It is a great privilege to be part of this program honoring the late, wonderful Fred Schauer. I first met Fred after he had relocated to the University of Virginia, but we quickly became friends. Even before that, however, he had already become friendly with my brother Todd when they were both at Harvard, my brother as a law professor and the multi-talented Fred as a member of the faculties of both the Law School and the Kennedy School of Government. Fred and my brother first met when Todd became Dean of the J.D. Program at the Law School in the year 2000. Todd, wanting to get a better idea of the job of being an academic dean, went to see Fred, who was then Academic Dean of the Kennedy School. As Todd recalls it, it was a rainy day, and after a few pleasantries, he asked Fred to describe the essence of being a dean. Fred responded by walking to a window, pointing to the pouring rain, and saying to Todd, “See that rain? It’s your fault!”
Although in later years, I was privileged to become good friends with both Fred and his fantastic wife Bobbie, I want to focus my remarks not so much on Fred’s lively personality or his unquestionable brilliance, but on the originality of his thinking. To be frank, originality is not a long suit in the legal profession. We judges—perhaps because our common-law-derived legal system focuses on precedents and our analysis of laws and regulations is ever more textualist—tend to have trouble “looking outside the box,” so to speak. For everyday practitioners, concerned with solving their clients’ problems, “originality” largely consists of finding loopholes that can be logically supported. And as to members of the legal academy, even the so-called “theories” that increasingly occupy their attention are often more focused on public policy implications than on new perceptions. So, Fred’s gift for thinking about familiar legal issues in highly original ways was itself highly unusual.
But in the limited time I have here today, let me focus on just one example involving one of his lesser-known articles, “Can Bad Science Be Good Evidence? Neuroscience, Lie Detection, and Beyond,” which was published in the Cornell Law Review in 2010. The article grew out of Fred’s participation in the MacArthur Foundation’s Law and Neuroscience Project, in which both he and I were deeply involved. That Project, which continues to this day under the able leadership of Professor Owen Jones at Vanderbilt Law School, was and is concerned with the implications of discoveries in the rapidly advancing field of neuroscience for the Anglo-American system of law, with its heavy emphasis on mental states. Put simply, our legal system tends to assign moral fault to injurious actions taken with conscious intent, so the question of how to determine an actor’s intent becomes critical. And, much more generally, central not just to our system but to virtually every judicial system is determining whether a witness is lying or telling the truth.
Beginning in the early 2000s, some neuroscientists began to claim that a careful analysis of brain scans could show whether a witness was consciously lying or not. To give a simple example from one of the earliest experiments, the subjects were given playing cards, placed in fMRI brain-scanning machines, and then shown photos of playing cards. Subjects were then instructed that they would be rewarded with cash if they successfully concealed possession of a particular card. For example, if they were asked if they had the ace of spades, and the ace of spades was not in their possession, they would respond truthfully. But if they were shown the ten of hearts, and they had the ten of hearts, they would deny possession. When they did this, it turns out, the amount of activity in the parts of the brain associated with cognition and emotion both increased, and the experimenters hypothesized that such increases were associated with the act of lying. One might intuit from these results that, while a witness could not realistically be hooked up to a brain-scanning machine while testifying in court, he could be asked beforehand to give the same testimony while his brain waves were being simultaneously recorded, and a qualified neuroscientist could then determine whether or not he was being truthful. Several companies were then incorporated to market such brain-scan lie detection to the legal profession and other potential consumers.