey are not infallible and may be misleading.”); Kruger v. McCaughey, 149 Ill. App. 440, 1909 WL 2061, *2 (Ill. App. 3 Dist. 1909) (“While sufficient foundation was laid to permit the X-ray skiagraph of appellee's arm to be introduced in evidence, such skiagraph is by no means conclusive as to the conditions actually existing in the arm. The skiagraph is not a picture of the object or substance itself, but of the shadow merely which is cast by such object or substance, and the evidence discloses that the picture thus produced is frequently inaccurate and misleading, owing to divergence and distortion. It is easily within the ability of a person operating an X-ray machine to magnify or minimize the appearance of an existing condition.”).

187 Brinkley v. Hassig, 83 F.2d 351, 353 (10th Cir. 1936) (“It is true, as counsel argue, that the great advances in medical science have come about by the courage of pioneers, whose efforts often met with ridicule from their professional brethren …. It is also true that charlatans masquerading as doctors defraud the public to their own enrichment by promising to cure cancer with innocuous ointments, and thus endanger the lives of their patients by depriving them of sound medical advice.”).

188 Wittenberg v. Onsgard, 81 N.W. 14, 16 (Minn. 1899) (“Its utility and the reliability of its results are already so well established as scientific facts that courts ought to take judicial notice of them.”); People v. Jennings, 96 N.E. 1077, 1082 (Ill. 1911) (“When photograph was first introduced it was seriously questioned whether pictures thus created could properly be introduced in evidence, but this method of proof, as well as by means of X-rays and the microscope, is now admitted without question.”).

189 Id. at 17 (“Hence a party ought not to be required to submit his person to the X-rays until it is so well established as a fact in science that the process is harmless …”). The risks of x-ray, including burns that refused to heal and fatal cancers, were discovered almost immediately. See, e.g., Peter Montague, The Major Cause of Cancer, Part I, Rachel's Environmental & Health News, Mar. 16, 2000, available at http://www.ratical.org/radiation/REHW691.html (last visited Oct. 16, 2006). The first actions for damages due to negligent x-ray exposure appeared in 1899. See, e.g., Schmidt v. Balling, 91 Ill. App. 388, 1899 WL 4810 (Ill. App. 1 Dist. 1899).

190 Uttal, supra note 24, at 61.

191 Id.

192 Varner v. Varner, 9 Ohio C.D. 273, 1898 WL 579, *3 (Ohio Cir. 1898).

193 Id. at *4.

194 Huettel et al., supra note 103, at 3; Uttal, supra note 24, at 69.

195 Joseph Dumit, Picturing Personhood: Brain Scans and Biomedical Identity 27-28 (2004).

196 Simon R. Cherry & Michael E. Phelps, Imaging Brain Function with Positron Emission Tomography, in Brain Mapping: The Methods 192 (Arthur W. Toga & John C. Mazziotta ed., 1996); D. Frank Benson et al., Positron-Computed Tomography in Neurobehavioral Problems, in Localization in Neuropsychology 123 (Andrew Kertesz ed., 1983).

197 Cherry & Phelps, supra note 196, at 192; Buckner, Randy L. & Logan, Jessica M., Functional Neuroimaging Methods: PET and fMRI, in Handbook of Functional Neuroimaging of Cognition, ed. Cabeza, Roberto and Kingstone, Alan (Cambridge: MIT Press, 2001), 28.Google Scholar

198 Cherry & Phelps, supra note 196, at 192.

199 Per E. Roland, Brain Activation 427 (1993).

200 E. Jeffrey Metter & Wayne R. Hanson, Use of Positron Emission Tomography to Study Aphasia, in Localization and Neuroimaging in Neuropsychiatry 124 (Andrew Kertesz ed., 1994); Roland, supra note 199, at 428; Cherry & Phelps, supra note 196, at 192.

