Emory Law Journal


The neuroscience revolution poses profound challenges to the doctrine of avoidable consequences in tort law and exposes deep theoretical riddles about the right to our own mental experiences and memories. To address this profound question, this Article begins with a deceptively simple principle of tort law: A victim of tortious wrongdoing by another is held responsible for mitigating her own physical injuries. This Article addresses whether that same doctrine should require a tort victim to likewise mitigate her emotional injuries. The answer to that question is of great and increasing importance because it goes to the heart of how society should address dramatic advances in neuroscience that enable us to change our own minds. This Article proposes a revolutionary way to understand both the answer to this question and to bring daylight to many puzzling doctrines in law—through the right to cognitive liberty. Through an introduction to the groundbreaking concept of cognitive liberty, the confusion plaguing the doctrine of avoidable consequences in tort law for emotional distress injuries is solved and new insights are developed with respect to other doctrines in law. These implications are as far-ranging as the deliberative privilege afforded to judges to the forced competency of prisoners. It quickly becomes apparent that cognitive liberty is the interest upon which many of our most cherished freedoms are secured.