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	<title>Concurring Opinions &#187; Bioethics</title>
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	<description>The Law, the Universe, and Everything</description>
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		<title>Health care systems kill people.  So what?</title>
		<link>http://www.concurringopinions.com/archives/2009/09/health-care-systems-kill-people-so-what.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/09/health-care-systems-kill-people-so-what.html#comments</comments>
		<pubDate>Tue, 15 Sep 2009 14:48:36 +0000</pubDate>
		<dc:creator>Nate Oman</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Health Law]]></category>
		<category><![CDATA[Tort Law]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=20362</guid>
		<description><![CDATA[<p>As the debate over health care reform slogs on, a particular kind of argument has become quite familiar.  It goes something like this:</p>
<p style="padding-left: 30px">Health care system X is a bad system because it kills people.</p>
<p>In support of this assertion, we are then treated to a set of anecdotes about how this or that person died as a result of this or that health care system break down.  Hence, we see critics of Obama&#8217;s proposals trotting out horror stories about how NHS bureaucracy resulted in the death of this or that Briton&#8217;s loved ones.  Likewise, we see supporters of health care reform unearthing heartbreaking stories of how the American patchwork of private insurance and Medicare or Medicaid killed off dad or mom.  My question is, [...]]]></description>
			<content:encoded><![CDATA[<p><img class="alignright" src="http://upload.wikimedia.org/wikipedia/commons/e/e9/SkullFromTheFront.JPG" alt="" width="150" hspace="5" />As the debate over health care reform slogs on, a particular kind of argument has become quite familiar.  It goes something like this:</p>
<p style="padding-left: 30px">Health care system X is a bad system because it kills people.</p>
<p>In support of this assertion, we are then treated to a set of anecdotes about how this or that person died as a result of this or that health care system break down.  Hence, we see critics of Obama&#8217;s proposals trotting out horror stories about how NHS bureaucracy resulted in the death of this or that Briton&#8217;s loved ones.  Likewise, we see supporters of health care reform unearthing heartbreaking stories of how the American patchwork of private insurance and Medicare or Medicaid killed off dad or mom.  My question is, &#8220;So what?&#8221;<span id="more-20362"></span></p>
<p>My point in this post is not to argue the merits of this or that proposal.  I&#8217;ve got opinions on those things, but I&#8217;ll save them for another time.  Nor do I want to create some kind of equivalence between all health care systems.  America&#8217;s strikes me as exceptionally expensive and inefficient.  Rather, I want to make a much simpler point:</p>
<p style="padding-left: 30px">All health care systems kill people.  All of them.</p>
<p>They do this for three reasons.  First, death is not ultimately preventable.  We all die, although in the United States in particular we seem loath to acknowledge this fact let alone let it influence how we think about health care spending.  Second, and perhaps more importantly for our purposes, things always breakdown.  Even a system designed by smart people of good will will, for time to time, go horribly wrong and do something stupid.  Unfortunately, this holds true in health care, where the stakes are high, and the forces of entropy and stupidity can kill.  Finally, nobody has ever been willing to spend infinite resources to eliminate every preventable death.  Every day we all engage in behavior that creates some non-trivial likelihood of death because the costs of doing otherwise are prohibitively high.  Using automobiles is an obvious example, but a moments reflection will multiply them.  The unvarnished truth is that we necessarily are willing to let people die preventable deaths.</p>
<p>As a result, I find myself unmoved by the stories of grandma killed off by the NHS or dad left to die by an insurance company. Health care systems kill people.  So what? Can we start having a real discussion?</p>
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		<title>Health Tech: CNET Shadows The Economist</title>
		<link>http://www.concurringopinions.com/archives/2009/05/health-tech-cnet-shadows-the-economist.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/05/health-tech-cnet-shadows-the-economist.html#comments</comments>
		<pubDate>Wed, 20 May 2009 04:47:10 +0000</pubDate>
		<dc:creator>Deven Desai</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Health Law]]></category>
		<category><![CDATA[Privacy]]></category>
		<category><![CDATA[Privacy (Medical)]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=16132</guid>
		<description><![CDATA[<p>Teaching Information Privacy is simply fantastic. The law and issues force students to consider torts, contracts, criminal procedure, constitutional law, and more. The health and genetic privacy material alone could easily be a course unto itself. Health care has been a major policy matter for more than a decade, and yet, it has not suffered the usual let&#8217;s move on to the next hot topic pattern that specific health matters such as HIV/AIDS and more recently H1N1. One area that is coming is so-called e-health. CNET is hosting a three day series on &#8220;Your e-health future.&#8221; The series looks at digital health records, Microsoft and Google&#8217;s forays into the sector, some fundamentals about e-health, stimulus, and so on. I plan on reading the different parts [...]]]></description>
			<content:encoded><![CDATA[<p><img src="http://www.concurringopinions.com/wp-content/uploads/2009/05/507px-gersdorff_-_schadelwunde.jpg" alt="507px-gersdorff_-_schadelwunde" title="507px-gersdorff_-_schadelwunde" width="204" height="240" class="alignright size-full wp-image-16139" />Teaching Information Privacy is simply fantastic. The law and issues force students to consider torts, contracts, criminal procedure, constitutional law, and more. The health and genetic privacy material alone could easily be a course unto itself. Health care has been a major policy matter for more than a decade, and yet, it has not suffered the usual let&#8217;s move on to the next hot topic pattern that specific health matters such as HIV/AIDS and more recently H1N1. One area that is coming is so-called e-health. CNET is hosting a three day series on <a href="http://news.cnet.com/2009-13836_3-6249496.html">&#8220;Your e-health future.&#8221;</a> The series looks at digital health records, Microsoft and Google&#8217;s forays into the sector, some fundamentals about e-health, stimulus, and so on. I plan on reading the different parts but based on the bits I&#8217;ve scanned, it is a little thin. In contrast, The Economist&#8217;s special report <a href="http://www.economist.com/specialreports/displayStory.cfm?story_id=13437990">&#8220;Medicine Goes Digital&#8221;</a> from April was stimulating and informative. I highly recommend the series of articles. The basic premise, &#8220;The convergence of biology and engineering is turning health care into an information industry,&#8221; relates to something I have been working on for a while: the way in which the merging of humans and machines (some call this possibility the singularity) poses problems that relate to intellectual property and privacy in much the same way being online did and continues to pose problems. These changes are coming. The question, and my hope, is that for once the law will be ahead of the curve as technology foments a fundamental change in the way we live.</p>
<p>Image: &#8220;Fieldbook of medicine (1517). Treatment of a skull injury. Wood cut work attributed to Hans Wechtlin.&#8221;<br />
