The gap between the number of organs available for transplant and the number of individuals who need transplanted organs continues to increase. At the same time, thousands of transplantable organs are needlessly overlooked every year for the single reason that they come from individuals who were declared dead according to cardio pulmonary criteria. Expanding the donor population to individuals who die uncontrolled cardiac deaths will reduce this disparity, but only if organ preservation efforts are utilized. Concern about potential legal liability (...) for temporary preservation of organs pending a search for family members appears to be one of the impediments to wider use of donation in cases of uncontrolled cardiac death in states without statutes explicitly authorizing such action. However, we think that the risk of liability for organ preservation under these circumstances is de minimis, and that concerns about legal impediments to preservation should yield to the ethical imperative of undertaking it. (shrink)

In this paper, we assume that organ donation policy in the United States will continue to be based on an opt-in model, requiring express consent to donate, and that families will continue to have the prerogative to make donation decisions whenever the deceased person has not recorded his or her own preferences in advance. The limited question addressed here is what should be done when a potential donor dies unexpectedly, without any recorded expression of his or her wishes at hand, (...) while a family decision is being sought. (shrink)

Moral opposition by medical professionals to participation in the process of sentencing for capital crimes, including refusals to provide medical treatment, may compromise the integrity of the legal process.

The mission of public health is to assure the conditions in which people can be healthy and to reduce the occurrence of death and disability attributable to disease and injury. From the distinctive perspective of public health, the target is the health of the population as a whole, with a particular concern for vulnerable populations within the whole. Although public health is grounded in science, the mission and perspective of the field are shaped by the ever-evolving values of the society. (...) Ethics and law are therefore constituent disciplines of public health policy and practice. One of the major challenges confronting contemporary practitioners of public health is the need to broaden and deepen their understanding of legal and ethical aspects of their work. This special issue of the Joumal of Law, Medicine & Ethics responds to this challenge. This article describes how the mission of public health has come to encompass the prevention and treatment of injury and highlights some of the political and ethical controversies now confronting the field. (shrink)

The mission of public health is to assure the conditions in which people can be healthy and to reduce the occurrence of death and disability attributable to disease and injury. From the distinctive perspective of public health, the target is the health of the population as a whole, with a particular concern for vulnerable populations within the whole. Although public health is grounded in science, the mission and perspective of the field are shaped by the ever-evolving values of the society. (...) Ethics and law are therefore constituent disciplines of public health policy and practice. One of the major challenges confronting contemporary practitioners of public health is the need to broaden and deepen their understanding of legal and ethical aspects of their work. This special issue of the Joumal of Law, Medicine & Ethics responds to this challenge. This article describes how the mission of public health has come to encompass the prevention and treatment of injury and highlights some of the political and ethical controversies now confronting the field. (shrink)

The determinative issue in applying the insanity defense is whether the defendant experienced a legally relevant functional impairment at the time of the offense. Categorical exclusion of personality disorders from the definition of mental disease is clinically and morally arbitrary because it may lead to unfair conviction of a defendant with a personality disorder who actually experienced severe, legally relevant impairments at the time of the crime. There is no need to consider such a drastic approach in most states and (...) in the federal courts, where the sole test of insanity is whether the defendant was “unable to appreciate the wrongfulness of his conduct at the time of the offense.” This is because the only symptoms that are legally relevant in such jurisdictions are those that impair reality-testing and thereby affect the person's capacity to understand the nature and consequences of her actions. However, if the test of insanity includes a “volitional prong” (inability to control one's behavior), some way must be found to limit the scope of the defense to the core cases (involving psychotic conditions) to which it has traditionally been applied, and to prevent a shift toward a deterministic account of criminal conduct — i.e., “people can't help being who they are and doing what they do.” The best way of accomplishing this is to limit the definition of mental disease to severe disorders characterized by gross disturbances of the person's capacity to understand reality. (shrink)

In his accompanying article, Dr. Kinscherff has convincingly demonstrated why a categorical exclusion of personality disorders from the definition of “mental disease” in insanity defense adjudication is arbitrary, both conceptually and clinically. He explains his position in the context of a vignette involving a hypothetical defendant, Wilhelmina Sykes, charged with ramming her car into another car obstructing her path, causing serious injury to its driver. Dr. Kinscherff correctly points out that the determinative issue in applying the insanity defense in any (...) case, including the hypothetical case involving Ms. Sykes, is whether the defendant experienced a legally relevant functional impairment at the time of the offense. In many states — and in the hypothetical jurisdiction in which Ms. Sykes is being prosecuted — the relevant functional impairments are those that could have affected her ability “to appreciate the wrongfulness of her conduct” or “to conform her conduct to the requirements of the law. (shrink)

