1 Howard Spiro tells this joke in Howard Spiro, Clinical Reflections on the Placebo Phenomenon, in The Placebo Effect: An Interdisciplinary Exploration 37, 46 (Anne Harrington ed., 1997).

2 See, e.g., Coghill, Robert C. et al., Pain Intensity Processing Within the Human Brain: A Bilateral, Distributed Mechanism, 82 J. Neurophysiology 1934 (1999)CrossRefGoogle ScholarPubMed [hereinafter Coghill, Intensity Processing]; Moulton, E.A. et al., Regional Intensive and Temporal Patterns of Functional MRI Activation Distinguishing Noxious and Innocuous Contact Heat, 93 J. Neurophysiology 2183 (2005)CrossRefGoogle ScholarPubMed; Peyron, R., Laurent, B. & Garcia-Larrea, L., Functional Imaging of Brain Responses to Pain: A Review and Meta-Analysis, 30 Neurophysiology Clinics 263 (2000)CrossRefGoogle ScholarPubMed; Porro, Carlo A., Functional Imaging and Pain: Behavior, Perception, and Modulation, 9 Neuroscientist 354, 357 (2003)CrossRefGoogle ScholarPubMed; Porro, Carlo A. et al., Temporal and Intensity Coding of Pain in Human Cortex, 80 J. Neurophysiology 3312 (1998).CrossRefGoogle ScholarPubMed

3 Among the areas of activation in the brain's cortex are the primary somatosensory cortex, anterior cingulate cortex, and prefrontal cortex. See, e.g., Coghill, Robert C., McHaffie, John G. & Yen, Ye-Fen, Neural Correlates of Interindividual Differences in the Subjective Experience of Pain, 100 Proc. Nat’l Acad. Sci. 8538 (2003)CrossRefGoogle ScholarPubMed [hereinafter Coghill, Interindividual Differences]; Rainville, Pierre et al., Pain Affect Encoded in Human Anterior Cingulate But Not Somatosensory Cortex, 277 Science 968, 969 (1997)CrossRefGoogle Scholar (using PET scans to support “previous findings of significant pain-related activations” in the primary and secondary somatosensory cortices, the rostral insula, and the anterior cingulate cortex).

4 See Coghill, Intensity Processing, supra note 2, at 1936 (“Multiple regression analysis of the functional imaging data revealed that a number of cerebral cortical and subcortical areas exhibited significant, graded changes in activation linearly related to subjects’ perceptions of pain intensity.”); Porro, supra note 2, at 357 (“Pain intensity-dependent activations are found in cortical regions pertaining to the ‘lateral’ … and ‘medial’ … pain systems … in the insular cortex and supplementary motor area.”); see also Rainville et al., supra note 3 (finding that subjects given hypnotic suggestion of increased painfulness from a heat stimulus felt more pain and had greater regional cerebral blood flow in the anterior cingulate cortex than they did without the hypnotic suggestion); Porro, supra note 2, at 358 (“Recent event-related fMRI studies also reveal cortical foci with graded responses to the intensity of heat stimuli, activated during both perceived warmth and pain.”) (citations omitted).

5 Alan J. Cunnien, Psychiatric and Medical Syndromes Associated with Deception, in Clinical Assessment of Malingering and Deception 23, 41 (Richard Rogers ed., 2d ed. 1997). While it is difficult to estimate how often malingering occurs, neuropsychologists who make malingering evaluations report finding probable malingering in about 34% of chronic pain cases in which they are asked to make determinations. Mittenberg, Wiley et al., Base Rates of Malingering and Symptom Exaggeration, 24 J. Clinical and Experimental Neuropsychology 1094, 1096 (2002)CrossRefGoogle ScholarPubMed (based on adjusted data). Another study examined a group of patients receiving disability benefits for chronic pain who were referred for psychological testing because their doctors believed that their pain was largely psychological in origin. Evidence of malingering was found in over 40% of these patients. Gervais, Roger O. et al., Effects of Coaching on Symptom Validity Testing in Chronic Pain Patients Presenting for Disability Assessments, 2 J. Forensic Neuropsychology 13-14 (2001).CrossRefGoogle Scholar

6 See W. Kip Viscusi, Reforming Products Liability 102-04 (1991); Croley, Steven P. & Hanson, John D., The Non-Pecuniary Costs of Accidents: Pain and Suffering Damages in Tort Law, 108 Harv. L. Rev. 1785, 1789 (1995)CrossRefGoogle Scholar; Edward J. McCaffery, Daniel J. Kahneman & Matthew L. Spitzer, Framing the Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 Va. L. Rev. 1341, 1347 (stating that pain and suffering awards “account[] for perhaps one-half of the total tort damages paid out in the important cases of products liability and medical malpractice”). But see Vidmar, Neil, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 Duke L.J. 217, 235 n.84 (1993)CrossRefGoogle ScholarPubMed (questioning the availability of accurate data on this issue).