Source: <a href="http://commons.wikimedia.org/wiki/File:Gersdorff_-_Sch%C%A4delwunde.jpg">Wikicommons</a></p>
<p>License: Public Domain</p>
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		<title>What&#8217;s in a Name, Part 2:  Consider &#8220;half-siblings&#8221;</title>
		<link>http://www.concurringopinions.com/archives/2009/05/whats-in-a-name-part-2-consider-half-siblings.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/05/whats-in-a-name-part-2-consider-half-siblings.html#comments</comments>
		<pubDate>Sun, 10 May 2009 21:30:16 +0000</pubDate>
		<dc:creator>Naomi Cahn</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Family Law]]></category>
		<category><![CDATA[Feminism and Gender]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=15394</guid>
		<description><![CDATA[<p>Ryan Kramer graduated from Colorado University&#8217;s aerospace engineering program on Friday, a program that is so tough that only about 50% of those who begin ultimately finish it.  Before he starts his master&#8217;s degree in engineering management  at USC this fall, one of his big summer plans is to meet two of his half-siblings; he has at least five others. </p>
<p>I&#8217;ve met Ryan once, and was incredibly impressed with him &#8211; I&#8217;m not surprised that he was able to complete his competitive college program nor that he is seeking out half-siblings and the man who anonymously provided the sperm that enabled Ryan to exist.  Ryan and I met at a conference on establishing a national donor gamete databank. Ryan and his mother, Wendy Kramer, have started the [...]]]></description>
			<content:encoded><![CDATA[<p><a href="http://www.denverpost.com/ci_12281979.">Ryan Kramer </a>graduated from Colorado University&#8217;s aerospace engineering program on Friday, a program that is so tough that only about 50% of those who begin ultimately finish it.  Before he starts his master&#8217;s degree in engineering management  at USC this fall, one of his big summer plans is to meet two of his half-siblings; he has <a href="http://www.colorado.edu/news/r/02a2c9080fdae570c06d9ec1c8385ffe.html">at least five others</a>.<a href="http://www.colorado.edu/news/r/02a2c9080fdae570c06d9ec1c8385ffe.html"> </a></p>
<p>I&#8217;ve met Ryan once, and was incredibly impressed with him &#8211; I&#8217;m not surprised that he was able to complete his competitive college program nor that he is seeking out half-siblings and the man who anonymously provided the sperm that enabled Ryan to exist.  Ryan and I met at a conference on establishing a national donor gamete databank. Ryan and his mother, Wendy Kramer, have started the enormously successful <a href="http://www.donorsiblingregistry.com/,">Donor Sibling Registry</a>, which is now responsible for connecting more than 6000 people with others who share some of the same genetic origins (disclosure: I have just become a board member of the DSR).</p>
<p>Donor-conceived offspring often &#8211; although not always &#8211; regret their lack of connection with their entire biological heritage. They want to know more about the often anonymous individual[s] who helped create them. As the secrecy around using &#8220;donor&#8221; sperm and eggs dissolves &#8211; in the past, parents frequently did not tell their children that they had been created by donor gametes &#8212; offspring and their parents are increasingly trying to get additional information and are advocating for disclosure of &#8220;donor&#8221; identities. Many have begun to use the internet to create an extended family that includes others who have used the same donor. Almost 150,000 people visited the DSR website in 2008, and more than 24,000 people have registered on it. It maintains an extremely active blog and message group.</p>
<p>The language in the donor world shows how these families are constructed. Offspring who share the same donor are typically labelled &#8220;half-siblings.  &#8220;<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263980">Accidental incest</a>&#8221; is a concern.   The word &#8220;donor&#8221; is itself a misnomer; gametes are typically sold rather than provided altrustically.  <span id="more-15394"></span></p>
<p>  Biological connection is, of course, only one of the many methods of forming a family. Yet the genetic ties between their children cause many women to feel strong family-like connections to each other.  <!--more-->Consider Gwenyth Jackaway, who, according to a story in <a href="http://www.oprah.com/article/omagazine/200804_omag_donor,">O Magazine  </a>searched for genetic relatives for her son, Dylan, because she wanted him to be &#8220;part of a larger community,&#8221; and refers to the other children she found as &#8220;Dylan&#8217;s siblings.&#8221; Then there&#8217;s <a href="http://www.washingtonpost.com/wp-dyn/content/article/2005/06/15/AR2005061501885.html,">Mike Rubino</a>, who was Donor 929 at California Cryobank. He was inspired to find what happened to the sperm he had provided to the Cryobank, and, through the DSR, discovered that Rachael McGhee had written a thank you message to Donor 929. McGhee had given birth to 2 children using sperm from Donor 929, and, on Father&#8217;s Day, she&#8217;d remind the children to think about their donor and send him hugs. Rubino and McGhee, along with her 2 children, ultimately spent a week together, getting to know one another.<br />
For Ryan, finding his donor led to a feeling of &#8220;&#8216;immediate peacefulness,&#8217;&#8221; his mother explained to the Denver Post. As I<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120389,"> have argued </a>in the context of both adoption and the donor world,  the United States should establish a national donor gamete registry, similar to that in place in numerous other countries such as Great Britain. The registry should keep track of children both through donor egg, embryo, and sperm, including the identities of the gamete providers. Federal law already requires that fertility clinics provide information on the number of children born through donor eggs and embryos, although the procedures for collecting this additional information are not in place and would take some time to develop. Participation in such a registry would be mandatory for anyone involved in supplying donor gametes. When donor-conceived offspring reach a certain age, they should be able to receive identifying information about their donor (the donor could file a statement indicating his/her lack of interest in being contacted). While mandatory limits on donor anonymity constitute a radical change in existing practices, there are multiple reasons supporting this change &#8211; including a goal of helping other offspring find the &#8220;immediate peacefulness&#8221; that Ryan found.</p>
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		<title>What&#8217;s in a Name?  Consider &#8220;Embryos&#8221;</title>
		<link>http://www.concurringopinions.com/archives/2009/05/whats-in-a-name-consider-embryos.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/05/whats-in-a-name-consider-embryos.html#comments</comments>
		<pubDate>Mon, 04 May 2009 14:00:00 +0000</pubDate>
		<dc:creator>Naomi Cahn</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Family Law]]></category>
		<category><![CDATA[Feminism and Gender]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2009/05/whats-in-a-name-consider-embryos.html</guid>
