Bridging Developmental Neuroscience and the Law: Child-Caregiver Relationships

Ross A. Thompson

Volume 63, Issue 6, 1443-1468

Advances in neuroscience are changing understanding of the biological foundations of human development and have implications for legal analysis. As with any period of rapid scientific progress, however, new ideas are subject to misinterpretation and errors in application. This Article offers guidance on how to avoid such problems and consider carefully the applications of developmental neuroscience to legal policy and practice, with a particular emphasis on caregiver-child relationships. Three principles are discussed. First, the most confident applications of developmental neuroscience to legal policy occur when the conclusions of neuroscience are consistent with those of behavioral research. This is because their convergence across different levels of analysis strengthens confidence in their validity. Concerning caregiver-child relationships, studies of brain and behavior are consistent in emphasizing the importance of early experience, the significance of caregiving quality for buffering stress, and the enduring consequences of early adversity. Second, complex interactions between brain maturation and experience over time are likely to be typical, not exceptional, in the development of competencies relevant to legal policy and practice. The development of “responsibility” is, for example, a dynamic process involving maturation of multiple brain areas interacting with experiential history. Third, applications of developmental neuroscience to law and policy must take seriously the importance of brain plasticity and its implications for children’s behavioral adaptation to new opportunities. Neuroplasticity accounts for the efficacy of preventive and intervention efforts targeted to children in adversity, but it also underscores the biological and economic benefits of beginning early in life when brain plasticity is greatest.

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The Relevance of Immaturities in the Juvenile Brain to Culpability and Rehabilitation

Beatriz Luna

Volume 63, Issue 6, 1469-1486

The overreaching aim of this Article is to describe how developmental cognitive neuroscience can inform juvenile law. Fundamental to culpability and responsibility is the ability to effectively execute voluntary executive behavior. Executive function, including cognitive control and working memory, has a protracted development with key aspects continuing to mature through adolescence. These limitations in executive control are due in great part to still maturing brain processes. Gray and white matter changes are still becoming established in adolescence, enhancing efficiency and the speed of brain processing supporting executive control. Dopamine, a neurotransmitter that underlies reward processing and learning, peaks in adolescence—supporting known increases in sensation seeking but also in adaptable learning. Functional Magnetic Resonance Imaging (“fMRI”) studies show that adolescent limitations in recruiting brain systems that support response planning, error processing, the ability to sustain an executive state, and top-down prefrontal executive control of behavior underlie limitations in executive control in adolescence. Moreover, adolescents show over-reactivity to reward incentives, thus engaging response systems that may contribute to impulsive responses in situations with high motivation. Neurobiological evidence indicating that adolescence is a transitional stage of limited executive control in the context of increased vulnerability to sensation seeking can inform culpability, long-term sentencing, and greater amenability for rehabilitation. Finally, it is important to note that executive control, while limited in its efficiency, is available in adolescence, and given time to deliberate with guidance from mature adults, adolescents can make responsible decisions.

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Developmental Neuroscience, Children’s Relationships with Primary Caregivers, and Child Protection Policy Reform

Lois A. Weithorn

Volume 63, Issue 6, 1487-1553

Empirical research has confirmed that the harms of child maltreatment can affect almost every area of an individual’s functioning and can reverberate across relationships, generations, and communities. Most recently, investigators at the U.S. Centers for Disease Control have called for policymakers to prioritize prevention and amelioration of child maltreatment in a manner consistent with its approach to other major public health problems.This Article—an outgrowth of a panel on Relationships with Caregivers and Children’s Neurobiological Development, which took place at a recent symposium, Law and Policy of the Developing Brain, co-sponsored by the University of California’s Hastings College of the Law and Stanford Law School—addresses some of the potential policy applications of research on the neurobiology of attachment, maltreatment, and trauma, with particular attention to the government’s articulated mission of safeguarding children’s welfare.

Part I of this Article address the state’s relationship with children and families, and the law’s recognition of the centrality of children’s primary caregivers—typically their parents—to children’s well-being. Part II critiques certain aspects of our legal system’s predominant response to child maltreatment. Part III reviews recent research on the effects of child maltreatment, with special attention to developmental neurobiological findings. Part IV addresses some implications of these findings for child protection policy and sets forth recommendations that are consistent with the empirical research and responsive to the critiques set forth in Part II.

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The Neurobiology of Attachment to Nurturing and Abusive Caregivers

Regina M. Sullivan

Volume 63, Issue 6, 1553-1570

Decades of research have shown that childhood experiences interact with our genetics to change the structure and function of the brain. Within the range of normal experiences, this system enables the brain to be modified during development to adapt to various environments and cultures. Experiences with and attachment to the caregiver appear particularly important, and recent research suggests this may be due, in part, to the attachment circuitry within the brain. Children have brain circuitry to ensure attachment to their caregivers. Attachment depends on the offspring learning about the caregiver in a process that begins prenatally and continues through most of early life. This attachment serves two basic functions. First, attachment ensures the infant remain in the proximity of the caregiver to procure resources for survival and protection. Second, attachment “quality programs” the brain. This programming impacts immediate behaviors, as well as behaviors that emerge later in development. Animal research has uncovered segments of the attachment circuitry within the brain and has highlighted rapid, robust learning to support this attachment. A child attaches to the caregiver regardless of the quality of care received, even if the caregiver is abusive and neglectful. While a neural system that ensures attachment regardless of the quality of care has immediate benefits, this attachment comes with a high cost. Traumatic experiences interact with genetics to change the structure and function of the brain, compromising emotional and cognitive development and initiating a pathway to pathology. Neurobiological research on animals suggests that trauma during attachment is processed differently by the brain, with maternal presence dramatically attenuating the fear center of the brain (amygdala). Thus, the immaturity of the brain combined with the unique processing of trauma may underlie the enduring effects of abuse, which remain largely hidden in early life but emerge as mental health issues in periadolescence.

