Showing papers in "Albany law review in 2002"

"The American Breed": Nazi eugenics and the origins of the Pioneer Fund.

Abstract: INTRODUCTION A. The Bell Curve, The Pioneer Fund, and American Eugenics When The Bell Curve was published in 1994 it was an immediate best seller; more than a million copies are currently in print. The thesis of The Bell Curve, that intelligence--the trait that IQ tests are designed to measure--is inherited, has become increasingly critical as a predictor of educational, occupational, and social success. (1) The Bell Curve asserts that those possessing a high IQ constitute a hereditary upper class while their more limited counterparts at the opposite end of the IQ spectrum make up an "underclass." The Bell Curve also analyzes social and economic stratification in America and concludes that the inequality which allegedly exists in this country is attributable to genetically transmitted "ethnic differences." (2) The social and political implications of The Bell Curve's message led to immediate controversy, and the book has generated a tremendous amount of commentary from both scholars and the popular media. At least some of the controversy has been fueled by the history of eugenics in America. The argument advanced in The Bell Curve closely parallels assertions routinely made in the early years of the twentieth century by advocates of the eugenics movement. The book's conclusions, disparaging the government's role in ameliorative social programs and forecasting the demise of American civilization as the result of increasingly "dysgenic" birthrates among the "underclass," are themes found firmly rooted in the eugenic tradition. The success of The Bell Curve has drawn attention to the Pioneer Fund, (3) a foundation that has provided a steady stream of funding for research and publicity on topics related to "heredity and eugenics" and "the problems of race betterment" since first being chartered in 1937. (4) Some sixteen researchers who have received Pioneer support are referenced in The Bell Curve and Pioneer proudly cites this record in its own promotional material. (5) Pioneer's founding president was Harry Laughlin, one of the most effective propagandists of early Twentieth Century America's organized eugenics movement. He is described in The Bell Curve sympathetically as "a biologist who was especially concerned about keeping up the American level of intelligence by suitable immigration policies." (6) Like The Bell Curve, Laughlin sounded the eugenicist's alarm, declaring that the "great mass of defectiveness" swelled by immigrants, the feebleminded, and children of racial intermixture would swamp America. (7) Laughlin's pronouncements about race echoed the hierarchical standards--white Nordics at the top, others below--set out by Francis Galton, the father of the eugenics movement. (8) Laughlin believed that the "pioneer families" of the United States, pruned of weaker members by frontier tests of survival, represented the pinnacle of Nordic purity. (9) He claimed that Germans and early American settlers shared a "common race descent" from ancient Nordic ancestors. (10) Laughlin argued for a legal definition of "the American race" that would exclude all but "Anglo-Saxon" immigrants, and he dedicated extensive efforts to blocking the migration of Jews fleeing Hitler. (11) His collaborators in developing the new definition were Madison Grant, an elder statesman of American eugenics, and Wickliffe Draper, a textile magnate, whom Laughlin introduced to his German colleagues in 1935 as "one of the staunchest supporters of eugenical research and policy in the United States." (12) After attending a Nazi eugenics conference, Draper wrote to Laughlin encouraging him to "work out something of eugenic value;" (13) the Pioneer Fund was chartered less than a year later. The work of the Pioneer Fund subsequently began in the swirl of enthusiasm shared by Laughlin and Draper over the progress of Nazi eugenics. Draper's finances provided a base that supported Pioneer projects as well as other programs tailored to meet his goals of immigration restriction and racial separation. …

The Pioneer Fund and the scientific study of human differences

Abstract: INTRODUCTION A. For the Record B. A Roster of Distinguished Americans C. Pioneer's Contributions to the Science of Human Diversity I. ARE LOMBARDO'S CHARGES CREDIBLE? A. Is the Bell Curve really "Link(ed) to the Holocaust?" B. Was Laughlin Really "Preoccupied" With German Eugenics? C. Did Pioneer Grants Really Support White Supremacy? D. Did Laughlin Really Define "The American Breed" to "Exclude Jews"? E. Is Truth About Race No Defense? A Personal Note II. PROVIDING THE NECESSARY CONTEXT A. The Scientific Context B. The Eugenics Context C. The Historical Context III. UNDERSTANDING THE ANIMUS AGAINST THE PIONEER FUND A. The Nature-Nurture Wars B. Race-Realist v. Hermeneuticists CONCLUSION: THE PIONEER FUND IN THE NEW MILENNIUM APPENDIX: THE PIONEER FUND'S CERTIFICATE OF INCORPORATION INTRODUCTION A. For the Record When I succeeded the late Harry F. Weyher (1) as President of the Pioneer Fund, a New York Not-for-Profit Corporation, I intended my first priority to be studying new grant proposals and seeking support for Pioneer Fund research from other foundations, individuals, and government agencies to further our mandate, which is the scientific study of human differences. Instead, I find that my first duty must be to refute a series of false charges in an article entitled "The American Breed": Nazi Eugenics and the Origins of the Pioneer Fund by Paul Lombardo, a lawyer and bio-ethicist at the University of Virginia, that appeared in the Albany Law Review in May 2002. (2) Lombardo's article consists of an Introduction, three Parts, and a Conclusion. It opens and closes with a polemic against Herrnstein and Murray's 1994 bestseller The Bell Curve, (3) which was not supported by the Pioneer Fund. Representative of Lombardo's inflammatory style is his statement that The Bell Curve's conclusions "are drawn from ... a political movement that provides America's most enduring link to the Holocaust." (4) The remainder of his article continues in similar style, filled with rancor and epithets. In Part I, Lombardo presents a highly selective and misleading survey of the contents of the Eugenical News from 1932 to 1937, edited by Harry Laughlin, in an attempt to prove Laughlin's "captivation" (5) and "preoccupation with the Nazi eugenics program." (6) In Part II, Lombardo selects instances and quotations to lead his readers to believe that Wickliffe Draper (one of Pioneer's founders, a director from 1937 to 1972 and its main benefactor) was guilty of "rabid racism," (7) and "white supremacy." (8) In Part III, Lombardo alleges that Harry Laughlin (another of Pioneer's founders and its first president serving from 1937 to 1941) sought to define a new "American Breed" that "would emphatically exclude the nonwhite, particularly the Jew." (9) Lombardo's Conclusion provides a selected list of thirteen Pioneer Grants (including one to the present writer), which he offers as proof of the Pioneer Fund's support for "white genetic and intellectual superiority." (10) Of the many allegations in that article, the most outrageous are that in 1937, "pro-Nazi" Americans established the Pioneer Fund "in hopes of duplicating Nazi legal and social policy" (11) and that since its founding, Pioneer has promoted a "white supremacist," "pro-Nazi," "racist," and "anti-democratic" political agenda. (12) Lombardo's accusations are contradicted by the facts. The sheer implausibility that an organization founded by "crypto-Nazis" in 1937 could have survived World War II (1941-1945) without being challenged should have called into question the veracity of the entire article. Indeed, all of Pioneer's founders who could do so participated in the war against the Nazis. Two other remarkably similar critiques of the Pioneer Fund and its origins in the eugenics movement appeared while this response was being prepared. …

Ethical issues in stem cell research.

Abstract: INTRODUCTION Human stem cell research and its possible connection to human cloning (i.e., somatic cell nuclear transfer) has been the subject of much debate recently. Significant confusion exists, however, in the public discourse on this topic--about what an embryo is, as well as about the ethical, religious, and legal issues involved. The aim of this essay is to clarify these issues and lay out as impartially as possible some of the ethical, religious, and scientific questions surrounding these complex matters, in the hope of stimulating and facilitating informed public debate. Professor A.V. Hill in 1923, a future Nobel laureate, in an address to the Royal Philosophical Society of Glasgow, urged scientists to take a broad view. (1) He said: The chief trouble I see with Science is that it is often not philosophical enough; so many of its apostles cultivate some little corner of it so intensively that they never find time or inclination to go up to the top of the neighboring hill in order to see their own little patch in its proper proportions, and to enjoy the romance of the larger landscape. (2) I hope to outline in this essay some of this broader landscape--the ethical, scientific, religious, and public policy issues within which we need to think about human stem cell research. DEFINITIONS Gametes--that is, ova and spermatozoa--carry one half of the genetic material, i.e., the DNA, of the female and male putative parents. When a spermatozoon enters an ovum and its DNA is introduced into the nucleus of the ovum, this DNA pairs up with the corresponding DNA already in the nucleus of the ovum, reconstituting its total genetic material in forty-six chromosomes. A fertilized ovum or zygote is thus formed. This can occur in the female genital tract (usually in the fallopian tube) as part of normal sexual reproduction, or in vitro fertilization (IVF) in the case of assisted fertility. In both instances the zygote starts to divide if conditions are favorable; first to form a blastomere of eight, then sixteen cells, and ultimately to form around day five a blastocyst. The blastocyst consists of 120 to 150 cells, some of which are the stem cells that can develop into all forms of normal human tissue. These are called totipotent. It is important to remember that at this stage the blastocyst, which is an early embryo, can divide into two or more living entities that can then develop into normal embryos. Thus, blastocysts are not individuals or unique entities. They are twinnable. At fourteen days of development, a structure known as the primitive streak appears. This represents the primitive central nervous system. From this point on, the embryo is a unique individual and is no longer twinnable. As I shall discuss later, some authorities regard this developmental stage as critical in their thinking about when human, as contrasted to simply biological, life begins. Finally, I wish to define the process of cloning. Based on the work of Ian Wilmut in producing Dolly the sheep, (3) this process involves removing the nucleus of an ovum and replacing it with the nucleus of an adult cell taken from the egg donor or another adult. This is known as somatic cell nuclear transfer (SCNT). This is a difficult task attended by a high failure rate. It took over 250 tries to get Dolly. (4) Using a fetal or embryonic cell as a nuclear donor is an easier way to achieve cloning. Such cloned cells are then induced to divide and develop into embryos. SOURCES OF STEM CELLS Totipotent stem cells can be obtained from blastocysts or other forms of early embryos. These are considered the most likely to be able to be grown into any organ of the human body or to be used for cell transplantation to help injured human tissues recover from injury. Germ line cells from early fetuses, derived from terminated pregnancies, are almost as useful as embryonic stem cells. …

The Ethics Weave in Human Genomics, Embryonic Stem Cell Research, and Therapeutic Cloning: Promoting and Protecting Society's Interests