		<description><![CDATA[<p>Dan first asked me to blog a few months ago, around the time my book, Test Tube Families:  Why the Fertility Market Needs Legal Regulation, was hitting the market. Since then, we&#8217;ve had Nadya Suleman&#8217;s octuplets, President Obama&#8217;s lifting of the federal stem cell research ban (although this may only apply to embryos resulting from fertility efforts), and proposed new legislation in Georgia that would allow for embryos to be &#8220;adopted.&#8221;  These events in reproductive technology are neither as newsworthy nor as profoundly disturbing as the torture memos or bailing out Wall Street &#8212; or, potentially, as swine flu.  They are, nonetheless, critical to the cultural conflict over abortion, family formation, and gender roles.</p>
<p>Consider the proposed Georgia law, and  almost copycat-like, [...]]]></description>
			<content:encoded><![CDATA[<p>Dan first asked me to blog a few months ago, around the time my book, <a href="http://www.nyupress.org/books/Test_Tube_Families-products_id-7934.html">Test Tube Families:  Why the Fertility Market Needs Legal Regulation</a>, was hitting the market. Since then, we&#8217;ve had Nadya Suleman&#8217;s octuplets, President Obama&#8217;s lifting of the federal stem cell research ban (although this may only apply to embryos resulting from fertility efforts), and proposed new legislation in Georgia that would allow for embryos to be &#8220;adopted.&#8221;  These events in reproductive technology are neither as newsworthy nor as profoundly disturbing as the torture memos or bailing out Wall Street &#8212; or, potentially, as swine flu.  They are, nonetheless, critical to the cultural conflict over abortion, family formation, and gender roles.</p>
<p>Consider the proposed Georgia law, and  almost <a href="http://northgeorgia.timesfreepress.com/news/2009/apr/27/georgia-clarifying-terms-adoption/?print">copycat-like, legislation in Tennesse</a>.  The “Option of Adoption Act” is a Georgia bill that is now sitting on the desk of Ga.. Governor Sonny Perdue. This is the same Republican governor who filed his own brief in Northwest <em>Austin Municipal Utility District v. Holder </em>(the Voting Rights Case that the Supreme Court heard last week), arguing – among other things &#8212; that electing  a black president indicates no further need for the type of scrutiny Georgia receives under  Section 5; the Georgia attorney general had, apparently, refused to file such a brief. Anyway, the Option of Adoption Act, which was introduced in the Georgia legislature by an anti-abortion state representative, sets out methods through which people who create an embryo (when someone undergoes a cycle of in vitro fertilization, there are often embryos left over that ) can donate any leftovers to someone else.  There may be up to half a million frozen embryos in the United States, although many of them are incapable of becoming viable fetuses.  In Georgia, if the legislation becomes law, the recipients of any embryo transfer can then choose to petition a court for recognition that they are the legal parents of any child born to them.</p>
<p>.One of the bill’s advocates, Daniel Becker, the President of Georgia Right to Life, <a href="http://www.christiannewswire.com/news/380319719.html">trumpeted that</a>, &#8220;’This bill is monumental in that it establishes the adoption of embryos as children for adoption purposes.’”  Indeed, there have even been claims that an embryo exchange should be the basis for eligibility under the federal adoption tax credit.  As Sarah Lawsky and I painstaking show in <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1394046">Embryo Exchanges and Adoption Tax Credits</a>,  use of someone else’s embryo is not an adoption.  Calling embryos “children” is problematic for a number of reasons.</p>
<p><span id="more-15040"></span><br />
First, and most clearly, it is part of a right to life agenda designed, ultimately, to overturn <em>Roe</em>.  In the short term, this is an effort to continue to control the rhetoric around abortion and to continue to make inroads through the political process on women’s right to choose. And, it is factually inaccurate.  Not only is the terminology politically motivated, but also the legal procedures for donating an embryo are quite different from the legal procedures for an adoption.</p>
<p>Second, labeling an embryo a “child” may lead to questions about how to think about egg and sperm that are “donated” by one person to another.  (Here again the language is tricky: egg and sperm are usually not donated but are &#8212; as many other wonderful colleagues have noted &#8212;  sold.  Stay tuned for a potential blog post about this.)  If there are to be questions raised about the fertility industry, however, the questions should relate to better regulation without allowing right to life advocates to take over the discourse.  For more on this, see Jennifer <a href="http://www.concurringopinions.com/archives/2009/04/is_eight_enough.html.  ">Collins’s recent post. </a></p>
<p>Finally, there are numerous options for thinking about what to do about the problem of leftover embryos.  Many people don’t like the idea that their embryos will become someone else’s children, or they want to keep these embryos in storage for future family-building; others want to dispose of them entirely; some want to donate them for research; and then there’s the group who wants to help others family-build.  If we think of embryos as “children,” however, we may limit people’s choices on what to do with their  leftover embryos, and we may also get close,  again, to shutting down federal funding for stem cell research.  .  No good outcomes here – unless we think of embryos as embryos.</p>
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		<title>Neurocosmetics as Faulty Data</title>
		<link>http://www.concurringopinions.com/archives/2009/01/neurocosmetics.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/01/neurocosmetics.html#comments</comments>
		<pubDate>Sun, 25 Jan 2009 06:03:09 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2009/01/neurocosmetics-as-faulty-data.html</guid>
		<description><![CDATA[<p>Edge, a fascinating online salon/magazine, asked 151 luminaries &#8220;What Will Change Everything&#8220;?  I&#8217;ve picked through the 107,000 words of responses over the past few weeks; many are thought-provoking.</p>
<p>For example, Marcel Kinsborne predicts a growing market for &#8220;neurocosmetics&#8221; which translate the benefits of cosmetic surgery to the social world:</p>
<p>[D]eep brain stimulation will be used to modify personality so as to optimize professional and social opportunity, within my lifetime. Ethicists will deplore this, and so they should. But it will happen nonetheless, and it will change how humans experience the world and how they relate to each other in as yet unimagined ways. . . . We read so much into a face — but what if it is not the person&#8217;s &#8220;real&#8221; face? Does anyone [...]]]></description>
			<content:encoded><![CDATA[<p>Edge, a fascinating online salon/magazine, asked 151 luminaries &#8220;<a href="http://www.edge.org/q2009/q09_print.html">What Will Change Everything</a>&#8220;?  I&#8217;ve picked through the 107,000 words of responses over the past few weeks; many are thought-provoking.</p>
<p>For example, Marcel Kinsborne predicts a growing market for &#8220;neurocosmetics&#8221; which translate the benefits of cosmetic surgery to the social world:</p>
<blockquote><p>[D]eep brain stimulation will be used to modify personality so as to optimize professional and social opportunity, within my lifetime. Ethicists will deplore this, and so they should. But it will happen nonetheless, and it will change how humans experience the world and how they relate to each other in as yet unimagined ways. . . . We read so much into a face — but what if it is not the person&#8217;s &#8220;real&#8221; face? Does anyone care, or even remember the previous appearance? So it will be with neurocosmetics.</p></blockquote>
