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Showing papers by "Georgetown University Law Center published in 2007"


Journal ArticleDOI
TL;DR: In this paper, the double effect principle was investigated in the context of moral dilemmas, where each moral dilemma presented a choice between action and inaction, both resulting in lives saved and lives lost.
Abstract: To what extent do moral judgments depend on conscious reasoning from explicitly understood principles? We address this question by investigating one particular moral principle, the principle of the double effect. Using web-based technology, we collected a large data set on individuals ' responses to a series of moral dilemmas, asking when harm to innocent others is permissible. Each moral dilemma presented a choice between action and inaction, both resulting in lives saved and lives lost. Results showed that: (1) patterns of moral judgments were consistent with the principle of double effect and showed little variation across differences in gender, age, educational level, ethnicity, religion or national affi liation (within the limited range of our sample population) and (2) a majority of subjects failed to provide justifi cations that could account for their judgments. These results indicate that the principle of the double effect may be operative in our moral judgments but not open to conscious introspection. We discuss these results in light of current psychological theories of moral cognition, emphasizing the need to consider the unconscious appraisal system that mentally represents the causal and intentional properties of human action.

562 citations


Journal ArticleDOI
TL;DR: In this paper, a framework for universal moral grammar (UMG) is presented and a novel computational analysis of moral intuitions is proposed, and it is argued that future research on this topic should draw more directly on legal theory.

561 citations


Book ChapterDOI
01 Jan 2007
TL;DR: Greenberg as discussed by the authors discusses the philosophical core of this book's analysis of torture and its critique of discussing torture through ticking-bomb hypotheticals, and discusses the issue of non-accountability.
Abstract: Preface This chapter was published concurrently in its present form and in a more extended version that appeared in Karen Greenberg’s collection The Torture Debate in America (Cambridge University Press, 2005). The latter version included a longer and fuller analysis of the torture memos; I have used the shorter version here because other chapters of this book go into the torture memos in greater detail. The chapter received wide circulation: in March 2006 it was excerpted in Harper’s Magazine and published in translation in the German cultural magazine Die Zeit Kursbuch . Together with the following two chapters, it represents the philosophical core of this book’s analysis of torture and its critique of discussing torture through ticking-bomb hypotheticals. I began writing the chapter when the Bybee–Yoo torture memo became public in the summer of 2004, shortly after the sensational Abu Ghraib revelations. It needs only slight factual updating. At the time I finished it, only two of the torture memos were public. It was not until April 2009 that the Obama administration released the remaining torture memos, all but one of which were shortly republished by David Cole in The Torture Memos: Rationalizing the Unthinkable (New York Review of Books, 2009). The existence of CIA “black sites” – secret prisons in Poland, Romania, and Thailand – had not yet emerged, nor was it clear what interrogation techniques the Justice Department had approved for CIA use. I also wrote before the issue of nonaccountability for torture became salient. By the time the smoke had cleared, only a handful of low-level enlisted personnel had been punished for Abu Ghraib, and, ultimately, none of the 101 potential torture cases investigated by a special prosecutor resulted in criminal referrals. I discuss the issue of nonaccountability in this book’s final chapter.

182 citations


Book
14 Nov 2007
TL;DR: Goodman and Epstein this article argue that a renewed focus on the principles of the early feminist movement -for example, listening to individual women's voices, promoting supportive communities, and facilitating economic empowerment, could result in substantial progress in efforts to protect and counsel battered women.
Abstract: Listening to Battered Women: A Survivor-Centered Approach to Advocacy, Mental Health, and Justice presents an in-depth, multidisciplinary look at society's responses to domestic violence. Though substantial reforms have been made in the services available to battered women since the 1970s, the book shows how the public and private systems available to victims of domestic violence are still failing to meet the needs of the women who seek help.Using a feminist perspective, authors Lisa Goodman and Deborah Epstein explore and critique the current available services in three different arenas: the domestic violence advocacy community, the mental health profession, and the justice system. In recent years, the options available to battered women have expanded dramatically. However, these reforms have been made at the expense of the contextualized, women-centered focus that was once at the heart of the anti-domestic violence movement.The authors argue that a renewed focus on the principles of the early feminist movement - for example, listening to individual women's voices, promoting supportive communities, and facilitating economic empowerment, could result in substantial progress in efforts to protect and counsel battered women. A series of concrete recommendations for improvements in the advocacy, mental health, and justice systems are also discussed.Researchers interested in the field of violence, gender studies, psychology of women, mental health trauma, or family law, as well as practitioners working with the victims of intimate partner violence, will find this book to be a valuable resource in their efforts.

176 citations


Posted Content
TL;DR: This paper analyzed databases of merits decisions from all four levels of the asylum adjudication process and found significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country.
Abstract: This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge. Using cross-tabulations based on public biographies, the paper also explores correlations between sociological characteristics of individual immigration judges and their grant rates. The cross tabulations show that the chance of winning asylum was strongly affected by whether or not the applicant had legal representation, by the gender of the immigration judge, and by the immigration judge's work experience prior to appointment. In their conclusion, the authors do not recommend enforced quota systems for asylum adjudicators, but they do make recommendations for more comprehensive training, more effective and independent appellate review, and other reforms that would further professionalize the adjudication system.

