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Neuroscience and the law focus: what's the point of regulating advertising?
I have no doubt after reading the article entitled “The advertising effect – how do we get the balance of advertising right?” published today by Compass by Zoe Gannon and Neal Lawson that the major thesis of the authors that unregulated advertising is likely to be dangerous for society, and could have a massively detrimental effect.
I really liked this article, as I think that it is one of the few articles which seemed to have an understanding of the modern neuroscience involved in tackling a problem of huge cultural significance, maybe using legal measures. As someone who tends to read the introduction and conclusion of article, I found it most helpful that Gannon and Lawson summarized the gist of their argument successfully in the conclusion,
“If you go to an advertising company to sell a product or service their planners will strip the issue down to bare essentials before building a campaign around it. It is the essence of the message they are after, the essence of the advertising industry is that new technologies, new science and new psychology have put the industry increasingly out of social and political control. Advertising regulations now need to catch up with the reality of the advertising effect on us and our planet.”
On the other hand, I found Jackie Ashley’s response lacked any depth to an analysis of the problem from either a neuroscience or legal perspective (1). However, arguably, one of the most interesting enticing paragraphs begins with the sentence,
“Meanwhile neurologists are working out what images will trigger the buy button in our brains.”
Gannon and Lawson provide that “machines are being used to shed light on brain mechanisms that play a central role in consumer behaviour: circuits that underlie reward, decision making, motivation, emotions and the senses of self.” This would indeed seem to make sense, as the subjective experience of being the target of advertising probably has the same underlying neural basis as our euphoria on sex or drugs of abuse. Indeed, one of the many successes of neurological research in the last century has been to identy a neurobiological mechanism mediating behavior motivated by events commonly associated with pleasure in humans. These events are termed “rewards” and are viewed as primary factors governing normal behavior. The subjective impact of rewards (e.g., pleasure) can be considered essential (e.g., Young, 1959) or irrelevant (e.g., Skinner, 1953) to their effect on behaviour, but the motivational effect of rewards on behavior is now universally acknowledged by experimental psychologists.
In addition, the authors give due credit to one of the most important papers on the subject of “neuromarketing”, a relatively new field. A cognitive neuroscientist (Read Montague) postulated that, if people preferred the taste of Pepsi, the drink should have dominated the market. It didn’t. So in the summer of 2003, Montague gave himself a ‘Pepsi Challenge’ of a different sort: to figure out why people would buy a product they didn’t particularly like. Neuromarketing is effectively the study of the brain’s responses to ads, brands, and the rest of the messages littering the cultural landscape.
Montague had his subjects take the “Pepsi Challenge” while he watched their neural activity with a functional MRI machine, which tracks blood flow to different regions of the brain. Without knowing what they were drinking, about half of them said they preferred Pepsi. But once Montague told them which samples were Coke, three-fourths said that drink tasted better, and their brain activity changed too.
Coke “lit up” the medial prefrontal cortex (a part of the brain very much involved in higher cognitive processes). Montague’s hypothesis was that the brain was recalling images and ideas from commercials, and the brand was overriding the actual quality of the product. For years, in the face of failed brands and laughably bad ad campaigns, marketers had argued that they could influence consumers’ choices. The paper was a substantial contribution to the literature. Montague published his findings in the October 2004 issue of Neuron, and a new field of the neurosciences was born: neuromarketing. (1)
However, there are still some problematic unanswered questions from a neuroethics perspective.
(1) What effect did the Coke label have on the brain that the Pepsi label did not?
(2) What other evidence suggests that taste alone does not determine your favorite cola? Obesity is epidemic in America, and sugared soft drinks are one of the primary culprits.
(3) How might this research help doctors fight obesity?
(4) Suppose both the Coke and the Pepsi labels triggered the same reaction in the brain. What conclusion would you draw?
For a long time, marketing experts have relied on behavioral studies for guidance. In the USA, some companies are taking the practice several steps further, commissioning their own fMRI studies consistent with the research above. For example, in a study of men’s reactions to cars, Daimler-Chrysler has found that sportier models activate the brain’s reward centres as well as activating the area in the brain that recognizes faces, which may explain people’s tendency to anthropomorphize their cars. Steven Quartz, a scientist at Stanford University, is currently conducting similar research on movie trailers. And in the age of poll-taking and smear campaigns, political advertising is also getting in on the game. Researchers at the University of California, Los Angeles have found that Republicans and Democrats react differently to campaign ads showing images of the Sept. 11th terrorist attacks. Those ads cause the part of the brain associated with fear to light up more vividly in Democrats than in Republicans.
