American Journal of Law & Medicine

Imaging body structure and mapping brain function: a historical approach.(Brain Imaging and the Law)


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. (18) Unlike x-ray and other still photography, which reveal only body structure, PET and SPECT can identify in three-dimension areas of the brain that are metabolically correlated with certain mental functions. (19) These functional capabilities make PET and SPECT desirable in a variety of contexts, including those in which detecting the mental state or capacity of an individual is important. (20) Part IV shows how the existence of PET and SPECT evidence, or the lack thereof, influenced the outcome of many legal cases. (21)

Parts V and VI conclude that both old and new methods of body imaging and brain mapping raise ethical, legal, and social concerns, and that history may have a role in informing current functional neuroimaging policy. (22) The application of truth-in-advertising and other regulatory principles to the provision of fMRI services may be appropriate. (23)


The idea that the brain has specialized functional areas is not new. (24) The earliest surviving writing suggesting a correlation between brain structure and function is the Edwin Smith Surgical Papyrus, a seventeenth-century B.C. reproduction of an earlier manuscript that described several head wound cases and referred to the effects of such wounds on motor control, including walking. (25) Hippocrates recognized in the fifth century B.C. that a wound to the left side of the head could lead to convulsions on the right side of the body. (26) In the second century, Galen noted that hemiplegia could result from a lesion in the opposite side of the brain. (27) Although Vesalius was not particularly receptive to the idea of cerebral localization, (28) Johann Schenk Von Grafenberg discovered in the sixteenth century that many language impairments resulted from injuries to certain parts of the brain, not paralysis of the tongue. (29) In the eighteenth century, Antonio Maria Valsalva verified the connection between an injury to one side of the head and paralysis on the contralateral side of the body. (30) By the end of the eighteenth century, many thinkers were ready to create functional maps of the brain.


Franz Josef Gall, an anatomist and physiologist living in Austria, observed during his education that students who had good memories also had prominent foreheads. (31) Gall hypothesized that the part of the brain responsible for verbal memory must be located behind and slightly above the eyeballs. (32) To test his broader theory that certain parts of the brain were responsible for particular mental faculties, Gall began to examine the indentations and bumps on the heads of prisoners, insane individuals, and other individuals with extreme character traits. (33) Gall summarized his findings in a 1798 letter addressed to a Viennese censorship official that was subsequently reprinted in Der Neue Teutsche Merkur, the main literary journal of the Holy Roman Empire. (34) In his letter, Gall stated his belief that moral and intellectual qualities are innate; that the brain is composed of as many organs as there are faculties, tendencies, and feelings; that each organ produced a local protuberance, or bump, on the external surface of the skull; and that the size of each organ, which indicated its power of function, could be increased by exercise. (35) Gall also expressed his desire to "show that it is possible to ascertain different dispositions and inclinations by the elevations and depressions upon the head" and "present in a clear light the most important consequences which result therefrom to medicine, morality, education, and legislation a word, to the science of human nature." (36)

Gall's letter led to his ecclesiastical repression. (37) The Emperor Francis I forbade Gall from publicly lecturing in Austria in 1802 on the grounds that his ideas were subversive of religion and morals. (38) Gall and his pupil, Johann Gaspar Spurzheim, moved to Paris to continue developing and teaching their theories, which later became known as phrenology, or the science of the mind. (39) In 1810, Gall published the first volume of his magnum opus, Anatomie et Physiologie du Systeme Nerveux en General et du Cerveau en Particulier, which ultimately contained four volumes, the first two of which were coauthored by Spurzheim, and an atlas of illustrations. (40) Between 1822 and 1825, Gall published a six-volume, revised edition of Anatomie under the title Sur les Fonctions du Cerveau et Sur Celles de Chacune de ces Parties. (41) In these works, Gall identified and numbered twenty-seven different regions, or organs, of the brain, each of which housed an innate, universal faculty such as "Impulse to Propagation (1)," "Murder, carnivorousness (5)," "Larceny, sense of property (7)," "Arithmetic, counting, time (18)," and "Perseverance, firmness (27)." (42) Those who followed Gall's work may have been concerned for their privacy. Gall believed that his brain maps could be used to explain differences among individuals, advise employers regarding individuals with desirable qualities, and govern the masses. (43)