<blockquote><p>Consider an arms race in affability, a competition based not on concealing real feelings, but on <a href="http://techtheory.blogspot.com/2006/12/two-relationships-between-technology.html">feelings engineered</a> to be real. Consider a society of homogenized good will, making regular visits to [a] provider who advertises superior electrode placement? Switching a personality on and then off, when it becomes boring? . . .</p></blockquote>
<blockquote><p>We take ourselves to be durable minds in stable bodies. But this reassuring self-concept will turn out to be yet another of our so human egocentric delusions. Do we, strictly speaking, own stable identities? When it sinks in that the continuity of our experience of the world and our self is at the whim of an electrical current, then our fantasies of permanence will have yielded to the reality of our fragile and ephemeral identities.</p></blockquote>
<p>It&#8217;s one thing to read these imaginings in the fiction of a <a href="http://thenewennui.blogspot.com/2007/10/moral-tedium-of-immortality-michel.html">Houllebecq</a>, Franzen, or Foster Wallace; it&#8217;s quite another to see them predicted by a Professor of Psychology at the New School for Social Research.  I have also predicted an <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002463">arms race</a> in the use of personality optimizing drugs, but I believe such an arms race would defeat, rather than reveal, humanity&#8217;s true nature.  My difference with Kinsborne suggests a technophilic bias at the heart of Edge&#8217;s inquiry: an implicit belief that certain technologies will inevitably change us, rather than being changed or stopped by us.</p>
<p><span id="more-10587"></span><br />
We need to understand that it&#8217;s a conception of the self that is driving the acceptance of new technologies of self-alteration here, rather than vice versa.  Consider eHarmony consultant Helen Fisher&#8217;s acceptance of the arms arms race metaphor in the same issue of Edge:</p>
<blockquote><p>As scientists learn more about the chemistry of trust, empathy, forgiveness, generosity, disgust, calm, love, belief, wanting and myriad other complex emotions, motivations and cognitions, even more of us will begin to use this <strong>new arsenal of weapons</strong> to manipulate ourselves and others. And as more people around the world use these hidden persuaders, one by one we may subtly change everything. [emphasis added]</p></blockquote>
<p>It&#8217;s easy to see where <a href="http://www.nytimes.com/2007/12/02/books/review/Henig-t.html"><em>that</em> arms race leads</a>.  Perhaps at some point we&#8217;ll all end up like those apostles of reductionist philosophy Patricia and Paul Churchland, who, rather than acting out, expressing, or displaying <a href="http://books.google.com/books?id=qE73dqoXtnMC&#038;dq=kagan+what+is+emotion&#038;printsec=frontcover&#038;source=bl&#038;ots=zseYjxaMb-&#038;sig=Dqnj-a2eZibsoJ6O2hj0I5iGaL0&#038;hl=en&#038;sa=X&#038;oi=book_result&#038;resnum=1&#038;ct=result">emotions</a>, appear to prefer to refer to their <a href="http://www.portifex.com/BSPages/FridayFronts/H0209.htm">supposed chemical determinants</a>:</p>
<blockquote><p>One afternoon recently, Paul says, he was home making dinner when Pat burst in the door, having come straight from a frustrating faculty meeting. &#8220;She said, &#8216;Paul, don&#8217;t speak to me, my serotonin levels have hit bottom, my brain is awash in glucocorticoids, my blood vessels are full of adrenaline, and if it weren&#8217;t for my endogenous opiates I&#8217;d have driven the car into a tree on the way home. My dopamine levels need lifting. Pour me a Chardonnay, and I&#8217;ll be down in a minute&#8217;.&#8221;</p></blockquote>
<p>Nicholas Carr <a href="http://www.roughtype.com/archives/2008/12/a_prescription.php">has noted</a> that &#8220;institutionally supported programs of brain enhancement [may] impose on us, intentionally or not, a particular ideal of mental function.&#8221;  Fisher, Kinsborne, and the Churchlands suggest the metaphysical foundations of self-mechanization.  It&#8217;s a vision of the self as &#8220;multiple input-multiple output transducer,&#8221; which, as I said in <a href=" http://law.shu.edu/faculty/fulltime_faculty/pasquafa/pasquale_stem_cell.pdf">this article</a>, follows a long line of reducing &#8220;soul to self, self to mind, and mind to brain.&#8221;  This last step of understanding what the brain is as what it does is a functionalism that begs the question <a href="http://www.ucpress.edu/books/pages/1345.php">Bourne used to put to Dewey</a>: what exactly is the <em>point</em> of this pragmatic deflation of our self-understanding?</p>
<p>In a recent series of posts at PopMatters, Rob Horning has explored the <a href="http://www.popmatters.com/pm/tools/print_post/67717">psychology of consumerism</a>, a condition we are endlessly told by elites to consider the linchpin of global development, economic growth, and domestic order.</p>
<blockquote><p>[Harry Frankfurt] calls attention to “second-order desires”, or the desires we have about our primary desires. These are what we want to want and, according to Frankfurt, make up the substance of our will . . . . [W]e often have multiple sets of preferences simultaneously, which foils the more simplistic models of neoclassical economics with regard to consumer demand. . . .</p></blockquote>
<blockquote><p>The persuasion industry is seeking always to confuse the communication between our first- and second-order desires; it’s seeking to short circuit the way we negotiate between the many things we can conceive of wanting to come up with a positive will to want certain particular things at certain moments. It seeks to make us more impulsive at the very least; at worst it wants to supplant our innate will with something prefabricated that will orient us toward consumer goods rather than desires that are able to be fulfilled outside the market.</p></blockquote>
<p>The neurocosmetics forecast in Edge have the same place in the social world that marketing has in the worlds of goods and services.  For example, the complex mixture of ennui, detachment, skepticism, and embers of warmth in office life limned in Joshua Ferris&#8217;s <a href="http://www.powells.com/biblio/17-9780316016384-0"><em>And Then We Came to the End</em></a> could be flattened into the glad-handing grin of an unalloyed will-to-succeed.  Horning <a href="http://www.popmatters.com/pm/post/the-alluring-danger-of-dilettantism/#comments">suggests that</a> &#8220;consumerism makes the will and ability to concentrate seem a detriment to ourselves:&#8221;</p>
<blockquote><p>Dilettantism is a perfectly rational response to the hyperaccessibility of stuff available to us in the market, all of which imposes on us time constraints where there was once material scarcity. These time constraints become more itchy the more we recognize how much we are missing out on (thanks to ever more invasive marketing efforts, often blended in to the substance of the material we are gathering for self-realization).</p></blockquote>
<p>Similarly, neurocosmetics promises to relieve the mental effort of crafting a genuine response to events from the welter of conflicting emotions they generate, leaving only the feeling induced by drugs.</p>
<p>In a world of neurocosmetics, emotions lose their <a href="http://books.google.com/books?id=czbPyjHYvXkC&#038;pg=PA134&#038;lpg=PA134&#038;dq=taylor+%22world-disclosure%22&#038;source=bl&#038;ots=7lq8eFcXWi&#038;sig=vubd_Nd6f4P-E0afgk4jBYtczYA&#038;hl=en&#038;sa=X&#038;oi=book_result&#038;resnum=1&#038;ct=result">world-disclosive</a> potential and moral force.  Rather than guiding our choices, they are themselves one among many choices.  The industrial possibilities are endless, and I&#8217;m sure some rigorous cost-benefit analyses will prove the new soma&#8217;s indispensability to such varied crises as <a href="http://madisonian.net/2006/12/28/from-animal-rights-to-machine-rights/">aging</a>, <a href="http://www.nytimes.com/2009/01/25/world/asia/25china.html?em">unemployment</a>, and <a href="http://humaniststudies.org/enews/?id=281&#038;article=1">gender imbalances</a>.</p>