201 Roland, supra note 199, at 428-29.

202 Benson et al., supra note 196, at 123-24.

203 Cherry & Phelps, supra note 196, at 192.

204 Phelps, Michael E. et al., Application of Annihilation Coincidence Detection to Transaxial Reconstruction Tomography, 16 J. Nuclear Med. 210-33 (1975)Google ScholarPubMed; Dumit, supra note 195, at 27, 29.

205 Cherry & Phelps, supra note 196, at 197-98.

206 Robert T. Malison, Positron Emission Tomography and Single-Photon Emission Computed Tomography, in Brain Imaging in Substance Abuse: Research, Clinical, and Forensic Applications 29 (Marc J. Kaufman ed., 2001).

207 University of Texas Health Science Center at San Antonio, PET Division, available at http://ric.uthscsa.edu/facts/pet.html (last visited Jan. 20, 2007).

208 Huettel et al., supra note 103, at 3-4.

209 University of British Columbia, Triumf PET Programme, Positron Emission Tomography, available at http://www.triumf.ca/welcome/petscan.html (last visited Jan. 20, 2007).

210 Dumit, supra note 195, at 27.

211 Joseph Hixson, New Seeing-Eye Machines … Look Inside Your Body, Can Save Your Life, Vogue, July 1983, at 238.

212 757 F.2d 1463, 1469-70 (4th Cir. 1985).

213 Id.

214 Id. at 1473-74.

215 Id. at 1474.

216 Id.

217 591 N.Y.S.2d 715 (1992).

218 Id.

219 Id. at 717-718.

220 Id. at 718.

221 Id. at 723. See also id. at 724 (“PET and [skin conductance response] test results in this case pass the test of admissibility …”).

222 Id. at 723.

223 Single-photon emission computed tomography (SPECT) also measures local neuronal activity, neurochemistry, and pharmacology in the human brain, but in a slightly different way than PET. Whereas PET infers the site of an annihilation event from the coincidence detection of photons, SPECT infers photon paths from their ability to pass through a collimator that has certain long and narrow holes. Robert T. Malison, Positron Emission Tomography and Single-Photon Emission Computed Tomography, in Brain Imaging in Substance Abuse: Research, Clinical, and Forensic Applications 31-32 (Marc J. Kaufman ed., 2001). Whereas PET employs a circular ring of radiation detectors, SPECT usually collects data through several rotating detector heads. Id. at 33. SPECT is more simple and less expensive than PET, although frequently noted for its lower resolution. Id. Today, SPECT frequently is used in brain perfusion imaging and to study dementia, stroke, trauma, seizures, schizophrenia, and several other neurodegenerative processes. Alliance, Tuberous Sclerosis, Images of the Living Brain (Silver Spring, Md.: Tuberous Sclerosis Alliance, 2004), 2.Google Scholar

224 See, e.g., United States v. Gigante, 996 F. Supp. 194 (E.D. N.Y. 1998); State v. Red Dog, 1993 WL 144867, *2 (Del. Super. 1993) (in which defense counsel argued that a PET or SPECT scan would be necessary to accurately determine the existence of any temporal lobe impairment in the defendant's brain function); Rhilinger v. Jancsics, 1998 WL 1182058 (Mass. Super. 1998) (discussing the appropriateness of using a SPECT scan to diagnose an individual with toxic solvent encephalopathy); Friedrich v. Intel Corp., 181 F.3d 1105, 1108, 1112 & n.6 (9th Cir. 1999) (allowing an abnormal SPECT scan to support a patient's action for long term disability benefits based on her chronic fatigue syndrome); Baxter v. Ohio Dep't of Transp., 2002 WL 31838505, *7 (Ohio App. 10 Dist. 2002) (testimony and opinions by expert witness who testified that SPECT scan provided objective evidence of diminished brain activity should not have been disregarded).

225 Freels v. Commissioner, 2001 WL 1809412, *3 (Ga. Super. 2001).

226 1993 WL 212472, *1 (Fed. Cl. 1993).

227 Id.

228 Id. at *2.

229 291 F.3d 503 (8th Cir. 2002).

