Cornell Law Review

In Texas Department of Housing and Community Affairs v. Inclusive Communities,^{11. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015).} a case that considered durative confounding of the Fair Housing Act,^{22. Fair Housing Act, 42 U.S.C. 3601 (1968).} the United States Supreme Court held that even in the absence of discernible discriminatory intent, disparate impact produced by policy or practice may warrant remedy.^{33. 135 S. Ct. at 2516–26.} Writing for a 5-4 majority, Justice Anthony Kennedy referenced “unconscious prejudices” and “disguised animus,” pointing to a demarcation between mentation and action, concluding that the former is often inscrutable—to the subject and to external evaluators alike.^{44. Id. at 2522.}

Less than a year following Inclusive Communities, researchers showed that it is possible to “read” thoughts based on neural activity alone.^{55. Jesse Rissman et al., Decoding fMRI Signatures of Real-world Autobiographical Memory Retrieval, 28 J. COGNITIVE NEUROSCIENCE 604, 604 (2016).} Looking at brain scans, the researchers were able to determine—with over 90% accuracy—whether participants were seeing a presently viewed face for the first time, a matter of much import for criminal identifications.^{66. Id. at 605.} Slight experimental progress would entail impingement on concerns intimate with Inclusive Communities: if there is a question of discriminatory intent, don’t look to disparate impact, a test that is both over-inclusive (non-discriminatory policies and practices, by statistical variance alone, will occasionally have disparate impact) and under-inclusive (many discriminatory actors may act ineffectually). Look instead to neural activity, where proof of intent, and not just evidence, is located. Mind and body, the theory goes, are one.

U.S. courts have long cordoned off mind from body. In criminal law, most convictions require both actus reus (literally, “guilty act”) and mens rea (“guilty mind”). Similar distinctions have been made in rulings concerning compulsion and in the realm of tortious harms. The idea undergirding such distinctions arguably is one of mind-body dualism: that the mental and the physical, while equally real, are not able to be assimilated.^{77. See generally Dov Fox & Alex Stein, Dualism and Doctrine, 90 IND. L.J. 975 (2015) (providing an overview of mind-body dualism in U.S. law).} In other words, our thoughts are rather different than the world we see and touch, and it is unclear whether our thoughts are—or even can be—part of that physical world. Indeed, dualism in U.S. law is as old as the U.S. legal system itself.^{88. Id.}

Recent advances in neuroscience have influenced thinking on dualism and are precipitating changes in legal scholarship and jurisprudence.^{99. Martha J. Farah,Neuroethics: The Practical and the Philosophical, 9 TRENDS IN COGNITIVE SCI. 34, 38–39 (2005).} It has been argued that the distinction between mind and body is fallacious^{1010. See id.} and that dualist notions in the law are obsolete.^{1111. Fox & Stein, supra note 7, at 975.} In addition, these advances in neuroscience have led to concerns that we are at grave risk of privacy invasions and other rights violations.^{1212. See, e.g., Nita A. Farahany, Incriminating Thoughts, 64 STAN. L. REV. 351, 353 (2012).}

In Part I, this Essay examines dualism and its philosophical meaning. Part II extends the discussion to dualism as glimpsed in U.S. jurisprudence. Part III discusses advances in neuroscience and what they mean for U.S. law. In particular, the ramifications for dualism in the law and for matters of privacy are discussed. Part IV explicates philosophical reasons for continuing the dualism legal doctrine. In Part V, it is argued that both the dualist landscape and neuroscientific advances have been poorly understood. Brain scans do not yield proof but rather new forms of evidence. As a result, the gains from neuroscience are less significant than what has been widely surmised. Equally important, the potential for misuse of neuroscientific technology is less threatening than what has been widely becried. The Essay concludes with implications for U.S. law in the near future.

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