Abstract: This essay discusses a value-based connection between the emerging technologies of human genomics, embryonic stem cell research, and therapeutic cloning. The analysis presents what is described as an "ethics weave" to highlight the value-based connection between today's major forms of bioengineering. The argument is that human life constitutes the most basic human value that must weave through a sound ethical analysis of life sciences research. The emphasis on the value of human life is evident both in human genomics and embryonic stem cell research, including therapeutic cloning. First, the breakthroughs in human genomics raise many ethical concerns. The death of the first patient in a gene therapy trial in 1999 gave prominence to a profound concern about patient safety in human genomics research. (1) Second, the announcement by President Bush in August 2001, permitting federal funding of research on a limited number of embryonic stem cells, generated widespread debate about the meaning of embryonic human life. (2) The recent experiments in therapeutic cloning by Advanced Cell Technologies have increased the prominence of policy discussion regarding embryonic stem cell research. (3) This essay argues that there is an ethics weave that connects human genomics with embryonic stem cell research based on respecting the value of human life. Respecting human life in each area, however, appears to yield bipolar results. That is, respect for the value of human life in genomics research is articulated in terms of strict regulatory measures to protect patient safety. Whereas, respect for the value of human life in embryonic stem cell research entails a policy trajectory that seems tolerant of the destruction of some human embryos, even if Congress closes regulatory doors to therapeutic cloning. INTRODUCTION To set the scene of the emerging capacity of bioengineering, Part I of the essay presents a case study of Molly and Adam Nash, the first documented medical therapy to combine human genomics and embryonic stem cell research. The story of Molly and Adam Nash provides a glimpse into the relationship between human genomics and stem cell research for the development of future medical therapies. It is in the context of the relationship between these technologies that the ethics weave presented in this essay seeks to highlight a value-based connection between these forms of bioengineering. Part II of the essay indicates that concern with the value of human life in the field of human genomics, especially in the wake of a patient death in a gene therapy clinical trial, has generated a strenuous concern among regulatory bodies over patient safety. Part III of the essay suggests, albeit incongruously, that concern with the same value of human life in stem cell research yields a bipolar result that appears to tolerate the destruction of some human embryos. Respect for human life in stem cell research can yield a result that contrasts starkly with the prominence of patient safety in human genomics. Understanding this incongruity is crucial in order to promote and protect society's interests concerning bioengineering. I. CASE STUDY: MOLLY AND ADAM NASH Molly Nash was a six-year old girl with Fanconi anemia, a rare genetic disorder that prevents the production of bone marrow by the body and can kill at a very young age. (4) A bone marrow transplant from a matching sibling can offer an eighty-five percent rate of success for treating this disease. (5) Because Molly did not have a sibling, her parents decided to have another child, hoping after its birth to use blood from the placenta and umbilical cord for a stem cell transplant for Molly. The parents opted for assisted reproduction and genetic screening from the Reproductive Genetics Institute in Chicago. Using pre-implantation genetic diagnosis, the parents ensured that the new baby did not have the same disease as Molly and that there would be a good match for the transplant. …

The Conservative Case against Racial Profiling in the War on Terrorism

Abstract: I. INTRODUCTION Although it now seems like something from the distant past, racial profiling was a hot political issue in 2001. The crime known as DWB, or driving while black, had emerged from the shadows of casual conversation and had become the subject of fairly intense public controversy. That controversy, however, was almost entirely concerned with questions about facts and remedies, not about principles. We had what appeared to be a clear national consensus that it was completely improper for the police to use racial stereotypes when selecting individuals for stops or searches--even if it might be true that members of certain racial groups are more likely than other groups to be guilty of specific criminal behavior. (1) The controversy was mostly focused on whether the police were in fact commonly using such stereotypes, especially when choosing which motorists to pull over for traffic violations that are so common that the police necessarily ignore them most of the time. Generally speaking, conservatives were probably more skeptical about claims that racial profiling was actually very common, (2) while liberals were more willing to believe that it was a serious problem. (3) But almost nobody argued that the police should be allowed to engage in this practice. (4) Then came 9/11. All of the hijackers who carried out the attacks that day were Arab men, (5) and commentators began saying that racial profiling is an appropriate tool for the war on terrorism. And the public seems to agree. Polls have shown strong majorities in favor of subjecting those of Arab descent to extra scrutiny at airports. (6) Interestingly, blacks and Arab-Americans were even more likely than whites to favor such policies. (7) By now, most of us have had the opportunity to see little old ladies stopped for humiliating random searches at the boarding gates in the airports, while far more dangerous looking men have walked down the jetways without so much as a second look from the security screeners. Conservatives, in particular, have skewered the government for persisting with these apparently silly, and quite possibly very dangerous, policies. (8) This is consistent with the general tendencies of conservatives to be more supportive than liberals of aggressive law enforcement techniques and to be less likely to believe that police officers are prone to racist behavior. (9) Political correctness, obsessive pandering to racial sensitivities, bureaucratic mindlessness--whatever the diagnosis, the cure is taken to be obvious: Stop the silliness, we're told, and get serious about protecting us from another attack, which we can be quite sure will not be carried out by septuagenarian Norwegian-American women. In my opinion, this new enthusiasm for racial profiling is misguided. My argument has three main points. First, racial profiling or racial stereotyping is something that all of us do all the time. There are good reasons why we do it, and there are also good reasons why we need to make an effort not to do too much of it. Second, free societies--and especially free markets--foster profound forces that tend to curb irrational racial stereotyping. These mechanisms certainly do not work perfectly, but they do work. Third, governments are highly prone to excessive racial stereotyping and are largely immune from the forces that keep this practice in check in the private sector. For that reason, government policies that entail racial profiling should be treated with the greatest skepticism. Not only do they threaten the legitimate interests of various racial groups, but they tend to distract government agencies from alternative policies that are likely to work at least as well. Certainly, we should not pander to left-wing racial mau-mauing if doing so will leave us vulnerable to another catastrophe like 9/11. But by the same token, let's also avoid pandering to dysfunctional bureaucratic imperatives that have their own potential for disaster. …

The Mandatory Constitutional Convention Question Referendum: The New York Experience in National Context

Abstract: THE MANDATORY CONSTITUTIONAL CONVENTION QUESTION REFERENDUM: "NO" IN NEW YORK IN 1997 Voters expressed little confidence in government; turnout at the polls was consistently abysmal. Legislative elections rarely offered real choices; incumbents almost never lost. Gridlock was the norm in a state legislature that featured the most persistent divided partisan control in the nation. The state budget had not been passed on time in thirteen years. (1) The state personnel system was sclerotic. A torturous local government web--a "system" in name only--diffused accountability and drove up costs. State and local taxes, especially local property taxes, were among the highest in the nation. (2) The result of all this was a state and local service delivery system that was expensive, inequitable, and often inadequate. Education is the best example. Mean per pupil education spending was very high. (3) Children in the suburbs were well served, or at least had a fighting chance. But most children--especially minority children in urban centers--were simply not being educated. (4) Yet, when asked in 1997, in the midst of these conditions, to vote on the question "Shall there be a convention to revise the constitution and amend the same?" New Yorkers responded with a resounding "No." The vote was 929,415 in favor of a convention, to 1,579,390 against. (5) Perhaps even more tellingly, a plurality of citizens who came to the polls in that year--1,693,788 of them--simply ignored the question entirely! (6) The idea of holding a convention was rejected even though Governor Mario M. Cuomo had earlier endorsed it as the state's best chance for reform; (7) even though the commission he appointed worked for several years to prepare for it; (8) and even though by the time of the vote virtually every daily newspaper in the state had published an editorial in favor of holding a constitutional convention. (9) The convention question was on the ballot in 1997 because a century-and-a-half earlier (in 1846) a Convention in New York added a constitutional requirement that the question of whether to call a convention be asked every twenty years. (10) The idea for a mandatory convention referendum at regular intervals first appeared in the late eighteenth century in the constitutions of Massachusetts, New Hampshire, and Kentucky. (11) The Empire State is currently one of fourteen in the United States whose constitutions require the periodic submission of such a question. (12) Perhaps because the idea was included in the Model State Constitution, (13) many of these states adopted the provision relatively recently: Alaska (1956), Connecticut (1965), Hawaii (1950), Illinois (1970), Michigan (1963), Missouri (1945), and Montana (1972). (14) Additionally, Rhode Island added the periodic convention-call provision to its constitution in 1973. (15) One rationale for such provisions is that the sovereign people should have some way of making changes in their governmental structure without having to rely on action by those in statewide and legislative offices, many of whom may be beneficiaries of a flawed status quo. Another is the Jeffersonian view that it is healthy for democracy for each generation to define anew its governing arrangements. Thomas Jefferson wrote in 1816 that "`Each generation [has] ... a right to choose for itself the form of government it believes most promotive of its own happiness.... [Al solemn opportunity of doing this every nineteen or twenty years should be provided by the Constitution.'" (16) A third, more conservative reason for these provisions is that periodic convention votes are a way of actually testing public support for political reform ideas, and of simultaneously channeling political energy and "avoid[ing] agitation." (17) Such referenda are more likely to confirm the status quo than to result in conventions actually being called, this view holds. New York's failure to authorize a constitutional convention through an automatic convention question referendum is hardly unusual. …

Political Cycles of Life and Death: Capital Punishment as Public Policy in California

