Neurolegislation: How U.S. Legislators Are Using Brain Science
Harvard Journal of Law & Technology
There is growing interest in neuroscience generally, and in neurolaw in particular. But scholarship has too narrowly conceptualized the “law” part of neurolaw as limited to what happens in courtrooms. In doing so, scholarship has overlooked the role that brain science is playing, and might one day play, in legislatures. This Article thus focuses on “neurolegislation,” defined as legislation that explicitly mentions the brain or brain sciences. The Article explores two related empirical questions. First, what types of neurolegislation have been proposed in U.S. state legislatures? Second, what can be said about the type of legislators who propose these brain bills? Based on an original database of proposed bills in U.S. state legislatures from 1992 through 2009, the analysis finds that brain science has been mentioned in nearly 1000 bills. Brain science is mentioned most frequently in bills related to brain injury, insurance, mental health, education, veterans' affairs, and sports concussions. In addition, over 70 other types of bills mentioned the brain or neuroscience. I argue that legislative use of neuroscience is growing in breadth but not yet depth. Neuroscience does not yet appear to be revolutionary in the sense that it persuades large numbers of legislators to change previously established policy positions. Neuroscience may be in many instances just window dressing, invoked because it is thought to be helpful in persuading others. Looking to the future, I argue that to be more truly transformative, neurolegislation will require scientific advances, innovative legislators, and the construction of successful neuroscience narratives.
Francis X. Shen, Neurolegislation: How U.S. Legislators Are Using Brain Science, 29 Harv. J.L. & Tech. 495 (2016), available at https://scholarship.law.umn.edu/faculty_articles/605.