<p>I shudder at such a world, but I doubt economic analysis can provide any basis for rejecting it.  Neurocosmetics and consumerism are but two facets of the individualist, <a href="http://www.concurringopinions.com/archives/2007/04/libertarians_ag.html">subjectivist</a>, economic functionalism that&#8217;s become our default language for judging states of the world.</p>
<p>If I were asked to participate in Edge&#8217;s salon, I think I&#8217;d flip the question and ask &#8220;what kind of common moral language do we need to stop random technological developments from changing everything?&#8221;  Philosophers like Langdon Winner and Albert Borgmann have started answering that question as they consider <a href="http://books.google.com/books?id=qS3pJL_BcdkC&#038;dq=technology+and+the+character+of+contemporary+life&#038;printsec=frontcover&#038;source=bn&#038;hl=en&#038;sa=X&#038;oi=book_result&#038;resnum=5&#038;ct=result">technology and the character of contemporary life</a>.  Borgmann <a href="http://findarticles.com/p/articles/mi_m1058/is_17_117/ai_62724234">notes that</a> &#8220;simulations of reality can lead to disastrous decisions when assumptions or data are faulty.&#8221;  Perhaps we should start thinking of neurocosmetics as a faulty source of emotional data about our responses to the world around us.</p>
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		<title>Towards Responsible Use of Cognition-Dulling Drugs</title>
		<link>http://www.concurringopinions.com/archives/2009/01/toward_responsi.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/01/toward_responsi.html#comments</comments>
		<pubDate>Sun, 04 Jan 2009 17:22:11 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2009/01/towards-responsible-use-of-cognition-dulling-drugs.html</guid>
		<description><![CDATA[<p>In a recent editorial in Nature entitled Towards responsible use of cognitive-enhancing drugs by the healthy, distinguished contributors have endorsed a &#8220;presumption that mentally competent adults should be able to engage in cognitive enhancement using drugs.&#8221;  Against various Luddites who worry about the rat races such drug use could spark, the editorialists argue that cognitive enhancement is here to stay: &#8220;From assembly line workers to surgeons, many different kinds of employee may benefit from enhancement and want access to it, yet they may also need protection from the pressure to enhance.&#8221;  Instead of the regulation encouraged by Francis Fukuyama, they would have us rely on robust professional standards to guide &#8220;appropriate prescribing of cognitive enhancers.&#8221;</p>
<p>The most promising aspect of the editorial is the [...]]]></description>
			<content:encoded><![CDATA[<p>In a recent editorial in Nature entitled <a href="http://www.nature.com/nature/journal/vaop/ncurrent/full/456702a.html"><em>Towards responsible use of cognitive-enhancing drugs by the healthy</em></a>, distinguished contributors have endorsed a &#8220;presumption that mentally competent adults should be able to engage in cognitive enhancement using drugs.&#8221;  Against various <a href="http://www.concurringopinions.com/archives/2007/05/limits_of_perfo.html">Luddites</a> who worry about the rat races such drug use could spark, the editorialists argue that cognitive enhancement is here to stay: &#8220;From assembly line workers to surgeons, many different kinds of employee may benefit from enhancement and want access to it, yet they may also need protection from the pressure to enhance.&#8221;  Instead of the regulation encouraged by Francis Fukuyama, they would have us rely on <a href="http://www.nybooks.com/articles/22237">robust professional standards </a>to guide &#8220;appropriate prescribing of cognitive enhancers.&#8221;</p>
<p>The most promising aspect of the editorial is the thin and unspecified concept of enhancement that it endorses.  As <a href="http://books.google.com/books?id=Vg0YrrRpM2YC&#038;pg=RA1-PA158&#038;lpg=RA1-PA158&#038;dq=elliott+ritalin&#038;source=bl&#038;ots=A5A1fLcnOB&#038;sig=ruBv_W_CvWDo1N9OBG3MzIgK3Zw&#038;hl=en&#038;sa=X&#038;oi=book_result&#038;resnum=5&#038;ct=result#PRA1-PA159,M1">Carl Elliott notes</a>, relentless focus on <a href="http://www.poetv.com/video.php?vid=40374">well-defined tasks</a> can offer a real competitive edge in today&#8217;s economy:</p>
<blockquote><p>Employees who cannot rely on job security often feel as if they are constantly required to prove their value to their employers.   Many of these same employees spend most of their time sitting in front of a computer screen performing repetitive tasks that require sustained attention and concentration.</p></blockquote>
<p>Of course, many in this group may experience moments of imagination or reverie <a href="http://books.google.com/books?id=7o7xrLNtNOIC&#038;pg=PA59&#038;lpg=PA59&#038;dq=walker+percy+listening+to+prozac&#038;source=bl&#038;ots=mdAXQFgtjw&#038;sig=PKPw7q7j1eRgNZL_q75p_WU62BY&#038;hl=en&#038;sa=X&#038;oi=book_result&#038;resnum=4&#038;ct=result#PPA68,M1">positively</a>, as exemplary thought rather than distracting consolation. For those individuals, the next goal of an autonomy-enhancing bioethics should be the development and widespread use of cognition-dulling drugs, which serve to blot out all awareness except of the task at hand.  Cures for <a href="http://www.theonion.com/content/node/43214">resentment</a>, envy, or union-organizing may also serve to enhance workplace efficiency.</p>
<p>Bioconservatives may fear that cognition-dulling drugs presage a <em>Brave New World</em>&#8211;particularly Aldous Huxley&#8217;s futuristic vision of certain fetuses being routinely exposed to alcohol in order to ease their acceptance of low-caste membership.  They tend to forget <a href="http://chronicle.com/weekly/v55/i16/16b00701.htm">Huxley&#8217;s counter-image </a>of a progressively technologized paradise, in <em>Island</em>, which &#8220;answers the authoritarian monoculture of <em>Brave New World </em>point by point&#8221;:</p>
<blockquote><p>Biotechnology is present, but as a kind of ecologically wise agricultural system. . . . The nuclear family has been abolished . . . but only to increase human attachment among all its inhabitants . . .  The novel . . . ends, exactly as it began, with the island&#8217;s mynah birds repeating the mantra they have been trained to mimic over and over again: &#8220;Attention.&#8221;</p></blockquote>
<p>Like the happy inhabitants of Huxley&#8217;s <em>Island</em>, both cognition-enhancers and cognition-dullers can work together peaceably in a mutualism that discourages <a href="http://en.wikipedia.org/wiki/Conflict_theory">conflict</a>.</p>
<p>Fortunately, the <em>Nature</em> editorialists appear in principle open to cognition-dulling methods, endorsing a nuanced and contextualized response:</p>
<blockquote><p>Appropriate policy should prohibit coercion except in specific circumstances for specific occupations, justified by substantial gains in safety. It should also discourage indirect coercion. Employers, schools or governments should not generally require the use of cognitive enhancements. If particular enhancements are shown to be sufficiently safe and effective, this position might be revisited for those interventions.</p></blockquote>
<p>The key then is to carefully consider how best to develop a pharmacopeia that safely and effectively cures tendencies to insubordination, daydreaming, dissatisfaction, and other inefficient habits.</p>
<p><span id="more-10678"></span><br />
