Analysis and Commentary on Philosophy and Ethics

On Brain Death and Civil Rights

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Justia columnist and attorney David Kemp discusses the tragic situation of Jahi McMath, the 13-year-old girl who was pronounced brain dead after surgery, and whose family sought to keep her on a ventilator despite that diagnosis. Kemp focuses on the federal civil rights lawsuit recently filed by the family. He argues that it is unlikely to succeed on the merits and that the family would be better advised to seek alternative means of answers and justice for their loss.

Teaching Lawyers, And Others, To Be Leaders

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Justia columnist and former counsel to the president John Dean draws upon Stanford law professor Deborah Rhode’s book Lawyers as Leaders to comment upon, among other leadership topics, the remarkable failure that he argues that we are seeing in both contemporary Washington lawyers and also in our political leaders. Dean praises Rhode’s strongly documented book as far transcending the typical banal business book, and having a great deal to offer the reader.

The Weight of Capital Punishment on Jurors, Justices, Governors, & Executioners

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Justia guest columnist and Loyola Law School professor Paula Mitchell continues her series of columns on the death penalty, describing the punishment’s effect on jurors, justices, governors, and executioners. She presents testimonies from various people involved in different parts of the process of capital sentencing and execution. She concludes that the public should consider the impact capital punishment has on those individuals who have to make the decisions of life and death.

The Legality of Government by Extortion: “As We Say, Or We Shut It Down”

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Justia columnist and former counsel to the president John Dean makes a forceful case against the Republicans’ decision to shut down the government, calling the move “government by extortion,” and explaining precisely why he believes that, for many reasons, the Republicans should have eschewed this gambit as completely out of bounds.

What’s Wrong With In Vitro Meat?

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Justia columnist and Cornell law professor Sherry Colb argues that eating meat from a laboratory culture does not allow diners to evade the ethical problems that otherwise arise from eating meat. For one thing, Colb explains how animals still die from cultured meat, for contrary to popular belief, cultured meat, contrary to popular belief, involves the use and slaughter of animals, as Colb explains. Colb also notes that, unlike a person who needs an organ transplant and has no alternative, a person who buys In Vitro meat has numerous vegan alternatives.

What Does Opposition to War in Syria Tell Us About the State of International Law?

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Justia guest columnist and U.C. Berkeley School of Law professor Saira Mohamed critically discusses the possibility of military force by the United States against Syria. She first describes how unilateral military intervention would violate international law and explains why the United States should avoid it. She then draws alarming parallels to punitive actions taken by the U.S. against Libya in 1986, Afghanistan and Sudan in 1998, and Iraq in 2003. Professor Mohamed concludes with the optimistic perspective that the American public supports the principle that military force should not substitute for diplomacy, and that war is not a legitimate tool of international relations.

The Significance of the New “Pain Capable Abortion” Laws

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Justia columnist and Cornell law professor Sherry Colb comments on recent laws enacted by several states banning abortion procedures at 20 weeks post-fertilization (or 22 weeks after a pregnant woman’s last menstrual period or “LMP”), and a similar federal measure passed by the House of Representatives, the “Pain-Capable Unborn Child Protection Act (PCUCPA), which would—in the unlikely event that it passed—yield a national prohibition against abortion at 20 weeks post-fertilization (with various exceptions). Some see such laws as a way to subtly advance a pro-life agenda, but Colb notes that an emphasis on the importance of pain, sentience, and suffering in morality surely should, especially, make us ask why we ignore the terrible suffering of the animals we use for food, when we should, instead, Colb contends—focusing on pain—choose to become vegan.

Sexual Surrogacy: Better Than Prostitution?

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Justia columnist and Cornell law professor Sherry Colb compares and contrasts the use of a prostitute with that of a sexual surrogate. One impetus for Colb’s column was the recent determination of France’s National Ethics Committee that sexual surrogacy is unethical because it uses the human body for commercial purposes. In light of that determination, Colb considers the arguments for and against considering sexual surrogacy to be ethically distinct from and superior to, prostitution. In the course of her analysis, Colb also considers two novel ways of thinking about sexual surrogacy: as (1) sexual harassment of the therapist, and as (2) sexual harassment of the patient.