230 Id.

231 Id. at 511-12 (italics in original). Of course, not all courts that are asked to admit PET and SPECT evidence do so. Courts have refused to admit or to order PET and SPECT scans when the scans merely would have been helpful, but not necessary, to locating the existence of brain injury. See, e.g., Robinson v. State, 761 So.2d 269 (Fla. 1999) (“We find no error in the trial court's denial of Robinson's request for the SPECT scan because he has failed to establish any need for such test … . As the State points out … neither doctor testified that the test was necessary to complete their medical opinion; they merely stated that the exam would have been helpful.”) (italics in original); Bottoson v. State, 813 S.2d 31, 34 (Fla. 2002) (refusing to grant a death row inmate leave to obtain a PET or a SPECT scan because he failed to established a particularized need for the test; “merely want[ing] … to establish if he has brain damage” is insufficient) (italics in original). Courts also have refused to admit or to order PET and SPECT scans when the scans would have been used to detect and evaluate traumatic brain injury at a time remote from the injury. See, e.g., People v. Protsman, 105 Cal. Rptr.2d 819, 823 (2001) (“In order to establish general acceptance of the use of PET scans to diagnose a prior traumatic brain injury, Protsman had to demonstrate substantial agreement and consensus of a cross-section of the relevant scientific community … . It was not enough to show there were differing views regarding the issue. Protsman had to demonstrate a consensus in the field, which [he did not].”) (italics in original).

232 Kevles, supra note 150, at 215.

233 John C. Mazziotta, The Use of Positron-Emission Tomography (PET) in Medical-Legal Cases: The Position Against Its Use, in Controversies in Neurology, American Academy of Neurology Syllabus, Course No.147 (1997).

234 Dumit, supra note 195.

235 See supra text accompanying note 35.

236 Tovino, supra note 2, at Part II. These include, but certainly are not limited to, brain abnormalities, stroke, multiple sclerosis, Parkinson's disease, Alzheimer's disease, major depression, schizophrenia, bipolar disorder, obsessive-compulsive disorder, dyslexia and hyperlexia, attention-deficit/hyperactivity disorder, social and racial evaluation, deception, social cooperation and altruism, sexual arousal and love, ethical decision making, pedophilia, cocaine addiction, compulsive gambling, expected and unexpected pleasure, satiety and obesity, anxiety, neuroticism, extraversion, self-consciousness, pain, migraines and cluster headaches, social rejection, intelligence, humanity, empathy (or the lack thereof), trust, humor, recognition of beauty and, even, the differences in the way men's and women's brains function when they are thinking. Id.

237 See supra text accompanying notes 60-76.

238 See, e.g., Tovino, supra note 2, at Part II(A) (discussing the first clinical applications of fMRI).

239 No Lie MRI, http://www.noliemri.com/default.htm (last visited Oct. 21, 2006); Cephos Corporation, http://www.cephoscorp.com/ (last visited Oct. 21, 2006).

240 See supra text accompanying notes 129-130.

241 No Lie MRI, Customers—Individuals, http://www.noliemri.com/customers/Individuals.htm (last visited Oct. 21, 2006).

242 Advertisement for The Phrenological Cabinet, in Barnum's American Museum Illustrated (New York, 1850), available at http://www.lostmuseum.cuny.edu/images/phrenimage1.jpg (last visited Mar. 1, 2007).

243 No Lie MRI, Corporations, http://www.noliemri.com/customers/GroupOrCorporate.htm (last visited Oct. 21, 2006).

244 Id.

245 No Lie MRI, Customers—Government, http://www.noliemri.com/customers/Government.htm (last visited Oct. 21, 2006) (listing federal, state, and international government agencies that could benefit from its fMRI services); Cephos Corporation, http://www.cephoscorp.com/ (last visited Oct. 21, 2006) (“There are two major target audiences for CEPHOS’ planned series of products. The first is government …”).