7 See Friedland, Steven I., Law, Science, and Malingering, 30 Ariz. St. L.J. 337, 339 (1998).Google Scholar

8 See, e.g., Keckler, Charles N. W., Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings L.J. 509 (2006)Google Scholar; Thompson, Sean Kevin, Note, The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation, 90 Cornell L. Rev. 1601 (2005)Google ScholarPubMed; Wolpe, Paul Root, Foster, Kenneth R. & Langleben, Daniel D., Emerging Neurotechnologies for Lie-Detection: Promises and Perils, 5 Am. J. Bioethics 39, 39 (2005).CrossRefGoogle ScholarPubMed

9 See, e.g., Patricia S. Churchland, Moral Decision-Making and the Brain, in Neuroethics: Defining the Issues in Theory, Practice, and Policy 1, 3 (Judy Illes ed., 2006); Stephen J. Morse, Moral and Legal Responsibility and the New Neuroscience, in Neuroethics: Defining the Issues in Theory, Practice, and Policy 33, 33 (Judy Illes ed., 2006) [hereinafter Neuroethics]; Greene, Joshua & Cohen, Jonathan, For the Law, Neuroscience Changes Nothing and Everything, 359 Phil. Transactions Royal Soc’y London B 1775 (2004)Google ScholarPubMed; Redding, Richard E., The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century, 56 Am. U. L. Rev. 51 (2006)Google ScholarPubMed; Laurence Tancredi, Hardwired Behavior: What Neuroscience Reveals about Morality (2005); Michael S. Gazzaniga, The Ethical Brain (2005).

10 See Henry T. Greely, The Social Effects of Advances in Neuroscience: Legal Problems, Legal Perspectives, in Neuroethics, supra note 9, at 245, 246-48; Kulynych, Jennifer, Note, Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?, 49 Stan. L. Rev. 1249 (1997).CrossRefGoogle Scholar

11 See generally Judy Illes, Eric Racine & Matthew P. Kirschen, A Picture is Worth 1000 Words, But Which 1000?, in Neuroethics, supra note 9, at 149.

12 See Hank 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, 141-42 (Brent Garland ed., 2004) (mentioning the possibility of using neuroimaging to detect and assess pain); see also Keckler, Charles N. W., Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings L.J. 509, 544 (2006)Google Scholar (noting that neuroimaging techniques that reveal deception might inform assessments of malingered pain).

13 See Barrett, Lisa F. & Wager, Tor D., The Structure of Emotion: Evidence from Neuroimaging Studies, 15 Current Directions Psychol. Sci. 79, 79 (2006)CrossRefGoogle Scholar; see also Phan, K. Luan et al., Functional Neuroimaging Studies of Human Emotions, 9 CNS Spectrums 258, 264 (2004).CrossRefGoogle ScholarPubMed

14 Stacey Tovino grapples with a wide-variety of privacy issues raised by neuroimaging in Tovino, Stacey A., The Confidentiality and Privacy Implications of Functional Magnetic Resonance Imaging, 33 J.L. Med. & Ethics 844 (2005).CrossRefGoogle ScholarPubMed

15 M.R. Bennett & P.M.S. Hacker, Philosophical Foundations of Neuroscience 84 (2003).

16 Id. at 85.

17 International Association for the Study of Pain, http://www.iasp-pain.org (follow “Resources” hyperlink at top of page; then follow “Pain Definitions” hyperlink; then follow “Pain” hyperlink).

18 Rainville et al., supra note 3, at 968.

19 Patrick Wall, Pain: The Science of Suffering 12 (2000) (describing sample terms used by psychologist Ronald Melzack to characterize the sensory components of pain).