175 citations


Journal ArticleDOI
03 Jan 2007-JAMA
TL;DR: This Commentary shows how law can be used as a tool to prevent overweight and obesity and considers whether paternalism is ever justified to regulate harms that are apparently self-imposed, but which are deeply socially embedded and pervasively harmful to the public.
Abstract: PUBLIC HEALTH AGENCIES FACE CONSIDERABLE CHALlenges trying to prevent overweight and obesity in society, primarily because a person’s own behavior is often the root cause of the disease. Individuals make personal choices about their diet, exercise, and lifestyle, so disease is often thought of as a matter of personal, not governmental, responsibility. Obesity, one of the 10 leading US health indicators, is associated with increased risk of death from type 2 diabetes, hypertension, coronary heart disease, stroke, and certain cancers. Yet the proportion of overweight and obese children and adults is alarmingly high and continues to increase. In 2005, 60.5% of adults in the United States were overweight (body mass index, 25-30), 23.9% were obese (body mass index, 31-40), and 3% were extremely obese (body mass index 40). African Americans have the highest obesity prevalence at 33.9%. The prevalence of adult obesity increased significantly in every state during the 1990s; therefore, no state will meet the targets for reduced rates of obesity set in Healthy People 2010. Similarly, 16% of children and adolescents were overweight, a prevalence that has increased nearly 50% between 1999 and 2002. Obesity could shorten the average lifespan of an entire generation by 2 to 5 years, which, if true, would result in the first reversal in life expectancy since data were collected in 1900. Obesity primarily affects the individual, but it also has high socioeconomic costs. The aggregate consequences of individual choices are countless preventable disabilities and deaths, affecting families and the entire community. Obesityattributable medical expenditures reached $75 billion in the United States in 2003, with substantial additional indirect costs in lost productivity. Critics of state regulation argue that individuals should absorb the cost of their own illness, but taxpayers finance about half of all medical costs through Medicare and Medicaid, and employers cover most of the rest. The government arguably has a legitimate interest in controlling medical and social costs of individuals’ unhealthy behaviors that are borne by society at large. Moreover, nonwhite and poor individuals experience substantial disproportionate burdens from obesity, with poor diet and sedentary lifestyles contributing to socioeconomic disparities. This Commentary discussess how law can be used as a tool to prevent overweight and obesity (TABLE). The idea has international dimensions, as suggested by the recent adoption of the European Charter on Counteracting Obesity. The charter contains a detailed action plan to improve the availability of healthy foods, promote physical activities, and regulate marketing to children.

133 citations


Posted Content
TL;DR: In this paper, the authors search for solutions to the most perplexing problems in global health - problems so important that they affect the fate of millions of people, with economic, political, and security ramifications for the world's population.
Abstract: This article searches for solutions to the most perplexing problems in global health - problems so important that they affect the fate of millions of people, with economic, political, and security ramifications for the world's population. There are a variety of solutions scholars propose to improve global health and close the yawning health gap between rich and poor: global health is in the national interests of the major State powers; States owe an ethical duty to act; or international legal norms require effective action. However, arguments based on national interest, ethics, or international law have logical weaknesses. The coincidence of national and global interests is much narrower than scholars claim. Ethical arguments unravel when searching questions are asked about who exactly has the duty to act and at what level of commitment. And international law has serious structural problems of application, definition, and enforcement. What is truly needed, and which richer countries instinctively do for their own citizens, is to meet what I call "basic survival needs." By focusing on the major determinants of health, the international community could dramatically improve prospects for good health. Basic survival needs include sanitation and sewage, pest control, clean air and water, tobacco reduction, diet and nutrition, essential medicines and vaccines, and functioning health systems. Meeting everyday survival needs may lack the glamour of high-technology medicine or dramatic rescue, but what they lack in excitement they gain in their potential impact on health, precisely because they deal with the major causes of common disease and disabilities across the globe. If meeting basic survival needs can truly make a difference for the world's population then how can international law play a constructive role? What is required is an innovative way of structuring international obligations. A vehicle such as a Framework Convention on Global Health (FCGH) could powerfully improve global health governance. Such a Framework Convention would commit States to a set of targets, both economic and logistic, and dismantle barriers to constructive engagement by the private and charitable sectors. It would stimulate creative public/private partnerships and actively engage civil society stakeholders. A FCGH could set achievable goals for global health spending as a proportion of GNP; define areas of cost effective investment to meet basic survival needs; build sustainable health systems; and create incentives for scientific innovation for affordable vaccines and essential medicines. This article first examines the compelling issue of global health equity, and inquires whether it is fair that people in poor countries suffer such a disproportionate burden of disease and premature death. Second, the article explains a basic problem in global health: why health hazards seem to change form and migrate everywhere on the earth. Third, the article inquires why governments should care about serious health threats outside their borders, and explores the alternative rationales: direct health benefits, economic benefits, and improved national security. Fourth, the article describes how the international community focuses on a few high profile, heart-rending, issues while largely ignoring deeper, systemic problems in global health. By focusing on basic survival needs, the international community could dramatically improve prospects for the world's population. Finally, the article explores the value of international law itself, and proposes an innovative mechanism for global health reform - a Framework Convention on Global Health.