Despite his grand theories, Gall left some portions of his brain maps blank, presumably because he did not know which faculties resided therein. (44) Unlike some of his successors, Gall used more than one word to describe each organ, perhaps to show that he did not completely understand each organ's function. (45) And, because his early research involved individuals who only had striking head protuberances and extreme character traits, Gall expressed reservation regarding whether character actually could be read from the shape of just any person's head: "I have never pretended to distinguish the influence, which modification of the forms of the cranium slightly marked, may have on the character, or how its corresponding shades may be traced." (46) In light of these and other qualifications and admissions, Gall was regarded as an honest investigator and a scientific pioneer at his death in 1828. (47)

Although Spurzheim had worked with Gall on Anatomie et Physiologie du Systeme Nerveux, Spurzheim's name did not appear on the title pages of the last two volumes. The omission reportedly occurred because Gall and Spurzheim had a falling out before Gall published the last two volumes of Anatomie. (48) In any event, Spurzheim moved to England in 1814, and published a formal, English version of his theories, The Physiognomical System of Drs. Gall and Spurzheim, the following year. (49) In subsequent publications, Spurzheim changed some of Gall's theories, including deleting all faculties that were inherently evil, such as Gall's faculty of "Murder, carnivorousness." (50) Spurzheim also added several organs, changed several of the remaining organs' descriptions, and categorized the organs into propensities, sentiments, and intellect. (51)

The Edinburgh Review, a leading scientific journal, heavily criticized Spurzheim's revised system in 1815 on the grounds that it consisted of "a mixture of gross errors, extravagant absurdities, downright misstatements, and unmeaning quotations from Scripture," and that its lead author was ignorant and hypocritical. (52) Spurzheim defended himself by arranging a brain dissection at Edinburgh during which he responded to each criticism. (53) Perhaps unaware of the scientific criticism, the Victorian public continued to greet Spurzheim's revised phrenology with enthusiasm. They visited phrenological surgeries and consented to have their heads examined by individual practitioners of phrenology as well as phrenometers, machines that measured the relative dimension and distribution of head bumps. (54) Queen Victoria had her children's heads read, and George Eliot had her own head shaved and read twice. (55)

Spurzheim and his student, George Combe, brought phrenology to the United States in 1832 through lecture tours and demonstrations. (56) The following year, Amherst College student Henry Ward Beecher was assigned to debate the negative view of phrenology as a science in a college debate that likely was inspired by one of Spurzheim's or Combe's lectures. (57) After Beecher won the debate, he told the audience that he actually agreed with the theories he had just argued against and was converting to the science of phrenology. (58) Thereafter, Beecher and his classmate, Orson Squire Fowler, attended phrenology lectures and began lecturing on the subject themselves. (59) Although Beecher eventually returned to his theological studies, phrenology became a life-long passion and profession for Fowler and his younger brother, Lorenzo Niles Fowler. In 1835, the Fowler brothers opened a phrenology practice in New York City and charged one dollar for a head examination, a verbal analysis, and the completion of a head chart in which the faculties were marked in seven degrees (very small, small, moderate, average, full, large, and very large), and three dollars for a more comprehensive written analysis. (60) The Fowlers' sale of phrenology services to the general public was the first, but certainly not the last, time the general public has been offered a form of neuroscientific testing. In 2006, the company No Lie MRI began offering fMRI lie detection services to the public at the price of $30 per minute. (61)