246 See, e.g., United States v. Freeman, 357 F.2d 606, 616 (2d Cir. 1966) (In the pre-M’Naghten period, the concepts of phrenology and monomania were being developed and had significant influence on the right and wrong test. Phrenologists believed that the human brain was divided into thirty-five separate areas, each with its own peculiar mental function. The sixth area for example, was designated ‘destructiveness.’ It was located, we are told, above the ear because this was the widest part of the skull of the carnivorous animals.”); Anderson v. State, 276 So.2d 17, 20 (1973) (same); State v. Johnson, 399 A.2d 469, 472 & n.2 (R.I. 1979) (same).

247 No Lie MRI, Customers—Lawyers, http://www.noliemri.com/customers/Lawyers.htm (last visited Oct. 21, 2006) (“The purpose of the justice system is to find the truth. No Lie MRI test results could be used in a similar manner to DNA testing by adding the verification of an individual's mental record. It would also potentially be possible for a witness to validate his or her own statements to the court.”); Cephos Corporation, http://www.cephoscorp.com/ (last visited Oct. 21, 2006) (“The second major target audience is the legal marketplace. Truth, integrity and trust form the foundation of our legal system. The objective measure of truth and deception that CEPHOS offers will help protect the innocent and convict the guilty. Cephos technology will also help litigators reach quick, favorable conclusions to high stakes judicial proceedings by providing pre-trial negotiating leverage and by bolstering the credibility of defendants and witnesses in the courtroom.”).

248 George Combe, Lectures on Popular Education (1834); Johann Gaspar Spurzheim, Education, Its Elementary Principles Founded on the Nature of Man (1847); Orson Squire Fowler, Education and Self-Improvement (1847).

249 Stern, supra note 35, at xi.

250 See, e.g., Kimberly Sheridan et al., Neuroethics in Education, in Neuroethics: Defining the Issues in Theory, Practice, and Policy 265-75 (Judy Illes ed., 2006).

251 See supra text accompanying notes 84-94.

252 See, e.g., Kulynych, Jennifer, The Regulation of MRI Neuroimaging Research: Disentangling the Gordian Knot, 33 Am. J. L. & Med. 295, 314-315 (2007)CrossRefGoogle ScholarPubMed (examining the ethical and legal issues raised by incidental findings in MRI research); Illes, Judy et al., Incidental Findings in Brain Imaging Research, 311 Science 783, 783 (2006)CrossRefGoogle ScholarPubMed; Proceedings, Detection and Disclosure of Incidental Findings in Neuroimaging Research, Jan. 6-7, 2005, http://www.ninds.nih.gov/news_and_events/proceedings/ifexecsummary.htm (last visited Oct. 23, 2006); Illes, Judy et al., Discovery and Disclosure of Incidental Findings in Neuroimaging Research, 20 J. Magnetic Resonance Imaging 743, 743 (2004)CrossRefGoogle ScholarPubMed; Illes, Judy et al., Ethical Consideration of Incidental Findings on Adult Brain MRI in Research, 62 Neurology 888, 888 (2004)CrossRefGoogle ScholarPubMed; Illes, Judy et al., Ethical and Practical Considerations in Managing Incidental Neurologic Findings in Functional Magnetic Resonance Imaging, 50 Brain & Cognition 358, 358 (2002)CrossRefGoogle ScholarPubMed; Katzman, Gregory L. et al., Incidental Findings on Brain Magnetic Resonance Imaging from 1000 Asymptomatic Volunteers, 281 J. Am. Med. Ass’n 36, 36 (1999).CrossRefGoogle Scholar

253 See Tovino, supra note 2; Henry T. Greely, Prediction, Litigation, Privacy, and Property: Some Possible Legal and Social Implications of Advances in Neuroscience, in Neuroscience and the Law: Brain, Mind, and the Scales of Justice 114, 143 (Brent Garland ed., 2004).