129 citations


Posted Content
TL;DR: A review of the literature on the varied arenas in which restorative justice is theorized and practiced can be found in this article, where the authors explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials.
Abstract: This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced - criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews - by examining empirical studies of the processes in different settings - how restorative justice has been criticized, what its limitations and achievements might be, and how it might be understood. I explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials and for their actual practices in a variety of locations - family abuse, juvenile delinquency, criminal violations, problem-solving courts, indigenous-colonial-national disputes, ethnic and religious conflicts, civil wars, and liberation struggles. Restorative justice, which began as an alternative model of criminal justice, seeking healing and reconciliation for offenders, victims, and the communities in which they are embedded, has moved into larger national and international arenas of reintegration in political and ethnic conflicts. This review suggests that there are important and serious questions about whether restorative justice should be supplemental or substitutional of more conventional legal processes and about how its innovations suggest potentially transformative and challenging ideas and "moves" for dealing with both individual and group transgressive conduct, seeking peace as well as justice.

102 citations


Posted Content
TL;DR: The role of place and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested as discussed by the authors, and the leading theories all have deployed the metaphoric construct of cyberspace to situate cyberspaces, explicitly or implicitly, as separate space.
Abstract: The appropriate role of place- and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested. This essay seeks to provoke critical reflection on the implications of place- and space-based theories of cyberspace for the ongoing production of networked space more generally. It argues, first, that adherents of the cyberspace metaphor have been insufficiently sensitive to the ways in which theories of cyberspace as space themselves function as acts of social construction. Specifically, the leading theories all have deployed the metaphoric construct of cyberspace to situate cyberspace, explicitly or implicitly, as separate space. This denies all of the ways in which cyberspace operates as both extension and evolution of everyday spatial practice. Next, it argues that critics of the cyberspace metaphor have confused two senses of space and two senses of metaphor. The cyberspace metaphor does not refer to abstract, Cartesian space, but instead expresses an experienced spatiality mediated by embodied human cognition. Cyberspace in this sense is relative, mutable, and constituted via the interactions among practice, conceptualization, and representation. The insights drawn from this exercise suggest a very different way of understanding both the spatiality of cyberspace and its architectural and regulatory challenges. In particular, they suggest closer attention to three ongoing shifts: the emergence of a new sense of social space, which I call networked space; the interpenetration of embodied, formerly bounded space by networked space; and the ways in which these developments alter, instantiate and disrupt geographies of power.

96 citations


Book ChapterDOI
TL;DR: In this article, a model of creative processes as complex, decentered, and emergent is proposed for copyright lawmaking and policy analysis, arguing that it is neither individual creators nor social and cultural patterns that produce artistic and intellectual culture, but rather the dynamic interactions between them.
Abstract: Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. At the same time, the mainstream of intellectual property scholarship has persistently overlooked a broad array of social science methodologies that provide both descriptive tools for constructing ethnographies of creative processes and theoretical tools for modeling them. This essay argues that the study of creativity has been especially problematic for copyright scholars because it sits at the nexus of three methodological anxieties that copyright scholars experience acutely. These anxieties reflect first-order methodological commitments shared by rights theorists and economic theorists alike, and they tend to foreclose other, potentially more fruitful approaches to the interactions between copyright, creativity, and culture. Drawing on literatures in social and cultural theory, the essay sketches a model of creative processes as complex, decentered, and emergent. Within this model, it is neither individual creators nor social and cultural patterns that produce artistic and intellectual culture, but rather the dynamic interactions between them. Like other cultural processes, artistic and intellectual processes are substantially and importantly shaped by the concrete particulars of expression, the material attributes of artifacts embodying copyrighted works, and the spatial distribution of cultural resources. Within a given network of social and cultural relations, an important and undertheorized determinant of creative ferment is the play, or freedom of movement, that the network affords. The essay concludes by considering the implications of this model for copyright lawmaking and policy analysis.