20 Cf. Colin Allen et al., Deciphering Animal Pain, in Pain: New Essays on its Nature and the Methodology of Its Study 351, 351 (Murat Aydede ed., 2005) (describing nociception as “the basic capacity for sensing noxious stimuli”); Robert C. Coghill, Pain: Making the Private Experience Public, in Pain: New Essays on its Nature and the Methodology of Its Study 299, 300 (Murat Aydede ed., 2005) (hereinafter Pain: New Essays) (describing nociception as the “reduced physical (i.e., neural) mechanisms responding to and encoding information about actual or impending tissue damage”).

21 Rainville et al., supra note 3, at 968.

22 Wall, supra note 19, at 12 (describing sample terms used to characterize affective components of pain).

23 See Floyd E. Bloom et al., The Dana Guide to Brain Health 169 (2006) (“Measuring the level of sensory intensity is associated with activity in the primary somatosensory cortex, whereas the unpleasantness is associated with activity in areas of the frontal lobe cortex usually associated with emotion … .”); see also Rainville et al., supra note 3, at 970 (using functional neuroimaging to support “at least a partial segregation of function between pain affect and sensation”).

24 Rainville et al., supra note 3, at 968. See also Murat Aydede, A Critical and Quasi-Historical Essay on Theories of Pain, in Pain: New Essays, supra note 20, at 31-32; Bloom et al., supra note 23, at 169.

25 Aydede, supra note 24, at 32.

26 Michael Hopkin, The Mutation That Takes Away Pain, [email protected], Dec. 13, 2006, http://www.nature.com/news/2006/061211/full/061211-11.html.

27 Id. Researchers have recently found a very rare genetic mutation that causes the condition. Id. Assuming that everyone who has the mutation has the pain-free condition, then the presence of the mutation provides good evidence that an afflicted person is not experiencing physical pain. If so, this would be a very reliable, though rarely ever practical method, of detecting malingered pain.

28 Eric Eich et al., Questions Concerning Pain, in Well-Being: The Foundations of Hedonic Psychology 155, 160 (Daniel Kahneman et al., eds., 1999) (citations omitted).

29 Id.

30 Chris J. Main, The Nature of Chronic Pain, in Malingering and Illness Deception 171, 172 (Peter W. Halligan, Christopher Bass & David A. Oakley eds., 2003).

31 E-mail from Robert C. Coghill, Assistant Professor, Department of Neurobiology and Anatomy, Wake Forest University School of Medicine, to Adam Kolber, Associate Professor of Law, University of San Diego (Nov. 17, 2006, 10:36:33 EST) (on file with author).

32 Wall, supra note 19, at 63.

33 See Pryor, Ellen Smith, Compensation and the Ineradicable Problems of Pain, 59 Geo. Wash. L. Rev. 239, 253-57 (1991).Google Scholar

34 See id.

35 See George Mendelson, Outcome-Related Compensation: In Search of a New Paradigm, in Malingering and Illness Deception, supra note 30, at 220, 222.

36 Pryor, supra note 33, at 280-91.

37 Aydede, supra note 24, at 3 (describing, though not advocating, the Cartesian view of pains and other bodily sensations).

38 Id. at 4.

39 Bennett & Hacker, supra note 15, at 83.

40 Aydede, supra note 24, at 4.

41 See generally Daniel C. Dennett, Brainstorms: Philosophical Essays on Mind and Psychology 190-229 (1981); Block, Ned, On a Confusion About a Function of Consciousness, 18 Behav. & Brain Sci. 227, 230-36 (1995).CrossRefGoogle Scholar

42 Coghill, supra note 20, at 302-03.

43 See, e.g., Bellieni, C.V. et al., Analgesic Effect of Watching TV During Venipuncture, 91 Archives Disease Childhood 1015 (2006)CrossRefGoogle ScholarPubMed (reporting that children distracted by television during venipuncture suffered less pain than those who were not distracted).

