Deborah Hellman

OF MICE BUT NOT MEN: PROBLEMS OF THE RANDOMIZED CLINICAL TRIAL

As medicine has become increasingly scientific and less accepting of unsupported opinion or proof by anecdote, the randomized controlled clinical trial has become the standard technique for changin...

Discrimination, Concept of

The term discrimination can be used in a descriptive or a normative way. To discriminate can mean simply to draw distinctions among people, or it can refer to distinguishing among people in a way that is wrong. When discrimination is wrong, what makes it wrong? Some theories of discrimination focus on an actor’s intention, some on a policy’s effects, and some on its meaning. In addition, scholars debate whether discrimination is a problem about classification and its rationality or instead primarily an issue of subordination. Exploring these issues often occurs in the context of contentious social issues such as affirmative action or same-sex marriage.

Resurrecting the Neglected Liberty of Self-Government

The liberty of citizens in a democracy has two components – the negative liberty to be let alone and the positive liberty of self-government. Both are crucially important. The positive liberty of self-government must be balanced against the negative liberty of individuals to do as they choose. This important and familiar tension has been overlooked in the Supreme Court’s current campaign finance jurisprudence. While the Court has aggressively protected the individual’s interest in spending money to speak, without interference from the state, the Court has neglected the individual’s interest in deciding, along with others, that politics ought to be walled off from the market. Instead, the Supreme Court should safeguard not only the individual liberties of speech and action but also collective liberties of self-government.

Physicians as researchers: Difficulties with the "similarity position"

Chiong raises the important question of “what compromises in the care offered patients in a clinical trial can be justified by the potential benefits to third parties” (2006, 37)— a question that cannot even be raised under the equipoise standard. But, he is mistaken, we believe, in assuming that this question must have the same answer for researchers and physicians. That assumption would be warranted if clinical research and medicine were different aspects of the same profession, governed by the same rules. That, however, is just what is denied by proponents of what Chiong calls “the difference position.” On this view, it is at least theoretically possible that a study could satisfy all the requirements to make knowing and voluntary participation acceptable— addressing an important question in a way likely to yield a valuable answer, and offering a reasonable balance of benefits to risks— and yet still involve too great a departure from the standard of care for a physician to ethically recommend it to her patients. This could be so even if the physician were not committed to absolute priority for her patients— an extreme stance Chiong rightly urges us to reject. For proponents of the difference position, the qualified priority that the physician should accord her patients might still compel her to withhold her recommendation from a study that satisfied the researcher’s more limited duty toward those individuals.

Two Types of Discrimination: The Familiar and the Forgotten

This essay argues that current Equal Protection doctrine fails to recognize an important conceptual distinction between two types of discrimination. Current doctrine is inadequate, according to the author, because it treats all discrimination cases as if they were instances of only one of these types. As a result, the Supreme Court mistreats discrimination cases of the forgotten variety. The author draws a distinction between proxy and non-proxy discrimination. Proxy discrimination uses the classification in the law as a means to reach a set of persons with a different, correlated trait. Non-proxy discrimination, by contrast, aims at the set defined by the classification itself. Because each has a distinct aim, each requires an examination of different moral issues. The author argues that current Equal Protection doctrine is suited for proxy discrimination only. Non-proxy cases are forced into an inappropriate doctrinal scheme with two unfortunate results. First, the Court focuses its attention on irrelevant issues and second, the Court fails to address the real and important issues that cases of non-proxy discrimination present. At the close of the Essay, the author sketches a new theory for non-proxy cases and demonstrates how this theory casts familiar issues like affirmative action and single-sex education in a new light.

What Money Can and Cannot Buy

At the risk of belaboring a point, I want to revisit the claim that underlies Buckley v. Valeo1 and which was not challenged in the more recent campaign finance case McConnell v. Federal Election Com n2 that the ability to spend money to express ones views is an interest protected by the First Amendment guarantee of freedom of speech.3 The critique of this assumption ? that money is not speech4 ? has been rejected on the grounds that money clearly facilitates speech. Indeed, in many contexts it takes money to speak (via a newspaper or TV advertisement for example) and thus to say that one cannot spend ones money to speak is tantamount to forbidding speech itself.5 Below, I will re examine the rejection of the claim that because money is not speech it does not deserve First Amendment protection. Instead I will suggest that there are good reasons not to view spending money to speak as an activity protected by the First Amendment in the first instance.