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Neuroscience and Law Center

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Advances in neuroscience have prompted the legal profession to question long-held notions about criminal culpability, free will, thought, behavior, and pain.

Fordham’s Neuroscience and Law Center explores how these advances affect the legal system.

The Neuroscience and Law Center is dedicated to:

  • using a multidisciplinary, evidence-based approach to examine the current and potential uses of neuroscience evidence
  • advancing legal scholarship and the use of neuroscience in legal circles
  • providing information to academics, lawyers, and the public about legally relevant advances in neuroscience

Through innovative programs and in collaboration with academic partners, the Neuroscience and Law Center is a premier resource of evidence-based information about the increasing prevalence of neuroscience in 21st-century courtrooms.

Focus Areas

  • Criminal Law and the Standards of Criminal Responsibility and Culpability
  • Guilty Mental States
  • Behavioral Neuroscience and Insanity
  • Death Penalty
  • Evidence
  • Neuroscience and Psychosocial Evidence
  • Cognitive Psychology
  • Brain Imaging
  • Intelligence

Priority Activities

  • Scholarly and practice-oriented conferences
  • Lecture series and guest speakers
  • Statistical and legal research
  • Enhanced curricular offerings
  • Clinics and service learning
  • Externships and supervised research
  • Alumni mentorship

Events

The Neuroscience and Law Center, in partnership with academic institutions and the courts, will build on existing innovative events for neuroscience and law scholarship:

  • Annual Neuroscience and Law Speakers Series
  • Annual Advanced Criminal Law and Criminal Procedure Speakers Series, featuring presentations on neuroscience
  • Neuroscience in the Courtroom CLE

Courses

Fordham Law already offers a range of interdisciplinary courses examining the intersection of science, neuroscience, and law:

  • Psychology & Juvenile Justice Law
  • Law & Neuroscience
  • Psychology & Criminal Law
  • Psychology & Civil Law
  • Law & Biomedical Ethics
  • Domestic Violence: Law and Social Work
  • Sentencing Law & Policy
  • The Science of Implicit Bias and the Law:New Pathways to Social Justice, Law & Medicine

Partnerships

The Neuroscience and Law Center builds on the strong foundation of Fordham Law and the larger University community.

Scholarship: Neuroscience

How Neuroscience Can Make Criminal Justice More Effective, Efficient, and Fair

The use of neuroscientific evidence in criminal courts is relevant to public policy regarding mass incarceration and criminal justice system reform. The term “neuroscience” can refer to any information about the brain and nervous system based on measurement techniques such as imaging tests (e.g., the MRI) and non-imaging tests (e.g., neuropsychological assessments).   The Fordham University School of Law’s Neuroscience and Law Center seeks to incorporate recent advances in neuroscience to make courts more effective, efficient, and fair.

The Center has gathered an original database of every criminal case (from the Lexis and Westlaw legal databases) that addresses neuroscientific evidence in any capacity over the two decades between 1992 and 2012. This large-scale empirical research study, known as the Neuroscience Study, reveals a nuanced and multifaceted assessment of how and why criminal courts rely on neuroscientific evidence.  By offering multiple perspectives on the role of neuroscience in the American legal system, the Neuroscience Study provides an unprecedented opportunity to change how this country responds to crime. 

Since 2015, the Center’s database has generated many articles in legal journals and other publications, which are listed below.  Additional research is continuing at full speed.