[For my real views on the subject, please see <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002463">this </a>and <a href="http://www.concurringopinions.com/archives/2007/12/cops_on_steroid.html">this</a>.  Ellen Gibson at Businessweek gets my prize for <a href="http://www.businessweek.com/magazine/content/08_52/b4114084625148.htm?chan=rss_topEmailedStories_ssi_5">best reporting </a>on the editorial, by raising these issues:</p>
<blockquote><p>Dr. Anjan Chatterjee, a neurologist at the University of Pennsylvania Hospital, raises [a] red flag. Creative insights often arise when the mind is allowed to wander, he says. If drugs that sharpen concentration become widespread in the workplace, they may nurture &#8220;a bunch of automatons that are very good at implementing things but have nothing to implement.&#8221;</p></blockquote>
<p>As Martha Nussbaum has observed in another context, &#8220;I&#8217;m getting more and more worried that we&#8217;re going to have nations of docile engineers who won&#8217;t know how to examine the claims of a political leader&#8221;&#8211;or to cease concentrating on the problems in front of them to think about the bigger picture.  We might also worry about a competitive academic environment driving the endorsement of attention-grabbing policies without adequate attention to the social consequences of such policies.]</p>
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		<title>Surgical Strike on Social Suffering</title>
		<link>http://www.concurringopinions.com/archives/2009/01/copyright_in_a.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/01/copyright_in_a.html#comments</comments>
		<pubDate>Sun, 04 Jan 2009 15:44:46 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2009/01/surgical-strike-on-social-suffering.html</guid>
		<description><![CDATA[<p>The recent face transplant at the Cleveland Clinic raises some fascinating issues about the nature of personal identity and cutting edge medicine.  A failing face transplant might create agonizing medical problems for the recipient, leading some to suggest that death-accelerating drugs should be available in that case.  Current organ donation cards do not specify whether they authorize a face donation.  The family of the face donor might find the transplant recipient&#8217;s new face uncannily like that of the relative they recently lost.   Finally, there is the question of the cruelty of a society that made the transplant so pressing in the first place:</p>
<p>She &#8220;was called names and was humiliated,&#8221; Siemionow [the doctor who led the transplantation team] told reporters yesterday. [...]]]></description>
			<content:encoded><![CDATA[<p>The recent face transplant at the Cleveland Clinic raises some fascinating issues about the nature of personal identity and cutting edge medicine.  A failing face transplant might create agonizing medical problems for the recipient, leading some to suggest that death-accelerating drugs should be available in that case.  Current organ donation cards do not specify whether they authorize a face donation.  The family of the face donor might find the transplant recipient&#8217;s new face uncannily like that of the relative they recently lost.   Finally, there is the question of the <a href="http://www.slate.com/id/2207049/">cruelty of a society </a>that made the transplant so pressing in the first place:</p>
<blockquote><p>She &#8220;was called names and was humiliated,&#8221; Siemionow [the doctor who led the transplantation team] told reporters yesterday. . . . Eric Kodish, the Cleveland Clinic&#8217;s chief ethicist, added, &#8220;Human beings are inherently social creatures. A person who has sustained trauma or other devastation to the face is generally isolated and suffers tremendously.&#8221; He concluded: &#8220;The relief of suffering is at the core of medical ethics and provides abundant moral justification for this procedure.&#8221;</p></blockquote>
<blockquote><p>Yes, suffering cries out for relief. But when the suffering is social and the relief is surgical, where are we going? We&#8217;re drifting from a standard of necessity rooted in you to a standard—&#8221;socially crippled&#8221;—that&#8217;s dictated by others. And instead of changing them, we&#8217;re changing and endangering you. The Cleveland doctors say their patient consented freely. They asked her, for example, whether it was she or her family who wanted the transplant. But how free can your choice be when the reason you want it is to escape humiliation?</p></blockquote>
<p>As Will Saletan concludes, &#8220;I feel for the Cleveland patient. I hope her new face ends her suffering. I just don&#8217;t want to end up killing her—and calling that her choice—because we made her life hell.&#8221;</p>
<p>As the cosmetic surgery boom <a href="http://www.blackbookmag.com/article/drop-in-plastic-surgery-may-be-recessions-silver-lining/5724">abates in South Korea</a>, it&#8217;s important to think of all the smaller ways in which competitive pressures and fear of lesser humiliations drive demand for these procedures.  The greater the humiliation in store for the unattractive, the more this &#8220;<a href="http://www.iht.com/articles/2009/01/02/business/02plastic.php?page=1">luxury</a>&#8221; becomes a necessity.</p>
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		<title>Evolutionary Pressures on Minds and Bodies</title>
		<link>http://www.concurringopinions.com/archives/2008/10/evolve.html</link>
		<comments>http://www.concurringopinions.com/archives/2008/10/evolve.html#comments</comments>
		<pubDate>Tue, 28 Oct 2008 04:12:20 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Law and Inequality]]></category>
		<category><![CDATA[Technology]]></category>
		<category><![CDATA[Weird]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/10/evolutionary-pressures-on-minds-and-bodies.html</guid>
		<description><![CDATA[<p>Corpus 2.0, a recent design project on potential human bodily evolution, has been spreading around the web.  One model with a shoulder bump finds it much easier to keep her handbag steady.  Other forms of &#8220;progress&#8221; include a &#8220;ridge in the nose developed for wearing glasses, ears moulded to accommodate earphones, a thumb with an extra joint for sending SMS messages more efficiently and a foot adapted to create the same posture as wearing high heels.&#8221;  This work struck me as a less critical version of the &#8220;future farms&#8221; and other body modifications both proposed and ridiculed at the &#8220;Design and the Elastic Mind&#8221; show at MOMA earlier this year.</p>
<p>While many find these particular modifications to bodily form grotesque, opposition to unfortunate [...]]]></description>
			<content:encoded><![CDATA[<p><a href="http://www.marcianolte.com/">Corpus 2.0</a>, a recent design project on <a href="http://piecesofthings.blogspot.com/2008/10/human-evolution.html">potential human bodily evolution,</a> has been spreading around the web.  One model with a shoulder bump finds it much easier to keep her handbag steady.  Other forms of &#8220;progress&#8221; include a &#8220;ridge in the nose developed for wearing glasses, ears moulded to accommodate earphones, a thumb with an extra joint for sending SMS messages more efficiently and a foot adapted to create the same posture as wearing high heels.&#8221;  This work struck me as a less critical version of the &#8220;<a href="http://www.michael-burton.co.uk/HTML/future_farm_text.htm">future farms</a>&#8221; and other body modifications both proposed and ridiculed at the &#8220;Design and the Elastic Mind&#8221; show at MOMA earlier this year.</p>