Gannon and Lawson in their scholarly article appear to develop their case that, if unregulated, this is dangerous:
“Excessive advertising turns a never ending series of new needs into new wants, and crowds out the space for other visions of the good society, where time and relationships matter more than what we buy. Advertising encourages us to run ever faster on the treadmill of modern consumer life; in so doing it contributes to growing consumer debt, a number of social problems which this report discusses, and to the very real prospect of climate change beyond our ability to manage. So the report calls for a tax on all advertising that encourages greater consumption to limit its scope and slow the pace of growth for the good of society and the future of the planet.”
There are in fact seven ways which Gannon and Lawson perceive as perhaps being capable of solving the problem: e.g. banning advertising in public spaces, controling advertising on the Internet, tax advertising, and probably, most contentiously, introduce statutory regulation of the advertising industry. This would be yet another example of where cognitive neuroscience meets the law in some way – exciting times indeed. If advertising is so rampant, should we spend money researching it like cancer?
References
(1) Jackie Ashley. Let’s take on the ads that fuel such waste, debt and misery. The Guardian, Sunday 24th February 2009.
(2) McGlure SM, Li, J, Tomlin, D, Cypert KS, Montague LM, Montague PR. Neural correlates of behavioral preference for culturally familiar drinks. Neuron 2004 Oct 14;44(2):379-87.
Neuroscience and the law: the mens rea of the criminal mind
“Law in its earliest days tries to make men answer for all the ills of an obvious kind that their deeds bring upon their fellows” (Pollock and Maitland, A history of English law, 3rd edition 1899)
The law has for a long time been wrangling with need to identify the “ills of an obvious kind”, as they are needed to work out whether a criminal offence has taken place. The constituent elements of the criminal act can normally be easily identified for any criminal offence. In England and Wales, the terminology is as follows. The “actus reus” is the act of the crime itself, such as the fraud, theft or murder. The “mens rea” – the Latin term meaning “guilty mind” – is usually (not always) one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in terms of Sir Edward Coke’s classic statement ‘actus non facit reum nisi mens sit rea’ – this translates as ‘the act does not make a person guilty unless their mind is also guilty’.
Despite some heated discussions of the definition of the mens rea particularly during of the course of last century, the basic importance of the mens rea is not in dispute any more. For example, in the case of R v Tolson [1889]: “Ordinarily speaking, a crime is not committed if the mind of the person doing the act in question be innocent” (1). Furthermore,in his seminal work, Sir James Stephen took this idea further, reflecting on his understanding of classical law:
“The maxim is sometimes said to be a fundamental principle of the whole criminal law, but I think that, like many other Latin sentences supposed to form part of the Roman law, the maxim not only looks more instructive than it really is, but suggests fallacies which it does not precisely state. It is frequently, though ignorantly, supposed to mean that there cannot be such a thing as legal guilt where there is no moral guilt, which is obviously untrue, as there is always a possibility of a conflict between law and morals.” (2)
Fundamental to the “criminal mind” in law is therefore intention. Frustratingly, intention has been given never been given any statutory definition by the judiciary, and its meaning must therefore be worked from a series of judicial decisions. A number of different words are used to express intention in the various criminal laws, and whilst the full definition of intention is clearly outside of the scope of this article, it is worth noting that intention can be either “direct”, where the defendant intends a particular consequence of their act; or it can be “oblique”, where the defendant foresees the certainty of a consequence of their act even if it is not their main objective. In some unique, transferred malice occurs, this when the intention to harm one individual inadvertently causes a second person to be hurt instead. In other words, the brain must somehow be capable of making an appropriate intention, and how the brain might do this voluntarily or not will be the subject of future articles.