Abstract: I. INTRODUCTION Capital punishment has been an important issue in contemporary American politics since the mid-1960s. But, because there have been only three executions for federal crimes in almost forty years, (1) it has been left to the states to debate the issues and efficacy of capital punishment as public policy. (2) The variation in its use in the states reflects the rulings of the U.S. Supreme Court about procedures and processes of applying the death sentence, individual state high court decisions, and the varying political attitudes in support of and opposition to it as a public policy. (3) The increase in anti-death-penalty sentiment among the public from the late 1950s to the early 1960s and a number of troubling legal concerns about death penalty procedures in the states, led to a de facto moratorium on its use from 1967 to 1977. (4) During this time the U.S. Supreme Court heard a variety of arguments on the constitutionality of capital punishment. (5) Among the score of decisions handed down by the Court in this period, two stand out because of their implications on the states. In Furman v. Georgia, (6) decided in June 1972, the Supreme Court held that the death penalty was unconstitutional when implemented in an arbitrary and capricious manner. (7) The five-to-four decision nullified the use of the death penalty by the federal government, and by the forty states that provided for its use at that time. (8) Efforts on behalf of the states to restore their capital punishment statutes in compliance with Furman were uncertain because the Supreme Court was unclear regarding the specific procedural guidelines that would be acceptable. (9) Much of the doubt was eased in 1976 by the Court's plurality opinion in Gregg v. Georgia, (10) in which a majority of the Court held that the death penalty was not inherently unconstitutional. A majority held that new capital punishment laws adopted by the states were legally valid when they provided for bifurcated trials. (11) Under this process, a capital case would be divided into two distinct parts. First, the trial stage would determine the guilt of a defendant. If the accused was in fact found guilty, the sentence stage would follow, in which the trial jury would reconvene and consider any mitigating and/or aggravating circumstances in order to determine whether the felon should be sentenced to death. (12) Since Gregg, thirty-eight states have restored the death sentence, while twelve states have abolished capital punishment all together. (13) The first execution in the post-Gregg period occurred in Utah in 1977 in the widely publicized firing squad execution of Gary Gilmore. (14) As with other morality issues, the debate over capital punishment generally reflects the political culture in the individual states. In some states, the political decisions to restore capital punishment and resume executions were made without controversy. (15) In others, the matter has caused turmoil especially when one branch of government nullifies what another seeks to do; for example, when a governor vetoes death penalty legislation, a legislature passes cumbersome capital legislation which it knows will face court challenge, or the state judiciary overturns capital punishment laws. (16) The life cycle of the death penalty in California invites examination and discussion for several reasons. First, the major branches of government have been in conflict with each other over the death penalty for several decades, most notably in the mid1970s and mid-1980s. (17) Studies that discuss the legislative response to Furman are valuable, (18) but a more complete understanding of the dynamics of this issue requires analysis of the institutional behaviors of the other policymaking organs of government. Second, the California Supreme Court has played an active role in defining capital policies in the state. (19) Public reaction to the court's death penalty decisions led voters to deny new terms to three of the justices in 1986. …

Embryonic stem cell research and respect for human life: philosophical and legal reflections

Abstract: I. INTRODUCTION Less than twenty-five years ago, bioethics was considered a somewhat arcane discipline. In 1978, the late Paul Ramsey, a noted Protestant ethicist, published a book entitled Ethics at the Edges of Life: Medical and Legal Intersections. (1) In this book, Ramsey considered abortion, euthanasia, defective infants, neonatal infanticide, and the refusal of life-prolonging technology. (2) Although the book was well received in some specialized academic circles, it did not have much impact on the media or on the popular culture of that time. One possible reason for this is that many people would just as soon avoid discussing issues that concern life and death. (3) Twenty-two years have passed since the publication of Ramsey's book, and many of the issues that were discussed still linger, yet these issues do not generally make headlines nor does the media cover them extensively. In this new millennium, we think of "the edges of life" in terms of issues like cloning and stem cell research, genetic therapy and counseling, reproductive technologies, organ and tissue transplantation, heart-lung machines, and artificial hearts. These are the issues that have come to the forefront because of the incredible and almost unimaginable advances in biology, chemistry, physics, and electronics during the past quarter century. These advances have already provided remarkable enhancements for human life and have the potential for even more improvements. This accelerated pace of scientific advancement has hindered the ability of our cultural values and laws to deal adequately with the opportunities and dangers such developments present. When it comes to the most recent scientific advancements dealing with the "edges of life," the media and the scientific and academic communities look to experts in bioethics for analysis, criticism, and support. The media and people in general are interested in these issues because while the creation of human life and the destruction of human embryos are often facts of this research, usually the focus is on the possible benefits to humans if the research can be developed into a new more therapeutic technology. Currently, one does not have to search far to discover major news outlets focusing on many of these "edges of life" issues, especially cloning and stem cell research. (4) On November 26, 2001, The New York Times published a story entitled Company Says It Produced Embryo Clones, (5) and on December 3, 2001, the Times ran a story entitled German Panel Recommends Imports of Stem Cells. (6) These latter two stories are based on the claim by Advanced Cell Technology (7) that it has cloned human embryos and intends to use these embryos as a source for producing stem cells, but not to create new individuals. (8) If these claims are accurate, and its research is successful, a company like Advanced Cell Technology might serve as a source of stem cells for the entire world. The stem cell controversy is so timely that on December 18, 2001, The New York Times devoted its entire Science Times section to a discussion of these issues. (9) In this article, I intend to focus on embryonic stem cell research, and on cloning and parthenogenesis insofar as these procedures are used in the creation of embryonic stem cells, and how these areas of research relate to ideas concerning respect for human life and dignity, and its treatment in American jurisprudence. First, I will briefly describe what stem cells are and how they are related to cloning. Then, after analyzing notions of respect for human life and their entailments, I will contemplate what level of respect is due to human embryos at the blastocyst stage, whether produced by fertilization of an egg by sperm, by cloning, or by parthenogenesis. From this ethical perspective, I will then consider three related but distinct questions: (1) What are the ethical issues involved in research using stem cells derived from adult persons or from cells saved from the umbilical cord? …

A Comparative Look at the U.S and British Approaches to Stem Cell Research

Abstract: INTRODUCTION On August 9, 2001, President George W. Bush announced that federal funding of stem cell research would be limited to research involving those cell lines that had been created prior to the date of his announcement. (1) His statement had a significant impact on stem cell research in the United States and brought to mind a number of questions. What are stem cells? Why is this research important? What is the impact of President Bush's restrictions on stem cell research in the United States? To answer the last question, it is useful to examine other countries' and their legislative bodies' approaches to stem cell research. Great Britain, in particular, has a much less restrictive approach to public funding of stem cell research and has even gone so far as to permit the cloning of embryos for research. (2) Many researchers feel that Great Britain's approach is less complicated and leads to more useful results than the United States approach dictated by President Bush. (3) First, this comment provides a general overview of stem cell research--the types of stem cells, the sources of stem cells, and an analysis of these types and sources--and discusses the ethical issues surrounding this research. (4) This comment will then compare the U.S. and British approaches, analyzing them with a particular focus on various legislative and executive policy choices, the bases for these, and their impacts on the field of stem cell research. (5) I. OVERVIEW OF STEM CELL RESEARCH Stem cells have the ability to give rise to many types of cells in the human body. (6) Although stem cells' full potential remains unclear, researchers believe that these cells will have a remarkable impact on the treatment of various diseases and disorders. (7) In particular, stem cells could be used to generate various cells and tissues for transplantation. (8) For example, researchers hope "to develop heart muscle cells from human pluripotent stem cells and transplant them into the failing heart" muscles of heart attack victims. (9) Preliminary animal studies suggest that this type of research is feasible. (10) A. Types of Stem Cells Researchers have identified three different types of stem cells: unipotent, multipotent, and pluripotent cells. (11) While pluripotent cells have the potential to give rise to many different cell types, (12) multipotent cells give rise to certain types of cells (e.g., blood and skin stem cells) that perform specific functions, (13) and unipotent cells can give rise only to a single type of cell. (14) Another difference between these cell types is that unipotent and multipotent cells persist throughout life, whereas evidence suggests that pluripotent cells predominantly exist in embryos and fetuses. (15) Pluripotent stem cells also offer a greater potential for medical research, as they can divide indefinitely, self renew, and be stimulated into precursors for many different cell types. (16) Stem cell research has a number of potential applications. First, stem cells could provide information about general human development--in particular, the factors that lead to cellular specialization. (17) Second, researchers could test the safety and efficacy of drugs using a human cell line prior to using animal or human subjects. (18) For example, a new medication could be tested on a human cell line modified to incorporate the particular disease that the medication is designed to treat. Third, stem cells could be used to generate cells and tissues to treat diseases and disorders that act to destroy or impair certain cell types and tissues. (19) These "cell therapies" offer great hope to persons suffering from disorders such as "Parkinson's and Alzheimer's diseases, spinal cord injury, stroke, burns, heart disease, diabetes, osteoarthritis and rheumatoid arthritis." (20) B. Sources of Stem Cells A number of sources of stem cells exist, but vary in terms of their versatility and usefulness. …

Diversity, Mass Immigration, and National Security after 9/11-An Immigration Reform Movement Perspective

Abstract: Fiat justitia et pereat mundus? (1) Diversity as a legal doctrine in immigration law has become a contradiction, not because of what occurs under the law, but because of what occurs outside the law. In legal scholarship, diversity is a project of liberal constitutionalism, with its concepts of radical egalitarianism, anti-subjugation protections, and historicism. (2) Adherence to variants of liberal constitutionalism among immigration lawyers is widespread. These shared ideologies and professional interests have encouraged a rhetorical segregation of opponents of mass immigration at the "nativist" right extreme of the political spectrum. (3) In actuality, the core leadership of the immigration reform movement comes from the environmental movement and has tended to use ecological rather than legal concepts in public discourse. (4) In an attempt to renew dialogue between rights-oriented lawyers and limits-oriented environmentalists, I offer a working paper that highlights ecolate (5) concepts behind immigration reform advocacy. The paradigm of diversity provides a useful organizing point. Diversity has taken on a set of concentric meanings in contemporary immigration law and policy. I would suggest that most advocates mix and mingle these meanings in legal writing. I. DIVERSITY VISAS At its most discrete, diversity describes a statutory program for awarding immigrant visas to winners of a lottery from countries that have sent relatively few immigrants to the U.S. in recent years. (6) Congressional sponsors of this legislation described the policy underlying the statute as an equitable provision of current visa preferences to natives of countries that have been disadvantaged by past numerical limits and priority laws. (7) The "diversity visa" originated in a pilot program authorized under the Immigration Reform and Control Act of 1986. (8) The NP-5 program provided for 5,000 visas per year to be made available during 1987 and 1988 to natives of foreign states that had been "adversely affected" (9) by the enactment of the Immigration and Nationality Act of 1965. (10) Certain European countries experienced significant drops in the numbers of nationals eligible for immigrant visas after the 1965 repeal of the nation origins quota system. Thirty-seven countries subsequently were determined to be "adversely affected." (11) Applicants for NP-5 non-preference visas could apply by mail to the U.S. State Department, with priority based on the date the application was received. (12) An unexpectedly high demand for NP-5 visas prompted Congress to extend the program for two more years in 1988 and to increase the availability of visa numbers to 15,000 per fiscal year. (13) However, Rep. Howard Berman (D-CA) criticized the European orientation of the NP-5 program as a "slap in the face" to the 1965 reforms. (14) Berman was able to include a new OP-1 program to add 10,000 more visa numbers in fiscal years 1990 and 1991 for natives of "underrepresented countries." (15) "Underrepresented countries" were defined as those that had used less than twenty-five percent of the immigrant visa numbers normally available during fiscal year 1988. (16) Unlike NP-5, successful applicants under the OP-1 program would be selected randomly by computer in a visa lottery. (17) One hundred and sixty-two countries were found to qualify, and an unprecedented estimated three million applications were received. The diversity visa program was greatly expanded under the Immigration Act of 1990. (18) Further technical corrections were enacted in 1991. (19) As part of the largest statutory increase in legal immigration levels, Congress stated that one of its goals was to "promote diversity," although the term was never defined. (20) First, a transitional provision, called the AA-1 program, provided 40,000 visas for use between fiscal year 1992 and 1994 for thirty-four "adversely affected" countries. (21) The program was structured by Sen. …

