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Many legal decisions center on the thoughts or perceptions of some idealized group of individuals, referred to variously as the “average person,” “the typical consumer,” or the “reasonable person.” Substantial concerns exist, however, regarding the subjectivity and vulnerability to biases inherent in conventional means of assessing such responses, particularly the use of self-report evidence. Here, we addressed these concerns by complementing self-report evidence with neural data to inform the mental representations in question. Using an example from intellectual property law, we demonstrate that it is possible to construct a parsimonious neural index of visual similarity that can inform the reasonable person test of trademark infringement. Moreover, when aggregated across multiple participants, this index was able to detect experimenter-induced biases in self-report surveys in a sensitive and replicable fashion. Together, these findings potentially broaden the possibilities for neuroscientific data to inform legal decision-making across a range of settings.
Zhihao Zhang, Maxwell Good, Vera Kulikov, Femke van Horen, Mark Bartholomew, Andrew S. Kayser & Ming Hsu,
From Scanner to Court: A Neuroscientifically Informed “Reasonable Person” Test of Trademark Infringement,
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/1144