Bioethics Blogs

With Sotomayor’s Elmore Dissent, Another Inroad for Neuroscience into Law

Roland Nadler

With the U.S. Supreme Court’s new term officially underway in October, the time has come for court-watchers to once again scrutinize the Justices’ every word for signs of impending developments in the law.  Myself, I’ve never had the confidence in my prognosticating ability to fill out a FantasyScotus bracket, fascinated though I am by the Court as an institution.  But to this autumnal flurry of tea-leaf reading I’ll just add one modest contribution: Justice Sotomayor’s dissent from the denial of certiorari in Elmore v. Holbrook tells us that some basic measure of neuroscientific literacy is going to become more of a necessity for criminal defense lawyers as time goes on.  Counsel who fail to inquire into their clients’ brains will increasingly run the risk that their legal assistance is later deemed ineffective.

In one sense, this is an easy prediction because it is already true.  Work by Nita Farahany and Ellen Koenig, among many others, tells us that neuroscience is — and should be — on the minds of attorneys who wish to avoid ending up on the wrong side of Strickland v. Washington.  All the same, seeing signs of this trend reaching the pages of the United States Reports feels like a significant step.

By way of summary: the petitioner in this case, Clark Elmore, spent much of his childhood and young adulthood being exposed to serious neurotoxins, including pesticides and Agent Orange.  By the time he was in his 20s, he was having clear difficulties functioning in society; a later series of tests would reveal that his capacity for “cognitive control,” that all-important function of the prefrontal cortex that exercises veto power over impulsive emotional behavior, was in the first (i.e.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.