New York's Hate Crimes Act of 2000: Problematic and Redundant Legislation Aimed at Subjective motivation(Commentary)

Abstract: INTRODUCTION The dawn of the new millennium marked New York's entry into the realm of legislating against evil thoughts. By enacting the Hate Crimes Act of 2000, (1) the New York State Legislature mandated enhanced penalties for a laundry list of criminal activities, which depend on the defendant's subjective motivation for committing the underlying or "specified offense." (2) In doing so, New York became the forty-fourth state to enact bias or hate crime legislation. (3) New York's Hate Crimes Act is unnecessary and ill-advised. There is little or no credible evidence that bias-related crime is either prevalent or deserving of specialized treatment. (4) The criminal law that existed prior to the passage of the Hate Crimes Act adequately addressed the anti-social behavior of defendants who commit crimes motivated by bias. Furthermore, the current Hate Crimes Act will not serve as a deterrent to bias-motivated acts. (5) Additionally, this statute might violate the federal and state constitutions, create procedural and evidentiary problems not envisioned by its drafters, and represent little more than political pandering to a panoply of special interest groups. Part One of this article provides some introductory remarks about hate crime legislation. Both federal and state law will be discussed and some comparisons will be made observing their respective approaches to bias-crime legislation. Part Two presents the New York Hate Crimes Act of 2000. Along with this general overview, the accompanying discourse discusses its design and purpose, questions its purported indispensable nature in the face of evidence demonstrating a lack of bias-crime prevalence, and comments about the New York law being built on a foundation of symbolism rather than substance. Part Three argues that the existing criminal law is more than sufficient to address the various crimes enumerated under the Hate Crimes Act, and thus, bolsters the contention that the Hate Crimes Act is unnecessary. Part Four examines the New York law under both the federal and state constitutions and supplies a constitutional critique. This Part assesses the New York Hate Crimes Act in light of Supreme Court guidance surrounding the concept of restraint on free speech. As will be seen, the New York law might suffer infirmities under its own state constitution that it might not face under its federal counterpart. Part Five furnishes an overview of the various procedural and evidentiary troubles that might result in attempting to prosecute offenders under the Hate Crimes Act, and in so doing, elucidates many arguments that may be offered against the law. Part Six concludes that hate crime laws, as a whole, have flourished due to the politics involved in creating such legislation, and despite overwhelming evidence suggesting that bias-crime laws are unnecessary, this type of legislation continues to flourish--for no legitimate policy reason. I. BACKGROUND OF HATE CRIME LEGISLATION Beginning in the mid-1980s, both Congress and many state legislatures enacted hate crime legislation. (6) Typically, if the defendant was motivated by factors such as race, religion, or ethnicity, these statutes either provide increased penalties for existing crimes or create new crimes punishing specific acts of ethnic or racial intimidation. (7) Federal statutes usually address bias-motivated criminal activity by enhancing penalties pursuant to the federal sentencing guidelines. (8) For example, if the defendant is found beyond a reasonable doubt to have intentionally selected, as his target, any victim or any property because of race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation, a three-step increase in the offense level is mandated. (9) State statutes may be of either variety--enhancing the penalty for an existing crime if it was found to be motivated by bias or creating a new crime for specific acts of ethnic, racial, or religiously motivated intimidation. …

Profiling as Needed

Abstract: George Orwell is reputed to have said that the first duty of intelligent people is to restate the obvious. (1) I am going to talk primarily about the obvious. Certainly, this is not going to be an exercise in jurisprudence. I happen to agree with everything that Professor Lund argued, and yet, I arrive at the opposite conclusion. (2) I think that the points he made are valid, and the most significant point that he made I would regard as the obvious. Let me refer to the obvious. Secretary Mineta, who is the Secretary of Transportation in the George W. Bush administration, made it perfectly clear that he is opposed to profiling, as are all the members of the Bush administration--at least formally. (3) I happen to concur with the stance that has been taken by the Bush administration. However, when we talk about eliminating profiling, one must argue that there is profiling that goes on all of the time. All of us are engaged in profiling to one degree or another. For example, Mr. Mineta says that not all Islamic people are terrorists. (4) Indeed, nothing could be more obvious. However, it is also true that people who engage in terror worldwide--whether it is in Bali, at the World Trade Center, or the Pentagon--happen to be radical Islamists. So while we say on the one hand that we are not engaging in profiling--indeed, we do. Common sense would dictate that some form of profiling goes on all of the time in the area of law enforcement even if it is not formal. All you have to do is spend a little time at the police department in New York City as I have on numerous occasions. If you are in Washington Heights you know that the cocaine traffic is pretty much controlled by the Dominican population. That is not to suggest that every Dominican is engaged in cocaine trafficking--that is absurd. But it is also very fair to say that cocaine traffic is controlled by Dominicans. On the other hand, the heroin traffic is pretty much controlled by Jamaicans. That is not to argue that every Jamaican is engaged in the heroin traffic. But every cop in Washington Heights would know that if you are going to look for people who are distributing heroin, you are probably better off starting with the Jamaican population. What does the terrorist attack suggest? Something very similar and equally obvious. Most of the people who engaged in the attack on the United States carried Saudi Arabian passports. Does that mean that everyone in Saudi Arabia is engaged in terrorist acts? Of course not. But it is also true that if you are engaged in law enforcement, one of the first and very obvious things that you would do is look very carefully at someone carrying a Saudi Arabian passport and look who is on an airplane in the United States. New Jersey is a very good example; precisely the example that Professor Lund raised. He talked about speeding on the highway and the fact that a disproportionate number of black drivers were picked up by cops. Heather McDonald, in a City Journal piece, mentions a study from New Jersey that indicates that black drivers represent approximately thirteen percent of the driving population, while the arrest record for drunk driving in New Jersey shows blacks representing approximately twenty-three percent of those arrested, which appears to be disproportionate. (5) McDonald also offers evidence from the National Highway Traffic Safety Administration indicating that blacks represented "10 percent of drivers nationally, 13 percent of drivers in fatal accidents, and 16 percent of drivers in injury accidents." (6) Therefore, the number of stops made on the highway turns out to be correlated to the number of those speeding, an indication that there may not be justification for claims of profiling. Is profiling always a matter of prejudice? It would hardly seem to be the case. Governments are prone to excessive activity--on this point, I would clearly agree with Professor Lund. But governments are prone to excessive activity in the direction of political correctness as much as in the excesses that may occur with profiling. …

Immigration and We the People after September 11

Abstract: Immigration and citizenship issues are part of a larger discussion about how America should respond to the terrorist attacks of September 11, 2001. At the same time, how America should respond to terrorism is part of a larger discussion of immigration and citizenship issues. Both of these discussions are part of an ongoing conversation about diversity in America; hence, the place of this essay in this Symposium. Four steps are necessary to unravel these complex connections. The first step entails connecting this panel on immigration to the previous panel on racial profiling. The second step addresses the general debate about September 11, terrorism, and America's response. The third step focuses on how the terrorism debate affects decisionmaking in immigration and citizenship. The fourth and final step explains how two conceptual shortcomings in prevailing approaches to immigration and citizenship have made it hard to define who "we the people" really are. I. PROFILING AND BELONGING The first symposium panel addressed racial profiling. At least implicitly, that panel raised the questions of membership and belonging that are inherently at the core of any immigration and citizenship discussions. Two examples should make the point. A. During the round table discussion for the Racial Profiling panel, Professor Lund observed that it is important to distinguish discrimination on the basis of nationality from discrimination on the basis of national origin. (1) Nationality discrimination, he explained, refers to the treatment of individuals outside the United States depending on their country of citizenship or national allegiance. For example, the number of immigrants from any given country is limited to about 25,000 per year. (2) This means that would-be immigrants from Mexico and other high-demand countries must wait longer than immigrants from most other countries. While these distinctions have been challenged as unsound policy, (3) Professor Lund is correct that such distinctions are well-established in immigration law. (4) In contrast, national origin discrimination refers to the treatment of individuals in the United States based on their country of ancestry. Here, the law is less tolerant of bias. For example, an employer's preference for Chinese-American over Mexican-American workers would generally be considered unlawful employment discrimination based on national origin. (5) Underlying Lund's distinction is an important question: Who belongs to America? The distinction between nationality and national origin discrimination is really a line between the treatment of outsiders (nationality discrimination) and treatment of insiders (national origin discrimination). As to "them," nationality-based distinctions are permissible. Once persons become a part of "us," discrimination is no longer about nationality, but about national origin, and any such discrimination merits much greater scrutiny under the law. B. Similar issues of membership and belonging are at the heart (if below the surface) of how both Professors Lund and London approach racial profiling. London asserts that racial profiling is sometimes justified because it sometimes enhances the rationality and accuracy of law enforcement and antiterrorism efforts. (6) Lund takes a different position, namely that racial profiling is often inaccurate and irrational. Lund further explains that private actors operating in a free market will correct and, over time, eliminate that inaccuracy and irrationality, while government actors are immune from such market corrections. The absence of such correction is the foundation of Lund's argument against racial profiling by the government. Unstated in both positions is that racial profiling should be judged by its accuracy and rationality. For example, does racial profiling make more accurate the process of determining if a particular airplane will have a terrorist on board? …