44 See generally Spiro, supra note 1, at 42 (noting that expectations of improvement can contribute to placebo effects). Neuroimaging studies have improved our understanding of placebo pain relief, demonstrating that the brain responds in similar ways to placebo pain relievers as it does to standard opiod drugs. The research provides fresh support for the view that placebos can generate substantial pain relief that is much like the pain relief from conventional analgesics. See, e.g., Hoffman, Ginger A. et al., Pain and the Placebo: What We Have Learned, 48 Persp. Biology & Med. 248, 260-62 (2005)CrossRefGoogle ScholarPubMed (describing the recent neuroscience literature on placebo pain relief); Wager, Tor D., The Neural Bases of Placebo Effects in Anticipation and Pain, 3 Seminars Pain Med. 22 (2005)CrossRefGoogle Scholar; Wager, Tor D. et al., Placebo-Induced Changes in fMRI in the Anticipation and Experience of Pain, 303 Science (2004).CrossRefGoogle ScholarPubMed Neuroimaging has also supported the view that patients with fibromyalgia, a chronic pain condition, have higher than normal pain sensitivity due to “augmented central nervous system processing of pain.” Harris, Richard E. & Clauw, Daniel J., How Do We Know That the Pain in Fibromyalgia is “Real”?, 10 Current Pain & Headache Rep. 403, 406 (2006).CrossRefGoogle ScholarPubMed

45 See, e.g., Redelmeier, Donald A., Katz, Joel & Kahneman, Daniel, Memories of Colonoscopy: a Randomized Trial, 104 Pain 187, 189-92 (2003).CrossRefGoogle ScholarPubMed

46 Id.

47 Id. at 187-88.

48 Id. at 188-89.

49 Id. at 189-93.

50 Id. at 189.

51 See Eich et al., supra note 28, at 162-63.

52 See id. at 160 (“The primary forms of pain measurement used by clinicians with humans experiencing pain have been verbal pain descriptors, visual analog scales, numerical rating scales, and measurement of pain behaviors.”). The McGill Pain Questionnaire is an example of a standardized test that attempts to measure subjective pain experience using numerical scales and standardized verbal descriptors. See Center for Gerontology and Health Care Research, Brown Medical School, Toolkit of Instruments to Measure End-of-Life Care, http://www.chcr.brown.edu/pcoc/Physical.htm (last visited May 9, 2007).

53 Even such intraindividual determinations are far from perfect. They require people to recall past experiences of pain, recent as they may be, and compare them to current ones. Yet, as noted, our memories of past experiences are quite imperfect. Eich et al., supra note 28, at 163-64. Furthermore, the very act of describing an experience may affect the way that we later recall it. See Daniel Gilbert, Stumbling on Happiness 40-42 (2006).

54 Labus, Jennifer S., Keefe, Francis J. & Jensen, Mark P., Self-Reports of Pain Intensity and Direct Observations of Pain Behavior: When are they Correlated?, 102 Pain 109, 119-21 (2003).CrossRefGoogle ScholarPubMed

55 See Lander, J. et al., Comparison of Ring Block, Dorsal Penile Nerve Block, and Topical Anesthesia for Neonatal Circumcision: a Randomized Controlled Trial, 278 JAMA 2157 (1997)CrossRefGoogle ScholarPubMed; Wellington, N. & Rieder, MJ, Attitudes and Practices Regarding Analgesia for Newborn Circumcision, 92 Pediatrics 541, 541 (1993).Google ScholarPubMed

56 Kolber, Adam, Note, Standing Upright: The Moral and Legal Standing of Humans and Other Apes, 54 Stan. L. Rev. 163, 182-91 (2001).CrossRefGoogle Scholar Answers to such questions may not alone settle matters about animal cruelty and consumption, but depending on one's underlying views, they may well inform the debate. For example, in challenging the lack of protection we give to the interests of animals, Peter Singer forcefully argues that most animals can indeed feel pain. “Nearly all the external signs that lead us to infer pain in other humans can be seen in other species … ,” including “writhing, facial contortions, moaning, yelping or other forms of calling, attempts to avoid the source of pain, appearance of fear at the prospect of its repetition, and so on.” Peter Singer, Animal Liberation 11 (2d ed. 1990).

57 Capelouto v. Kaiser Found. Hosp., 500 P.2d 880, 883 (Cal. 1972).

58 See, e.g., Guido Calabresi, The Costs of Accidents 26-31 (1970) (“Apart from the requirements of justice, I take it as axiomatic that the principal function of accident law is to reduce the sum of the costs of accidents and the costs of avoiding accidents.”).

59 See, e.g., Fletcher, George P., Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537, 543-50 (1972)CrossRefGoogle Scholar (outlining features of corrective justice).

