Imaging body structure and mapping brain function: a historical approach.

I. INTRODUCTION Now in its second decade, functional magnetic resonance imaging (fMRI) localizes changes in blood oxygenation that occur in the brain when an individual performs a mental task.1 Physicians and scientists use fMRI not only to map sensory, motor, and cognitive functions, but also to study the neural correlates of a range of sensitive and potentially stigmatizing conditions, behaviors, and characteristics.2 Poised to move outside the traditional clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being explored within a burgeoning neuroethics literature.3 In this Article, I place these issues in their proper historical context. The ethical, legal, and social issues raised by advances in functional neuroimaging are challenging and somewhat distinctive, but they are not entirely new. Earlier methods of body imaging and brain mapping, including phrenology, x-ray, positron emission tomography, and single-photon emission computed tomography,4 raised similar issues, and perhaps we can use our experiences with these sciences and technologies to help guide current functional neuroimaging policy. This Article proceeds as follows. Part II explores the legacy of phrenology, the nineteenth-century pseudoscience of the mind in which the character of an individual allegedly could be read by measuring the relative size of bumps and dents on the individual's skull.5 Phrenology was believed to be capable of identifying whether a particular individual had murderous tendencies, an impulse to propagate, the capacity to love children, or the ability to solve mathematical equations.6 Because phrenology allegedly could reveal these pieces of information, phrenological examination results were considered valuable.7 Employers wanted phrenological analyses to determine whom they should hire, insane asylums wanted them to determine how best to treat their patients, and criminal justice officials wanted them to reform their criminals.8 Nineteenth-century courts also relied on phrenological principles to determine the sanity of testators and individuals accused of murder, as well as the mental states of plaintiffs and defendants in a variety of other judicial proceedings.9 Individuals even wanted their own heads examined to help them select a vocation, determine their best method of education, and identify whom they should marry.10 The head examinations were believed to be valuable, although even the subjects were sometimes surprised by their own phrenological results and occasionally tried to keep them private.11 After scientists began to dispute the validity of phrenology, the law responded in kind. Some jurisdictions prohibited the practice of phrenology, while others heavily regulated it.12 National broadcasting codes made it unlawful to advertise phrenology services, and military, federal, and state courts refused to admit into evidence testimony based on phrenological principles.13 Part III shows how the discovery of x-ray technology at the turn of the twentieth century led to public amusement as well as ethical, legal, and social concerns. The ability of x-rays to peer inside the body figured prominently in cartoons, advertisements, poems, and plays, at the same time that male physicians were using female servants (and their long-hidden breastbones) to demonstrate the new technology.14 Policymakers initially worried about the potential for inappropriate uses and disclosures of x-ray information, as illustrated by a New Jersey Assemblyman who reportedly introduced a bill that would prohibit the use of x-ray eyeglasses in theaters and other public places.15 However, courts quickly accepted x-rays by admitting them into evidence in both civil and criminal proceedings.16 The theme underlying these decisions was that the law needed to avail itself of medical and scientific advances.17 Fast-forwarding three quarters of a century, Part IV examines how positron emission tomography (PET) and single-photon emission computed tomography (SPECT) intensified ethical, legal, and social concerns in the 1980s and 1990s, especially as the forensic value of these technologies became known. …