<p>While many find these particular modifications to bodily form grotesque, opposition to unfortunate evolutionary pressures on attitudes and mental habits strikes me as much less developed.  That&#8217;s one reason I cautioned against runaway &#8220;cognitive enhancements&#8221; in an <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002463">article</a> last year.  The founder of<em> Better Living Through Chemistry</em> <a href="http://www.hplusmagazine.com/hplusmag_fall_2008.pdf">predicts that</a> we should be happy to choose &#8220;average hedonic set point[s] of our children. . . . [so that] allelic combinations . . . .that leave their bearers predisposed to unpleasant states of consciousness . . . will be weeded out of the gene pool. . . [leading to] some form of paradise-engineering.&#8221;  Following Walker Percy, I think such people are actually quite useful to a world too prone to &#8220;irrational exuberance&#8221;&#8211;even if introversion is maladaptive <a href="http://www.theatlantic.com/doc/200303/rauch">for the introvert himself</a>.</p>
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		<title>The Retreat of the Real</title>
		<link>http://www.concurringopinions.com/archives/2008/08/the_retreat_of.html</link>
		<comments>http://www.concurringopinions.com/archives/2008/08/the_retreat_of.html#comments</comments>
		<pubDate>Sun, 24 Aug 2008 15:16:02 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/08/the-retreat-of-the-real.html</guid>
		<description><![CDATA[<p>The rise of digitized images has led many journalists to worry about credentializing any photo that comes their way.  That skepticism is starting to spread:</p>
<p>Bloggers, who had already appointed themselves watchdogs over reporters, editors and producers, were now taking on photographers. While the goal of increased transparency in the media is laudable, it may foster greater cynicism about journalistic ethics. “Photographers were always able to manipulate pictures in the darkroom,” says Keith Morrison, a former Calgary Herald photographer who is now publisher of C-ing Magazine, a publication about photojournalism. “But now, as the public gains awareness of digital photography and Photoshop, they have stopped trusting the pictures in newspapers and magazines.”</p>
<p>It&#8217;s part of a larger cultural malaise about &#8220;what&#8217;s real:&#8221;</p>
<p></p>
<p>Themed restaurants, McMansions, virtual life [...]]]></description>
			<content:encoded><![CDATA[<p>The rise of digitized images has led many journalists to worry about credentializing any photo that comes their way.  That skepticism is <a href="http://www.rrj.ca/issue/2007/spring/675/">starting to spread</a>:</p>
<blockquote><p>Bloggers, who had already appointed themselves watchdogs over reporters, editors and producers, were now taking on photographers. While the goal of increased transparency in the media is laudable, it may foster greater cynicism about journalistic ethics. “Photographers were always able to manipulate pictures in the darkroom,” says Keith Morrison, a former Calgary Herald photographer who is now publisher of C-ing Magazine, a publication about photojournalism. “But now, as the public gains awareness of digital photography and Photoshop, they have stopped trusting the pictures in newspapers and magazines.”</p></blockquote>
<p>It&#8217;s part of a larger cultural malaise about &#8220;<a href="http://www.onpointradio.org/shows/2008/08/what-is-real/">what&#8217;s real:</a>&#8221;</p>
<p><span id="more-11332"></span></p>
<blockquote><p>Themed restaurants, McMansions, virtual life and multiple personas online — we live in a world where authenticity (whatever that means exactly) can feel overwhelmed by slick substitutes and made-up realities.  Pictures can be photoshopped, performances can be lip-synched, and the exotic destinations we visit can be about as real as packaged tours and paid local dancers. We have Olive Gardens that are not gardens and whole towns that are themed to please.</p></blockquote>
<blockquote><p>So, what is real? What is deeply, indisputably authentic today? And why do we long for more of it, in our world and ourselves?</p></blockquote>
<p>Trademark law can <a href="http://madisonian.net/2008/08/17/ancien-cru/">police the authenticity issue</a> for some products, and may help us out of the &#8220;fake photo&#8221; question.  Secondary authentication techniques are used for many products&#8211;e.g., an embedded code that can be matched to a database on the trademark owners&#8217; website.  By analogy, a photog who wants us to take his/her picture seriously may embed it with <a href="http://en.wikipedia.org/wiki/Steganography">steganographically</a> with assurances of its unaltered nature.</p>
<p>I&#8217;m less concerned about the &#8220;Olive Garden&#8221; or &#8220;am I really being true to myself&#8221; question.  Survival in a modern market economy means being pretty <a href="http://www.press.uchicago.edu/presssite/metadata.epl?mode=synopsis&#038;bookkey=40114">protean</a>.  Angst over authenticity is also an epiphemenon of affluence (or perhaps a symptom of affluenza), and as I&#8217;ve suggested <a href="http://www.concurringopinions.com/archives/2008/03/the_impending_r.html">before</a>, a country as leveraged as the US is not likely to have the luxury of that problem for long.  (More on the &#8220;revenge of the real&#8221; <a href="http://press.princeton.edu/chapters/s8208.html">here</a>.)  A future for some rising nations might be glimpsed in a film like &#8220;<a href="http://www.lovehkfilm.com/reviews_2/shopaholics.htm">The Shopaholics</a>,&#8221; where concerns about &#8220;<a href="http://www.guardian.co.uk/society/2004/mar/27/medicineandhealth.mentalhealth">self-transformation described in the language of authenticity</a>&#8221; are forsaken for a madcap pursuit of luxury products.</p>
<p>UPDATE: Just noticed this indictment of the US as &#8220;<a href="http://www.npr.org/templates/story/story.php?storyId=93261726&#038;ft=1&#038;f=1057">land of the fake</a>:&#8221;</p>
<blockquote><p>Meyer, NPR&#8217;s new editorial director of digital media, can rattle off plenty of examples: corporations that profess to care about you, the words &#8220;managed care,&#8221; and reality shows that promise a shot at love with a celebrity called Tila Tequila.  Those are some of the gripes to be found in Meyer&#8217;s new book, <em><a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/17/RVP211OU17.DTL">Why We Hate Us: American Discontent in the New Millennium</a></em>.</p></blockquote>
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		<title>Sleepless in Science Fiction</title>
		<link>http://www.concurringopinions.com/archives/2008/06/sleepless_in_sc.html</link>
		<comments>http://www.concurringopinions.com/archives/2008/06/sleepless_in_sc.html#comments</comments>
		<pubDate>Wed, 18 Jun 2008 00:52:22 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/06/sleepless-in-science-fiction.html</guid>
		<description><![CDATA[<p>There is an interesting collection of articles on transhumanism this month in a publication called The Global Spiral.  Jean-Pierre Dupuy&#8217;s article Cybernetics is an Anti-Humanism sets the stage for the discussion:</p>
<p>In recent years, the enterprise of “making life from scratch” has been organized as a formal scientific discipline under the seemingly innocuous name of synthetic biology. In June 2007, the occasion of the first Kavli Futures Symposium at the University of Greenland in Ilulissat, leading researchers from around the world gathered to announce the convergence of work in synthetic biology and nanotechnology and to take stock of the most recent advances in the manufacture of artificial cells. Their call for a global effort to promote “the construction or redesign of biological systems components that [...]]]></description>
			<content:encoded><![CDATA[<p>There is an interesting collection of articles on transhumanism this month in a publication called <a href="http://metanexus.net/magazine/Default.aspx">The Global Spiral</a>.  Jean-Pierre Dupuy&#8217;s article <a href="http://metanexus.net/Magazine/Default.aspx?TabId=68&#038;id=10544&#038;SkinSrc=%5bG%5dSkins%2f_default%2fNo+Skin&#038;ContainerSrc=%5bG%5dContainers%2f_default%2fNo+Container">Cybernetics is an Anti-Humanism</a> sets the stage for the discussion:</p>