Although death by neurologic criteria is legally recognized throughout the United States, state laws and clinical practice vary concerning three key issues: the medical standards used to determine death by neurologic criteria, management of family objections before determination of death by neurologic criteria, and management of religious objections to declaration of death by neurologic criteria. The American Academy of Neurology and other medical stakeholder organizations involved in the determination of death by neurologic criteria have undertaken concerted action to address variation (...) in clinical practice in order to ensure the integrity of brain death determination. To complement this effort, state policymakers must revise legislation on the use of neurologic criteria to declare death. We review the legal history and current laws regarding neurologic criteria to declare death and offer proposed revisions to the Uniform Determination of Death Act and the rationale for these recommendations. (shrink)

Organ transplantation has become a proven, cost-effective lifesaving treatment, but its promise is contingent on the number of available organs. The growing gap between the demand and supply results in unnecessary loss and diminished quality of life as well as high costs for surviving patients and health insurers. Twenty years after the enactment of the National Organ Transplantation Act, it is time to rethink the moral basis and overall design of organ transplantation policy. We propose a national plan for organ (...) transplantation insurance under which the federal government would assume responsibility for increasing the organ supply and would cover all costs associated with transplantation for patients not otherwise covered. (shrink)

Organ transplantation remains one of modern medicine's remarkable achievements. It saves lives, improves quality of life, diminishes healthcare expenditures in end-stage renal patients, and enjoys high success rates. Yet the promise of transplantation is substantially compromised by the scarcity of organs. The gap between the number of patients on waiting lists and the number of available organs continues to grow. As of January 2006, the combined waiting list for all organs in the United States was 90,284. Unfortunately, thousands of potential (...) organs are lost each year, primarily due to lack of consent to donation from the deceased before death, or from the family thereafter. Only fifty percent of potential donors – the “conversion” rate – become actual donors. The costs attributed to organ shortage are substantial – Medicare paid over $15.5 billion in 2002 for treating patients with end-stage renal-disease, who predominate on organ waiting lists. (shrink)

Public health ethics, like the field of public health it addresses, traditionally has focused more on practice and particular cases than on theory, with the result that some concepts, methods, and boundaries remain largely undefined. This paper attempts to provide a rough conceptual map of the terrain of public health ethics. We begin by briefly defining public health and identifying general features of the field that are particularly relevant for a discussion of public health ethics.Public health is primarily concerned with (...) the health of the entire population, rather than the health of individuals. Its features include an emphasis on the promotion of health and the prevention of disease and disability; the collection and use of epidemiological data, population surveillance, and other forms of empirical quantitative assessment; a recognition of the multidimensional nature of the determinants of health; and a focus on the complex interactions of many factors—biological, behavioral, social, and environmental—in developing effective interventions. (shrink)

Obtaining informed consent has typically become a stylized ritual of presenting and signing a form, in which physicians are acting defensively and patients lack control over the content and flow of information. This leaves patients at risk both for being under-informed relative to their decisional needs and of receiving more information than they need or desire. By personalizing the process of seeking and receiving information and allowing patients to specify their desire for information in a prospective manner, we aim to (...) shift genuine control over the informational process to patients. A new paradigm of Information on Demand, such as we suggest, would also enhance legal certainty, achieve greater congruence between the information patients want and the information they receive, and promote more meaningful patient-physician interactions, a desirable outcome that has been difficult to achieve by other means. (shrink)

In an explicit attempt to reduce physician paternalism and encourage patient participation in making health care decisions, the informed consent doctrine has become a foundational precept in medical ethics and health law. The underlying ethical principle on which informed consent rests — autonomy — embodies the idea that as rational moral agents, patients should be in command of decisions that relate to their bodies and lives. The corollary obligation of physicians to respect and facilitate patient autonomy is reflected in the (...) rules that have been created to implement consent procedures, especially those requiring disclosure of relevant information.However, there are many practical impediments to patient self-determination in health care decisionmaking. Well-meaning physicians often lack the time to live up to the ideal of facilitating genuine, informed deliberation with and by their patients, and many lack the motivation or skill to do so successfully. (shrink)

"A fascinating and timely treatment of the objectivism versus relativism debates occurring in philosophy of science, literary theory, the social sciences, ...

