School of Law, University of San Diego

Professor Kolber writes and teaches in the areas of neuroethics, bioethics and criminal law. Before joining the faculty, he clerked for the Honorable Chester J. Straub of the U.S. Court of Appeals for the Second Circuit and practiced law with Davis Polk & Wardwell in New York. He graduated Order of the Coif from Stanford Law School, where he was an associate editor of the Stanford Law Review. Prior to law school, he was a business ethics consultant at PricewaterhouseCoopers. His publications include “Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening,” Vanderbilt Law Review; “A Matter of Priority: Transplanting Organs Preferentially to Registered Donors,” Rutgers Law Review; and “Standing Upright: The Moral and Legal Standing of Humans and Other Apes,” Stanford Law Review. Kolber also runs the “Neuroethics & Law Blog.”

Neuroscientists have made significant advances in identifying drugs to dampen the intensity of traumatic memories. Such drugs hold promise for victims of terrorism, military conflict, assault, car accidents, and natural disasters who might otherwise suffer for many years from intense, painful memories. In 2003, the President’s Council on Bioethics released a report entitled Beyond Therapy: Biotechnology and the Pursuit of Happiness, which analyzed memory dampening in some detail. While the Council acknowledged the potential benefits of memory dampening, some Council members were concerned that it may: (1) discourage us from authentically coping with trauma, (2) tamper with personal identity, (3) demean the genuineness of human life and experience, (4) encourage us to forget memories that we are obligated to keep, and (5) inure us to the pain of others.

In this Article, I describe possible legal and ethical implications of memory dampening. For example, I note that traumatic events frequently lead to legal proceedings that rely on memories of those events. Drugs that dampen traumatic memories may someday test the boundaries between an individual’s right to medically modify his memories and society’s right to stop him from altering valuable evidence. More broadly, I respond to the Council by arguing that many of its concerns are founded on controversial premises that unjustifiably privilege our natural cognitive abilities. While memory dampening may eventually require thoughtful regulation, broad-brushed restrictions are unjustified: We have a deeply personal interest in controlling our own minds that entitles us to a certain freedom of memory.