Books

Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively (Oxford University Press, forthcoming)

Book Chapters and Contributions

Neuroimaging Evidence in Context, in Handbook of Law and the Cognitive Sciences.  New York: Cambridge University Press _ (Bartosz Brozek, Jaap Hage, & Nicole Vincent, eds. 2021) (forthcoming)

Neuroscience Evidence in Criminal Justice, in The Encyclopedia of Behavioural Neuroscience (2nd ed.). Amsterdam, Netherlands: Elsevier _ (Sergio Della Salla, ed. 2020) (forthcoming)

Concocting Criminal Intent,  in The Wrongful Convictions Reader. Durham, N.C.: Carolina Academic Press 270-72 (Russell D. Covey & Valena E. Beety, eds. 2019) (excerpts from Deborah W. Denno, Concocting Criminal Intent, 105 Georgetown Law Journal 323-78 (2017))  

The Place for Neuroscience in Criminal Law, in Philosophical Foundations of Law and Neuroscience.  New York: Oxford University Press 69-83 (Dennis Patterson & Michael Pardo, eds. 2016)

Articles and Essays

The “Ought” of Law and Neuroscience, 62 William & Mary Law Review __ (2021) (forthcoming)

How Courts in Criminal Cases Respond to Childhood Trauma, 103 Marquette Law Review 301-63 (2019) (keynote for Marquette University Law School’s Annual George and Margaret Barrock Lecture in Criminal Law)

Rise of the Machines: Human-Like Artificial Intelligence, Robotics, and the Reprogramming of Law, 88 Fordham Law Review 381-404 (2019) (Symposium Foreword)   

Neuroscience and the Personalization of Criminal Law, 86 University of Chicago Law Review 359-401 (2019)

Changing Law’s Mind, 26 Perspectives (ABA Commission on Women in the Profession) (April 9, 2018), available at https://www.americanbar.org/groups/women/publications/perspectives/2018/winter/changing-laws-mind.html

Courting Abolition, 130 Harvard Law Review 1827-76 (2017) (Book Review) (reviewing Carol Steiker and Jordan Steiker, Courting Death: The Supreme Court and Capital Punishment (2016))  

Concocting Criminal Intent, 105 Georgetown Law Journal 323-78 (2017) (excerpted in The Wrongful Convictions Reader. Durham, N.C.: Carolina Academic Press 270-72 (Russell D. Covey & Valena E. Beety eds., 2019))  

How Prosecutors and Defense Attorneys Differ in their Use of Neuroscience Evidence, 84   Fordham Law Review 453-79 (2016) (symposium on “Criminal Behavior and the Brain: When Law and Neuroscience Collide”) 

Foreword to Criminal Behavior and the Brain: When Law and Neuroscience Collide, 84  Fordham Law Review 399-422 (2016), at https://fordhamlawreview.org/symposiumcategory/criminal-behavior-and-the-brain-when-law-and-neuroscience-collide/   

The Myth of the Double-Edged Sword:  An Empirical Study of Neuroscience Evidence in Criminal Cases, 56 Boston College Law Review 493-551 (2015)

 

**The Neuroscience Study is also the topic of Professor Denno’s forthcoming book, Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively, to be published by Oxford University Press. The book will provide readers with a foundation in both the legal doctrine and neuroscience and then use that bridge to question the criminal law’s underlying principles and practice.  Such an examination will follow a case from its start to finish after a defendant is sentenced. The intersection of law and neuroscience is a thriving topic; this book will stand out by providing pioneering real-world insights across a broad spectrum of topics drawn from a detailed analysis of the Study’s vast dataset. The findings revealed in Changing Law’s Mind have implications that extend beyond the legal system altogether.   

Scholarship: Lethal Injections

Science, Law, and Lethal Injection

Lethal injection, the most common method of execution in the United States, is at an impasse. Despite three United States Supreme Court decisions upholding particular lethal injection protocols,[1] inmates continue to challenge this method on the grounds that it is inhumane and unconstitutional, and states continue to cling to scientifically uninformed procedures to ensure the death penalty's survival generally.  Many of the current lethal injection challenges pertain to questions concerning an inmate's degree of conscious suffering during the drug-injection process, especially in light of the extraordinary amount of experimentation that states have engaged in over the decades. 

Professor Denno writes, testifies, and conducts research on lethal injection.  She started her work in the early 1990s, yet her efforts have continued unabated over the years.  Indeed, the problems associated with lethal injection litigation fit squarely within the Neuroscience and Law's focus on matters about the brain and nervous system.

