The articles in this Special Issue of the journal explore diverse issues, but all in different ways are stimulated by developments in our understanding of the brain. It is coming to be understood that developments in neuroscience can help those who make the law and those who study it use the insights of scientific knowledge to assist in the understanding of human behaviour. Developments in cognitive neuroscience offer new insights into the nature of normative judgement. As Casebeer and Churchland (2003, p. 170) have noted, ‘the neurobiology of moral cognition is a justifiably hot topic’. As Goodenough and Prehn (2004, p. 1713) note, ‘the great advantage of the cognitive neuroscience approach is that we can now bring together psychological models of cognitive and affective process, experimental paradigms, various behavioural and psychophysiological measurements and functional brain imaging techniques’. Greene and Cohen have argued (2004, p. 1775) that neuroscience will probably have a transformative effect on the law, even though existing legal doctrine can, in principle, accommodate its findings. They foresee, and indeed recommend, a shift away from punishment rooted in retribution towards one adopting a consequentialist approach to the criminal law. That the US Supreme Court in 2005 (see Roper v. Simmons) eventually came to view the death penalty as unconstitutional for offenders who committed their offences when under 18 is in part the product of this shift in thinking. Steinberg and Scott (2003) had shown that adolescents did not meet the law’s requirements for rationality and so were unsuitable candidates for the death penalty.

Fears that new scientific advances on the mind and the brain which establish that behaviour is determined by causes in one’s mind/brain and/or various past and present internal and external environments will undermine the attribution of legal responsibility are misplaced. Taking responsibility to inhere where conduct reflects upon an individual and where, properly understood, the individual could have done otherwise, determinism, operating in the right sort of way, should be embraced as a condition for responsibility.

Functional magnetic resonance imaging (fMRI) is currently the most advanced technique for measuring and depicting brain function. Functional MRI studies abound in neuroscience, psychiatry and psychology. Inevitably, fMRI-based evidence will be offered in court as proof of matters involving parties’ mental states and capabilities. This paper analyses the likely admissibility of fMRI testimony and images. Cases involving other types of functional neuroimaging (PET and SPECT), which may shed light on judges’ receptivity to fMRI evidence, are briefly surveyed. The conceptual and methodological underpinnings of fMRI are then explored, prompting basic questions about the evidentiary reliability and relevance of fMRI results. The first reported case involving fMRI evidence, which raises several of these questions, is described. Finally, the admissibility and probative value of the fMRI images themselves are discussed. Assuming that the expert testimony that the images are offered to illustrate is admissible, it is argued that the law can obtain the benefits of fMRI science while minimising the judgmental risks by allowing triers of fact to see the images and encouraging experts and lawyers to educate the triers to interpret the images properly.

There is a remarkable resonance between recent findings about medical malpractice litigation and theories about the evolution of co-operation and reciprocity among humans. This should not be altogether surprising: theories of reciprocity seek to explain the behaviours we exhibit when we interact to punish or confer benefits on each other; while civil liability litigation may be just one of modern society’s ways of compelling otherwise unrequited reciprocity. The link between the two fields of study is worth exploring nonetheless. Just as behavioural economics and evolutionary theory offer useful insights for those of us who study legal phenomena, data about the behaviour of people accessing legal institutions may be useful to those who build behavioral theories. This essay is therefore, in a way, a lawyer’s effort to return the favour.

This article critically examines the insights that biology (including evolutionary analysis and neuroscience data) offers for understanding the relationship between family law and family stability. The paper initially considers evolutionary analysis, comparative anatomy, and neuroscience data to conclude that while the pair bond appears to be a universal feature of human societies, long-term fidelity is not. The second part of the paper considers the benefits and limitations of evolutionary analysis concluding, first, that evolutionary analysis, without connection to modern neuroscience or sociological data, remains highly speculative; second, that where the evolutionary analysis is borne out by modern neuroscience and/or sociological data, it is more persuasive, but often leads to obvious conclusions; and third, that undertaking this type of examination nonetheless leads to new insights or new questions that should prompt productive research.

What conditions are necessary for juries to work effectively? Legal scholars and social scientists have debated this question, and research in psychology and law demonstrates that jurors are easily confused by scientific evidence and readily swayed by the slick framing of argument. Rather than condemn juries as unworkable, however, I demonstrate experimentally that jurors need not possess legal or scientific sophistication to make reasoned choices during trials. Specifically, I demonstrate that various institutions embedded in our legal system (such as penalties for lying and the threat of verification) can substitute for sophistication and enable even unsophisticated individuals to learn what they need to know. Based on these findings, I argue that rather than advocate blue ribbon juries and bench trials as replacements for citizen juries, scholars should instead seek substitutes for jurors’ lack of sophistication in the institutions of our legal system.

The practice of law today is awash with pictures of all kinds – from those that begin conceptually like graphs, diagrams or flow charts to those that originate in perception, like photographs, or those that emerge from the actions of technology, like animations and fMRI. Pictures are used as evidence, demonstratives, and for argument. The legal academy has yet seriously to come to grips with the changes that this infusion of the visual means for legal thinking and rhetoric. This article explores the intellectual implications of picturing in a discipline that has thought of itself as preeminently about the use of words and their linear logics. To do this, the author has sought out eye movement research, asking the question: Do we read pictures differently from words? If so, what are the implications of this as understood both in cognitive terms and in cultural terms? That is, can the differences in perceptual behaviour be seen as offering clues to differences in cognitive behaviour? Existing knowledge seems to answer these questions in the affirmative, which means that the deeply held cultural bias that maintains that only words containing thought needs revision. This article concludes with reflections on some benefits that adjustments to our understanding might give to legal thinkers.

This is a paper about promulgation, and whether it is a sine qua non of law. The promulgation question has been treated occasionally in the jurisprudential literature, although typically only as a subordinate theorem. This paper does not attempt a thorough conspectus, seeking rather to serve as an introductory to what is a longstanding problem of general interest and concern. An argument for the proposition that laws are things that can be known will be distinguished from two other ways of responding to the promulgation question, which may be attributed respectively to the late H. L. A. Hart and Lon Fuller. The paper defends this proposition about artefactuality and access, and deals with a number of awkward consequences that appear to ensue from its acceptance.