Representation and Re-Presentation in Litigation Science

Federal appellate courts have devised several criteria to help judges distinguish between reliable and unreliable scientific evidence. The best known are the U.S. Supreme Court’s criteria offered in 1993 in Daubert v. Merrell Dow Pharmaceuticals, Inc. This article focuses on another criterion, offered by the Ninth Circuit Court of Appeals, that instructs judges to assign lower credibility to “litigation science” than to science generated before litigation. In this article I argue that the criterion-based approach to judicial screening of scientific evidence is deeply flawed. That approach buys into the faulty premise that there are external criteria, lying outside the legal process, by which judges can distinguish between good and bad science. It erroneously assumes that judges can ascertain the appropriate criteria and objectively apply them to challenged evidence before litigation unfolds, and before methodological disputes are sorted out during that process. Judicial screening does not take into account the dynamics of litigation itself, including gaming by the parties and framing by judges, as constitutive factors in the production and representation of knowledge. What is admitted through judicial screening, in other words, is not precisely what a jury would see anyway. Courts are sites of repeated re-representations of scientific knowledge. In sum, the screening approach fails to take account of the wealth of existing scholarship on the production and validation of scientific facts. An unreflective application of that approach thus puts courts at risk of relying upon a “junk science” of the nature of scientific knowledge

Brain death, states of impaired consciousness, and physician-assisted death for end-of-life organ donation and transplantation

In 1968, the Harvard criteria equated irreversible coma and apnea (i.e., brain death) with human death and later, the Uniform Determination of Death Act was enacted permitting organ procurement from heart-beating donors. Since then, clinical studies have defined a spectrum of states of impaired consciousness in human beings: coma, akinetic mutism (locked-in syndrome), minimally conscious state, vegetative state and brain death. In this article, we argue against the validity of the Harvard criteria for equating brain death with human death. (1) Brain death does not disrupt somatic integrative unity and coordinated biological functioning of a living organism. (2) Neurological criteria of human death fail to determine the precise moment of an organism’s death when death is established by circulatory criterion in other states of impaired consciousness for organ procurement with non-heart-beating donation protocols. The criterion of circulatory arrest 75 s to 5 min is too short for irreversible cessation of whole brain functions and respiration controlled by the brain stem. (3) Brain-based criteria for determining death with a beating heart exclude relevant anthropologic, psychosocial, cultural, and religious aspects of death and dying in society. (4) Clinical guidelines for determining brain death are not consistently validated by the presence of irreversible brain stem ischemic injury or necrosis on autopsy; therefore, they do not completely exclude reversible loss of integrated neurological functions in donors. The questionable reliability and varying compliance with these guidelines among institutions amplify the risk of determining reversible states of impaired consciousness as irreversible brain death. (5) The scientific uncertainty of defining and determining states of impaired consciousness including brain death have been neither disclosed to the general public nor broadly debated by the medical community or by legal and religious scholars. Heart-beating or non-heart-beating organ procurement from patients with impaired consciousness is de facto a concealed practice of physician-assisted death, and therefore, violates both criminal law and the central tenet of medicine not to do harm to patients. Society must decide if physician-assisted death is permissible and desirable to resolve the conflict about procuring organs from patients with impaired consciousness within the context of the perceived need to enhance the supply of transplantable organs

In the interests of justice? The determination of criminal legal aid applications by magistrates' courts in England and Wales Report to the Legal Aid Board

SIGLEAvailable from British Library Document Supply Centre- DSC:q93/09219(In) / BLDSC - British Library Document Supply CentreGBUnited Kingdo

Views of United States Physicians and Members of the American Medical Association House of Delegates on Physician-assisted Suicide

OBJECTIVE: To ascertain the views of physicians and physician leaders toward the legalization of physician-assisted suicide. DESIGN: Confidential mail questionnaire. PARTICIPANTS: A nationwide random sample of physicians of all ages and specialties, and all members of the American Medical Association (AMA) House of Delegates as of April 1996. MEASUREMENTS: Demographic and practice characteristics and attitude toward legalization of physician-assisted suicide. MAIN RESULTS: Usable questionnaires were returned by 658 of 930 eligible physicians in the nationwide random sample (71%) and 315 of 390 eligible physicians in the House of Delegates (81%). In the nationwide random sample, 44.5% favored legalization (16.4% definitely and 28.1% probably), 33.9% opposed legalization (20.4% definitely and 13.5% probably), and 22% were unsure. Opposition to legalization was strongly associated with self-defined politically conservative beliefs, religious affiliation, and the importance of religion to the respondent (P < .001). Among members of the AMA House of Delegates, 23.5% favored legalization (7.3% definitely and 16.2% probably), 61.6% opposed legalization (43.5% definitely and 18.1% probably), and 15% were unsure; their views differed significantly from those of the nationwide random sample (P < .001). Given the choice, a majority of both groups would prefer no law at all, with physician-assisted suicide being neither legal nor illegal. CONCLUSIONS: Members of the AMA House of Delegates strongly oppose physician-assisted suicide, but rank-and-file physicians show no consensus either for or against its legalization. Although the debate is sometimes adversarial, most physicians in the United States are uncertain or endorse moderate views on assisted suicide