The Overlooked Constitutional Objection and Practical Concerns to Penalty-Enhancement Provisions of Hate Crime Legislation

Abstract: I. INTRODUCTION Over the past decade, our nation witnessed the emergence of the term hate crime into the forefront of the American political and legal arena. State legislators across the country, and even within Congress, have been lobbied extensively by special interest groups and parents of hate crime victims, urging their respective governments to pass hate crime legislation. (1) To date, nearly every state has passed some form of hate crime legislation, (2) and there is pending hate crime legislation in Congress as well. (3) Generally, hate crime legislation is designed to protect those groups that are the most susceptible to being victims of violent crimes. (4) One way in which this legislation attempts to shield people in these protected classes is by providing enhanced sentencing penalties for people convicted of crimes where the prosecution has established that the underlying crime was committed out of hatred for a protected class. (5) Despite the support that hate crime legislation has received around the country, there are probably an equal number of people who have voiced opposition for hate crime bills and who have argued that hate crime legislation violates the Constitution. (6) This comment focuses on the constitutionality of penalty-enhancement provisions contained in hate crime legislation, at both the state and federal level, with particular emphasis on the constitutional challenges that have been raised and the court's treatment of these challenges. Part II explains the sudden burst of enthusiasm for hate crime legislation, the need for enhanced penalties, and why it is difficult to openly criticize hate crime legislation. Part III discusses the constitutional objections that have been raised and the treatment of penalty-enhancement provisions by the courts. Part IV discusses the Supreme Court's Fifth Amendment double jeopardy jurisprudence. Part V discusses how the Fifth Amendment prohibition against double jeopardy can be applied to penalty-enhancement provisions. Part VI explains some practical concerns to penalty-enhancement provisions, including; why prosecutors and district attorneys across the country will soon be calling for the removal of penalty-enhancement provisions. Finally, this comment concludes that penalty-enhancement provisions are unconstitutional and that such provisions violate the Fifth Amendment Double Jeopardy Clause. Additionally, the comment concludes that prosecutors will be calling for the removal of penalty-enhancement provisions for practical reasons outside the constitutional issues II. CRIES FOR HATE CRIME LEGISLATION There are numerous instances over the past decade indeed throughout the history of this country--when violent crime has been directed towards members of a certain class of society. One need only pick up an American History textbook to learn about our harsh treatment towards various groups, including, but not limited to, Native Americans, African Americans, immigrants of all nationalities, and religious groups. Additionally, our country has witnessed violent acts committed towards homosexuals, senior citizens, people with disabilities, and most recently, Arab Americans and Muslims. (7) Two recent instances have energized the movement for hate crime legislation and penalty-enhancement provisions--the tragic deaths of Mathew Shepard and James Byrd, Jr.. Mathew Shepard was a twenty-one year-old gay student at the University of Wyoming. (8) In October of 1998, Mathew Shepard was lured out of a bar by two men, who then "pistol-whipped him senseless, lashed him to a fence post and left him in near-freezing temperatures to die." (9) Equally disturbing as the Mathew Shepard story is the plight of James Byrd, Jr., a "black man who was dragged to his death from a pickup truck in 1998 by three white men." (10) More recently, in the immediate aftermath of the September 11, 2001 terrorist attack on America, this country witnessed an increase in the number of violent actions aimed at Arab Americans. …

The right to die versus the right to live--who decides? The long and wandering road to a legislative solution.

Abstract: I. INTRODUCTION The decision whether or not to remove life-sustaining treatment is an important factor in determining when and how a person's life comes to an end. For terminally ill patients, the right to refuse medical treatment is often termed the right to die. The issue becomes more complicated, however, when patients are not competent to make their own medical decisions. Incompetence can be the result of a developmental disability such as mental retardation, or it can be the outcome of a medical condition such as one sustained from a car accident, from a complication of surgery, or from the progression of a disease. In Cruzan v. Missouri Dep't of Health, (1) the United States Supreme Court held that a state could require clear and convincing evidence of the patient's wishes to be shown in order to allow close family members to make medical decisions for an incapacitated patient. (2) Nancy Cruzan had been seriously injured in a car accident and was in a "persistent vegetative state." (3) When it became apparent that there was no hope for recovery, Nancy Cruzan's parents requested termination of her nutrition and hydration. (4) After the hospital refused their request, they sought review by the state trial court. (5) The trial court granted their request, (6) but the Missouri Supreme Court reversed. (7) The United States Supreme Court affirmed the Missouri Supreme Court's decision that the parents had failed to show by clear and convincing evidence that their daughter would have desired to have life-sustaining treatment withdrawn under these circumstances. (8) The Supreme Court's holding gave states free reign to regulate these decisions for their citizens. In the years following Cruzan, every state enacted legislation that allowed their citizens to use advance health-care directives--such as the health-care proxy. (9) The scope of the freedom to decide the fate of incapacitated loved ones remains a state based decision. (10) Unfortunately, this has led to "a system of fragmented, incomplete and often inconsistent legislation, both among states and within single states." (11) This comment discusses both current New York statutes and case law that applies to advance health-care directives. (12) Second, presently pending legislation is discussed, which, if enacted, will alleviate restrictions for all families of incapacitated, terminally ill people. (13) This section discusses pending legislation that would apply to all New Yorkers (14) and the legislation specifically tailored to mentally retarded or developmentally disabled individuals--which has just recently been signed by the Governor. (15) This section explores the support for legislation tailored to mentally retarded individuals and the legislation's limitations. (16) Third, the Uniform Health-care Decisions Act (UHCDA) is examined as an alternative to New York's current and proposed law. (17) Part V discusses the laws of Connecticut, Massachusetts, and Maine to illustrate variances relating to this area of law within a small geographic region. (18) Finally, Part VI suggests recommendations for changing New York State law to benefit its citizens. (19) II. NEW YORK STATE LAW New York's history reveals both a combination of common-law and statutory law that pertains to health-care decision making. For those whom have the capacity to make their own health-care decisions, the law recognizes the right to make medical decisions--including the refusal of life-sustaining treatment. (20) Even a person who has been involuntarily committed to a mental institution can have the capacity to make medical treatment decisions. (21) A patient's right to refuse life-saving medical treatment has been recognized by both the courts and the legislature. (22) New York, however, has not allowed families of patients, who lack capacity to make their own health-care decisions, the right to refuse treatment on behalf of their terminally ill family member. …

In Defense of Specific Proportionality Review

Abstract: I. INTRODUCTION Last year in this space my colleague Barry Latzer argued that comparative proportionality review in death penalty cases has proven a failure. (1) By "[c]omparative proportionality review," Professor Latzer means "whether a death sentence is consistent with the sentences imposed in factually similar cases." (2) Consistency is defined by the relative culpability of defendants. (3) Under comparative review, a defendant argues that his sentence should be reduced because other equally or more blameworthy defendants have not been treated as harshly. (4) Comparative review is distinguished from "inherent" proportionality review, in which courts "determine the intrinsic deathworthiness of a category of crimes or class of defendants without regard to consistency or evenhandedness in the application of the death penalty." (5) According to Professor Latzer, comparative review is undesirable in theory because it unjustifiably allows capital defendants the opportunity--unique among criminal defendants--to claim that they should not be punished in a particular manner because some others in similar situations have not been punished in the same way. (6) And it assigns to courts an impossible task: assessing the relative culpability of defendants. Practical experience only strengthens these intuitions. The few states that have engaged in proportionality review in earnest, most notably New Jersey, have only demonstrated the difficulty of developing any sort of objective model to weigh the relative culpability of defendants. (7) The whole endeavor, he says, has been nothing more than a waste of time and money. (8) Professor Latzer's argument has surface appeal. There is no other context in which criminal defendants may seek redress on the basis of disproportionality of culpability. (9) A rapist sentenced to a prison term of a certain length may not, for example, seek to have his sentence reduced on the grounds that some other rapists have acted in a more reprehensible manner and been sentenced to shorter terms. It is not readily apparent how one would make a meaningful comparison of reprehensibility. Some factors incident to a crime seem more objective than others. One could, for example, compare the relative degrees of violence involved in separate offenses with some measure of certainty. But to gain a full picture of the culpability of an offender, questions independent of the offense itself need to be asked: How much education did the defendant possess? Were they desensitized to violence by the peculiarities of their childhood? What motivated them to commit this particular crime? Weighing the relative moral responsibility of two defendants on the basis of this host of factors seems daunting at best. How is one supposed to compare the rapist who acted more violently but had a troubled childhood and some mental impairment with the less-violent rapist who had fine parents and went to good schools? One may be treated more leniently than the other, but it seems impossible to say with any conviction that the other therefore deserves to be treated in the same way. This is Professor Latzer's point. Further bolstering Professor Latzer's position, the death-is-different arguments do not seem as useful in this context as they do in others. There is always some chance that a robber or rapist has been wrongly convicted, yet this does not deter the criminal justice system from sending them to jail with impunity. Death is different, abolitionists say with some force. It is one thing to sentence defendants to jail terms knowing that a few may be innocent, and quite another to sentence them to die. Death is irreversible; the wrong can never be undone. (10) The argument does not work so well with proportionality review. So it would go: there is always some chance that a robber or rapist has been given a longer sentence than someone more culpable than he, yet this does not deter the criminal justice system from sentencing them with impunity. …

