William & Mary Law Review


This Article calls for a new project for law and neuroscience. It outlines a structural, not individual, application of brain and behavioral science that is aligned with the general goal of basic science research: improving the lives of citizens with a better understanding of the human experience. It asks brain and behavioral science to move explicitly into public policy territory, and specifically onto ground more traditionally occupied by economists—but in ways the project of “behavioral economics” has not yet ventured. Put simply, policy analysts should focus on brains—“collective cognitive capital”—with the same intensity with which they focus on money, rights, or other policy metrics.

To that end, this Article introduces and explores the novel framework of “collective cognitive capital”: a way of thinking of brain health and brain function as an aggregated resource. Collective cognitive capital is a conceptual framework for synthesizing brain and behavioral data and using it to assess the impacts of policy choices. The core thesis for this future of “law and neuroscience” is simple: we can and should use brain and behavioral science to evaluate public policy decisions by how they affect the brain functioning of the people. Normatively, policies should seek to maximize “collective cognitive capital” because it is inherently valuable. Cognitive and emotional functioning, and overall brain health, subserve and maximize individual agency and freedom.