60 Research in the late 1970s found that over three-quarters of those with compensable worker's compensation claims associated with low back pain had no physical findings supporting their complaints. John D. Loeser, Low Back Pain, in Pain 363-77 (John J. Bonica ed. 1980). Despite improvements in our ability to detect physical injuries, it often still difficult to identify the cause of someone's back pain. See Gina Kolata, With Costs Rising, Treating Back Pain Often Seems Futile, N.Y. Times, Feb. 9, 2004, available at http://query.nytimes.com/gst/fullpage.html?sec=health&res=9A04EFDF173AF93AA35751C0A9629C8B63 (quoting Dr. Richard Deyo, a professor of medicine and health services at the University of Washington as stating that “[a] variety of studies have suggested that in 85 percent of cases it is impossible to say why a person's back hurts.”).

61 Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 739 (4th ed. text rev. 2000) [hereinafter DSM-IV-TR].

62 Id. at 513.

63 Id.

64 See Finch, Michael, Law and the Problem of Pain, 74 U. Cin. L. Rev. 285, 303-06 (2005).Google Scholar

65 DSM-IV-TR, supra note 61, at 485.

66 Id. at 485, 498-503.

67 See generally Peck, Cornelius, Compensation for Pain: A Reappraisal in Light of New Medical Evidence, 72 Mich. L. Rev. 1355, 1379, 1386-96 (1974)Google Scholar (suggesting that, in some circumstances, tortfeasors ought not be liable for pain exacerbated by psychological features of the defendant, even when the tortfeasor is a cause-in-fact of the pain).

68 See generally Clinical Assessment of Malingering and Deception (Richard Rogers ed., 1997); Friedland, supra note 7, at 340.

69 Waddell, Gordon et al., Nonorganic Physical Signs in Low Back Pain, 5 Spine 117, 117-25 (1980).CrossRefGoogle ScholarPubMed

70 Id. at 118.

71 Such superficial tenderness, it has been claimed, “is almost always present in patients motivated by financial secondary gain and almost never in patients with well-demonstrated physical pathologic conditions that improve appropriately.” P. Douglas Kiester & Alexandra D. Duke, Is It Malingering, or Is It ‘Real’?, 106 Postgraduate Med., Dec.1999, http://www.postgradmed.com/issues/1999/12_99/kiester.htm.

72 I doubt that pain conditions can be divided neatly between those that are principally “organic” and those that are principally “psychological.” Such categories can, however, serve as helpful shorthand expressions for what is certainly a much more complex distinction in pain etiology.

73 Main, supra note 30, at 174.

74 Id.

75 See Dalgeish, Douglas R. & Stewart, Teresa J., Thermography in Missouri's Courts: Is the Frye Standard Alive and Well?, 60 UMKC L. Rev. 467, 475 (1992).Google Scholar

76 Id. at 474.

77 Id. at 474-475.

78 Lustigman, Andrew B., Comment, A New Look at Thermography's Place in the Courtroom: A Reconciliation of the Conflicting Evidentiary Rules, 40 Am. U. L. Rev. 419, 427-30 (1990).Google Scholar

79 See id. at 419-20, 430-31.

80 For cases finding thermographic evidence inadmissible, see, for example, McAdoo v. United States, 607 F. Supp. 788, 795 (E.D. Mich. 1984); Burkett v. Northern, 715 P.2d 1159, 1161 (Wash. Ct. App. 1986); Ferlise v. Eiler, 495 A.2d 129 , 131 (N.J. Super. Ct. App. Div. 1985). For cases permitting thermographic evidence, see, for example, Cherico v. National Railroad Passenger Corp., 758 F. Supp. 258, 263 (E.D. Pa. 1991), aff’d without opinion, 96 F.2d 12 (3d Cir. 1992); Procida v. McLaughlin, 479 A.2d 447, 451 (N.J. Super. Ct. Law Div. 1984).\

81 On the principles of diffusion tensor imaging, see DaSilva, Alexandre F. M. et al., A Primer on Diffusion Tensor Imaging of Anatomical Substructures, 15 Neurosurgical Focus 1 (2003)CrossRefGoogle ScholarPubMed; Bihan, Denis Le et al., Diffusion Tensor Imaging: Concepts and Applications, 13 J. Magnetic Resonance Imaging 534 (2001).CrossRefGoogle ScholarPubMed While DTI has principally been used as a method of structural brain imaging, there is some evidence that it can also be an effective new tool in functional neuroimaging. Bihan, Le et al., Direct and Fast Detection of Neuronal Activation in the Human Brain with Diffusion MRI, 103 Proc. Nat’l Acad. Sci. 8263 (2006).CrossRefGoogle ScholarPubMed

82 Le Bihan et al., supra note 81, at 534.

83 Id. at 543.

84 Id.

85 Press Release, Radiological Society of North America, Chronic Back Pain Linked to Changes in the Brain (Nov. 28, 2006), available at http://www.rsna.org/rsna/media/pr2006-2/chronic_back_pain-2.cfm.

