Book reviewed in this article: Rights Talk: The Impoverishment of Political Discourse. By Mary Ann Glendon.

Recent studies indicate that patients who are diagnosed with vegetative states may retain more awareness than their clinical assessments suggest. Disorders of consciousness traditionally have been diagnosed on the basis of outwardly observable behaviors alone, but new functional imaging studies have shown surprising levels of brain activity in some patients, indicating that even higher-level cognitive functions like language processing and visual imagery may be preserved. For example, one recently developed method purports to detect voluntary mental imagery solely on the basis (...) of neural response patterns observed with functional magnetic resonance imaging. This line of research has already led to some widely reported cases of patients who were discovered to have more brain activity than expected. In November 2009, Rom Houben, a Belgian man who was thought to be in a coma for 23 years, was diagnosed with locked-in syndrome through the use of neuroimaging; however, that assessment was later overturned by further testing. (shrink)

Law provides a rich language for thinking about bioethical issues and is a tool for action as well as talk. But the language of the law, often inapt, regularly fails to achieve its desired effect.

In this paper, we review recent neuroimaging investigations of disorders of consciousness and different disciplines' understanding of consciousness itself. We consider potential tests of consciousness, their legal significance, and how they map onto broader themes in U.S. statutory law pertaining to advance directives and surrogate decision-making. In the process, we outline a taxonomy of themes to illustrate and clarify the variance in state-law definitions of consciousness. Finally, we discuss broader scientific, ethical, and legal issues associated with the advent of neuroimaging (...) for disorders of consciousness and conclude with policy recommendations that could help to mitigate confusion in this realm. (shrink)

In America today, public policy governing an increasing number of social issues is made through the judicial enforcement of constitutional rights. Cruzan raised the question whether policy regarding the withdrawal of medical care from incompetent patients is to be handled similarly. This essay argues that privacy-rights doctrine provides a poor basis for constructing public policy in this area. It suggests that the Court has been unable to articulate a convincing basis for privacy rights and that the basis the Court seems (...) to assume poorly fits many circumstances to which it is applied. The essay further contends that the Court has been unable to describe a persuasive method of analyzing the state interests that are at stake in privacy cases and to accommodate those interests in a reasonable way. The essay concludes that these are issues as to which policy is better formed through a political, not judicial, process. Keywords: constitutional rights, courts, fundamental right, personal right, public policy, rights CiteULike Connotea Del.icio.us What's this? (shrink)

Let us look to America, not in order to make a servile copy of the institutions that she has established, but to gain a clearer view of the polity that will be the best for us; let us look there less to find examples than instruction; let us borrow from her the principles, rather than the details, of her laws. The laws of the French republic may be, and ought to be in many cases, different from those which govern the (...) United States; but the principles on which the American constitutions rest, those principles of order, of the balance of powers, of true liberty, of deep and sincere respect for right, are indispensable to all republics; they ought to be common to all …. —Alexis de Tocqueville Democracy in America. (shrink)

Let us look to America, not in order to make a servile copy of the institutions that she has established, but to gain a clearer view of the polity that will be the best for us; let us look there less to find examples than instruction; let us borrow from her the principles, rather than the details, of her laws. The laws of the French republic may be, and ought to be in many cases, different from those which govern the (...) United States; but the principles on which the American constitutions rest, those principles of order, of the balance of powers, of true liberty, of deep and sincere respect for right, are indispensable to all republics; they ought to be common to all …. —Alexis de Tocqueville Democracy in America. (shrink)