In her recent, provocative essay “What Is the Point of Equality?”, Elizabeth Anderson argues against a common ideal of egalitarian justice that she calls “ luck egalitarianism” and in favor of an approach she calls “democratic equality.”1 According to the luck egalitarian, the aim of justice as equality is to eliminate so far as is possible the impact on people’s lives of bad luck that falls on them through no fault or choice of their own. In the ideal luck egalitarian (...) society, there are no inequalities in people’s life prospects except those that arise through processes of voluntary choice or faulty conduct, for which the agents involved can reasonably be held responsible. Anderson asserts that the adherents of luck egalitarianism, which can be elaborated in many different ways, include John Roemer, Erik Rakowski, Thomas Nagel, Ronald Dworkin, Gerald Cohen, Richard Arneson, and Philippe Van Parijs.2 In contrast, according to the democratic equality conception, justice as equality requires an end to oppressive social relationships. In the ideal society of democratic equality, the social conditions of everyone’s freedom are secured, each stands to every other in a relationship of fundamental equality, including equal respect, and all have real freedom to participate in democratic self-government. (shrink)

What is the good for human persons? If I am trying to lead the best possible life I could lead, not the morally best life, but the life that is best for me, what exactly am I seeking?This phrasing of the question I will be pursuing may sound tendentious, so some explanation is needed. What is good for one person, we ordinarily suppose, can conflict with what is good for other persons and with what is required by morality. A prudent (...) person seeks her own good efficiently; she selects the best available means to her good. If we call the value that a person seeks when she is being prudent “prudential value,” then an alternative rendering of the question to be addressed in this essay is “What is prudential value?” We can also say that an individual flourishes or has a life high in well-being when her life is high in prudential value. Of course, these common-sense appearances that the good for an individual, the good for other persons, and the requirements of morality often are in conflict might be deceiving. For all that I have said here, the correct theory of individual good might yield the result that sacrificing oneself for the sake of other people or for the sake of a morally worthy cause can never occur, because helping others and being moral always maximize one's own good. But this would be the surprising result of a theory, not something we should presuppose at the start of inquiry. When a friend has a baby and I express a conventional wish that the child have a good life, I mean a life that is good for the child, not a life that merely helps others or merely respects the constraints of morality. After all, a life that is altruistic and perfectly moral, we suppose, could be a life that is pure hell for the person who lives it—a succession of horrible headaches marked by no achievements or attainments of anything worthwhile and ending in agonizing death at a young age. So the question remains, what constitutes a life that is good for the person who is living it? (shrink)

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Individual differences in emotional reactivity or affective style can be decomposed into more elementary constituents. Several separable of affective style are identified such as the threshold for reactivity, peak amplitude of response, the rise time to peak and the recovery time. latter two characteristics constitute components of affective chronometry The circuitry that underlies two fundamental forms of motivation and and withdrawal-related processes-is described. Data on differences in functional activity in certain components of these are next reviewed, with an emphasis on (...) the nomological network of surrounding individual differences in asymmetric prefrontal The relevance of such differences for understanding the nature affective dysfunction in affective disorders is then considered. The ends by considering what the prefrontal cortex “does” in certain of affective style and highlights some of the important questions for future research. (shrink)

Joel Feinberg was a brilliant philosopher whose work in social and moral philosophy is a legacy of excellent, even stunning achievement. Perhaps his most memorable achievement is his four-volume treatise on The Moral Limits of the Criminal Law, and perhaps the most striking jewel in this crowning achievement is his passionate and deeply insightful treatment of paternalism.1 Feinberg opposes Legal Paternalism, the doctrine that “it is always a good reason in support of a [criminal law] prohibition that it is necessary (...) to prevent harm (physical, psychological, or economic) to the actor himself.” Against this doctrine Feinberg asserts that when an agent’s sufficiently voluntary choice causes harm to herself or risk of harm to herself, this category of harm-to-self is never a good reason in support of criminal law prohibition of that type of conduct. (shrink)