Seven Ways of Looking at Kiobel v. Royal Dutch Petroleum and the Supreme Court Under Chief Justice John Roberts

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Justia guest columnist and Touro Law Center professor Rodger Citron analyzes the Supreme Court's decision in the Kiobel case, which concerned the scope of the Alien Tort Statute (“ATS”), a federal statute relied upon by lawyers asserting claims of human rights violations. In particular, Citron focuses on how Kiobel fully illustrates the judicial philosophy of Chief Justice Roberts. In addition, he offers seven different ways of looking at the decision.

Is Obama’s Policy of Targeted Killings Really Worse than Bush’s Torture Policy?

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Justia columnist and Cornell law professor Michael Dorf contrasts Obama’s policy of targeted killings of persons believed to be leaders of al Q’aeda, with George W. Bush’s prior policy of authorization of the use of torture. The issue is timely in the wake of the release of an Obama Administration white paper on the targeted-killing issue. Dorf notes that the Administration is drawing criticism from both the right and the left on that issue. Dorf argues that the Administration is right to seek to craft a policy that complies with both the U.S. Constitution and the international law of war. He also examines the views of controversial conservative law professor John Yoo on which is worse: the Obama Administration’s targeted killing policy, or the Bush Administration’s torture policy. Dorf also looks at such questions from the point of view of not just law, but also morality.

When Conscience and Duty Conflict: A Health Care Provider’s Moral Dilemma

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Justia columnist and attorney David Kemp discusses the moral dilemma presented when a health provider’s duty conflicts with his or her conscience. To illustrate this dilemma, he uses the example of a Jehovah’s Witness physician faced with a patient who needs a life-sustaining blood transfusion. Kemp notes that conflicts between conscience and duty arise in other settings, such as the case of conscientious objectors to military conscription. Kemp concludes that the ideal solution is for the institution and the individual to take steps to prevent these types of conflicts from occurring at all.

Can Health Care Providers Ethically Go on Strike?

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Justia columnist and attorney David Kemp considers the ethics around health care providers going on strike. Invoking various philosophical viewpoints relating to the matter, Kemp notes that while the unjust treatment of any group of employees is intolerable, there is a unique set of factors present when discussing the labor conditions of health care providers. Kemp points out that both the patient and the individual employee are impacted by unjust or unfair working conditions, but argues that because the health-care provider’s first duty is to care for the patient, the strike may not be an ideal negotiation device. Kemp concludes that although there are strong arguments on both sides, the risk of harm to patients ultimately outweighs the need for health-care workers to strike in a majority of circumstances.

The Ongoing Debate Over Physician-Assisted Suicide

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Justia columnist and attorney David Kemp comments on the controversial topic of physician-assisted suicide (“PAS”), which is legal in only three states: Washington, Oregon, and Montana. Kemp provides a history of PAS; explains the distinctions between PAS and other end-of-life decisions such as palliative care and the choice to withdraw life-sustaining treatments; and comments on the question whether PAS merits criminal liability.

Why Grover Norquist’s Anti-Tax Pledge Is Unenforceable and Unconstitutional

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Justia columnist and former counsel to the president John Dean takes strong issue with the Norquist Pledge, which Washington lobbyist Grover Norquist has asked Members of Congress to sign. The Pledge says, “I [insert name] pledge to the taxpayers of the state of [insert name], and to the American people that I will: ONE, oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses; and TWO, oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.” The Pledge has become significant in the context of raising taxes as a solution to the potential “fiscal cliff” crisis. Dean contends that the Pledge is not only a bad idea, but also one that violates the Constitution. Moreover, Dean points out that, as the pledge is not a valid contract, for it is missing key elements that contract law requires, it is also not enforceable as such.

Autonomous Cars and Surgical Robots: A Discussion of Ethical and Legal Responsibility

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Justia columnist and attorney David Kemp comments on the legal and ethical issues raised by self-driving cars and surgical robots. He describes current tort (including personal injury) and products liability law, and discusses why these bodies of law may fall short in addressing these technological innovations. Kemp introduces several hypotheticals to illustrate both the legal and ethical issues presented. In addition, he suggests that we should establish dynamic legal and ethical frameworks to keep up with new technologies, and encourages the law—and ethics—to begin to focus not on parties’ individual liability, but rather on the entire system of persons, machines, institutions, and governments that are relevant to a given instance in which something has gone wrong, and injury has occurred.