77 citations


Journal ArticleDOI
11 Jul 2007-JAMA
TL;DR: If charity is the main vehicle for health improvement, local government and businesses lose the desire and ability to solve problems on their own, and local innovation and entrepreneurship are stifled.
Abstract: NTERNATIONAL HEALTH ASSISTANCE IS PROVIDED IN AN INeffective way that does not enhance the capability for human functioning. 1 Most funding is driven by emotional,high-visibilityevents,includinglarge-scalenatural disasters such as the Asian tsunami; diseases that capture the public’s imagination such as the human immunodeficiency virus and AIDS; or diseases with the potential for rapid global transmission such as hemorrhagic fever, severe acute respiratory syndrome, or pandemic influenza. These funding streams skew priorities and divert resources from building stable local systems to meet everyday health needs. A relatively small number of wealthy donors currently wield considerable influence in setting the global health agenda. Although well intentioned, rich countries and philanthropistsoftensetprioritiesthatdonotreflectlocalneeds and preferences. Sometimes donors exert control over the useoffundsthatdiscourageslocalleadersfromtakingownership over programs. Conditions attached to funding can evenbedetrimentaltothepublic’shealth,suchasthePresident’sEmergencyPlanforAIDSReliefrequirementthat33% of prevention funds must be spent on chastity and fidelity, whereas no funding can be used for clean needle programs. 2 Similarly, for years, development banks have encouraged or required poor countries to cap internal spending on health as a condition of loans or debt relief. 3 Donor countries often fund politically popular projects, ratherthanwhatismostlikelytoimproveglobalhealth,leading some experts to conclude, “... funding is skewed towards what people in the West want to deliver.” 4 International health assistance, moreover, is fragmented and uncoordinated. Nongovernmental organizations and relief agencies often establish programs that compete with each other and, still worse, compete with local government and businesses. Rather than integrating policies and programs within local hospitals, clinics, and health agencies, they set upstate-of-the-artfacilitiesthatovershadowanddetractfrom governmentandprivateefforts.Foreignphilanthropistscan offer salaries and amenities that are far more generous than those that can be offered locally. As a result, local innovation and entrepreneurship are stifled; talented individuals in business, health care, and community development migrate to foreign-run programs; and the local health industry cannot profit or easily survive. 5 In addition, massive infusion of humanitarian assistance into very poor countries can lead to reliance and dependency. If charity is the main vehicle for health improvement, local government and businesses lose the desire and ability to solve problems on their own. When the infusion of foreign cash, clinics, medicines, and aid workers ends, the least healthy will be no better and perhaps worse off, unless they gain the capacity to meet their own basic health needs.

Posted Content
TL;DR: Using Texas Department of Insurance data on paid malpractice claims against physicians that closed in 1990–2003, this work provides the first systematic evidence on levels of coverage purchased by physicians with paid liability claims and how those levels affect out‐of‐pocket payments and patient compensation.
Abstract: Physicians' insuring practices influence their incentives to take care when treating patients, their risk of making out-of-pocket payments in malpractice cases, and the adequacy of compensation available to injured patients. Yet, these practices and their effects have rarely been studied. Using Texas Department of Insurance data on 9,525 paid malpractice claims against physicians that closed 1990-2003, we provide the first systematic evidence on levels of coverage purchased by physicians with paid liability claims and how those levels affect out-of-pocket payments and patient compensation. We find that these physicians carried much less insurance than is conventionally believed, that their real primary limits declined steadily over time, that policy limits often act as effective caps on recovery, and that personal contributions by physicians to close claims were rare. Our findings call into question a number of common assumptions about the relationship between physician insuring practices and the medical malpractice liability system. For a shorter, summary version of this research, see Charles Silver, Kathryn Zeiler, Bernard Black, David Hyman & William Sage, Malpractice Payouts and Malpractice Insurance: Evidence from Texas Closed Claims, 1990-2003, Geneva Papers on Risk and Insurance yyy-zzz (forthcoming 2008), available at http://ssrn.com/abstract=983199.

Posted Content
TL;DR: In this paper, the authors discuss the psychological harm caused by slaughterhouse work and propose several methods, including OSHA reforms, workers' compensation, and expansion of tort doctrine, by which the legal regime can prevent the harm from occurring and can compensate the employees for their psychological injuries.
Abstract: What's the true cost of a hamburger? To the consumer, it's anywhere from under a dollar to, say, ten bucks in a fancy burger joint. But to the slaughterhouse workers, the cost of a hamburger includes the financial and physical hardships of the slaughterhouse work itself. However, even less publicly discussed or understood is the psychological trauma inflicted on slaughterhouse workers. Not only do the employees face serious physical health hazards, but they also view, on a daily basis, large-scale violence and death that most of the American population will never have to encounter. This Note will discuss the psychological harm caused by slaughterhouse work and will propose several methods, including OSHA reforms, workers' compensation, and expansion of tort doctrine, by which the legal regime can prevent the harm from occurring and can compensate the employees for their psychological injuries.

Posted Content
TL;DR: The relationship between privacy and visibility in the networked information age has been explored in this paper, where the authors argue that focusing on visibility diminishes the salience and obscures the operation of nonvisual mechanisms designed to render individual identity, behavior, and preferences transparent to third parties.
Abstract: This essay considers the relationship between privacy and visibility in the networked information age. Visibility is an important determinant of harm to privacy, but a persistent tendency to conceptualize privacy harms and expectations in terms of visibility has created two problems. First, focusing on visibility diminishes the salience and obscures the operation of nonvisual mechanisms designed to render individual identity, behavior, and preferences transparent to third parties. The metaphoric mapping to visibility suggests that surveillance is simply passive observation, rather than the active production of categories, narratives, and, norms. Second, even a broader conception of privacy harms as a function of informational transparency is incomplete. Privacy has a spatial dimension as well as an informational dimension. The spatial dimension of the privacy interest, which I characterize as an interest in avoiding or selectively limiting exposure, concerns the structure of experienced space. It is not negated by the fact that people in public spaces expect to be visible to others present in those spaces, and it encompasses both the arrangement of physical spaces and the design of networked communications technologies. U.S. privacy law and theory currently do not recognize this interest at all. This essay argues that they should.