Kasper Lippert-Rasmussen’s interesting criticisms of the ideal of equality of opportunity for welfare provide a welcome occasion for rethinking the requirements of egalitarian distributive justice.1 In the essay he criticizes I had proposed that insofar as we think distributive justice requires equality of any sort, we should conceive of distributive equality as equal opportunity provision. Roughly put, my suggestion was that equality of opportunity for welfare obtains among a group of people when all would have the same expected welfare over (...) the course of their lives if each behaved as prudently as it would be reasonable to expect her to behave. My specific proposal was more demanding, holding that when an age cohort reaches the onset of responsible adulthood, they enjoy equal opportunity for welfare when for each of them, the best sequence of choices that it would be reasonable to expect the person to follow would yield the same expected welfare for all, the second-best sequence of choices would also yield the same expected welfare for all, and so on through the array of lifetime choice sequences each faces. (In the jargon of my 1989 essay, equal opportunity for welfare obtains when everyone faces effectively equivalent sets of life options.). (shrink)

Philosophers perennially debate the nature of the good for humans. Is it subjective or objective? That is to say, do the things that are intrinsically good for an agent, good for their own sakes and apart from further consequences, acquire this status only in virtue of how she happens to regard them? Or are there things that are good in themselves for an individual independently of her desires and attitudes toward them? The issue sounds recondite, but has been thought to (...) be pregnant with implications for politics as it ought to be. Plato vigorously insists that knowledge of the good is precious and the person who has it is uniquely fit to rule: "In the world of knowledge, the last thing to be perceived and only with great difficulty is the essential Form of Goodness. Once it is perceived, the conclusion must follow that, for all things, this is the cause of whatever is right and good; in the visible world it gives birth to the light and to the lord of light, while it is itself sovereign in the intelligible world and the parent of wisdom and truth. Without having had a vision of this Form no one can act with wisdom, either in his own life or in matters of state.". (shrink)

All humans have an equal basic moral status. They possess the same fundamental rights, and the comparable interests of each person should count the same in calculations that determine social policy. Neither supposed racial differences, nor skin color, sex, sexual orientation, ethnicity, intelligence, nor any other differences among humans negate their fundamental equal worth and dignity. These platitudes are virtually universally affirmed. A white supremacist racist or an admirer of Adolf Hitler who denies them is rightly regarded as beyond the (...) pale of civilized dialogue. However, a very simple line of argument developed by Peter Singer challenges our understanding of these platitudes and forces us to rethink the basis and nature of the moral equality of all humans. What I call the “Singer Problem” arises if one accepts that the morally significant cognitive capacities that are relevant to the determination of the fundamental moral status of a being vary from individual to individual by degree. The problem is to specify a moral principle determining fundamental moral status that assigns a superior status to humans compared to other animals on the basis of the superior cognitive capacities of humans but also assigns all human persons an equal fundamental moral status regardless of their differing cognitive capacities. More broadly posed, the problem is to specify moral principles that yield intuitively satisfactory implications for the treatment of human individuals and other individual animals given that cognitive capacities differ across species and individuals. A search for a resolution of the Singer problem leads to disappointing results. (shrink)

In recent years some moral philosophers and political theorists, who have come to be called “luck egalitarians,” have urged that the essence of social justice is the moral imperative to improve the condition of people who suffer from simple bad luck. Prominent theorists who have attracted the luck egalitarian label include Ronald Dworkin, G. A. Cohen, and John Roemer.1 Larry Temkin should also be included in this group, as should Thomas Nagel at the time that he wrote Equality and Partiality.2 (...) However, each of these theorists asserts a different position. The common ground, if any, is obscure. The idea of luck that is invoked is not transparently clear. Anyway, the term “luck egalitarianism” was coined by a critic of the doctrine, and tendentiously defined to denote an extreme version of the view that looks implausible from the start.3 With some justice Ronald Dworkin, perhaps the chief architect of the luck egalitarian position, has denied that he is a luck egalitarian. (shrink)

The development of a defensible and fecund notion of emergence has been dogged by a number of threshold issues neatly highlighted in a recent paper by Jaegwon Kim. We argue that physicalist assumptions confuse and vitiate the whole project. In particular, his contention that emergence entails supervenience is contradicted by his own argument that the ‘microstructure’ of an object belongs to the whole object, not to its constituents. And his argument against the possibility of downward causation is question-begging and makes (...) false assumptions about causal sufficiency. We argue, on the contrary, for a rejection of the deeply entrenched assumption, shared by physicalists and Cartesians alike, that what basically exists are things (entities, substances). Our best physics tells us that there are no basic particulars, only fields in process. We need an ontology which gives priority to organization, which is inherently relational. Reflection upon the fact that all biological creatures are far-from-equilibrium systems, whose very persistence depend upon their interactions with their environment, reveals incoherence in the notion of an ‘emergence base’. (shrink)

Richard J. Bernstein is Vera List Professor of Philosophy at the New School for Social Research. The Essays: Philosophy, History, and Critique.