86 Abstract, Radiological Society of North America, Diffusion Tensor Imaging (DTI) Danisotropic Changes in the Brain Associated with Chronic Low Back Pain (Nov. 29, 2006), available at http://rsna2006.rsna.org/rsna2006/V2006/conference/event_display.cfm?em_id=4433436.

87 Press Release, Radiological Society of North America, supra note 85.

88 This sort of research typically uses group data, though the details of this particular experiment have yet to be made public.

89 Croley & Hanson, supra note 6, at 1789.

90 Restatement (Second) of Torts § 912 cmt. b (1977).

91 See generally Daniel Gilbert, supra note 53, at 46-53.

92 Wall, supra note 19, at 11-12.

93 Kállai, Ibolya, Barke, Antonia & Voss, Ursula, The Effects of Experimenter Characteristics on Pain Reports in Women and Men, 112 Pain 142, 144 (2004).CrossRefGoogle ScholarPubMed

94 Labus, Jennifer S., Keefe, Francis J. & Jensen, Mark P., Self-Reports of Pain Intensity and Direct Observations of Pain Behavior: When are they Correlated?, 102 Pain 109, 119 (2003).CrossRefGoogle ScholarPubMed

95 Id.

96 Coghill, Interindividual Differences, supra note 3.

97 Id. at 8539.

98 Id. at 8541.

99 Id. at 8538, 8541.

100 Id. at 8542.

101 Id. at 8541 (stating that the “concurrence between multiple individuals’ patterns of regional brain activation and their subjective reports of pain provides an objective context in which to assess the subjective report of any given individual”).

102 See, e.g., Coghill, Intensity Processing, supra note 2, at 1934 (stating that even subjects who have an entire “cerebral hemisphere surgically removed retain the capacity to be consciously aware of a painful stimulus presented ipsilateral to their remaining hemisphere” and that “[q]uantitative psychophysical analysis of these subjects reveals that they have almost no disruption of their capacity to experience and evaluate pain intensity”).

103 E-mail from Robert C. Coghill to Adam Kolber, supra note 31.

104 See Jennifer Granick, The Lie Behind Lie Detectors, Wired, Mar. 15, 2006, available at http://www.wired.com/news/technology/0,70411-0.html (claiming that fMRI lie detection is subject to simple countermeasures because “a subject can defeat the test by breathing deeply or by holding her breath”).

105 deCharms, R. Christopher et al., Control Over Brain Activation and Pain Learned by Using Real-Time Functional MRI, 102 Proc. Nat’l Acad. Sci. 18626, 18626 (2005).CrossRefGoogle ScholarPubMed

106 See id.

107 Derbyshire, Stuart W.G. et al., Cerebral Activation During Hypnotically Induced and Imagined Pain, 23 Neuroimage 392 (2004).CrossRefGoogle ScholarPubMed

108 Id. at 395.

109 Id.

110 deCharms, supra note 105, at 18626.

111 Id. at 18626, 18628-30.

112 See id. at 18627-30 (finding that subjects taught to control pain intensity using real-time fMRI feedback were significantly more successful than those taught other strategies to control pain that lacked fMRI feedback). The harder it is to learn pain control techniques, the harder it is to fool a pain detector and the more meaningful will be attempts to cross-examine people about whether they have practiced countermeasures.

113 Importantly, for statistical reasons, it may be easier to use neuroimaging to support a pain claim than to rebut one. E-mail from Robert C. Coghill to Adam Kolber, supra note 31.

114 Though it did not involve malingered pain as such, one neuroimaging study has suggested that PET scanning can play a valuable role in distinguishing subjectively experienced paralysis from simulated paralysis. The study explicitly mentions the possible application of this technology to the detection of malingered paralysis claims. See Ward, N.S., Oakley, D.A. & Frackowiak, R.S.J., Differential Brain Activations During Intentionally Simulated and Subjectively Experienced Paralysis, 8 Cognitive Neuropsychiatry 295, 310-11 (2003)CrossRefGoogle ScholarPubMed; see also Craig W. Martin, Workers’ Comp. Board of British Columbia - Evidence Based Practice Group, Compensation and Rehabilitation Services Division, Detecting Malingerers’ Hidden Truths? (2003), http://www.worksafebc.com/health_care_providers/Assets/PDF/detecting_malingerers.pdf.