Journal ArticleDOI
TL;DR: The lack of medical availability of effective pain medication is an enduring and expanding global health calamity as discussed by the authors, despite important medical advances, pain remains severely under-treated worldwide, particularly in developing countries.
Abstract: The lack of medical availability of effective pain medication is an enduring and expanding global health calamity. Despite important medical advances, pain remains severely under-treated worldwide, particularly in developing countries. This article contributes to the discussion of this global health crisis by considering international legal and institutional mechanisms to promote wider accessibility to critical narcotic drugs for pain relief.

Journal ArticleDOI
21 Feb 2007-JAMA
TL;DR: This commentary presents a series of proposals, based on the recommendations of Institute of Medicine Committee on Ethical Considerations for Research Involving Prisoners, to provide a system of safeguards while allowing responsible research.
Abstract: Until the early 1970's, approximately 90% of all pharmaceutical research was conducted on prisoners, who were also subjected to biochemical research, including studies involving dioxin and chemical warfare agents. By the mid-1970's, biomedical research in prisons sharply declined as knowledge of the exploitation of prisoners began to emerge and the National Commission for the protection of Human Subjects of Biomedical Research was formed. Federal regulations to protect human subjects of research were established in 1974. Special protections for prisoners were added in 1978, severely limiting research involving prisoners. However, the US correctional system has undergone major changes since the adoption of the federal regulations, making it appropriate to reexamine the ethical framework for research involving prisoners. While the history of prisoner exploitation cautions against allowing research, modern science might be able to improve understanding of the intractable problems faced by prisoners. Finding a balance between encouraging beneficial research and safeguarding prisoners is challenging and politically controversial. This commentary presents a series of proposals, based on the recommendations of Institute of Medicine Committee on Ethical Considerations for Research Involving Prisoners. If adopted, the following proposals would provide such a system of safeguards while allowing responsible research. 1) Expand the Definition of Prisoner to include non-custodial prisoners, comprehensively covering all individuals whose autonomy and liberty are restricted by the justice system. 2) Ensure Universal, Consistent Ethical Protection of prisoners by regulating all research on prisoners uniformly, irrespective of the source of funding, supporting agency, or type of correctional facility. 3) Create a National Database of Prisoner Research to permit greater accountability, provide a scientific methodology for assessing the success of research projects, and facilitate the implementation of beneficial research findings to prisoner populations. 4) Shift from a Category-Based to a Risk-Benefit Approach to Research Review to ensure that research with prisoners should be conducted only if it offers a distinctly favorable benefit-to-risk ratio, not because prisoners are a convenient source of research participants or have no access to therapeutic treatment. 5) Update the Ethical Framework to Include Collaborative Responsibility meaning that, to the extent possible, stakeholders (e.g., prisoners, correctional officers, medical staff) should participate in the design, planning, and implementation of research. 6) Enhance Systematic Oversight of Research by strengthening safeguards, making them consistent, and applying them in relation to the levels of risk and restriction of liberty experienced by prisoner-subjects.

Journal ArticleDOI
04 Jul 2007-JAMA
TL;DR: This seminar would be a good way to wrap up a unit about the Millennium Development Goals 2015, but can also be used as an introduction to thinking about development aid.
Abstract: Purpose: The purpose of this student-lead discussion is to have students reflect on the various crisis‟ developing countries face, the possible causes of these problems, and to discuss why it is important for developed countries to assist them. This seminar would be a good way to wrap up a unit about the Millennium Development Goals 2015, but can also be used as an introduction to thinking about development aid.

Posted Content
TL;DR: A notable weakness of Greene's approach to moral psychology is its neglect of computational theory as discussed by the authors, which leaves this crucial first step in the perceptual process unanalyzed; however, Greene's account is descriptively inadequate, because it cannot explain even simple counterexamples, let alone countless real-life examples which can be found in any casebook of torts or criminal law.
Abstract: In his path-breaking work on the foundations of visual perception, the MIT neuroscientist David Marr distinguished three levels at which any information-processing task can be understood and emphasized the first of these: Although algorithms and mechanisms are empirically more accessible, it is the top level, the level of computational theory, which is critically important from an information-processing point of view. The reason for this is that the nature of the computations that underlie perception depends more upon the nature of the computational problems that have to be solved than upon the particular hardware in which their solutions are implemented. In this comment on Joshua Greene's essay, The Secret Joke of Kant's Soul, I argue that a notable weakness of Greene's approach to moral psychology is its neglect of computational theory. A central problem moral cognition must solve is to recognize (i.e., compute representations of) the deontic status of human acts and omissions. How do people actually do this? What is the theory which explains their practice? Greene claims that emotional response predicts deontological judgment, but his own explanation of a subset of the simplest and most extensively studied of these judgments - trolley problem intuitions - in terms of a personal/impersonal distinction is neither complete nor descriptively adequate. In a series of influential papers, Greene argues that people rely on three features to distinguish the well-known Bystander and Footbridge problems: whether the action in question (a) could reasonably be expected to lead to serious bodily harm, (b) to a particular person or a member or members of a particular group of people (c) where this harm is not the result of deflecting an existing threat onto a different party. Greene claims to predict trolley intuitions and patterns of brain activity on this basis. However, this explanation is incomplete, because we are not told how people manage to interpret the stimulus in terms of these features; surprisingly, Greene leaves this crucial first step in the perceptual process unanalyzed. Additionally, Greene's account is descriptively inadequate, because it cannot explain even simple counterexamples, let alone countless real-life examples which can be found in any casebook of torts or criminal law. Hence Greene has not shown that emotional response predicts these moral intuitions in any significant sense. Rather, his studies suggest that some perceived deontological violations are associated with strong emotional responses, something few would doubt or deny. Moreover, a better explanation of these intuitions is available, one that grows out of the computational approach to cognitive science that Marr helped to pioneer.