254 See supra text accompanying notes 122-145.

255 Jose van Dijck, Transparent Body: A Cultural Analysis of Medical Imaging 3-4 (2005).

256 Cleland, Sandie, What Does fMRI Actually Measure?, 17 Psychologist 388 (July 1, 2004).Google Scholar

257 Buckner & Logan, supra note 197, at 27-29.

258 Jones, Rachel, Neuroimaging: A Bold Step Forward, 2 Nature Rev. Neuroscience 531 (Aug. 2001).CrossRefGoogle Scholar

259 Cleland, supra note 256, at 388; Jones, supra note 258, at 531.

260 Dennis O’Brien, Mind Readers Scanning Technology Promises to Map the Brain's Pathways, But Some Fear Its Ability to Expose a Patient's Secrets and Lies, Baltimore Sun, Dec. 10, 2004, at 1E.

261 Id.; Kennedy, Donald, Neuroimaging: Revolutionary Research Tool or a Post-Modern Phrenology?, 5 Am. J. Bioethics 19 (Mar.-Apr. 2005).CrossRefGoogle ScholarPubMed

262 Jaffee, Sam, Fake Method for Research Impartiality, 18 Scientist 64 (July 19, 2004).Google Scholar

263 Canli, Turhan & Zenab, Amin, Neuroimaging of Emotion and Personality: Scientific Evidence and Ethical Considerations, 50 Brain & Cognition 425 (Dec. 2002).CrossRefGoogle ScholarPubMed

264 Donaldson, David I., Parsing Brain Activity with fMRI and Mixed Designs: What Kind of a State Is Neuroimaging In?, 27 Trends in Neurosciences 442 (Aug. 1, 2004).CrossRefGoogle Scholar

265 Sandra Blakeslee, Just What's Going On Inside that Head of Yours?, N.Y. Times, Mar. 14, 2000, at F6.

266 Id.

267 Joan Hamilton, Journey to the Center of the Mind: ‘Functional’ MRI Is Yielding a Clearer Picture of What Thoughts Look Like, Business Week, Apr. 19, 2004, at 78; Huettel et al., supra note 103, at 14.

268 Buckner & Logan, supra note 197 at 30-31.

269 Id. at 30; Farah, Martha J., Emerging Ethical Issues in Neuroscience, 5 Nature Rev. Neuroscience 1126 (Nov. 2002).Google ScholarPubMed

270 Emily Eakin, Looking for that Brain Wave Called Love; Humanities Experts Use M.R.I.'s to Scan the Mind for the Locus of the Finer Feelings, N.Y. Times, Oct. 28, 2000, at B11; Paul Raeburn, The Therapeutic Mind Scan, N.Y. Times, Feb. 20, 2005, at § 6, 20.

271 See, e.g., General Electric Co. v. Joiner, 522 U.S. 136, 153 & n.6 (1997) (Stevens, J., concurring) (“An example of ‘junk science’ that should be excluded … as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant's future dangerousness based on the contours of the defendant's skull.”).

272 Simpson, Donald, Phrenology and the Neurosciences: Contributions of F. J. Gall and J. G. Spurzheim, 75 ANZ J. Surgery 475 (2005).CrossRefGoogle Scholar

273 Davies, supra note 32, at ix.

274 United States v. Freeman, 357 F.2d 606, 616 (2d Cir. 1966).

275 See Tovino, supra note 2, at text accompanying notes 48-56 (discussing some of the clinical uses of fMRI).

276 See supra Part II(B).

277 See supra Part III.

278 See, e.g., Pettit, Mark, FMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence, 33 Am. J. L. & Med. 319, 319-340 (2007)CrossRefGoogle ScholarPubMed; Archie Alexander, Functional Magnetic Resonance Imaging Lie Detection: Is a Brainstorm Heading for the Gatekeeper?, Houston J. Health L. & Pol’y (forthcoming 2007).

279 See, e.g., Symposium, The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability under the Law, Ohio St. J. Crim. L. (Spring 2006).

280 See, e.g., Thompson, Sean Kevin, A Brave New World of Interrogation Jurisprudence, 33 Am. J. L. & Med. 341, 341-358 (2007)CrossRefGoogle ScholarPubMed (examining the Fifth Amendment implications of advances in functional neuroimaging); Stoller, Sarah E. & Wolpe, Paul Root, Emerging Neurotechnologies for Lie Detection and the Fifth Amendment, 33 Am. J. L. & Med. 359, 359-375 (2007)CrossRefGoogle ScholarPubMed (same); Richard Glen Boire, Searching the Brain: The Fourth Amendment Implications of Brain-Based Deception Devices, 5 Am. J. Bioethics 62-63 (examining the Fourth Amendment implications of advances in functional neuroimaging).