115 Owen, Adrian M. et al., Detecting Awareness in the Vegetative State, 313 Science 1402, 1402 (2006).CrossRefGoogle ScholarPubMed

116 Id.

117 Benedict Carey, Mental Activity Seen in a Brain Gravely Injured, N.Y. Times, Sept. 8, 2006, at A1.

118 See Neil Levy, Persistent Vegetative States and Consciousness, Neuroethics & Law Blog, http://kolber.typepad.com/ethics_law_blog/2006/09/persistent_vege.html.

119 Because we cannot ask those who are unconscious about their pain experiences, however, it would be extremely difficult to know if our assessments based on diagnostic images are valid measures of pain. See generally Mendelson, supra note 35, at 225 (discussing diagnostic validity).

120 On the use of neuroimaging by insurers more generally, see Tovino, supra note 14, at 847-48.

121 See id. at 847 (discussing limits on the use of such tests imposed by the Americans with Disabilities Act).

122 See Pryor, supra note 33, at 257-291 (discussing the relevance of pain adjudication to Social Security disability determinations).

123 See id. at 291-304 (discussing the relevance of pain adjudication to worker's compensation cases).

124 509 U.S. 579, 589-94 (1993).

125 Id. at 592-95.

126 293 F. 1013 (D.C. Cir. 1923).

127 Id. at 1014.

128 Fed. R. Civ. P. 35.

129 Niedwiecki, Anthony S., Science Fact or Science Fiction? The Implications of Court- Ordered Genetic Testing Under Rule 35, 34 U.S.F. L. Rev. 295, 295 (2000).Google ScholarPubMed

130 Wolpe et al., supra note 8, at 39.

131 Reid, Lynette & Baylis, Françoise, Brains, Genes, and the Making of the Self, 5 Am. J. Bioethics 21, 22 (2005)CrossRefGoogle Scholar (“What is novel and particularly interesting about privacy and confidentiality with neuroimaging … is the predicted—and unprecedented—access to human thought.”).

132 Id.

133 Kamitani, Yukiyasu & Tong, Frank, Decoding the Visual and Subjective Contents of the Human Brain, 8 Nature Neuroscience 679, 679 (2005).CrossRefGoogle ScholarPubMed

134 See Thompson, supra note 8, at 1602 (suggesting that brain imaging could be used someday to reveal whether a person being interrogated recognizes a person in a photograph). See generally Keckler, Charles N.W., Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings L.J. 509, 509 (2006)Google Scholar (suggesting that the “ability to examine in real time the response of the subject brain during a question and answer session makes it feasible to use [functional imagining] forensically, provided that the pattern of brain activity corresponding to deception is sufficiently well-characterized”); Nicholas Wade, Improved Scanning Technique Uses Brain as Portal to Thought, N.Y. TIMES, Apr. 25, 2005, at A19. One company, “No Lie MRI” has begun selling fMRI-based lie detection services, and a competitor, “Cephos Corp.,” plans to do so in the near future. See No Lie MRI, Inc., http://www.noliemri.com (last visited May 9, 2007); Cephos Corp., http://www.cephoscorp.com (last visited May 9, 2007).

135 Ponseti, Jorge et al., A Functional Endophenotype for Sexual Orientation in Humans, 33 NeuroImage 825 (2006).CrossRefGoogle ScholarPubMed See also Arnow, Bruce A. et al., Brain Activation and Sexual Arousal in Healthy, Heterosexual Males, 125 Brain 1014 (2002).CrossRefGoogle ScholarPubMed

136 See generally Phelps, Elizabeth A. et al., Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation, 12 J. Cognitive Neuroscience 729 (2006)CrossRefGoogle Scholar; Wheeler, Mary E. & Fiske, Susan T., Controlling Racial Prejudice and Stereotyping. Social-Cognitive Goals Affect Amygdala and Stereotype Activation, 16 Psychol. Sci. 56 (2005)CrossRefGoogle ScholarPubMed; Cunningham, William A. et al., Separable Neural Components in the Processing of Black and White Faces, 15 Psychol. Sci. 806 (2004)CrossRefGoogle ScholarPubMed.

