84 UMKC L. Rev. 397 (2015-2016)
Neurolaw and Traumatic Brain Injury: Principles for Trial Lawyers

handle is hein.journals/umkc84 and id is 401 raw text is: 




     NEUROLAW AND TRAUMATIC BRAIN INJURY:
              PRINCIPLES FOR TRIAL LAWYERS

                                J. Sherrod Taylor*

         Traumatic  brain injury (TBI) spawned  the first branch of the neurolaw
revolution  in 1991.' Inspired  by the classic work Neurophilosophy,2  neurolaw
constituted a synthesis of law, medicine,  and rehabilitation that dealt with the
medicolegal  implications  of neurological injury-most   notably, acquired brain
damage.'     After  almost  twenty-five years,  neurolaw   continues  to  impact
neurological  injury litigation.4 Neurolaw, as originally conceived, now stands at
the frontier of law and neuroscience,  as a second  branch of neurolegal  inquiry
emerges.   Largely due  to the advent of improved neuroimaging  techniques  (e.g.,
functional magnetic  resonance  imaging  or jMRI),I this new prong   of neurolaw
explores   whether,  when,  and  how   brain science  should  be, and   will be,
incorporated  into legal proceedings. I In 2007, The John  D.  and Catherine  T
MacArthur   Foundation   established its Law and Neuroscience   Project and  now
generously  funds  much   important  research  in this new  branch  of neurolaw.
Additionally,   the  coursebook-Law       and   Neuroscience-offers    the  first
comprehensive   review of this branch.7
         This article examines both branches  of neurolaw  and  emphasizes  those
 aspects of each that impact  TBI  litigation. Specifically, Part I of this article
 recalls the early years of the Congressionally-declared  Decade  of the Brain
 (1990-1999)  and looks at the development  of neurolaw  as a recognized area  of



 * J. Sherrod Taylor, a graduate of the University of Georgia School of Law, coined the terms
 neurolaw and neurolawyer in 1991. He is an independent scholar residing in Kansas City,
 Missouri, where he focuses on neurolaw as a social determinant of health. The author would like to
 thank Eugenia Smithwick (Gena) Taylor, his wife of almost a half-century, for her steadfast
 encouragement, valuable insights, and technical assistance.
 I See J. Sherrod Taylor, J. Anderson Harp, & Tyron Elliott, Neuropsychologists and Neurolawyers,
 5 NEUROPSYCHOLOGY 293, 294 (1991) [hereinafter Taylor, Harp, & Elliott, Neuropsychologists and
 Neurolawyers]; J. Sherrod Taylor, Meeting the Legal Challenge, 1 THE NEUROLAw LETTER I
 (1991).
 2 PATRICIA SMITH CHURCHLAND, NEUROPHILOSOPHY: TOWARD A UNIFIED SCIENCE OF THE MIND-
 BRAIN (1986).
 3 J. Sherrod Taylor, Neurorehabilitation and Neurolaw, 7 NEUROREHABILITATION 3, 4 (1996).
 4 See generally Paul M.  Kaufmann, Neuropsychologist Experts and Neurolaw: Cases,
 Controversies, and Admissibility Challenges, 31 BEHAVIOR SCIENCES & THE LAw 739 (2013) (a
 thorough review of the issues confronted by neuropsychologists in today's legal environment);
 NIKOLAS ROSE  &  JOELLE M. ABI-RACHED, NEURO:  THE  NEW  BRAIN SCIENCES AND  THE
 MANAGEMENT  OF THE MIND 177 (2013) (. . . neurolaw was initially focused on the question of
 traumatic brain injury and the role of neuropsychologists as expert witnesses in the increasing
 number of cases involving claims for damages).
 5 Steven K. Erickson, Blaming the Brain, 11 MINN. J. L. SCI. & TECH. 27, 34-35 (2010); see
 generally Owen D. Jones et al., Brain Imaging for Judges: An Introduction to Law and
 Neuroscience, 50 COURT REV. 44 (2014) (explaining inter alia how various neuroimaging
 procedures work, e.g., fMRI).
 6 Francis X. Shen & Dena M. Gromet, Red States, Blue States, and Brain States: Issue Framing,
 Partisanship, and the Future of Neurolaw in the United States, 658 ANN. AM. ACAD. POL. & SOC.
 ScI. 86, 87 (2015).
 1 Owen D. Jones et al., Law and Neuroscience, 33 J. OFNEUROSCIENCE 45 (2013).

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