281 See, e.g., Boire, Richard Glen, On Cognitive Liberty (Part I), 1 J. Cognitive Liberties 7-13 (1999-2000)Google Scholar (examining the First Amendment implications of advances in functional neuroimaging); Glenn, Linda MacDonald, Keeping an Open Mind: What Legal Safeguards Are Needed?, 5 Am. J. Bioethics 60-61 (2005)CrossRefGoogle ScholarPubMed (same).

282 See, e.g., Stake, Jeffrey Evans, The Property ‘Instinct’, in Law & the Brain 185-204, eds. S. Zeki and Goodenough, O. (Oxford University Press 2006)Google Scholar (examining the property law implications of advances in neuroscience).

283 See, e.g., Greely, supra note 253 (examining, among many other things, the intellectual property implications of advances in functional neuroimaging).

284 See Tovino, supra note 2 (examining the confidentiality, privacy, and identity implications of advances in functional neuroimaging); Committee on Science and Law, Are Your Thoughts Your Own? “Neuroprivacy” and the Legal Implications of Brain Imaging, 60 CBA Record 407-436 (2005)Google Scholar (examining several health law and employment implications of advances in functional neuroimaging).

285 Lincoln, Nebraska Municipal Ordinances § 9.40.030 (1997), cited in Argello v. City of Lincoln, 143 F.3d 1152, 1152 (1998). See also Azusa Municipal Code § 8.52.060 (“No person shall practice or profess to practice or engage in the business or art of … phrenology … or any similar business or art, who either solicits or receives a gift or fee or other consideration for such practice, or where admission is charged for such practice.”), cited in Spiritual Psychic Science Church v. City of Azusa, 39 Cal. 3d 501, 506 (1985).

286 See supra Part I(C).

287 See Tovino, supra note 2, at Part II(A) (discussing some of the clinical uses of fMRI).

288 See, e.g., Kevles, supra note 150, at 27 & n.14; Goodman, supra note 165, at 1043. But see Howell, supra note 165, at 142 & n.39 (“There is no record of the bill's passage; in fact, there is reason to doubt whether the bill was actually ever introduced.”)

289 See, e.g., Tovino, supra note 2 at Part VI (arguing that generic privacy protections, including privacy protections applicable to functional neuroimaging information, are needed at least in the employment and insurance contexts); Greely, Henry T. & Illes, Judy, Neuroscience-Based Lie Detection: The Urgent Need for Regulation, 33 Am. J. L. & Med. 377, 413-418 (2007)CrossRefGoogle ScholarPubMed (arguing that the federal government or state governments should ban any non-research use of new methods of lie detection, including fMRI-based lie detection, unless or until the method has been proven safe and effective to the satisfaction of a regulatory agency and has been vetted through the peer-reviewed scientific literature).

290 See Tovino, supra note 2, at Part VI(A).

291 See id. at Part VI(B) (examining the media hype surrounding fMRI).

292 See id. at Part VI(A).

293 See Olson, Steve, Brain Scans Raise Privacy Concerns, 307 Science 1550, 1550 (2005).CrossRefGoogle ScholarPubMed

294 Farah, Martha J., Emerging Ethical Issues in Neuroscience, 5 Nature Rev. Neuroscience 1127, 1127 (2002).Google ScholarPubMed

295 Greely I, supra note 253, at 118-20.

296 See No Lie MRI, http://www.noliemri.com/ (last visited Mar. 1, 2007); Cephos Corp., http://www.cephoscorp.com/ (last visited Mar. 1, 2007); Malcolm Ritter, Brain Scans as Lie Detectors: Ready for Court Use?, Live Sci., Jan. 29, 2006, http://www.livescience.com/humanbiology/060129_brain_lie.html (last visited Mar. 1, 2007).