Journal ArticleDOI
TL;DR: To investigate the potential effect of adverse selection in a term life insurance market, a discrete-time, discrete-state, Markov chain is used and it is concluded that with realistic estimates of behavioral parameters, adverse selection could be a manageable problem for insurers.
Abstract: Consumer groups fear that the use of genetic testing information in insurance underwriting might lead to the creation of an underclass of individuals who cannot obtain insurance; thus, these groups want to ban insurance companies from accessing genetic test results. Insurers contend that such a ban might lead to adverse selection that could threaten their financial solvency. To investigate the potential effect of adverse selection in a term life insurance market, a discrete-time, discrete-state, Markov chain is used to track the evolution of twelve closed cohorts of women, differentiated by family history of breast and ovarian cancer and age at issue of a 20-year annually renewable term life insurance policy. The insurance demand behavior of these women is tracked, incorporating elastic demand for insurance. During the 20-year period, women may get tested for BRCA1/2 mutations. Each

Journal ArticleDOI
TL;DR: That individuals with all six health conditions expressed concern regarding their ability to obtain future health insurance suggests policy proposals should be broad‐based, addressing the needs and concerns of individuals with diverse health conditions.
Abstract: While studies reveal that individuals with both genetic and other chronic medical conditions have difficulty obtaining health insurance, no large-scale studies have compared the health insurance experiences of these groups. The goal of this study was to document and compare the health insurance experiences, attitudes, and beliefs of persons with genetic conditions to those of persons with or at risk for other serious medical conditions. We interviewed approximately 100 adults or parents of children with one of each of the following medical conditions: sickle cell disease (SCD), cystic fibrosis (CF), diabetes, and HIV, and 200 adults with or at risk for breast (BC) or colon cancer (CC). The interview included items related to respondents' experiences and attitudes regarding health insurance. Twenty-seven percent of 597 total respondents self-reported having been denied health insurance or offered insurance at a prohibitive rate. Respondents with single-gene disorders (CF and SCD) were twice as likely to report this as those with non-genetic conditions. Legislation that exists to limit genetic discrimination in insurance addresses genetic risks or traits only, however, rather than protecting those with actual disease. Thus, current legislation may not address the challenges faced by individuals like those in this study, who try to maintain access to health insurance when they or their children are symptomatic with a genetic or other serious health condition. More than one-third of all respondents thought there was a high chance they would be denied health insurance in the future or their insurance would become unaffordable. That individuals with all six health conditions expressed concern regarding their ability to obtain future health insurance suggests policy proposals should be broad-based, addressing the needs and concerns of individuals with diverse health conditions.

Journal ArticleDOI
TL;DR: The incident in May-June 2007 involving Andrew Speaker and drug-resistant tuberculosis (TB) joins other communicable disease crises that have forced contemplation or actual application of quarantine powers.
Abstract: The incident in May-June 2007 involving a U.S. citizen traveling internationally while infected with drug-resistant tuberculosis involved the U.S. federal government's application of its quarantine and isolation powers. The incident and the isolation order raised numerous important issues for public health governance, law, and ethics. This article explores many of these issues by examining how the exercise of quarantine powers provides a powerful lens through which to understand how societies respond to and attempt to govern threats posed by dangerous, contagious pathogens. The article considers historical aspects of governmental power to quarantine and isolate individuals and groups; analyzes the current state of quarantine and isolation law in the United States in light of the recent incident with drug-resistant tuberculosis; and explores global aspects of public health governance and law highlighted by this incident.

Posted Content
TL;DR: The anti-precautionary principle as mentioned in this paper is proposed to prevent new laws designed to stop the Superuser from becoming a powerful figure in computer security and Internet law debates, in part because they have misapplied Lessig's ideas about code.
Abstract: Fear of the powerful computer user, "the Superuser," dominates debates about online conflict. This mythic figure is difficult to find, immune to technological constraints, and aware of legal loopholes. Policymakers, fearful of his power, too often overreact, passing overbroad, ambiguous laws intended to ensnare the Superuser, but which are used instead against inculpable, ordinary users. This response is unwarranted because the Superuser is often a marginal figure whose power has been greatly exaggerated. The exaggerated attention to the Superuser reveals a pathological characteristic of the study of power, crime, and security online, which springs from a widely-held fear of the Internet. Building on the social science fear literature, this Article challenges the conventional wisdom and standard assumptions about the role of experts. Unlike dispassionate experts in other fields, computer experts are as susceptible as lay-people to exaggerate the power of the Superuser, in part because they have misapplied Larry Lessig's ideas about code. The experts in computer security and Internet law have failed to deliver us from fear, resulting in overbroad prohibitions, harms to civil liberties, wasted law enforcement resources, and misallocated economic investment. This Article urges policymakers and partisans to stop using tropes of fear; calls for better empirical work on the probability of online harm; and proposes an anti-Precautionary Principle, a presumption against new laws designed to stop the Superuser.