How Mitt Romney Forgot His Legal Thinking at the Hofstra Debate

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Justia columnist and former counsel to the president John Dean notes that Mitt Romney attended both law school and business school, and contends that Romney forgot to think like a lawyer at the recent Hofstra debate. Before commenting specifically on Romney, Dean addresses the controversy about whether lawyers think differently than other people. One position is that thinking like a lawyer is simply thinking clearly and critically; the other position is that thinking like a lawyer is a unique skill that only those who have learned that skill in law school possess, in part because lawyers are taught to follow past precedent, even if they think it is wrongly decided—which is not the case in other professions. Dean notes that lawyers must also meet the requirements of the bar, and follow the jurisdiction’s Rules of Professional Conduct. While Romney is an attorney, Dean argues, he is much more of a businessman, and Dean notes that GOP businessmen have, over history, fared poorly in the Oval Office, and cites both Herbert Hoover and George W. Bush as examples.

The Downside of Juries in a World That Can’t Stop Talking

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Justia columnist and Cornell law professor Sherry Colb comments on the roles that introverts and extroverts, respectively, may play on juries. Drawing on the book Quiet: The Power of Introverts in a World That Can't Stop Talking, by Susan Cain, Colb notes that the American legal system assumes that extroversion is optimal, and both law schools and the legal world, more generally, reward it. But, Colb asks, what if we’re wrong in our assumptions about introverts and extroverts? Colb describes some of the detrimental effects that our collective elevation of extroversion may be having on the criminal justice system, and on society more generally, especially as extroverts tend to have overly optimistic views, when more balanced views would ideally be better (as is, perhaps, illustrated by the run-up to the 2008 financial crisis). Meanwhile, studies also show that in groups, people's views tend to follow those of others in a group—in a tendency toward conformity. Thus, Colb asks us to consider our juries: Are we really getting twelve individual views of the case in jury deliberations, or are the influences of conformity and extroversion undermining that ideal? If, indeed, they are, Colb offers an intriguing solution.

The Significance of Blind Spots in Moral Reasoning

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Justia columnist and Cornell law professor Sherry Colb takes strong issue with a set of hypothetical scenarios that NYU professor Jonathan Haidt presents in his book, published earlier in 2012, The Righteous Mind: Why Good People Are Divided by Politics and Religion. While focusing on these moral dilemmas insofar as they affect humans, Colb argues, Haidt exposes his own blind spot with respect to the morality of eating animals. Colb then offers her own, fresh set of hypothetical moral dilemmas, in order to illustrate her contention that Haidt has not isolated all the pertinent questions and issues that his own moral hypotheticals raise. Even while considering the less significant issue of humans doing harmless but disgusting things to animals who are already dead, Colb notes, Haidt fails to consider the much more important issue of humans killing animals.

Donald Langevoort: A Thoughtful Legal Thinker

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Justia columnist and former counsel to the president John Dean comments on the the work of legal scholar Donald Langevoort, a professor at the Georgetown University Law Center, specializing in business organizations and securities regulation, who uses cognitive psychology in his work in order to explain why attorneys at times have ethical lapses. Dean comments on various interesting aspects of Langevoort’s work, such as his explanation as to how lawyers can fail to see a problem that should have been obvious to them, and his work regarding the organizational and psychological factors that may influence lawyers’ perception and judgment. Dean also discusses a list of certain cognitive biases to which lawyers may fall prey.

How Lawyers Can Minimize Professional Mistakes During a Scandal Like That at Penn State: Part Two in a Two-Part Series of Columns

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Justia columnist and former counsel to the president John Dean concludes his two-part series of columns on how attorneys can avoid making errors when serving as counsel to a person or institution enmeshed in a scandal. With the Freeh Report strongly suggesting a cover-up of Jerry Sandusky’s child sexual abuse, Dean notes that the same question that arose in the Enron and Watergate scandals also arose regarding the Penn State scandal: Where were the lawyers? Dean offers some intriguing answers as to why lawyers may not function as they should in cover-up situations—noting that general counsels, though they are working for an institution, may tend to feel loyalty to the person, or persons, with whom they directly work, instead. Dean also introduces readers to the psychology of cover-ups, and especially the concept of the “loss frame,” drawing on the work of Richard Painter, Richard Kahneman, and Amos Tversky to explain why attorneys may get caught up in cover-ups. Dean also gives advice for those—whether they are attorneys or not—who find themselves in a loss-frame (roughly, a losing) situation, and notes what the ABA’s Model Rules counsel in such situations.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Amar served as the Senior Assoc... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and four books on constitutional la... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from Rice University and his J.D. from the University of California, Berkeley, School of Law (Boalt Hall)... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Fowler School of Law. He joined the faculty in 2008. Before that, he was Univ... more