Back to the jurisprudence of the mens rea, the nature of the criminal decision has, however, been clarified by the case law of England. David Ormerod in Smith and Hogan’s Criminal Law provides that, “While there is a moral basis for the notions of fault and degrees of fault in the criminal law, legal “fault” does not necessarily involve moral blameworthiness according to the English case of R v Kingston [1994] from the House of Lords.” In this textbook, sometimes cited itself in judgments in the House of Lord, Lord Mustill is quoted from the judgment of that case which provides that, “I would therefore reject that part of the respondent’s argument which treats the absence of moral fault on the part of the appellant as sufficient in itself to negative the essential mental element of the offence.”
That the moral aspect of an action is irrelevant may seem odd as it can be argued that moral responsibility is a particularly relevant area of philosophy and psychology to the law and the criminal justice system (5). Philosophical reflection on moral responsibility has historically relied upon one of two broad interpretations of the concept: (a) the merit-based view, according to which praise or blame would be an appropriate reaction toward the candidate if and only if she merits—in the sense of ‘deserves’—such a reaction; or (b) the consequentialist view, according to which praise or blame would be appropriate if and only if a reaction of this sort would likely lead to a desired change in the agent and/or her behavior. Versions of the consequentialist view have continued to further concept of moral responsibility, and have increasingly focused on offering alternative versions of the merit-based view and questioning the assumption that there is a single unified concept of moral responsibility (6). Therefore, recent contributions from cognitive neuroscience and moral responsibility have a potentially important role in evolving further our definition of the mens rea in law.
References:
(1) 23 QBD: 185-6
(2) History of the Criminal Law (1883)
(3) R v Kingston 1994 3 All Er 33 [House of Lords]
(4) Smith and Hogan’s Criminal Law. Ed. David Ormerod 9th Ed. Oxford University Press: Oxford, UK.
(5) Dennett, Daniel, 2003. Freedom Evolves (New York: Viking Press).
(6) Strawson, PF (1974) Freedom and Resentment. Proceedings of the British Academy 48; Reprinted in Freedom and Resentment and Other Essays. Oxford 1974, pp. 1-25. References are to the reprinted version.
Neuroscience and the law – the electrophysiology of free will
A synthesis of evidence from various methodological approaches have informed on the cognitive neuroscience of free will. Undoubtedly, the most seminal experiment in this field was conducted by Benjamin Libet in the 1980s, in which he asked each subject to choose a random moment to flick her wrist while he measured the associated activity in her brain (in particular, the build-up of electrical signal called the readiness potential).
This figure provides Libet’s original published results.
This picture shows the readiness potentials (RP) preceding self-initiated voluntary acts. Each horizontal row is the computer-averaged potential for 40 trials, recorded by a system with an active electrode on the scalp, either at the midline-vertex (Cz) or on the left side (contralateral to the performing right hand) approximately over the motor/premotor cortical area that controls the hand (Cc). For subjects G.L., S.B. and B.D., this instruction was given at the start of all sessions. Nevertheless, each of these subjects reported some experiences of loose preplanning in some of the 40-trial series; those series exhibited type I RPs rather than type II.
Although it was well known that the readiness potential preceded the physical action, Libet asked whether the readiness potential corresponded to the felt intention to move. To determine when the subject felt the intention to move, he asked the subject to watch the second hand of a clock and report its position when she felt that she had the conscious will to move. Libet found that the unconscious brain activity leading up to the conscious decision by the subject to flick her wrist began approximately half a second before the subject consciously felt that she had decided to move. Libet’s findings suggest that decisions made by a subject are first being made on a subconscious level and only afterward being translated into a “conscious decision”, and that the subject’s belief that it occurred at the behest of her will was only due to her retrospective perspective on the event. He showed that the preparatory brain activity that occurs as you make a ‘free’ choice about something is actually made a few hundred milliseconds before the decision reaches your conscious awareness. In other words, your brain makes a decision before you do, and ‘free will’ is an illusion. (1)
This interpretation appears to leave little room for conscious processes in the control of action—or so it might seem. Whilst there is some debate as to conscious processes cause actions, these data remain consistent with the idea that conscious processes could still exert some effect over actions by modifying the brain processes already under way. The fact that conscious awareness of intention precedes movement by a couple of hundred milliseconds means that a person could still inhibit certain actions from being made. This therefore means that inhibition is potentially more important than action in the control of action.