Journal ArticleDOI
TL;DR: This article deals with a foreign policy question of extraordinary importance: what responsibilities do States have to provide economic and technical assistance to other States that have high levels of need affecting the health and life of their citizens?
Abstract: This article deals with a foreign policy question of extraordinary importance: what responsibilities do States have to provide economic and technical assistance to other States that have high levels of need affecting the health and life of their citizens? The question is important for a variety of reasons. There exist massive inequalities in health globally, with the result that poorer countries shoulder a disproportionate burden of disease and premature death. Average life expectancy in Africa is nearly 30 years shorter than in the Americas or Europe. In one year alone, an estimated 14 million of the poorest people in the world died, while only an estimated four million would have died if this population had the same death rate as the global rich.

Journal ArticleDOI
TL;DR: Broad adoption of "consumer-directed health care" would probably widen socioeconomic disparities in care and redistribute wealth in "reverse Robin Hood" fashion, from the working poor and middle classes to the well-off.
Abstract: Broad adoption of “consumer-directed health care” would probably widen socioeconomic disparities in care and redistribute wealth in “reverse Robin Hood” fashion, from the working poor and middle classes to the well-off. Racial and ethnic disparities in care would also probably worsen. These effects could be alleviated by adjustments to the consumer-directed paradigm. Possible fixes include more progressive tax subsidies, tiering of cost-sharing schemes to promote high-value care, and reduced cost sharing for the less well-off. These fixes, though, are unlikely to gain traction. If consumer-directed plans achieve market dominance, disparities in care by class and race will probably grow.

Posted Content
TL;DR: For example, the authors documents the extent of the modern Bar's domination of the Court's docket, arguments, and rulings, considers the extent to which business interests who serve as the Bar's primary clients are enjoying heightened success before the Court as a result, and suggests ways of promoting a fairer allocation of Supreme Court advocacy expertise in the future.
Abstract: During the past two decades, the Supreme Court has witnessed the emergence of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century. This development is significant for the simple reason that advocacy matters, including before the Supreme Court. Better, more effective advocates influence the development of the law and there is generally no court where such advocacy can wield more far-reaching influence than the Supreme Court. And that is precisely what the modern Supreme Court Bar has quietly and increasingly been accomplishing in recent years. The Court grants the petitions filed by the expert members of the Bar at a significantly higher rate and they also prevail on the merits more frequently. This article documents the extent of the modern Bar's domination of the Court's docket, arguments, and rulings, considers the extent to which business interests who serve as the Bar's primary clients are enjoying heightened success before the Court as a result, and suggests ways of promoting a fairer allocation of Supreme Court advocacy expertise in the future.

Journal ArticleDOI
07 Nov 2007-JAMA
TL;DR: Legislation and regulation from all parts of the world in each of these spheres are examined, and the effectiveness of these policies is evaluated.
Abstract: Recent tobacco control regulation in North America and Western Europe has had a salutary effect, even if smoking remains a pressing public health hazard. But in the 21st century, the tobacco industry has quietly moved its locus of activity to lucrative, emerging markets: the vast populations in Africa, Asia, Eastern Europe, and Latin America. The poorest, least educated, and sickest people on earth inhabit these regions. "Big Tobacco's" new marketing strategy will cause untold morbidity for the world's most vulnerable. However, there are a variety of effective tobacco control policies that nations can and should enact. The World Health Organization treaty, the Framework Convention for Tobacco Control, requires signatory nations to adopt a variety of tobacco control policies to the fullest extent permissible under their constitutions. The Second Conference of FCTC Parties recently set regulatory goals in Bangkok, Thailand, including the first FCTC protocol on illicit trade of tobacco products, a second protocol on cross border advertising regulations. Effective tobacco control policies include: national tobacco regulatory agencies; comprehensive bans on tobacco advertising, promotion, and sponsorship; health warnings on cigarette packets that cover at least half of the packet, convey the risks, rotate messages, and use images; mandating smoke-free environments; and tax and price policies that make smoking prohibitively expensive. This article examines legislation and regulation from all parts of the world in each of these spheres, and evaluates their effectiveness. The imperatives of science, ethics, and human rights oblige society to reduce the burden of smoking, particularly among the most disadvantaged.