Racial Preferences in Admissions: Myths, Harms, and Alternatives

Abstract: I. INTRODUCTION Thank you to Albany Law Review for inviting me. I'm here because I'm an attorney at the Center for Individual Rights and we have represented the plaintiffs in most of the legal challenges to race-based admissions practices, (1) most notably, Hopwood v. State of Texas, (2) Smith v. University of Washington Law School, (3) and the two Michigan cases, Gratz v. Bollinger (4) and Grutter v. BolIinger. (5) Instead of focusing on the broad topic of affirmative action, which in my view includes alternatives that are both legal and desirable, I am going to limit myself to racial preferences. I will be talking about things like the University of Michigan giving twenty bonus points if you are a Black, Hispanic, or Native American applicant, and zero points if you are White, Asian, or Arab. (6) That is what I mean by racial preferences, as compared to, say, affirmative action based on economic disadvantage, which is one of many race-neutral alternatives. Now I know a lot of people don't like the term "preference," but if we are not talking about preferences then we can all go home, because there is no need to find a compelling interest. It is only if you are giving preference based on race or ethnicity that you need to justify it with a constitutionally compelling interest. If these really are not preferences, then you don't need more than a rational basis under the Constitution, and someone should tell the University of Michigan that it can stop arguing that diversity is a compelling interest. I am going to refer to the Constitution most of the time, but the assumption is that the legal standard for racial preferences will be virtually the same, if not identical, under Title VI of the 1964 Civil Rights Act. And thus perhaps one of the most misunderstood things about this whole legal battle is the widespread perception that the result will be limited to state universities. In fact, it is highly unlikely that the Supreme Court's decision is going to be limited to just state universities. It is much more likely that it will apply to all universities, because all universities with a couple of exceptions--the ones that don't accept federal funds--are covered by Title VI. It is probably true that opinions on both sides of this issue are as vastly different as Professor Johnson pointed out, with some people thinking preferences are the worst thing in the world and some thinking they are the best thing in the world. But I do think there are at least a couple of points of agreement. One I would hope is that the ultimate ideal is a fully integrated society in which race does not play a role in a discriminatory way. I think the fundamental policy disagreement is really over how we get there--whether the way to get there is to be race neutral or to take race into account. I believe the latter view is too pessimistic. Its proponents essentially say "race is a huge factor in American society and we really can't overcome it. It is naive to even think we can be race blind." I am sure from their point of view, I am, at best, naively optimistic. Professor Johnson said that race neutrality does not exist. Well, if it does not exist and it cannot exist, I think that is sad and we are in real trouble. If the future only holds a battle between preferences for minorities versus preferences for White people, then there is not going to be any good outcome. The only long term solution is race neutrality. We are not perfect human beings. I don't think we are ever going to be 100% race blind, but I think certainly we should be heading in that direction and not in the reverse direction. Another point of agreement, which Professor Johnson noted, is that the standard here is strict scrutiny. Ten years ago we might have been up here debating what is the constitutional standard that you apply to racial preferences. But now, due to Supreme Court precedent in the last ten years, we all agree that the standard is strict scrutiny, which is the highest standard of review. …

Human cloning and the right to reproduce.

Abstract: INTRODUCTION Since the birth of "Dolly the sheep" in July 1996, (1) cloning via the nuclear transfer of differentiated cells (2) has been successfully expanded to numerous and varied animal species, (3) including pigs, (4) mice, (5) goats, (6) and cows. (7) Applying cloning techniques to humans, it seems, is only a matter of time. (8) Indeed, in late November 2001, researchers at Massachusetts-based Advanced Cell Technology announced that they had used somatic cell nuclear transfer to create three human embryos. (9) Specifically, the researchers harvested human eggs from seven volunteers, removed the nucleus from each egg, and re-nucleated the eggs with cells taken from an adult human donor. (10) In all, nineteen human eggs were successfully re-nucleated using the nuclear transfer technique. (11) Eleven of the nineteen eggs were re-nucleated with cells taken from the skin of a human donor the other eight eggs were re-nucleated with cumulus cells taken from a human donor. (12) None of the eggs that were re-nucleated with the skin cells were able to begin the process of cell division, but three of the eight eggs that were re-nucleated with cumulus cells did begin dividing, with one surviving to the two-cell stage, one surviving to the four-cell stage, and the third surviving to the six-cell stage before dying. (13) Although some in the scientific community have downplayed the significance of these experiments because the embryos did not survive to the blastocyst stage, (14) it is clear that the use of nuclear transfer cloning techniques on humans has begun. Recognizing the inevitability of successful human cloning, numerous states (15) and countries (16) have enacted prophylactic bans on the technique. The United States Congress, although threatening on numerous occasions to enact a federal ban, (17) has not yet followed suit. Laws prohibiting cloning that have been enacted thus far by the states have raised an important legal question: namely, whether the constitutional right to reproduce protects an individual's right to produce a child using cloning techniques and, if so, under what circumstances may this right be exercised? I. IS THERE A POSITIVE RIGHT TO REPRODUCE? In order to assess whether or to what extent reproductive human cloning is constitutionally protected, one must first delineate the contours of the constitutional right to reproduce. The United States Supreme Court has clearly indicated that humans have the right not to reproduce, as evidenced by contraceptive cases such as Griswold v. Connecticut (18) and abortion cases such as Roe v. Wade (19) and Planned Parenthood of Southeastern Pennsylvania v. Casey. (20) Whether the Constitution also provides an affirmative, or positive, right to reproduce is less clear because the government has rarely acted to prevent individuals from procreating; hence, there has not been much litigation directly on point. Nonetheless, the vast majority of academic writing in this area acknowledges that a positive right to reproduce may be implied from extant case law. One of the earliest cases from which a positive right of reproduction may be inferred is the Supreme Court's 1923 decision in Meyer v. Nebraska. (21) In Meyer, the Court invalidated a Nebraska law prohibiting the teaching of any language other than English to children prior to the eighth grade, stating in dicta, "[w]ithout doubt, [the liberty interest of the Due Process Clause of the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual ... to marry, establish a home and bring up children." (22) An affirmative right to reproduce was more specifically addressed by the Court's 1942 decision in Skinner v. Oklahoma, (23) which struck down an Oklahoma statute mandating sterilization for repeat felons convicted of crimes involving moral turpitude. (24) In invalidating the law, the Court invoked strict scrutiny (25) and concluded that, because "[m]arriage and procreation are fundamental to the very existence and survival of the [human] race," (26) the mandatory sterilization law violated "one of the basic civil rights of man. …

"Onan's Transgression": The Continuing Legal Battle over Prisoners' Procreation Rights

Abstract: I INTRODUCTION: THE LANDSCAPE IN WHICH GERBER V HICKMAN WAS CONCEIVED Emerging from the shadows of a federal prison, William Gerber challenged a California corrections policy that prevented him from artificially inseminating his wife while incarcerated On September 5, 2001, the United States Court of Appeals for the Ninth Circuit dramatically deviated from current prisoners' rights jurisprudence by ruling in favor of Gerber--holding that California's corrections policy that banned artificial insemination was not "reasonably related to legitimate penological interests" (1) Eight months later, however, the circuit court vacated its earlier decision, reheard Gerber's case en banc, and held that the right to procreate was "fundamentally inconsistent with incarceration," thereby precluding Gerber from artificially inseminating his wife (2) Gerber's victory in early September of 2001, albeit short-lived, was the result of a shift in the judicial pendulum that has begun to sway back in favor of prisoners' rights Inmates did not always enjoy the freedoms and protections to which they are now entitled It is only during the last half-century that courts have taken an active role in ensuring that certain rights endure behind prison walls Through many years of creating, questioning, refining, and reformulating standards of review for prisoners' rights, the United States Supreme Court, other federal courts, and state courts, have attempted to establish a uniform methodology for scrutinizing inmate challenges to prison policies During the 1980s and 1990s, conservativism surged through the courts, resulting in judicial and legislative contraction of prisoners' rights to a degree not seen since before the 1971 Attica riots (3) In contrast, the Ninth Circuit's first decision in Gerber v Hickman (Gerber I) reasserted a return to the more liberal (4) prisoners' rights jurisprudence of the 1960s and 1970s (5) The Ninth Circuit's en banc decision in Gerber v Hickman (Gerber II), reversing Gerber I, is the latest example of the federal judiciary's late twentieth-century conservatism This conservatism continues to propagate the dominant notion that prisoners shed many of their rights at the prison gate (6) This Note reviews the subject of prisoners' rights and pays specific attention to the right to procreation through artificial insemination Part II recounts the various ways courts have approached prisoners' rights throughout the last century and focuses, in particular, on the federal judiciary's attempt to create a uniform standard of review for prisoners' rights cases Part III discusses other types of inmate claims and their relationship to the procreation argument The Supreme Court's establishment of a uniform standard of review for prisoners' rights cases is examined in Part IV Part V recounts the Eighth Circuit's 1990 decision, Goodwin v Turner (7) (Goodwin II), which stood as the most important inmate procreation case following the Supreme Court's establishment of a uniform standard for reviewing prisoners' rights matters Part V summarizes the criticism that followed the Eighth Circuit's reasoning in Goodwin II Part VI reviews Gerber I, which echoed much of the criticism that Goodwin H attracted Part VII summarizes the Ninth Circuit's recent reversal of Gerber I and compares and contrasts the two Gerber decisions In addition, this Note argues that the dissenting judges in Gerber H presented a stronger and more practical analysis than the majority's opinion, which hinged its argument on retributive ideology Finally, Part VIII measures the likelihood of Gerber's case reaching the Supreme Court and pontificates what the Ninth Circuit's most recent decision may mean for the future of prisoners' rights litigation II BACKGROUND OF PRISONERS' RIGHTS LAW Throughout this country's history, courts have responded in different ways to prisoners' claims of unconstitutional practices by prison officials …

Human cloning and genetic engineering: the case for proceeding cautiously.

