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Abstract: Courts have long recognized that tortfeasors should be held responsible for causing intangible injuries such as emotional harm, loss of tranquility, anxiety, loss of autonomy, and diminished enjoyment. This rubric of harms, referred to as the tort claim of emotional distress or emotional harm, has always been a complex area, with jurisdictions varying in their approaches to the tort. Advances in neuroscience may well clarify our thinking and straighten out the differences among approaches to the claim, as we shift from circumstantial to more direct evidence of distress. Although these advances are not ready for the courtroom, courts and scholars are beginning to recognize their potential. This article considers the potential impact of evidence from neuroimaging on the policy concerns behind judicial limitations on distress claims.
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