Brooklyn Law School professor Adam J. Kolber's paper "The Experiential Future of the Law" was recently published in the Emory Law Journal. The paper asks whether (and when) the law will take account of fMRIs and other tools that create quantitative indicators of subjective experience -- that is, what happens when someone claims that they can tell you how much pain they've experienced, and compare that to the pain that someone else in the same situation might experience?
Kolber points out that this question is relevant to crime and punishment, whether you're someone who wants to be sure that the person who committed the crime is punished in a way that's commensurate with the pain he caused; or whether you believe that punishments should be calculated to be bad enough to deter criminals.
Subjective experience is key to both questions, but the legal issues are sure to be thorny. If you're being sued for "pain and suffering" after your negligence caused someone's broken nose, should you be allowed to introduce evidence showing that the victim has an unusually high pain threshold and ask the jury to reduce the damages accordingly? Should state prosecutors be able to show that a convicted criminal has a high tolerance for incarceration and ask for a longer sentence to ensure that he suffers as much as a comparable criminal with a lower tolerance and a shorter sentence?
In this Article, I describe some of the ways in which new technologies are shifting the way we measure experiences and will continue to do so more dramatically over the next thirty years. I discuss in general terms how new technologies may improve our assessments of physical pain, pain relief, emotional distress, and a variety of psychiatric disorders. I also discuss more particular applications of such technologies to assess whether: (1) a patient is in a persistent vegetative state, (2) a placebo treatment relieves pain, (3) an alleged victim has been abused as a child, (4) an inmate being executed is in pain, (5) an interrogatee has been tortured, and others.
My central claim is that as new technologies emerge to better reveal people's experiences, the law ought to do more to take these experiences into account. In tort and criminal law, we often ignore or downplay the importance of subjective experience. This is no surprise. During the hundreds of years in which these bodies of law developed, we had very poor methods of making inferences about the experiences of others. As we get better at measuring experiences, however, I make the normative claim that we ought to change fundamental aspects of the law to take better account of people's experiences.