(No abstract is available for this citation).

This essay surveys varieties of the luck egalitarian project in an exploratory spirit, seeking to identify lines of thought that are worth developing further and that might ultimately prove morally acceptable. I do not attend directly to the critics and assess their concerns; I have done that in other essays. 7 I do seek to identify some large fault lines, divisions in ways of approaching the task of constructing a theory of justice or of conceiving its substance. These are controversial (...) in the sense that in the present state of discussion it is unclear how best to view them or to which side it is better to scramble. But in the end of course I’m not a moral geographer and map-maker, just an involved spectator/tourist offering yet another view of the cathedral. (shrink)

Some theories of justice hold that individuals placed in fortunate circumstances through no merit or choice of their own are morally obligated to aid individuals placed in unfortunate circumstances through no fault or choice of their own. In these theories what are usually regarded as obligations of benevolence are reinterpreted as strict obligations of justice. A closely related view is that the institutions of a society should be arranged in a way that gives priority to helping people placed in unfortunate (...) circumstances through no fault or choice of their own. Any theory of this type needs a way of assessing individuals’ circumstances to determine who is fortunate and who is unfortunate. (shrink)

This chapter contains sections titled: The Ideal of Democracy In Favor of Instrumentalism The Instrumentalist Case against Democracy Democracy and Mutual Respect Rights, Disagreement, and Democracy Political Liberalism The Ideal of Democratic Equality Conclusion Notes.

This essay examines several possible rationales for the egalitarian judgment that justice requires better-off individuals to help those who are worse off even in the absence of social interaction. These rationales include equality (everyone should enjoy the same level of benefits), moral meritocracy (each should get benefits according to her responsibility or deservingness), the threshold of sufficiency (each should be assured a minimally decent quality of life), prioritarianism (a function of benefits to individuals should be maximized that gives priority to (...) the worse off), and mixed views. A case is made for adopting either prioritarianism or a mixed view that gives priority both to the worse off and to the more responsible and deserving. (shrink)

This paper attempts a defense of John Stuart Mill’s absolute ban against paternalistic restrictions on liberty. Mill’s principle looks more credible once we recognize that some instances of what are thought to be justified instances of paternalism are not instances of paternalism at all—e.g. anti-duelling laws. An interpretation of Mill’s argument is advanced which stresses his commitment to autonomy and his suggestion that exactly the same reasons which favor absolute freedom of speech also favor an absolute prohibition of paternalism. Alternative (...) expositions and appraisals of Mill by Gerald Dworkin and Joel Feiriberg are criticized. Finally, consideration is given to two arguments that render Mill’s principle trivial via the denial that there are any significant self-regarding actions. (shrink)

Some theorists hold that there is no serious, significant issue concerning cosmopolitanism. They hold that cosmopolitanism is either the anodyne doctrine that we have some duties to distant strangers merely on the ground of shared humanity or the absurd doctrine that we have no special moral duties based on special-ties such as those of friendship, family, and national community. This essay argues against this deflationary position by defending (1) a very extreme cosmopolitan doctrine that denies special-tie moral duties altogether and (...) (2) a slightly milder but still extreme form of cosmopolitanism that allows that there might be special-tie moral duties to intimate associates such as friends and family members but denies that broader social group associations such as those of subjection to a national state or national or ethnic community memberships ever constitute special ties that ground special moral duties. The defense proceeds by rebutting bad arguments leveled against extreme cosmopolitanisms. (shrink)

Prioritarianism holds that improvements in someone's life are morally more valuable, the worse off the person would otherwise be. The doctrine is impartial, holding that a gain in one person's life counts exactly the same as an identical gain in the life of anyone equally well off. If we have some duty of beneficence to make the world better, prioritarianism specifies the content of the duty. Unlike the utilitarian, the prioritarian holds that we should not only seek to increase human (...) well-being, but also distribute it fairly across persons, by tilting in favor of the worse off. A variant version adds that we should also give priority to the morally deserving – to saints over scoundrels. The view is a standard for right choice of individual actions and public policies, offering a distinctive alternative to utilitarianism, sufficiency and egalitarianism. (shrink)