Preparing the Groundwork for a Responsible Debate on Stem Cell Research and Human Cloning

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\u27 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

Carter Snead lecture Physician Assisted Suicide: Objections in Principle and in Prudence

Professor Carter Snead delivered a lecture “The Law, Ethics and Public Policy of Assisted Suicide: Arguments in Principle and Prudence” and a panelist at Fostering Better Relationships Between Doctors and Lawyers: Practical Case Panels to the full pediatric medical staff (physicians and residents) at the monthly Pediatric Grand Rounds of the Medical University of South Carolina (located in Charleston, S.C.) September 25

Unenumerated Rights and the Limits of Analogy: A Critque of the Right to Medical Self-Defense

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA restricts access to unapproved drugs (subject to certain exceptions) in the interest of public health, that is, to prevent patient exposure to unsafe or ineffective drugs and to maintain a functional clinical trial system (the chief mechanism of bringing safe and effective drugs to the market). Congress banned the sale of organs to avoid what it took to be a number of practical and ethical harms, including coercion of the poor and commodification of the body and its parts. The only way for the individual to avoid the political process and substitute his own normative balancing of these goods and harms for that of the government, is to do so pursuant to a fundamental constitutional right. Thus, for Volokh’s project to succeed, he must demonstrate that the right he proposes is “objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”This Article examines Volokh’s case for a fundamental right to medical self-defense, and concludes that none of his suggested common law grounds are adequate to justify it. Self-defense is not a fitting analogy to, and thus does not provide support for, this entitlement. The doctrine of necessity (or choice of evils) is a more promising common law analogy, but it is also an unsound foundation. Lacking any roots in the nation’s history and tradition, the entitlement to medical self-help cannot, therefore, rise to the level of a fundamental constitutional right

Bioethics and Self-Governance: The Lessons of the Universal Declaration on Bioethics and Human Rights

The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President\u27s Council of Bioethics; he served as the U.S. representative to UNESCO\u27s Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently serving a 4-year term as a member of UNESCO\u27s International Bioethics Committee

Three Regulatory Models for Stem Cell Research

On Monday, May 30, Notre Dame Center for Ethics and Culture Director and Professor of Law Carter Snead will deliver the inaugural University of Florence “Law and Justice Lecture” in Florence, Italy. Snead’s inaugural lecture, entitled “Three Regulatory Models for Stem Cell Research,” will analyze and contrast the US Government’s federal funding policies under Presidents Bill Clinton, George W. Bush, and Barack Obama as a means of exploring the complexities of American governance of science, medicine, and biotechnology in the name of ethical goods. Read the news release

Science, Public Bioethics, and the Problem of Integration

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square. This Article examines the question of how scientific methods and principles can and should be integrated into the making and enforcement of laws in this domain without compromising the integrity of science, the democratic legitimacy of government, or both. It identifies, analyzes and critiques one prominent model of integration, namely, the proposal to delegate virtually all public bioethical questions to scientific experts for resolution solely using the tools of their respective disciplines. The Article argues that this model of integration raises serious prudential concerns relating to democratic accountability (and thus legitimacy). More deeply, it argues that the proposal is unsustainable in principle because of the fundamental conceptual incompatibility between the premises and methods of modern science and the ethical principles that comprise the currency of public bioethical deliberation. It concludes by offering a provisional way forward, arguing that integration should be a function of defining and policing the boundaries of scientific methods and ethical reasoning, according to their respective competencies for the particular public bioethical question at issue. The Article provides an analytic tool to facilitate this line drawing, and illustrates its application with reference to several contemporary debates within public bioethics (i.e., the recent FDA approval of Plan B emergency contraception, the federal funding of embryonic stem cell research, and the impact of cognitive neuroscience on theories of criminal punishment)

Science, Public Bioethics, and the Problem of Integration

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square. This Article examines the question of how scientific methods and principles can and should be integrated into the making and enforcement of laws in this domain without compromising the integrity of science, the democratic legitimacy of government, or both. It identifies, analyzes and critiques one prominent model of integration, namely, the proposal to delegate virtually all public bioethical questions to scientific experts for resolution solely using the tools of their respective disciplines. The Article argues that this model of integration raises serious prudential concerns relating to democratic accountability (and thus legitimacy). More deeply, it argues that the proposal is unsustainable in principle because of the fundamental conceptual incompatibility between the premises and methods of modern science and the ethical principles that comprise the currency of public bioethical deliberation. It concludes by offering a provisional way forward, arguing that integration should be a function of defining and policing the boundaries of scientific methods and ethical reasoning, according to their respective competencies for the particular public bioethical question at issue. The Article provides an analytic tool to facilitate this line drawing, and illustrates its application with reference to several contemporary debates within public bioethics (i.e., the recent FDA approval of Plan B emergency contraception, the federal funding of embryonic stem cell research, and the impact of cognitive neuroscience on theories of criminal punishment)

Neuroimaging and the Complexity of Capital Punishment

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 the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over the long term, these same experts (and their like-minded colleagues) hope to 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 ultimately meant to usher in a more compassionate and humane regime for capital defendants. This Article seeks to articulate, analyze, and provide a critique of this 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 framework currently in place

Response to Nicholas Boyle

Response to Nicholas Boyle’s talk “God, Sex, and America: From Decline of the Common Morality to the Emergence of a Global Ethical Life” at The Catholic University of America Center for Law, Philosophy and Culture’s Symposium “A Common Morality for the Global Age: In Gratitude for What We Are Given.

Memory and Punishment

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, and by the broader community. Because this is so, new neurobiological techniques to modify memory - including interventions to erase some or all memory, to dampen the emotional/affective content of memory, and to enhance the duration and intensity of memory - pose, in principle, special challenges for the just and effective distribution of punishment. This article identifies and analyzes the substance and contours of these challenges. It is meant to prepare the necessary groundwork for future scholarship on how the law, as enacted, enforced, and interpreted, should respond (if at all) to such concerns. Jurisprudence, Food and Drug law, Punishment theory, Criminal justice law, criminal procedure, Death penalty, Neuroscience, The brai