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Creating a Clearinghouse to Evaluate Environmental Risks to Fetal Development

Kate E. Bloch

Volume 63, Issue 6, 1571-1604

In this Article, the Author explores current challenges to accessing and evaluating information about environmental risks to fetal development. She investigates these challenges within the context of the existing regulatory framework for environmental risks. As a result of this analysis, she highlights the need for and proposes creating an independent non-profit umbrella organization—a clearinghouse—to collect, distill, interpret, and make accessible the research on environmental threats to fetal development and to apply that research to evaluating relevant U.S. policy. The Author defines broadly the research on fetal development that lies within the charge of the clearinghouse to include not only research about chemical toxicant risks but also research involving environmental risks related to criminal and social justice policies.

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Fetal Risks of Environmental Chemicals: The Motherisk Approach to the Organic Mercury Fish Consumption Scare

Zahra Jahedmotlage, Kathie Schoeman, John Bend, & Gideon Koren

Volume 63, Issue 6, 1605-1618

While fish is rich in essential nutrients and women are encouraged to consume fish products, fish may contain methylmercury, which is an established neurotoxin to the fetus. Not surprisingly, there are high levels of anxiety among women of reproductive age regarding fish consumption. To be able to counsel women in this complex area, we have developed a two-step program: (1) probing women of reproductive age for their perceptions regarding the safety of consuming fish, and (2) piloting an intervention program with women of reproductive age to ensure mercury levels are below the recently proposed Lowest Observable Adverse Effect Level. This method may be used as a template to improve the understanding of clinicians, legal experts, and policy makers on the fetal risk-benefit ratio of environmental chemicals.

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Poor Women and the Protective State

Khiara M. Bridges

Volume 63, Issue 6, 1619-1626

This Article puts poor, pregnant women’s current experience with the state into conversation with the science of prenatal and early childhood brain development and looks at the effect on women’s autonomy of government regulation of individual behaviors that may harm fetal brain development. Drawing upon ethnographic fieldwork with poor, pregnant women that reveals that indigent women’s current experience with the regulatory state is one in which their autonomy is already grossly compromised, this Article argues that the infringement on vulnerable populations’ privacy rights is guaranteed should the government attempt to manage or reduce assaults on prenatal brain development through the regulation of individual behaviors. Regulations that focus on individuals should be drafted with a focus on social justice in order to protect the autonomy of poor women affected by these laws. This Article suggests, however, that a better approach is regulation on the macro-level—through legislation that requires product testing and prevents manufacturers from introducing certain chemicals into the marketplace or environment.

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Note – The Government Can Read Your Mind: Can the Constitution Stop It?

Mara Boundy

Volume 63, Issue 6, 1627-1644

Functional Magnetic Resonance Imaging (“fMRI”) technology produces a four-dimensional map of brain activity, such as perception, memory, emotion, and movement. fMRI scans track the flow of blood to the various regions of the brain in real time and reveal the subject’s response to particular stimulus. For example, an fMRI scan might reveal blood flow to a subject’s memory center in response to a picture of the house in which she was raised. On the one hand, this technology seems to produce a model of a physical attribute and offer insight into the workings of the human brain. On the other, fMRI scans seem to read our minds and disclose our thoughts. The full range of applications of fMRI technology is just emerging, but proponents have already sought its admission in court as a type of lie detector or credibility builder. If fMRI scans are incorporated into the government’s investigatory process, constitutional safeguards should be in place to protect the fundamental right of privacy and an individual’s freedom to decide whether to assist the state. This Note proposes that the results of fMRI scans are testimonial evidence: first, because the scans reveal the subject’s knowledge or beliefs, and second, because this classification ensures that fMRI scan results are afforded the protection of the Fifth Amendment. If fMRI scans are privileged under the Fifth Amendment, the government cannot compel an individual to submit to the scan and reveal the contents of her mind.

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Note – Corporate Codes of Conduct: Binding Contract or Ideal Publicity?

Haley Revak

Volume 63, Issue 6, 1645-1670

Over the last twenty years, most multi-national corporations have adopted corporate codes of conduct, partially due to incentives from the U.S. government. These self-imposed ethical credos set out basic policy standards to guide employees and officers, but they also serve to assure consumers that the products they purchase come from a principled organization. But as of yet, there has been no successful suit against a multinational corporation for violations of its code. Are these codes then nothing more than government-sanctioned golden publicity? Through the recent Doe v. Wal-Mart Stores, Inc. suit, this Note analyzes whether corporate codes of conduct are legally binding with regard to human rights violations at foreign supplier factories. After considering contract and tort theories of liability, as well as potential actions for violation of international treaties and false advertising, it remains unclear whether corporations can be legally held to their ethical claims. Ultimately, it may be most effective to look beyond the law—and the corporate code of conduct—in order to achieve justice for victims of human rights abuses abroad.

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