Analysis and Commentary on Philosophy and Ethics

The Significance of the New “Pain Capable Abortion” Laws

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?

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

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?

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

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?

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

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

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

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

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

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

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

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

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.

Talking With an Expert About Serious Attorney-Client Privilege Confusion During the Penn State Child-Abuse Scandal

In Part One of a two-part series regarding attorney-client privilege and the Penn State child-sex-abuse scandal, Justia columnist and former counsel to the president John Dean comments on potentially serious attorney-client privilege confusion relating to the scandal. Louis Freeh—the former judge and FBI director, and the author of the Freeh Report that was commissioned by Penn State regarding the scandal—has raised serious questions about the roles of the University’s General Counsel and its outside counsel, respectively, with respect to the scandal. With the assistance of Thompson Hine partner Jim Robenalt, who answered a series of questions posed by Dean, Dean seeks to illuminate the relevant legal and ethical rules in this oft-misunderstood area. In addition, Dean notes some parallels here to Watergate, during which questions also arose about attorneys’ representation of entities, such as the presidency, rather than persons, such as the president.

A German Court Bans Circumcision

Justia columnist and Cornell law professor Sherry Colb comments on a German court’s recent ruling banning circumcision under the criminal law. Colb notes that the ruling has caused a great deal of controversy, both domestically and internationally, because child circumcision is central to both the Jewish and Muslim faiths, and because of Germany’s history of bias and of genocide. The court claimed, however, that it was acting to preserve the child’s bodily integrity, and his ability to choose his own religion later in life. Colb covers the facts, the outraged reaction, and the arguments that might be made to the effect that the court was possibly acting out of sympathy for the child, rather than out of bias. She also compares and contrasts religious circumcision with procedures ranging from infant ear piercing, to female genital mutilation, to infant circumcision that is not performed for religious reasons. In addition, Colb raises a disturbing specter of bias based on the reported availability, in Germany, of circumcision based on medical, but not religious, reasons. Especially since child circumcision has medical benefits, she says, governments should continue to allow it regardless of whether it is motivated by religious or secular intent, or both.

Was It Wrong for Chief Justice Roberts to “Flip Flop” on Obamacare?

Justia columnist and Cornell law professor Sherry Colb raises an intriguing question regarding the Supreme Court’s recent decision upholding the Affordable Care Act, also known as the ACA or, more colloquially, as Obamacare. Colb notes that leaks from the Court have suggested that Chief Justice Roberts initially was inclined to vote with his four conservative colleagues to strike down the ACA, but later changed his mind to side with the Court’s liberals and uphold the legislation. Assuming for purposes of argument that (1) the leaked information is accurate, and (2) Chief Justice Roberts’s claimed flip-flop was based in part on public sentiment, did Roberts do anything wrong? Colb suggests, interestingly, that the correct answer to that question may be “No.” Using two hypothetical court scenarios, as well as the ACA case itself, Colb isolates the kinds of cases and issues in which a judge would be wrong—or right—to take public sentiment into account.

Facebook’s New “Organ Donor” Feature: Many Applaud It, but Some Raise Possible Concerns About Protecting Private Health Information

Guest columnist and Justia writer and editor David Kemp comments on a new development on Facebook: users’ ability to add the fact that they have become organ donors as a “Life Event” on their Timelines. Kemp notes that the reason for this development is to encourage organ donation after death—and that it’s been very successful in doing so. He also comments on three likely reasons why Facebook chose this particular cause, as opposed to all the other causes that it might have promoted. While applauding the feature’s benefits, Kemp also considers some risks connected to the use of Facebook in this way—including the risk that other medically-related applications may lead to the disclosure of private health information, which could potentially implicate federal privacy laws. (Already, the “Life Events” application, Kemp points out, can reveal a broken bone or weight loss.) Ultimately, Kemp raises the question whether Facebook may evolve in such a way as to provide not just social networking, but also social engineering.

The Story and Legacy of the Greatest Judge of His Era, Henry Friendly

Justia columnist and former counsel to the president John Dean comments on the imminent publication of a biography by David M. Dorsen of esteemed jurist Henry Friendly, Henry Friendly: Greatest Judge of His Era. As Dean explains, Judge Friendly served on the U.S. Court of Appeals for the Second Circuit from 1959-1986, and his decisionmaking drew the highest praise from fellow judges and Justices. Dean provides an overview of the biography’s coverage, and notes that its emphasis is not on what Friendly decided, but rather on his decisionmaking process. Dean contends that this work—the product of six years’ research and hundreds of interviews—is not to be missed by either the serious scholar or the general reader. (Dean notes, for full disclosure, that he is a friend of Dorsen’s, but also quotes high praise for the book from Judge Richard Posner and others.)

Why Interdisciplinary Legal Scholarship Is Good for the Law, the Academy, and Society at Large

Justia columnist, George Washington law professor, and economist Neil Buchanan responds to some of the common criticisms of interdisciplinary legal scholarship, defending such scholarship on the ground that it makes a valuable contribution. He begins by noting how legal scholarship has changed over the years, beginning around the 70’s, from a field that primarily summarized legal developments, to one that primarily describes how the law could and should change. As a result of this evolution, Buchanan argues, it made sense to bring in other academic disciplines to assist law professors who were interested in improving policies, and who wanted to draw from the relevant schools of thought in framing their policy recommendations and developing their ideas. There has been nostalgia on the part of some—and, especially, some judges—for legal scholarship the way it used to be: primarily focused on describing the law, not improving it. But Buchanan argues that this nostalgia, while understandable, is misplaced, for combining legal expertise with expertise in another field can importantly further the debate on important policy matters. Some questions, Buchanan notes, are truly interdisciplinary and for these, interdisciplinary scholarship is not just useful, but vital.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more