297 Fla. Stat. § 205.41 (1941) (“Every … phrenologist … shall pay a license tax of one hundred dollars; provided, that this section shall not be construed to require members of any recognized christian denomination who pray for the sick to obtain a license.”), cited in Curley v. State, 153 Fla. 773, 776-77 (1943); Henry County, Virginia, Code art. III, ch. 5, § 5-10 (1983), cited in Adams v. Board of Supervisors, 569 F. Supp. 20, 21 (1983); Ga. Code Ann. § 36-1-15 (2006) (“The county governing authority may by proper ordinance … regulate, or tax the practice of fortunetelling, phrenology, astrology, clairvoyance, palmistry, or other kindred practices, businesses, or professions where a charge is made or a donation accepted for the services and where the practice is carried on outside the corporate limits of the municipality.”).

298 See, e.g., Ralph Reisner, Christopher Slobogin, & Arti Rai, Law and the Mental Health System: Civil and Criminal Aspects 74-94 (4th ed., 2004) (examining the state's interest in assuring the quality of professional services offered to the public); Mark A. Hall, Mary Anne Bobinski & David Orentlicher, Health Care Law and Ethics 809-821 (6th ed., 2003) (discussing the public health benefits and the anti-competitive effects of the licensing and regulation of health care providers).

299 Kulynych, supra note 252, at 311-312.

300 Id.

301 Id.

302 National Association of Broadcasters, The Television Code §§ IV(12) and IX(10) (19th ed. 1976), cited in Gemini Enterprises, Inc. v. WFMY Television Corp., 470 F. Supp. 559, 562 (1979).

303 See, e.g., 15 U.S.C. § 41 et seq. (2006) (Federal Trade Commission Act); FTC Policy Statement on Deception (Oct. 14, 1983), available at http://www.ftc.gov/bcp/policystmt/addecept.htm (last visited Oct. 21, 2006); FTC Policy on Unfairness (Dec. 17, 1980), available at http://www.ftc.gov/bcp/policystmt/ad-unfair.htm (last visited Oct. 21, 2006).

304 See, e.g., Minnesota Unlawful Trade Practices Act, Minn. Stat. § 325D.09-.16 (2006); Texas Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com. Code § 17.41-17.63 (2006).

305 See, e.g., Minnesota False Statement in Advertising Act, Minn. Stat. § 325F.67 (2006); Minnesota Prevention of Consumer Fraud Act, Minn. Stat. § 325F.69, subd.1 (2006).

306 See No Lie MRI, http://www.noliemri.com/ (last visited Mar. 1, 2007).

307 National Institutes of Health, National Institute of Mental Health, FMRI Signal Found “Faithful” to Neuronal Activity (2001), available at http://www.nimh.nih.gov/press/fmrisignal.cfm (last visited Mar. 1, 2007).

308 Id.

309 No Lie MRI, http://www.noliemri.com/products/Overview.htm (last visited Mar. 1, 2007).

310 Cephos Corporation, http://www.cephoscorp.com/ (last visited Mar. 1, 2007).

311 Jaffee, Sam, Fake Method for Research Impartiality, 18 Scientist 64 (2004).Google Scholar

312 Donaldson, D.I., Parsing Brain Activity with fMRI and Mixed Designs: What Kind of State is Neuroimaging In?, 27 Trends in Neurosciences 442, 442 (2004).CrossRefGoogle Scholar

313 No Lie MRI, http://www.noliemri.com/products/Overview.htm (last visited Mar. 1, 2007).

314 Cephos Corporation, http://www.cephoscorp.com/ (last visited Mar. 1, 2007).

315 No Lie MRI, Publications, http://www.noliemri.com/pressNPubs/Publications.htm (last visited Oct. 21, 2006) (listing and linking to published, peer-reviewed fMRI studies); Cephos Corporation, http://www.cephoscorp.com/fmri_deception.htm (last visited Oct. 21, 2006) (same).