The following list of publications (from 1994-2020) documents Professor Denno's past and ongoing study of lethal injection issues.  Her curriculum vitae (posted on her Fordham Law School website) provides more details on her expert testimony and other kinds of death-penalty-related activities. 
 

Book Chapters and Contributions

Back to the Future with Execution Methods, in The Eighth Amendment and its Future in a New Age of Punishment.  New York:  Cambridge University Press 212-233 (Meghan J. Ryan & William W. Berry III, eds. 2020)

Execution Methods in a Nutshell, in Routledge Handbook on Capital Punishment. New York: Routledge 427-445 (Robert M. Bohm & Gavin M. Lee, eds. 2018)

America's Experiment with Execution Methods, in America's Experiment with Capital Punishment:  Reflections on the Past, Present, and Future of the Ultimate Penal Sanction.  Durham, North Carolina: Carolina Academic Press 707-725 (Charles S. Lanier, William J. Bowers, James R. Acker, eds. 2014) (third edition)

Electrocution, in Encyclopeadia Britannica Online (2011), at www.britannica.com

Gas Chamber, in Encyclopeadia Britannica Online (2011), at www.britannica.com

Lethal injection, in Encyclopeadia Britannica Online (2011), at www.britannica.com

For Execution Methods Challenges, the Road to Abolition is Paved with Paradox, in The Road to Abolition?  The Future of Capital Punishment in the United States.   New York: New York University Press 183 - 214 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2009)

When Willie Francis Died:  The ADisturbing@ Story Behind One of the Eighth Amendment=s Most Enduring Standards of Risk,  in Death Penalty Stories.  New York: Foundation Press 17-94 (John H. Blume & Jordan M. Steiker eds., 2009)

The Future of Execution Methods, in The Future of America=s Death Penalty: An Agenda for the Next Generation of Capital Punishment Research.   Durham: Carolina Academic Press 483-97 (Charles S. Lanier, William J. Bowers, James R. Acker eds., 2009)

Electrocution, in Encyclopeadia Britannica Online (2007), at http://www.britannica.com

Gas Chamber, in Encyclopeadia Britannica Online (2007), at http://www.britannica.com

Lethal injection, in Encyclopeadia Britannica Online (2007), at http://www.britannica.com

Death by Lethal Injection is Inhumane, in Current Controversies:  Capital Punishment. Farmington Hills, Michigan: Thomson Gale 50-58 (Paul G. Connors ed., 2007)

Lethally Humane? The Evolution of Execution Methods in the United States, in America's Experiment with Capital Punishment:  Reflections on the Past, Present, and Future of the Ultimate Penal Sanction.  Durham: Carolina Academic Press 693-761 (James Acker, Robert Bohm, & Charles Lanier eds., 2d ed., 2003)

Execution and the Forgotten Eighth Amendment, in America's Experiment with Capital Punishment:  Reflections on the Past, Present, and Future of the Ultimate PENAL SANCTION.  Durham: Carolina Academic Press 547-77 (James Acker, Robert Bohm, & Charles Lanier eds.,1998)

Articles and Essays

Physician Participation in Lethal Injection, 380 New England Journal of Medicine 1790-91 (2019)

Courting Abolition, 130 Harvard Law Review 1827-76 (2017) (Book Review) (reviewing Carol Steiker and Jordan Steiker, Courting Death: The Supreme Court and Capital Punishment (2016))  

The Firing Squad as a "Known and Available Method of Execution" Post-Glossip, 49 University of Michigan Journal of Law Reform 749-93 (2016) (symposium on "At a Crossroads:  The Future of the Death Penalty")

Lethal Injection Chaos Post-Baze, 102 Georgetown Law Journal 1331-1382 (2014) (cited in Glossip v. Gross, 135 S. Ct. 2726 (2015), by Justice Sotomayor) (cited in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), by Justice Sotomajor)

Introduction to The Lethal Injection Debate: Law & Science, 35 Fordham Urban Law Journal 701-33 (2008)

Perspective Roundtable: Physicians and Execution B Highlights from a Discussion of Lethal Injection, 358 New England Journal of Medicine 448-51 (2008) (with Atul Gawande, Robert D. Truog & David Waisel) (cited in Baze v. Rees, 553 U.S. 35, 68 (2008), by Justice Alito).  