Journal ArticleDOI
TL;DR: In this article, the authors argue that a principled rationale for distinguishing federal standard setting that sets a federal floor or ceiling can be found in the context of risk regulation, arguing that the institutional diversity engendered by retaining multiple layers of law and regulatory actors creates conditions conducive to reassessment and adjustment of often rigid or outdated regulation.
Abstract: If the federal government has constitutional power to address a social ill, and hence has power under the Supremacy Clause to preempt state, local, and common law regimes, is there a principled rationale for distinguishing federal standard setting that sets a federal floor or ceiling? At first blush, the two appear to be mere flip sides of the same federal power, only distinguished by their different regulatory preferences for a world of minimized risk (with floors) or higher levels of risk (with ceilings). This Article argues, however, that these two central regulatory choices are fundamentally different. Floors embrace additional and more stringent state and common law action, while ceilings actually are better labeled a "unitary federal choice" due to how they preclude any more lax or more stringent action as well as the different actors, incentives, and modalities of information elicitation and proof of common law settings. Advocates of less hindered markets respond that this is precisely the idea-regulatory certainty is enhanced with ceiling preemption, allowing producers of goods to plan with confident knowledge of the regulatory terrain, unbuffeted by an array of uncoordinated actors. This debate was, until recently, largely hypothetical. Recently, however, in settings as diverse as product approvals, to regulation of risks posed by chemical plants, to possible legislation regarding greenhouse gases contributing to climate change, legislators and regulators have suggested or asserted such a broad, preemptive impact. The federal action, whatever it is, would be the final regulatory choice. But under what theory of regulation and legislation can one be confident that locating all decisionmaking power in one institution at one time will lead to appropriate standard setting? In fact, advocates of risk regulation, "experimentalist regulation" scholars, and, at the other end of spectrum, skeptics about the likelihood of public-regarding regulation, all call for attention to pervasive risks of regulatory failure. Agency and legislative inertia, information uncertainties and asymmetries, outdated information and actions, regulatory capture, and a host of other common regulatory risks create a substantial chance of poor or outdated regulatory choice. Considering these pervasive risks of regulatory failure, the principled distinctions between floor and ceiling preemption become apparent. Vesting all decisionmaking power in one institution can freeze regulatory developments. Unitary federal choice ceiling preemption is an institutional arrangement that threatens to produce poorly tailored regulation and public choice distortions of the political process, whether it be before the legislature or a federal agency. Floor preemption, in contrast, constitutes a partial displacement of state choice in setting a minimum level of protection, but leaves room for other actors and additional regulatory action. Floors anticipate and benefit from the institutional diversity they permit. This Article closes by showing how the institutional diversity engendered by retaining multiple layers of law and regulatory actors creates conditions conducive to reassessment and adjustment of often rigid or outdated regulation.

Journal ArticleDOI
TL;DR: In the one Supreme Court case addressing public health surveillance, a unanimous tribunal upheld the right of the state to conduct surveillance as discussed by the authors, and advocates for expanded surveillance extended the practice to occupational diseases and most ambitiously to profiles of childhood health status.
Abstract: b d Public health departments collect a vast array of identifiable information in the course of mandatory reporting efforts and other surveillance activities. These undertakings span a range of conditions from infectious threats and chronic diseases including cancer, to immunization status and birth defects. Advocates for expanded surveillance extended the practice to occupational diseases and, most ambitiously, to profiles of childhood health status. Syndromic surveillance is also increasingly undertaken in the new post-September 11 security environ - ment. In the one Supreme Court case addressing public health surveillance, a unanimous tribunal upheld the right of the state to conduct surveillance. 1


Posted Content
TL;DR: The legality and wisdom of the FDA's effort to persuade courts to find most failure-to-warn claims preempted is explored and how state damages litigation helps uncover and assess risks that are not apparent to the agency during a drug's approval process is explained, and why this "feedback loop" enables the agency to better do its job.
Abstract: This article explores the legality and wisdom of the FDA's effort to persuade courts to find most failure-to-warn claims preempted. The article first analyzes the FDA's justifications for reversing its long-held views to the contrary and explains why the FDA's position cannot be reconciled with its governing statute. The article then examines why the FDA's position, if ultimately adopted by the courts, would undermine the incentives drug manufacturers have to change labeling to respond to newly-discovered risks. The background possibility of failure-to-warn litigation provides important incentives for drug companies to ensure that drug labels reflect accurate and up-to-date safety information. The article next explains why the agency's view that it is capable of singlehandedly regulating the safety of drugs is unrealistic. The agency does not have the resources to perform the Herculean task of monitoring the performance of every drug on the market. Both the Institute of Medicine and the Government Accountability Office have explained the shortcomings in the FDA's recent performance, and they express doubt that the FDA is in capable of facing an increasingly challenging future. The article then explains how state damages litigation helps uncover and assess risks that are not apparent to the agency during a drug's approval process, and why this "feedback loop" enables the agency to better do its job. FDA approval of drugs is based on clinical trials that involve, at most, a few thousand patients and last a year or so. These trials cannot detect risks that are relatively rare, affect vulnerable sub-populations, or have long latency periods. For this reason, most serious adverse effects do not become evident until a drug is used in larger population groups for periods in excess of one year. Time and again, failure-to-warn litigation has brought to light information that would not otherwise be available to the FDA, to doctors, to other health care providers, and to consumers. And failure-to-warn litigation often has preceded and clearly influenced FDA decisions to modify labeling, and, at times, to withdraw drugs from the market.