Further evidence also suggests that our subjective experience of the beginning of the movement must also come from some premotor process—something that takes place before the muscles themselves contract. Although some investigators have questioned the validity of the timing as judged by subjects in Libet’s experiment, his results have had considerable impact and have been interpreted as casting serious doubt on the existence of a mind-body chain of causation. Moreover, numerous other studies now confirm the phenomenon of anticipatory awareness of action. In an important variation of this task, Haggard and Eimer asked subjects to decide not only when to move their hands, but also to decide which hand to move. In this case, the felt intention correlated much more closely with the “laterakused readiness potential” (LRP), an ERP component which measures the difference between left and right hemisphere brain activity. Haggard and Eimer argue that the feeling of conscious will therefore must follow the decision of which hand to move, since the LRP reflects the decision to lift a particular hand. (2)
Furthermore, a recent study by Soon and colleagues (Soon et al., 2008) has replicated Libet’s results by using modern brain imaging techniques, a more accurate way of measuring decision making in the brain: They found that the outcome of a decision can be encoded in brain activity of prefrontal and parietal cortex up to 10 s before it enters awareness. The authors argued that this delay presumably reflects the operation of a network of high-level control areas that begin to prepare an upcoming decision long before it enters awareness. (3) Finally, related experiments have shown that neurostimulation could affect which hands people move, even though the experience of free will was intact. Ammon and Gandevia (1990) found that it was possible to influence which hand people move by stimulating frontal regions that are involved in movement planning using transcranial magnetic stimulation in either the left or right hemisphere of the brain. (4)
References
(1) Libet, B., Gleason, C.A., Wright, E.W., Pearl, D.K. (1983). Time of conscious intention to act in relation to onset of cerebral activity (readiness-potential). The unconscious initiation of a freely voluntary act. Brain. 106 (3):623–642.
(2) Haggard, P. and Eimer, M. (1999). On the relation between brain potentials and the awareness of voluntary movements. Experimental Brain Research 126, 128–133.
(3) Soon, CS, Brass M, Heinze, HJ,and Haynes, JD. Unconscious determinants of free decisions in the human brain. Nature Neuroscience 11, 543 – 545 (2008)
(4) Ammon, K. and Gandevia, S.C. (1990) Transcranial magnetic stimulation can influence the selection of motor programmes. Journal of Neurology, Neurosurgery and Psychiatry 53: 705–707.
Free will, neuroscience and the law
I very much welcome the document by the Royal Society on ‘Neuroscience and the law’. In a short series of articles, I consider the scope for synthesis in these disciplines.
The crux of the legal mens rea in many situations is an intention to act. Neuropsychological theories have offered a number of different theories mostly involving the frontal lobes, how this intention to act based on a decision takes place. One influential theory by Norman and Shallice (1986) proposed a computational model of the selection of routine actions based on competitive activation within a hierarchically organised network of action schemas. An explanation of an “intention to act” depends on a thorough analysis of the question of whether we possess “free will” requires that we take into account the process of exercising that will: the cognitive neuroscience of decision-making. Decision making, which reflects a tendency to think about the consequences of a planned act before engaging in that act.
In another view of how the mind and body might achieve decision-making, Damasio’s “somatic marker hypothesis” provides that, during the pondering of a decision, somatic states are triggered by primary or secondary inducers. Once induced, they participate in two functions. In one they provide a substrate for feeling the induced state. In the other they provide a substrate for influencing or biasing decisions. Most intriguing is that the presence of these somatic states and their influence on decision making and behavior need not be conscious. So while both conscious and unconscious knowledge are contributing to the process of choice, the fact that the generation of somatic states can guide us toward beneficial behaviors without any input from our conscious deliberations indicates that much behavior that seems to be “free will” may be determined by the routine operation of a healthy neural mechanism.
Within this framework, it is entirely possible that impulse control reflects inhibition of a pre-potent act (motor impulse control), or a pre-potent mental image/thought (attentional impulse control). The critical neural region for the mechanism of motor impulse control is the more posterior region of the ventromedial prefrontal cortex, i.e. that involving the anterior cingulate (2,3,4). The critical neural region for the mechanism of attentional impulse control is the lateral orbitofrontal and dorsolateral (inferior frontal gyrus) region (2,3,4). However, decision-making research is a double-edged sword in a conversation about rehabilitation. One the one hand, a deterministic view of the choice process seems to undermine the very idea of rehabilitation. On the other, the more we understand the brain, the greater our ability to design interventions that make the possibility of rehabilitation real for many whom the law writes off today.