Abstract: The irony inherent in the debate on "whole human" reproductive cloning is the amount that has been written and the emotions that have been stirred regarding a scientific advance that has not yet occurred (1) and that, at present, is only a potential threat to family and social structures. (2) This article is in no way intended to minimize the fears raised in the ongoing discussion regarding the potential for superhuman or subhuman replicants, (3) or the potential adverse impact upon the family from the need to nurture genetic duplicates of one or two parents. (4) This paper is merely presented as one alternative to the entertainment industry's popular depiction of the horrors of cloning (5)--a depiction that has the effect of detracting from a debate that is, potentially, highly productive. Arguably, a more realistic focus upon the beneficial, as well as on the destructive, potentials of human cloning would permit the evolution of a reasoned set of legal controls designed to protect the interests of individuals, the family, and society. A debate motivated by fear is more likely to result in extreme solutions or absolute prohibitions; these are unlikely to withstand the test of time. Enforcement of absolute limitations in the face of continuing scientific curiosity and societal needs will ultimately fail. (6) Laws that attempt to ban what people want to have (7) or to find out about (8) are, generally, honored only in their breach. To presume that the enactment of laws prohibiting the application of scientific advances will end the debate on human cloning, is, in this author's belief, the height of folly. Our curiosity regarding the essential elements of our physical being have led us to the strands of DNA and, even deeper, to the basic protein structures of which those strands are composed. (9) Human cloning is merely a predictable tangent to the study of the human genome. (10) The purpose of this article is to suggest that an absolute prohibition against human cloning is unworkable and ill-conceived; and, further, that there is sufficient time to engage in a reasoned debate to develop the type of restrictions upon cloning practices that will protect the interests of individuals, families, and the human species, while permitting an exploration of the potential benefits of cloning technologies. The first part below briefly discusses the scientific history of cloning and how this has led to present efforts to clone higher animals. The second part identifies the risks that have been identified in the current debate, and also considers some of the potential benefits implicated by both therapeutic and reproductive cloning. The third part presents a constitutional framework for either supporting or denying an individual right to engage in human cloning. The fourth part considers the present national legislative response to the prospect of both therapeutic and human reproductive cloning. Finally, this paper presents suggestions for the continuing debate and argues for the imposition of a more logical framework in order to achieve a reasoned result in light of the inevitable advances being made in the science of human cloning. I. BACKGROUND Scientific advances allowing the cloning of plant and lower animal structures are longstanding. (11) The replication of organisms for agricultural purposes has been commonplace for many years. (12) Similarly, cloning of certain animals, particularly for food production, has become commonplace, if not universally accepted. (13) The progress heretofore made with respect to plants and lower animals was dramatically enhanced with the public disclosure that researchers in England had successfully cloned a female sheep by transplanting the nucleus of a cell--removed from an adult sheep's udder--into an enucleated egg cell from an adult female sheep. (14) After 277 attempts, scientists at Roslin Institute utilizing the process of somatic nuclear transfer succeeded in producing the genetic twin of the sheep whose nucleus was transplanted into the donee egg cell. …

Acid Rain and the Adirondacks: A Legislative History

Abstract: I. THE ADIRONDACK PARK The Adirondack Park contains six-million acres--more than twice the size of Yellowstone National Park--and is larger than the entire neighboring state of Massachusetts. (1) Private citizens own about half of the land in the Adirondack Park, which is used primarily for agriculture, forestry, and recreation. (2) The Park is home to 130,000 permanent and 210,000 seasonal residents, and hosts an estimated eight to ten million visitors annually. (3) The remaining forty-eight percent of the land in the Adirondack Park is publicly owned forest preserve, protected by the State Constitution since 1895 to be "forever kept wild." (4) One-million acres of this public land, comprising one-sixth of the entire park, are designated as wilderness. Many of the abundant plant species and wildlife found in the Adirondack Park are unique to the region. Uncut ancient forests cover tens of thousands of acres of public land. Located in the northeast section of the Park is the High Peaks--forty-three of them above 4,000 feet--with eleven alpine summits that rise above the timberline. The Adirondacks include the headwaters of five major drainage basins: Lake Champlain and the Hudson, Black, Saint Lawrence and Mohawk Rivers. Within the park are approximately 2,800 lakes and ponds, more than 1,200 miles of rivers, and approximately 30,000 miles of brooks and streams. (5) II. ACID RAIN AND THE FIGHT TO SAVE THE PARK The fight to save the Adirondack Park from the scourge of acid rain is in its third decade. This article traces the legislative history of the fight from its inception to the adoption of the first law in the nation to address the impact of acid rain. It is a story of determination by New York State residents and their elected officials, both at the state and federal levels. Acid rain is a byproduct of the combustion of coal and other fossil fuels. Many gases, such as sulfur-dioxide and nitrogen-oxides, are emitted into the air and may be carried hundreds of miles by air currents. These gases are then transformed into acidic compounds that are returned to earth. When the compounds are delivered in precipitation such as rain or snow, the process is called wet deposition. When the compounds are delivered as gases, aerosols, or particles, the process is called dry deposition. In high-elevation and coastal areas, they may be delivered as cloud or fog water, called cloud deposition. (6) The deposition of sulfur-dioxide and nitrogen-oxides is acidic in nature. Through various means, acid deposition can be harmful to human health, ecosystems, and material and cultural resources. For example, "[a]cidic surface waters decrease the survivability of animal life in lakes and streams and in the more severe instances eliminate some or all types of fish and other organisms." (7) Acid deposition inhibits tree growth and "increase[s] their susceptibility to winter injury, insect infestation, and drought." (8) This leads to forest degradation, leaching, and the depletion of nutrients from the forest soil. (9) The Adirondack Park is suffering the worst acid rain damage in the nation. (10) It has been determined that "[m]ore than 500 lakes and ponds (out of 2,800) in the Adirondack Park are already too acidic to support the plants and aquatic wildlife that once existed in them." (11) Episodic acidification, most of which occurs from melting snow in the spring, could not happen at a worse time because many of the plants, animals, and insects are most vulnerable at the beginning of the growing season. Additionally, on the western-facing slopes of the Park's high peaks, red spruce forests are stunted and are rapidly deteriorating. (12) High elevation forests are extremely susceptible to heightened levels of polluted precipitation originating from the coal-fired smokestacks of the Ohio River Valley and beyond. (13) Every day, pollution lingers in the "clouds that shroud the mountains in a caustic fog. …

Tribute to Justice Stanley Mosk

Abstract: The image of justice flowing like a mighty river has been celebrated in songs and poems and prayers Today, we celebrate that image in remembering the career of Justice Stanley Mosk Like the mighty river of justice, the legacy of Justice Mosk flows long, it flows wide, and it flows deep The length of this river stretches back through sixty-five years of California history Stanley Mosk began his career in public service as executive secretary and legal advisor to Governor Culbert Olson in 1939 He handled Governor Olson's pardon of labor activist Tom Mooney, ending a quest for justice that bounced back and forth between the California Supreme Court and the United States Supreme Court for twenty years (1) When Governor Olson was defeated for reelection by Earl Warren, Governor Olson rewarded Stanley Mosk with a midnight appointment to the bench before Olson left office At the age of thirty-one, Stanley Mosk was sworn in as a Judge of the Los Angeles County Superior Court (2) Judge Mosk's rulings on the Superior Court bench included several noteworthy cases Two years before the Supreme Court struck down racially restrictive real estate covenants in Shelley v Kraemer, (3) Judge Mosk upheld the transfer of a Hancock Park home to a black man, ruling that a racially restrictive covenant was unconstitutional That same home, incidentally, was later sold to Mayor Tom Bradley In the 1950s, Judge Mosk presided over the high profile trial of a law student accused of murdering the wealthy Bel Aire matron who had hired him as a houseboy (4) John Crooker was convicted and sentenced to death by Judge Mosk (5) Eight years before Miranda, (6) in Crooker v California the Supreme Court rejected Crooker's argument that his confession should have been suppressed because police did not advise him of his constitutional rights (7) In a five-to-four decision, the Court concluded that anyone who made it through the first year at Southwestern Law School should know what his constitutional rights are (8) Stanley Mosk, incidentally, received his own law degree from Southwestern in 1935, after having completed his first two years at the University of Chicago School of Law Crooker's death sentence was the first death sentence commuted by Governor Pat Brown (9) In his wonderful book about his struggle with the death penalty, Brown offered some fascinating reflections on the Crooker commutation (10) Initially, when he heard that Stanley Mosk had imposed the death sentence, Governor Brown resolved to uphold it He wrote: I knew Mosk well I also knew he was not only an excellent jurist but one of the most compassionate men I had ever met, a staunch foe of capital punishment If Mosk had reviewed the trial transcript and found the sentence just, there was little room for doubt "That's good enough for me," I said (11) Governor Brown later changed his mind; and he said that the principal reason he did so was a note from Stanley Mosk, saying he would not object to a commutation of the death sentence to life imprisonment (12) Crooker was subsequently released on parole and became a model citizen Justice Mosk took great delight in his annual receipt of a Christmas card from John Crooker Stanley Mosk was elected Attorney General of California in 1958 (13) During his tenure as California Attorney General, Mosk established both constitutional and consumers' rights sections within the Department of Justice; he actively defended civil rights; and he restored the enforcement of the state's antitrust law (14) Mosk's battle to integrate the Los Angeles Open Golf Tournament and change PGA bylaws to allow black golfers to compete was another milestone (15) (Thus, it could be said that Tiger Woods is part of Justice Mosk's legacy of justice) Stanley also got to argue his first case before the United States Supreme Court as Attorney General Ironically, the case dealt with the flowing of another mighty river …

Linguistics in Law

Abstract: I INTRODUCTION Many judges react against judicial activism The politics are notorious The methodology, though, is not necessarily controversial Deciding "objectively" by following precedent, tried principles, and--as much as possible--the "plain meaning" of statutory terms are strategies for constraining discretion Some legal scholars say that such judges aim to decide in a scientific manner (1) In particular, these scholars see plain-meaning analysis as linguistics, and linguistics as science (2) Scholars who submit to the notion that statutory interpretation may often be an exercise in linguistics tout that discipline's commitment to the empirical testing of conclusions (3) Their view is that judges opposed to activism find an objective anchor in linguistic techniques Thinkers hostile to that notion say that such judges "pretend[] they mechanically follow linguistic science" (4) and sometimes adopt a sort of linguistic approach to bolster a decision made on other grounds with an aura of scientific credibility (5) So even those thinkers presuppose that a number of judges occasionally make use of linguistic analysis (6) Commentators who favor broader judicial reliance on linguistics argue that "the methods of linguistic science can significantly inform [judges'] innate `common sense' about their own language, thus providing some objective and principled ways to deliberate over hard cases of interpretation" (7) These scholars see Justice Scalia as the paladin of law's linguistic turn, which they call "`the new textualism" (8) Their point of departure is Justice Scalia's summoning of the "plain meaning" of statutory language, and his concomitant de-emphasis upon legislative histories (9) For Justice Scalia, an objective appraisal of ordinary meaning is more reliable and less prone to subjective judicial discretion than is delving into legislative histories (10) His opinions resist the doctrine "that if the legislative history of an enactment reveals a `clearly expressed legislative intention contrary to [the enactment's] language,' the Court is required to `question the strong presumption that Congress expresses its intent through the language it chooses'" (11) This doctrine, says Justice Scalia, is "an ill-advised deviation from the venerable principle that if the language of a statute is clear, that language must be given effect--at least in the absence of a patent absurdity" (12) This article questions the link between linguistics and statutory construction, as perceived by legal scholars Toward its end, the article revisits Plain Meaning and Hard Cases, the important paper written by Clark Cunningham and three linguists--most familiarly Judith N Levi--that appeared in the Yale Law Journal in 1994, (13) which also spurred the Spring 1995 Law and Linguistics Conference at Northwestern University (14) At issue here will be Cunningham/Levi's recommendation that linguists with expertise in areas of word use, meaning, and reference, be brought into legal cases to "provide focused and informed analyses of the language issues in question" (15) This article's goal is modest--it is to explain that law and linguistics pursue different ends, and that for this reason, linguists construing statutes will miss legally decisive issues More importantly, courts relying on linguists--in the manner the new textualists advocate--will have to scrutinize linguistic findings closely and rectify them, or risk issuing assessments that fail to cohere with the decision-making guidelines announced in relevant precedents The article does not object to a cooperative arrangement between law and linguistics, or to any other interdisciplinary approach; indeed, linguistics and the other scientific and social scientific disciplines influence legal work and decision making in a variety of ways that scholars may beneficially explore There are, however, justifiable grounds for resisting proposals that assign non-legal experts an elevated role in the adjudicatory process …

Biotech and theodicy: what can and what ought we to do in procreative technology?

