Document Type

Article

Publication Date

2016

Keywords

Mind-dependence, Dualism, Emotional distress

Organizational Units

Sturm College of Law

Abstract

Even while we widely recognize legal liability for physical injury, we frequently discount mental, emotional, and psychological injury. We disfavor tort liability for emotional distress; we prohibit prisoners from suing for purely psychological injuries; and we tax the damages victims of emotional injury receive even while leaving damages for physical injury untaxed. This Article argues that neuroscientific, psychological, and technological advances challenge our traditional ideas about the set of injuries that are possible and that merit legal redress. The Article goes on to contend that, while these advances challenge our traditional ideas, they do not inevitably overturn traditional distinctions within tort law. Rather, they present the task of critically examining and clarifying the normative foundations of distinctions we have historically taken for granted, and considering whether those distinctions survive that searching examination. Part I defines what I call “mind-dependent” injury and presents a set of test cases that challenge current legal approaches to injury and compensation, and discusses the neuroscientific, psychological, and technical underpinnings that moved these cases from science fiction into scientific reality. Part II reviews and examines several legal contexts that distinguish different types of injury and that provide legal remedies for some but not others. Part III considers normative justifications that might be offered for this differentiation, particularly in light of the new information we have. Ultimately, I argue that while new knowledge may require us to reevaluate the distinctions we traditionally have drawn, it does not completely undermine the possibility of normative distinctions between different types of injury. However, it challenges us to better defend those distinctions and ultimately should lead us to abandon the bifurcation between “emotional” and “physical” injuries in favor of a more nuanced approach.

Publication Statement

Originally published as Govind Persad, Law, Science, and the Injured Mind, 67 Ala. L. Rev. 1179 (2016).

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