Legal Neuroexceptionalism: Framing a Concept

In the past few decades, there have been significant advances in the sciences concerned with the brain and its functions. As science has advanced, the scientific and practical utility of neurodata – data concerning the structure and function of individuals’ brains – has also grown. This expansion in utility, however, has brought with it ever-increasing ethical and legal scrutiny on the legitimate use of neurodata. There is every reason to believe that the expansion in the scientific and practical utility of neurodata, as well as the increased attention given to attendant ethical and legal concerns, will continue apace. It seems likely certain forthcoming legal discussions will concern questions as to whether the collection and use of neurodata should be subject to specific and novel legislation: questions of legal neuroexceptionalism. There has to date, however, been little conceptual exploration of the concept of legal neuroexceptionalism itself – although certain substantive legal neuroexceptionalist claims have been put forward. In this regard, this paper sets out to consider the following question: what does it mean to make a legal neuroexceptionalist claim? In this regard, the paper offers the following preliminary, abstract, proposition: to make a legal neuroexceptionalist claim means making two forms of sub-claim: i) neurodata are somehow exceptional; and ii) these exceptional qualities mandate responses in the form of specific and novel legislation. The paper then further explores each of these two forms of sub-claim in detail.