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Abstract:
The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over the longer term, these same experts (and their like-minded colleagues) appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short and long term efforts are meant ultimately to usher in a more compassionate and humane regime for capital defendants.

This article seeks to articulate, analyze, and provide a critique of the project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The article concludes that the project as currently conceived is internally inconsistent, and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more Draconian and less humane than the deeply flawed present framework.

neuroscience, brain, bioethics, neuroimaging, neuroethics, brain scan, EEG, fMRI, CT, PET, capital punishment, death penalty, punishment theory, punishment, future dangerousness, jurisprudence, criminal law, criminal procedure, H.L.A Hart, retribution, deterrence, consequentialism, free will

Abstract:
A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. In this essay, I seek to challenge this thesis and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo case. In support of this claim, I will first set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, I will provide a brief sketch of how the law - both as enacted and interpreted - might ideally serve to promote and defend the goods of autonomy and self-determination. I will thus assess the process and outcome of the Schiavo case by carefully examining the positive law governing the case, as well as the specific evidence relied on by the Florida courts to assess Ms. Schiavo's actual wishes (the touchstone of autonomy). Moreover, I will contrast the manner in which the Florida courts evaluated this evidence with the seemingly consistent and uniform approach taken by courts from other jurisdictions. I will additionally explore the significance of the Florida courts' decision to focus the majority of their resources and time on inquiries not oriented towards Ms. Schiavo's actual wishes, but rather on matters relating to paternalistic considerations, such as her present and future quality of life. In light of the foregoing analysis, I conclude that the Schiavo matter cannot rightly be understood as a victory for self-governance at the end of life. To the contrary, it is instead a cautionary tale of what can happen when the legal preconditions for the exercise of autonomy are absent or ignored.

End-of-life, Schiavo, guardian, surrogate, family, persistent vegetative state, life-sustaining treatment, incompetent patient, treatment withdrawal, mediation, artificial nutrition and hydration, PEG, Pinette, proxy, feeding tube, permanently unconscious, self-determination, neutrality

Abstract:
The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, as you have no doubt noticed, the content of the discourse itself has been sometimes quite impoverished and unsatisfying. No one camp in this debate is solely to blame for these difficulties - partisans on all sides bear some measure of responsibility for the current state of the public discourse. In the interests of improving the quality of public deliberation and discussion on this matter, I will provide a few modest suggestions for how the public debate might be improved. I begin with a few general observations applicable to both domains under consideration today, stem cell research and cloning. Then I focus on each separately; first, directing my comments to stem cell research, and then turning to the distinct (though obviously closely related) matter of cloning.

stem cell, zygote, embryo, blastocyst, morula, fetus, cloning, somatic cell nuclear transfer, personhood, regulation, federal funding, federalism, pluralism, pluripotent, totipotent, multipotent, research, Bush, Kerry, bioethics, medical ethics, biotechnology, medicine, science, biology

Abstract:
The enormous significance of the Bush stem cell funding policy has been evident since its inception. The announcement of the policy on August 9, 2001 marked the first time a U.S. president had ever taken up a matter of bioethical import as the sole subject of a major national policy address. Indeed, the August 9th speech was the President's first nationally televised policy address of any kind. Since then, the policy has been a constant focus of attention and discussion by political commentators, the print and broadcast media, advocacy organizations, scientists, elected officials, and candidates for all levels of office (including especially the 2004 Democratic nominee for President, Senator John Kerry, who made his opposition to the Bush policy a centerpiece of his domestic campaign, mentioning it explicitly in his acceptance speech at the Democratic National Convention). The biotechnology industry has taken a keen interest in stem cell research as a possible avenue for medical therapies; one study suggests that as of 2002 private sector companies had spent an aggregate of $208 million on research and development of stem cell technologies. In response to the policy, there has been a flurry of state legislation proposed and enacted, with some states affirming and others condemning the Administration's approach. Finally, the great prominence of the national and international debate on human cloning has drawn further attention to the issue of embryonic stem cell research (and by extension, the Bush policy), given that one application of somatic cell nuclear transfer is the production of cloned human embryos from which stem cells may be derived (so-called Therapeutic Cloning).

