Competing Ourselves to Death
posted by Frank Pasquale
In the run up to the Superbowl, the NYT has a disturbing story on the fate of Ted Johnson of the New England Patriots. Johnson suffered several concussions while playing and now suspects that they have permanently diminished his mental capacity. Johnson’s case is not isolated, and is leading to worries about “the N.F.L.’s record of allowing half of players who sustain concussions to return to the same game.” What’s next, the return of the flying wedge?
From a brute lawyerly perspective, the controversy raises some interesting issues. Are coaches and trainers negligently encouraging the injured to play? Could the players sign away any right to sue their teams (or the league) in cases like these? Might some political pressure need to be brought to bear here, like that which finally got baseball to face up to its steroid mess?
From a broader social perspective, other concerns arise. I’m presenting tomorrow at the Int’l Association of Science and Technology Studies on biotechnological enhancement that raises cognate issues. I’ll address a potential inversion of the traditional relationship between technology and values. Usually we think of values as guideposts that allow us to judge the worth of certain technological advances. But what happens when technology itself alters our cognitive capacities? Can it undermine our values? Certain drugs, trainings, or even game strategies might blunt or otherwise obscure our understanding of the world and ourselves. If we share Martha Nussbaums’s account of emotions as judgments of value, might these so-called performance-enhancements diminish the possibility of our rightly discerning our ends?
Any sporting pursuit that requires its participants to systematically risk their health in competition is troubling. But concussions like Johnson’s are doubly so, since they appear not merely to diminish or distort cognition, but to compromise one’s ability to even recognize the diminution taking place. The difficult question for regulators of various performance-enhancing neuropharmacological interventions is whether they have the potential to blunt users’ perceptions of the deep changes they wreak in users themselves. Substance addiction has been modeled as a case of “increasing marginal utility,” where the more one uses, the more one wants. New neural performance enhancement addiction might work in a far subtler way–by blunting the appeal of alternate sources of value and satisfaction.
February 1, 2007 at 9:53 pm
Posted in: Health Law, Technology, Tort Law
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Responses (11)
Maryland Conservatarian - February 1, 2007 at 11:03 pm
Assunption of risk…go away government, nothing (that should be) of your concern here.
greglas - February 2, 2007 at 5:58 am
Frank> “Any sporting pursuit that requires its participants to systematically risk their health in competition is troubling.”
Your argument recalls Roger Caillois’s more general definition of play: “A characteristic of play, in fact, is that it creates no wealth or goods, thus differing from work or art…. Play is an occasion of pure waste: waste of time, energy, ingenuity, skill and often of money…”
So what’s the utilitarian justification for sports-related injuries? According to Caillois’s definition of play, there can be no justification.
Frank - February 2, 2007 at 6:50 am
MC: But certainly there have to be some limits, right? Would you be in favor of allowing unlimited use of steroids? One could use your argument about “assumption of risk” to approve virtually any enhancement, no matter how self-destructive.
Greg: fascinating point on the nature of play. But I have a hunch that one could find a more constructive definition in teh following works:
1. John Finnis’s account of play in Natural Law & Natural Rights as one of the 7 basic forms of human flourishing
2. Joseph Pieper’s Leisure the Basis of Culture
3. Huizinga’s Homo Ludens.
I will get back to you when I’ve had a chance to consult these!
Ray Fuller - February 2, 2007 at 8:12 am
Your concern for former athletes is commendable, but perhaps law professors should exhibit more concern for their own law students, whose feudal contests in the classroom can be every bit as brutal to their minds (via the socratic method, competition against their excellent equals to beat the brutal bell curve for grades, & confronting life-altering exams); their bodies (from stress due to all-night studying, anxiety, & depression); and perhaps very souls (given cutthroat competition, unethical behavior like cheating, & the-ends-justify-the-means morality) as anything experienced on any athletic field. A timely and hopeful article on the health impacts of law school can be found at http://www.thecompletelawyer.com/volume2/issue4/article.php?ppaid=303.
Maryland Conservatarian - February 2, 2007 at 8:19 am
Allow the unlimited use of steroids?
No, of course not – at least not by the sports leagues themselves. They have a product to market and steroids do not help them do that. But I’m not one of those who is looking to the Federal Government to regulate in this or most arenas.
As Locke says – Every man is a property unto themselves. We should allow that self-interest to work its magic – as it will for the vast majority of us – and resist the temptation to step in with yet another no-doubt permanent expansion of the federal bureaucracy in a probably futile effort to further manage our lives…such failures being proof positive then that we probably need to be doing even more.
greglas - February 2, 2007 at 8:35 am
Frank –
Play and law is a deep and understudied subject. I’d recommend Huizinga, who sees law as rooted in adversarial play (confirming Ray’s point).
I’ve got some brief thoughts here:
http://gac.sagepub.com/cgi/content/refs/1/1/25
You might also add to your list:
http://en.wikipedia.org/wiki/Brian_Sutton-Smith
Ray Fuller - February 2, 2007 at 9:11 am
Come to think of it, at least the professional teams provide their players trainers and doctors. Do the law schools do near as good a job at preparing their students for the herculean competition they must endure, or at monitoring and flagging their inevitable psychic and other injuries, or at intervening and proactively providing medical or other needed curative care for the inevitable casualties of the “zero sum game” called law school? Or must law students rely on self-medication (i.e., substance or other abuse)? Surprising perhaps, given that the total career incomes of professional players and big law firm lawyers are probably pretty comparable. It is just ironic that the practice of the “Socratic method” at law school deviates so much from Socrate’s progeny Aristotle’s invocation of the golden mean (“all good things in moderation”). But it does unfortunately reflect the modern practice of law in America.
David S. Cohen - February 2, 2007 at 10:49 am
“Every Given Sunday” provided a fictional but very compelling look into the pressure trainers and coaches put on players to play through injuries that they really shouldn’t.
Maryland Conservatarian - February 2, 2007 at 11:44 am
…and “Atlas Shrugged” provided a fictional but very compelling look into the pressure regulation and government meddling put on producers as they try to continue to produce despite the oversight of incompetents.
(and is it “Any” or “Every”?)
greglas - February 2, 2007 at 12:09 pm
Hmm. Well, arguably, whether Ayn Rand is “very compelling”, “compelling,” “interesting,” or “wacky” is probably determined by how much you are inclined to agree with her before you start reading her fiction.
Maryland Conservatarian - February 2, 2007 at 12:24 pm
So you’re saying she’s kind of like Al Gore in that respect
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