137 United States v. Scheffer, 523 U.S. 303, 313 (1998).

138 See Glenn, Linda MacDonald, Keeping an Open Mind: What Legal Safeguards Are Needed?, 5 Am. J. Bioethics 39, 39 (2005)CrossRefGoogle ScholarPubMed; Winick, Bruce J., The Right to Refuse Mental Health Treatment: A First Amendment Perspective, 44 U. Miami L. Rev. 1, 17-19 (1989)Google ScholarPubMed (arguing that the First Amendment limits intrusive government interference with our mental processes). For cases mentioning “freedom of mind” or “freedom of thought,” see, for example, Thomas v. Collins, 323 U.S. 516, 531 (1945) (“The First Amendment gives freedom of mind the same security as freedom of conscience.”); Speiser v. Randall, 357 U.S. 513, 536 (1958) (“For there can be no true freedom of mind if thoughts are secure only when they are pent up.”); Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”). I have argued elsewhere that we are entitled to a certain “freedom of memory,” that is one component of our “freedom of mind.” See Kolber, Adam J., Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening, 59 Vand. L. Rev. 1561, 1567, 1622-1626 (2006).Google Scholar

139 394 U.S. 557 (1969).

140 Id. at 565.

141 539 U.S. 558 (2003).

142 Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of titles 18, 26, 29, and 42 U.S.C.).

143 Theo Francis, Medical Dilemma: Spread of Records Stirs Patient Fears of Privacy Erosion, Wall St. J., Dec. 26, 2006, at A1.

144 45 C.F.R. § 164.506 (2006).

145 Francis, supra note 143.

146 In fact, even when we want to, it can be difficult to disguise our subjective experiences of pain. See Hill, Marilyn L. & Craig, Kenneth D., Detecting Deception in Pain Expressions: The Structure of Genuine and Deceptive Facial Displays, 98 Pain 135, 135 (2002)CrossRefGoogle ScholarPubMed (claiming that “there is an empirical basis for discriminating genuine and deceptive facial displays”).

147 See generally Illes, Judy et al., Incidental Findings in Brain Imaging Research, 311 Science 783 (2006)CrossRefGoogle ScholarPubMed (asserting that “[a]ll investigators engaged in brain imaging research should anticipate incidental findings in their experimental protocols and establish a pathway for handling them”).

148 Discussing the use of fMRI as a lie detector in criminal trials, law professor Carter Snead, former general counsel to the President's Council on Bioethics, has stated that “[t]he human dimension of being subjected to the assessment of your peers has profound social and civic significance. If you supplant that with a biological metric, you’re losing something extraordinarily important, even if you gain an incremental value in accuracy.” Steve Silberman, Don't Even Think About Lying: How Brain Scans are Reinventing the Science of Lie Detection, Wired Magazine Jan. 2006, at http://www.wired.com/wired/archive/14.01/lying.html. Though his comments are directed at criminal trials, his concerns might also apply to the use of pain detectors in civil litigation if doing so largely replaces the jury's job to determine the credibility of a complainant's claims of suffering with a biological metric.

In United States v. Scheffer, 523 U.S. 303, 317 (1998), the Supreme Court held that a rule of evidence barring polygraph testimony in air force courts martial did not violate the accused's constitutional right to present a defense. Thus, the accused was not permitted to offer exculpatory polygraph evidence. The Court's reasoning focused principally on the unreliability of the evidence. However, among the reasons given by Justice Thomas, joined by three other justices, was that even a reliable lie detector threatens the jury's core obligation to make credibility determinations in criminal trials. Id. at 312-13. According to Thomas, “[d]etermining the weight and credibility of witness testimony … has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’” Id. at 313 (quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)).

149 See Paul Bloom, Seduced by the Flickering Lights of the Brain, Seed Magazine, June 27, 2006, http://www.seedmagazine.com/news/2006/06/seduced_by_the_flickering_ligh.php.

150 Thomas Nagel, Mortal Questions 165-180 (1979).

151 Id. at 166-67.

152 See id. at 171-72 (stating that an “ascription of experience is possible only for someone sufficiently similar to the object of ascription to be able to adopt his point of view” and that “[t]he more different from oneself the other experiencer is, the less success one can expect with this enterprise”).