Within the domain of children’s health, development, welfare, and education, the collective cognitive capital framework suggests a project of affirmative legislation and governance – rather than adjudication – aligned toward the core societal goal of promoting childrens’ collective cognitive capital. Going beyond existing guarantees to public education, this may take the form of granting to children a universal and affirmative (or positive), state-level right to healthy brain development. Of course, expansion of affirmative rights is a massive challenge in our legal and political system, but systems theory teaches that reorienting all components of a complex system towards a common goal requires reframing in a “big picture” way that makes intuitive sense to all stakeholders and participants.  

Such a vision has many complexities and challenges. What would be the operational content of the right? What components of the right already exist, and how can they be synthesized across different legislation, agencies, and stakeholder groups?  How would “healthy” brain development be defined and measured, accounting for neurodiversity, resilience to and healing from trauma, and individual heterogeneity? How can brain and behavioral science be synthesized towards consensus on what constitutes healthy, optimal, or adequate brain development? What kind of data is needed, especially in light of new understanding that brain-behavior correlations require massive amounts of data?  Legally, could such a right be defined at the level of the collective, and how would it be enforced? What are the points of tension with parental rights? Could econometric models and other statistical methods help identify population-level issues from individual screenings? Could individual data be protected and not misused or mischaracterized? 

These are broad and deep research questions. Exploring them will take time and collaboration. But such efforts are the necessary foundations upon which to build a novel interdisciplinary field, advance knowledge, and develop creative new insights and strategies to benefit society, with prioritization to benefit children. The first phase of this project in Fall 2023 will establish a network of multidisciplinary professionals committed to development of a children’s right to healthy brain development (the “Working Group”), which will meet periodically over the next two years to define, operationalize, and publish scholarly and policy-oriented papers about the research questions above. If you have relevant expertise and interest, please contact me about being involved in the Working Group.

This project is funded by the California Bench to School Initiative. The California Bench to School Initiative was established by the California Legislature in June of 2021.  It is a collaboration between UC Law SF, UCSF Medical School, and UCLA School of Education.  This initiative aims to disrupt the school to prison pipeline in California by addressing literacy outcomes in school settings through a collaborative multistakeholder and multidisciplinary approach.  The three institutions are designing research studies across disciplines to better understand and conduct data analysis on the prevalence of neurodiversity and adverse experiences among juvenile justice involved youth.  The long-term goal of the initiative is to decrease the population of youth who become justice-involved by reforming the legal, educational, and health services available to them to be more responsive to their needs.

Stanford Law School Center for Law and the Biosciences hosted a symposium on Thursday, May 18, 2023. 

This conference brought together cutting-edge thinkers and scholars working across multiple disciplines from around the world to explore what collective cognitive capital is, what it would mean to center the concept in governance and public law, how brain and behavioral science can be translated to public policy promoting human flourishing, and exploring the risks and limitations of such efforts. 

Each panel brought together experts to address key theoretical and practical aspects of the collective cognitive capital proposal.

Schedule and participants

8:30 Greetings/Introductions (Hank Greely)

8:45 Collective Cognitive Capital: A Brief Overview (Emily Murphy)

9:00 Panel I: A new focus for law & neuroscience: the contents of collective cognitive capital and whether brain-centrism gets to the core of human flourishing

Mark Fabian, David Faigman, Bill Newsome, Russ Poldrack, Francis Shen

10:30 Break

11:00 Panel II: Brain/behavioral science as governance: Public rights, government obligations, collectivism, and alternatives to economic theory

Blake Emerson, Norm Spaulding, Barbara Fried, Jennifer Drobac, Mark Lemley

12:30 Lunch

1:30 Panel III: Communication and political will: Translating theory and data to policy

William Hynes, Harris Eyre, Brie Linkenhoker, Jonathan Purtle

3:00 Break

3:30 Panel IV: Guardrails: -isms, ethics, cognitive liberty, and data privacy

Teneille Brown, Oliver Rollins, Nita Farahany, Anita Jwa, Danielle Tarino

5:00 Open reception