To date, the significance of the Bush stem cell policy has been framed and publicly debated in terms of its practical import: Does it impede the scientific and medical progress that the research seems to promise? Is it adequately protective and respectful of embryonic human life? Aside from its great practical significance, however, the Bush policy is arguably one of the most important recent legal developments for the field of bioethics for an additional reason: its deep pedagogical significance. The Bush policy provides an unparalleled window into the nature and substance of bioethical regulation within the unique framework of the American system of government. And it does so in dramatic fashion, against the backdrop of some of the most enduring and vexing questions in all of bioethics: What is owed to developing human life, and how does this obligation stand in relation to the aim of science to advance knowledge with the ultimate aspiration of alleviating human suffering? Reflecting on the nature and scope of the policy yields insights into a number of crucial matters that are central to the problem of whether and how to govern science and medicine according to bioethical principles. This Essay will briefly explore five areas in which the Bush policy is thus instructive: (1) the conceptual understanding of regulation as a legal category; (2) the principles of federalism; (3) the significance of federal funding; (4) the nature of governance according to a particular type of moral principle (e.g., bright line); and (5) the influence of political prudence and respect for pluralism.

stem cell, zygote, embryo, blastocyst, morula, fetus, cloning, somatic cell nuclear transfer, personhood, regulation, federal funding, federalism, pluralism, pluripotent, totipotent, multipotent, research, Bush, Kerry, bioethics, medical ethics, biotechnology, medicine, science, biology

Abstract:
The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly three years of acrimonious litigation between Michael Schiavo (Ms. Schiavo's husband) and the Schindler family (Ms. Schiavo's parents), a Florida court ordered that nutrition and hydration for Ms. Schiavo be discontinued. Six days after implementation of the court's order, the Florida Legislature passed "Terri's Law," authorizing the Governor, under certain prescribed circumstances, to issue a one-time stay of court-ordered withdrawal of life-sustaining measures, and to appoint a guardian ad litem to review the matter and report back to the executive branch and the chief judge of the relevant Florida court. Pursuant to this new authority, the Governor stayed the order issued by the court, and nutrition and hydration were restored to Ms. Schiavo.

To date, the public debate on this matter has been framed as a conflict between or a balancing of abstract concepts such as "the right to die," "the sanctity of life," and "the rights of the disabled." Little scholarly attention has been paid, however, to an enormously important question at the heart of this matter, namely, what the proper roles of the various branches of government are in a case such as Schiavo's. The proper question is not whether the government has a role in a dispute such as this - it clearly became involved once the matter moved to the state courts - but rather how the government should be involved. Which branch, if any, should have the last word in such a dispute? In these cases, should the relationship between governmental branches be hierarchical or complementary? Which branch of government is best situated to resolve these disputes? This Article, using the Schiavo case as the relevant point of departure, essays to address these questions. Specifically, the questions presented are twofold: (1) Were the Florida Legislature's (and by extension, the Governor's) actions in the Schiavo case consistent with the constitutional principles of separation of powers? (2) If so, did the actions of the executive and legislative branches in this case promote or undermine the purposes and logic of the Florida laws governing end-of-life decisionmaking, taken as a whole? That is, is Terri's Law wise public policy from a structural, governmental view?

End-of-life, Schiavo, guardian, surrogate, family, persistent vegetative state, life-sustaining treatment, incompetent patient, treatment withdrawal, mediation, artificial nutrition and hydration, PEG, Pinette, proxy, feeding tube, permanently unconscious, self-determination, neutrality

Abstract:
How do emerging developments in science and technology affect the way we interpret the Constitution? This is, on its face, an enormous question. Technology and science are ever expanding, and there are many different approaches to constitutional jurisprudence. One could fill many volumes in an effort to engage this issue in a serious way. But we can also learn a great deal about the larger subject by asking a more modest question: How does technological innovation affect one particular approach to constitutional interpretation - "originalist textualism," the belief that the text of the Constitution should be construed and applied according to its original meaning?

Because of its defining feature - the requirement that constitutional provisions be construed according to their original meaning - originalist textualism is profoundly affected by advances in science and technology. In cases and controversies in which such advances are centrally involved, originalist jurists are required to discern and apply temporally fixed concepts to circumstances and possibilities that could never have been contemplated by the authors of the Constitution. This collision of fixed meaning and novel realities born of technological progress stands to force a "crisis of construction," where fidelity to originalist textualism is greatly complicated or costly, and in some cases yields politically undesirable or untenable results.

This crisis can take at least three forms. First, there are crises of application, in which the original meaning of the constitutional provision is clear, but technological advances tempt the jurist to depart from this meaning, since doing so would yield a politically desirable result. Second, there are crises of premises, where the original meaning of the clauses in question is once again clear, but where technological developments undermine the factual premises and assumptions that underlie that original meaning, leading to anomalous and unintended political consequences. Finally, there are crises of meaning, in which it is unclear whether a particular word or phrase of a given constitutional provision contemplates a new activity or concept that only new technology makes possible. By examining the nature of these crises, and reflecting on the capacity of originalist textualism to resolve them within its own self-imposed limiting principles, we can perhaps learn something in general about how technological innovation can affect constitutional interpretation. And we can consider whether an originalist approach to the Constitution is still feasible or sensible in an age when judges routinely confront complex questions at the intersection of technology and law.

Originalism, textualism, biotechnology, medicine, living constitution, bioethics, medical ethics, science, constitutional law