The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Fordham Law Review 49-128 (2007) (cited in Baze v. Rees, 553 U.S. 35, 52 n.2 (2008), by Chief Justice Roberts; id. at 66, by Justice Alito; id. at 74 n.5, by Justice Stevens; id. at 108, by Justice Breyer) (cited in Glossip v. Gross, 135 S. Ct. 2726 (2015), by Justice Sotomayor) (cited in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), by Justice Gorsuch)

Death Bed, 124 TriQuarterly  Journal 141-68 (2006), reprinted (in part) in Current Controversies:  Capital Punishment. Farmington Hills, Michigan: Thomson Gale 50-58 (Paul G. Connors ed., 2007)

When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio State Law Journal 63-260 (2002) (cited in Baze v. Rees, 553 U.S. 35, 76, by Justice Stevens; id. at 110-11, by Justice Breyer) (cited in Arthur v. Dunn, 137 S. Ct. 725, by Justice Sotomayor, dissenting)

Adieu to Electrocution, 26 Ohio Northern University School of Law 665-88 (2000) (symposium)

Capital Punishment and the Human Rights Norm, 9 Criminal Law Forum 171-87 (1999) (review essay)

Getting to Death:  Are Executions Constitutional? 82 Iowa Law Review 319-464 (1997) (cited in Baze v. Rees, 553 U. S. 35, 41, 42 (2008), by Chief Justice Roberts)

Is Electrocution an Unconstitutional Method of Execution?  The Engineering of Death Over the Century, 35 William and Mary Law Review 551-692 (1994) (cited in Arthur v. Dunn, 580 U.S. __ 2017, by Justice Sotomayor, dissenting) 

Opinion Pieces

"Groundhog Day" Indeed, Scotus Blog (June 30, 2015), available at http://www.scotusblog.com/2015/06/symposium-groundhog-day-indeed/

Kill Lethal Injection and Bring Back the Firing Squad, Time Magazine (April 28, 2015), available at http://time.com/author/deborah-w-denno/

Should Executions be Televised?, Encyclopeadia  Britannica BLOG (August 16, 2011), available at http://www.britannica.com/blogs/2011/08/should‑executions‑be‑televised/

The State of Capital Punishment: 5 Questions for Law Professor Deborah Denno, Encyclopeadia Britannica BLOG (August 16, 2011), available at http://www.britannica.com/blogs/2011/08/state‑capital‑punishment‑deborah‑denno/

Ohio=s Perverse First Place, Huffington Post (December 9, 2009), available at http://www.huffingtonpost.com/deborah-w-denno/ohios-perverse-first-plac_b_385808.html

Lethal Injection: Time to Find Alternatives, National Law Journal 22 (May 29, 2006) 

Bucklew v. Precythe, 139 S. Ct. 112 (2019); Glossip v. Gross, 135 S. Ct. 2726 (2015); Baze v. Rees, 553 U.S. 35 (2008).

Advisory Board

NEUROSCIENCE AND LAW CENTER’S ADVISORY BOARD MEMBERS

John R. Costantino, Esq.
Michael Flomenhaft, Esq.
The Honorable John F. Keenan, Esq.
Ellen Koenig, Esq.
Donald W. Pfaff, Ph.D.
Victoria Phillips, Ph.D.
Evangeline Shih, Esq.
Kenneth Sonnenfeld, Ph.D., Esq.

 

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