When an individual presented for a phrenological examination, the Fowlers quickly reviewed the individual's features to identify his or her general temperament. Coarse, large features suggested a bilious temperament, in which physical strength predominated over mental attributes. (62) Thin hair, small muscles, and pale skin suggested that the individual favored thought, study, and poetry. (63) The Fowlers then conducted a more thorough examination of the individual's skull, using their phrenology charts as a guide. (64) Similar to Gall and Spurzheim's brain maps, the Fowlers' charts were based on the assumption that the distance between the various organs provided information about the magnitude of a trait supported by the underlying brain region. (65) The thirty-seven faculties identified by the Fowlers included "Amativeness (Love between the sexes)," "Parental Love (Regard for offspring)," "Destructiveness (Executiveness--force)," "Self-Esteem (Self-respect--dignity)," "Size (Measuring by the eye)," "Calculation (Mental arithmetic)," and "Causality (Applying causes to effect)." (66) An optimum level existed for each faculty, and too much or too little of a faculty could be problematic. (67) Too little Size could lead to an inability to judge proportions, and too much Size could lead to an overemphasis of physical views. (68) Similarly, too little Calculation was believed to cause difficulty in assimilating and regulating facts and figures. (69)

The Fowlers also provided directions for cultivating and restraining each of the thirty-seven faculties (70) in the first edition of their famous text, Phrenology Proved, Illustrated and Applied, (71) and their monthly American Phrenological Journal, launched in 1838. (72) To cultivate Parental Love, for example, the Unmotherly were told to, "Play with and make much of children; try to appreciate their loveliness and innocence, and be patient and tender and indulgent toward them; and if you have no own children, adopt some, or provide something to pet and fondle." (73) To restrain Parental Love, the Good Mother was advised to, "Set judgment over against affection; rear them intellectually; give yourself less anxiety about them, and if a child dies, by all means turn your mind from that loss by seeking some powerful diversion." (74) Individuals who needed more Destructiveness were encouraged to, "Destroy anything and everything in your way; killing weeds, blasting rocks, felling trees, using edge tools." (75) Individuals who needed to restrain Destructiveness were directed "never [to] brood over injuries or indulge revengeful thoughts or desires, or aggravate yourself by brooding over wrongs." (76)

Several notable nineteenth-century Americans, including Ralph Waldo Emerson, Oliver Wendell Holmes, Susan B. Anthony, Lizzie Borden, Jenny Lind, Horace Greeley, Brigham Young, Lucretia Mott, Walt Whitman, Horace Mann, and Lola Montez, allowed one of the Fowlers, or another phrenologist, to read their heads. (77) After Lorenzo Niles Fowler read Walt Whitman's head in 1849, Whitman even described the results in two editions of his Leaves of Grass: "Leading traits of character appear to be Friendship, Sympathy, Sublimity, and Self-Esteem, and markedly among his combinations the dangerous faults of Indolence ... and a certain swing of animal will, too unmindful, probably, of the conviction of others." (78)


Many phrenological findings, perhaps coincidentally, proved true. Orson Squire Fowler reportedly described a particular subject as having "'No Conscientiousness! [N]ot a bit! No Approbativeness! No Feeling of Shame!'" before learning that the subject had killed a female slave. (79) A phrenologist told Allen Pinkerton that he "would make a capital detective; he would smell a rouge three miles" before Pinkerton became known as the father of the American private investigator. (80) Before his raid on Harpers Ferry, abolitionist John Brown presented for a phrenological examination during which it was found that, "This man has firmness and energy enough to swim up the Niagara river and tow a 74-gun ship, holding the tow-line in his teeth. He has courage enough to face anything that man may face, if he think it right, and be the last to retreat if advance be impossible." (81) Lorenzo Niles Fowler told the parents of a very young Clara Barton, the future founder of the American Red Cross, to "throw responsibility" upon young Clara in an effort to improve upon her shy, hypersensitive, and withdrawn personality. (82) Clara later viewed Fowler's analysis as an important moment in her life: "'Know thyself' became my text and my study.... It has enabled me to better comprehend the seeming mysteries about me.... It has enriched my field of charitable judgment; enlarged my powers of forgiveness ..." (83)

Phrenology also "revealed" hidden information about its analysands. Humorist Samuel Langhorne Clemens (whose pen name was Mark Twain) used an assumed name in 1873 when he requested a head examination from Lorenzo Niles Fowler. (84) During this initial, incognito examination, Fowler discovered an indentation in Twain's skull that was interpreted as a "total absence of the sense of humor. …

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