Abstract: Part I of this article deals with some theoretical issues concerning the way our culture arrives at moral judgments and the way the law functions relative to public moral concerns. I will illustrate my points with reference to, and through discussion of, the report promulgated by the National Bioethics Advisory Commission (NBAC) of 1999, which was established to advise former President Clinton on the ethics and law of stem cell research. Part II will focus on some philosophical and religious issues connected to the nature of the humanhood of embryos and fetuses. Specifically, it asks--and answers--two questions: (1) What provides human dignity to embryos? and (2) When does humanity begin in the embryological development? Part III contains some concrete proposals about what types of stem cell research or cloning can be ethically and legally allowed. Finally, in a brief Part IV, I will directly address a point implicit in the previously discussed issues. It is the argument that our scientific capacities require us to "play God," and that the recognition of this theodiceic requirement enables us to make more precise judgments than would the rejection of any tampering with procreative technology. I will argue that it is necessary to overcome the cultural denial of this theodiceic role in order to make precise ethical judgments. This denial is rooted in a long tradition, especially virulent in the Roman Catholic tradition, of rejecting the legitimacy of modernity and seeking a return to a premodern naivete. (1) But precise ethical judgments require us also to face the unreflected naivete that is evident in some highly progressive futurists who would simply claim that "science knows best." (2) I. SOME THEORETICAL ISSUES UNDERLYING STEM CELL RESEARCH In our attempt to master human diseases, not many areas hold as much promise as stem cell research. (3) However, the ethical difficulty is that, at this time, the most promising and truly pluripotent stem cells can only be derived from human embryos. (4) Because the moral status of the human embryo is the central issue in this debate, (5) the fact that embryonic stem cells (ES cells) at this time hold forth the most promise requires us to focus on this issue. It was Kant's injunction that human beings must never be used as a means to different ends. (6) Bioethicists generally reject nontherapeutic research (7) done on human subjects. So in stem cell research, we are confronted with a classical dilemma. On the one hand, the imperative to promote human well-being by means of this new technology has hardly ever been more urgent. On the other hand, however, the ethical mandate to protect and promote the well-being of human beings, to which embryos possibly belong, has never been higher. (8) Ethics advisory boards have been established during the last twenty years not only to safeguard that well-being, but also to provide guidance on what is permissible and what is not. Such groups, including the governmental National Bioethical Advisory Commission (NBAC) of 1998 and its predecessors, and similar private groups such as the Geron Bioethics Advisory Board, (9) are faced with a plurality of ethical perspectives and traditions. They have to deal with that fact somehow. Throughout its report, the NBAC attempts to balance broad spectrums of views of individuals and groups. That strategy raises the question: Whose values should prevail? But if one hopes to address the question of the ethics of stem cell research realistically, it is not sufficient to observe a pluralism of values in the hope of deriving the most acceptable compromise from that plurality. Hume proclaimed that ethical certainty about what we ought to do can surely not be found in this way. (10) Ethics, in principle, has little to do with that realm of 0the plurality of views, although, of course, a body such as the NBAC must listen to those voices--in the same sense that a politician must. But any politician knows that the common maxim of "govern-ment by the polls" is not such a good idea, and so too the NBAC should have recognized that any moral recommendation of what ought to be done cannot be derived from that plurality of views. …

The Importance of Due Process Protections after Welfare Reform: Client Stories from New York City

Abstract: I. INTRODUCTION The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (1) threatens the due process protections that, for over thirty years, have applied to public assistance programs throughout the country. This article will demonstrate, through an exploration of New York City's administration of its cash assistance programs and the consequence on impoverished City residents (2) that any diminution of due process protections in the public assistance arena would result in unnecessary harm to those that these programs are intended to help. The federal welfare reform law fundamentally changed the nature of the foremost federal program by providing impoverished families with cash assistance (3) to meet their most basic needs. The federal welfare reform law transformed the federally funded, state-administered program from a highly federally regulated program to a block grant program with few constraints on the state. (4) This fundamental change was epitomized by the alteration in the name of the program from Aid to Families with Dependent Children (AFDC) to Temporary Assistance for Needy Families (TANF). This transformation occurred after years of debate about the benefits and harms of public assistance, (5) a promise to "`end welfare as we know it,'" (6) and two presidential vetoes of earlier versions of the legislation. (7) While the welfare reform law brought sweeping changes to the structure of the federal public assistance program, one new feature not frequently discussed in popular accounts, but with potentially profound consequences on the daily administration of the program, is the section of the law that provides that public assistance is no longer an "entitlement." (8) Decades before the welfare reform law, the Supreme Court in Goldberg v. Kelly (9) recognized that public assistance recipients were entitled to certain due process rights. (10) Since then, public assistance programs throughout the country have been administered under a due process regime. The fact that the welfare reform law's provision states that the TANF program does not "entitle" any person to assistance (11) threatens the entire structure of due process protections that have applied to the administration of public assistance programs since the Goldberg decision. (12) Recognizing the importance of due process protections for public assistance clients is essential. First, despite the fact that the federal welfare reform law was enacted over six years ago, (13) few courts have yet to rule on whether due process protections remain. Documenting the practical importance of due process can influence courts' decisions determining whether due process protections continue to apply. Second, the TANF program is scheduled for reauthorization in 2002, (14) which means that every aspect of the TANF program, including its "no entitlement" provision, is subject to reconsideration. Whether the no entitlement provision remains part of the TANF statute will depend on whether Congress and the President are convinced that the significance of due process merits the removal of this provision. Third, while the Food Stamp Program was reauthorized in 2002, (15) Congress might take the opportunity provided by the TANF reauthorization to block grant the Food Stamp Program, with a similar disentitlement to food stamp benefits. This article illustrates the importance of due process by documenting the impact that the lack of due process has had on impoverished families and individuals in New York City. (16) The hardships that they have experienced serve as a reminder that there are real-life consequences behind the sometimes formalistic and legalistic debates over the applicability and scope of due process protections. (17) In fact, it is precisely this real-life impact that contributed to the establishment of due process protections in public assistance. (18) This article's strategy thus reproduces past efforts through the use of contemporary stories. …

Stem cells from a biological perspective: what they are, where they are found, and what can be done with them.

Abstract: Cells are the smallest living units of living systems. They can respire, respond, and reproduce. A single human cell, however, or even a conglomerate of human cells, does not a human being make. In fact, the human body is made up of trillions of cells that are organized into specialized tissues and organs, and many of these cells die each day and need to be replaced by new ones. Unspecialized and undifferentiated cells that are dormant are called upon to renew or repair the body; these are the so-called stem cells. A given human being is never the same conglomerate of cells from day to day, but somehow remains the same person. It is the nervous system that provides the property (or, perhaps more correctly, the illusion) of sameness, i.e., the continuity of self. It is the organization and the activity of neuronal cells that allows for the emergence of the mind--for awareness, memory, and self-identity. It is the nervous tissue, therefore, that is most identified with "humanness." For this reason, the taking of stem cells from embryos in which no nervous tissue has yet appeared has received more acceptance than the taking of stem cells from more developed embryos or fetuses. (1) Recent evidence indicates that even in the nervous system some cell turnover can occur, (2) but this seems limited to a few specific areas and has not been observed in a non-pathological or non-treated human patient. In other words, evidence so far has only been gathered from autopsies of chemotherapeutically-treated patients. The assumption that brain cell turnover occurs normally rests mainly on animal studies and, even there, turnover is very limited. (3) Stem cells are undifferentiated cells and have the potential to become many cell types and to form various tissues by mitosis (multiplication) and differentiation (specialization). The mother of all stem cells is the zygote, a fertilized egg cell that can give rise to every part of the human body and, therefore, is considered totipotent--capable of forming both embryonic and extraembryonic tissue (placenta and yolk sac). Totipotency is also characteristic of cells from the next six cell divisions of the zygote. During the first week (around day three) the zygote has divided to form a solid ball of cells called the morula (thirty-two cells, each of which is a totipotent stem cell). (4) One could theoretically harvest the cells of the morula prior to blastocyst formation; each of these thirty-two cells is capable of producing both placental and embryonic tissue and therefore has totipotentiality while the inner cell mass of a later embryo has pluripotentiality. By the end of the first week of embryonic development, a blastocyst (a ball of cells with a cavity containing an oval disc of cells--the embryonic disc) is present containing an inner mass of 128 cells. (5) In natural development this point in time would also coincide with implantation in the uterine wall, although not all blastocysts implant--some pass out the uterus. It should be noted that if a splitting of the inner cell mass were to occur at this time, identical twins (or even triplets) could develop in the implanted embryo. (6) Human embryonic stem cells (HESCs) are usually isolated manually from the inner cell mass of an embryo grown in vitro by a skilled technician using a micromanipulator-controlled micropipette and microscope. These inner mass cells, if separated and cultured in vitro, can give rise to all tissue types (pluripotency), but not a placenta. Therefore, they have no potential to develop into a human being. In the second week, the inner cell mass divides into three layers and these cells are considered to be multipotent, capable of becoming a number of different tissue types, but not as many types as a pluripotent cell can. As development proceeds (i.e., additional cell divisions), these cells become more differentiated and their multipotentiality and their self-renewal ability decreases, making them less desirable for treatment or transplant. …