Law, Evolution, and the Brain: Applications and Open Questions

Abstract

This essay discusses several issues at the intersection of law and brain science. If focuses principally on ways in which an improved understanding of how evolutionary processes affect brain function and human behavior may improve law's ability to regulate behavior. It explores sample uses of such "evolutionary analysis in law" and also raises questions about how that analysis might be improved in the future. Among the discussed uses are: 1) clarifying cost-benefit analyses; 2) providing theoretical foundation and potential predictive power; 3) assessing comparative effectiveness of legal strategies; and 4) revealing deep patterns in legal architecture. Throughout, the essay emphasizes the extent to which effective law requires: 1) building effective behavioral models; 2) integrating life science perspectives with social science perspectives; 3) considering the effects of brain biology on behaviors that law seeks to regulate; and 4) examining the effects of evolutionary processes on brain design.