Whilst it can be argued that “determined” and “inevitable” are not synonymous, it has been of interest whether abnormalities in free will are something that select individuals are born with. An interesting example of variations in genes that promote abnormal responses to fear inducing behaviors is that of Williams syndrome, a condition that has been recognized for very many years. (5) Aside from the striking physical features of this disorder—short stature, malformation of the heart, and distinctive facial markings— Williams children also possess unusual cognitive and behavioral capacities. They have IQs in the range of 40–100, yet frequently show normal linguistic competence, a heightened ability to recognize faces, and a profound love of music, sound and rhythm. The personality of children afflicted with Williams syndrome is not usual. They tend to be hypersocial, which may be caused in part by their heightened ability to recognize faces. This is a moot point. More significant than hypersociability, these children generally lack approach inhibition, a feature that is present in normal children and adults to varying degrees. Children with Williams Syndrome seem unable to differentiate between those who have kind and friendly intentions towards them and those who harbor evil intentions. This is comprehensively reviewed elsewhere. (6)
Moreover, there exist conditions, for example certain types of brain injury or long-term drug substance misuse, in which an individual can be said to have a disorder of the will. Examples such as these demonstrate that the idea of freedom of will on which our legal system is based is not supported by the neuroscience of decision making. The question of whether the average person who becomes involved with the legal system has ‘normal’ free will therefore becomes a highly relevant question. Though it is by no means true that all people who commit crimes are substance dependent or mentally ill, the fact that substance abuse and mental illness plays a role in the behavior of a large percentage. According to the UK Sainsbury Centre for Mental Health, approximately 70% of prisoners have either a psychosis, a neurosis, a personality disorder, or a substance misuse problem. (7)
On the other hand, other cases of impaired free will exist in neurological conditions exist that result in people essentially ignoring experiences of punishment (8). That the cognitive profile of violent offenders is so similar to that of patients with just these conditions makes us wonder how, whether and to what degree punishment is working as a deterrent with any particular person.
References
(1) Cooper, R, T Shallice. (2000) Contention scheduling and the control of routine activities. Cognitive Neuropsychology 17 (4), 297–338
(2) Bechara, A. (2003). Risky business: Emotion, decision-making and addiction. Journal of Gambling Studies, 19(1), 23–51.
(3) Bechara, A. (2004). Separate neural substrates underlie different mechanisms of performance monitoring and behavioral control. In M. Ullsperger, & M. Falkenstein (Eds.), Errors, conflicts, and the brain: Current opinions on performance monitoring (pp. 55–63). Dortmund: Max Planck Institute for Human Cognitive and Brain Sciences, Leipzig.-Munchen.
(4) Bechara, A., & Damasio, A. R. (2005). The somatic marker hypothesis: A neural theory of economic decision. Games and Economic Behavior, 52(2), 336–372.
(5) Albert Galaburda et al. (2001) Dorsal Forebrain Anomaly in Williams Syndrome, 58 Arch Neurol. 1865–1869. See also Allan L. Reiss et al., Brain Imaging in Neurogenetic Conditions: Realizing the Potential of Behavioral Neurogenetics Research, 6 Mental retardation. Developmental Disabilities Research Nev. 186–197 (2000).
Much of what we know about these mechanisms indicates that decision making is greatly influenced by implicit processes that may not even reach consciousness.
(6) The neuroscience of free will. Laurence Tancredi. Behavioral Sciences and the Law Behav. Sci. Law 25: 295–308 (2007)
(7) From the Inside Experiences of prison mental health care Graham Durcan. Sainsbury Centre for Mental Health.
(8) Decision Making and Free Will: a Neuroscience Perspective. Kelly Burns and Antoine Bechara.Behavioral Sciences and the Law. Behav. Sci. Law 25: 263–280 (2007)
@legalaware has a Ph.D. in cognitive neuropsychology from the University of Cambridge and a LL.M. in international legal practice from the College of Law.