<blockquote><p>In recent years, the enterprise of “making life from scratch” has been organized as a formal scientific discipline under the seemingly innocuous name of <a href="http://madisonian.net/2007/12/22/egalitarian-synthetic-biology/">synthetic biology</a>. In June 2007, the occasion of the first Kavli Futures Symposium at the University of Greenland in Ilulissat, leading researchers from around the world gathered to announce the convergence of work in synthetic biology and nanotechnology and to take stock of the most recent advances in the manufacture of artificial cells. Their call for a global effort to promote “the construction or redesign of biological systems components that do not naturally exist” evoked memories of the statement that was issued in Asilomar, California more than thirty years earlier, in 1975, by the pioneers of biotechnology. Like their predecessors, the founders of synthetic biology insisted not only on the splendid things they were poised to achieve, but also on the dangers that might flow from them. Accordingly, they invited society to prepare itself for the consequences, while laying down rules of ethical conduct for themselves. We know what became of the charter drawn up at Asilomar. A few years later, this attempt by scientists to regulate their own research had fallen to pieces. The dynamics of technological advance and the greed of the marketplace refused to suffer any limitation.</p></blockquote>
<p>Count me as<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002463"> unsurprised</a>&#8211;&#8221;self-regulation&#8221; is all too often a euphemism for no regulation at all.  Given Dupuy&#8217;s observations of the mutual reinforcement of market and technological forces, I found <a href="http://metanexus.net/Magazine/Default.aspx?TabId=68&#038;id=10543&#038;SkinSrc=%5bG%5dSkins%2f_default%2fNo+Skin&#038;ContainerSrc=%5bG%5dContainers%2f_default%2fNo+Container">Katherine Hayles&#8217;s treatment </a>of a science fiction novel on genetic enhancement particularly interesting:</p>
<p><span id="more-11581"></span></p>
<blockquote><p>Perhaps the most explicit [science fiction] confrontation with transhumanist philosophy occurs in Nancy Kress’s . . . “Beggars in Spain” . . . Kenzo Yagai is the text’s philosopher-economist who serves as the fictional counterpart to Ayn Rand, often cited on transhumanist websites as one of the founding thinkers of the movement. Initially infatuated with Rand’s extreme individualism, its concomitant ideology of free-market capitalism unhampered by regulation, and a Darwinian survival-of-the-fittest in which the fit are those who can most effectively exploit the free market, Kress became disenchanted with Rand’s Objectivist philosophy and wrote “Beggars in Spain” in rebuttal.</p></blockquote>
<blockquote><p>In Yagaiist philosophy, the contract freely entered into by individuals is seen as the basis for a good society, in part because it is an advance over social systems based on coercion. The premise is tested by embedding it in a reproductive context in which Roger Camden, self-made millionaire and confirmed Yagaiist, arranges for a genetic intervention that will yield a daughter (intelligent, blond, long-legged, attractive) who will not need to sleep. Unexpectedly, however, his wife (a bit player in Camden’s life) conceives twins: Leisha, the engineered baby, is one of the Sleepless, while Alice is a “normal” child who requires sleep.</p></blockquote>
<blockquote><p>The match-up allows the effects of this seemingly minor genetic alteration—eliminating the need for sleep—to be explored and dramatized. While Alice progresses at the usual rate, Leisha, apple of her father’s eye, zooms ahead of her twin intellectually. She is Camden’s “special” (i.e. “real”) daughter not only because he paid for her genetic alteration but also because she buys in wholeheartedly to her father’s Yagaiist doctrine of individual achievement, allowing him to reproduce ideologically as well as genetically. As with other SF interventions, Kress does not allow the narrative to remain focused entirely on the individual but rather sketches a broader social context. </p></blockquote>
<blockquote><p>The Sleepless form networks among themselves as they encounter increasing resentment and sanctions from the majority Sleepers, who contend that the Sleepless have unfair advantages because they have, in effect, 33% more time at their disposal in which to study, learn, and achieve. The social landscape in which Leisha grows up is rife with conflicts between “normal” humans and the transhuman Sleepless, who as they grow up prove to be not only highly intelligent and high-achieving but also resistant to aging, with life expectancies measured is hundreds rather than decades of years. Already numbering in the hundred thousands, the Sleepless in a dozen generations appear to be on track to become the successor species to Homo sapiens sapiens (perhaps as Homo sapiens sleepless).</p></blockquote>
<blockquote><p>Despite the growing tensions, Leisha struggles to retain ties to Sleepers, including her sister Alice. The eponymous “beggars in Spain” represent a strong challenge to that desire. Her Sleepless friend Tony argues that high-achieving Sleepless have more to offer than Sleepers and, in the face of increasing prejudice against them, should withdraw to form their own society. He asks her if she would give money to a beggar in Spain; Leisha says yes. Then what about two beggars, three, a hundred, a thousand? The lesson Tony means to teach is to show that the basis for a shared society—that is, the contract that reciprocally benefits both participants—breaks down when those who have nothing to give outnumber those who have much to give, for any contract must then be unequal and hence unfair to the privileged. </p></blockquote>
<p>If you want to understand the hidden agenda behind a <a href="http://www.reason.com/news/show/126727.html">laissez-faire attitude toward cognition enhancers</a>, Kress&#8217;s novel would be a good place to start.  Like <a href="http://query.nytimes.com/gst/fullpage.html?res=990CE4D61F31F931A25751C0A963958260&#038;sec=&#038;spon=&#038;pagewanted=5">Bill Kristol&#8217;s infamous memo</a> on the Clinton healthcare plan, these documents are about much bigger game than one particular technological intervention.  Expect the tension between <a href="http://www.concurringopinions.com/archives/2007/05/limits_of_perfo.html">performance enhancement</a> and social solidarity to heighten over time.</p>
<p>PS: Dupuy suggests that even more fundamental aspects of human nature than equality may be at stake:</p>
<blockquote><p>When we love somebody, we do not love a list of characteristics, even one that is sufficiently exhaustive to distinguish the person in question from anyone else. The most perfect simulation still fails to capture something, and it is this something that is the essence of love—this poor word that says everything and explains nothing. I very much fear that the spontaneous ontology of those who wish to set themselves up as the makers or re-creators of the world know nothing of the beings who inhabit it, only lists of characteristics. If the nanobiotechnological dream were ever to come true, what still today we call love would become incomprehensible.</p></blockquote>
<p>Dupuy&#8217;s view may seem partial, a reflection of a <a href="http://www.cfpeople.org/Apologetics/page51a054.html">Maritainian philosophy</a>.  Nevertheless, it resonates with efforts of philosophers like Michael Sandel to <a href="http://www.theatlantic.com/doc/200404/sandel">articulate the problems</a> we will face as we increasingly see ourselves as &#8220;made,&#8221; and not &#8220;given.&#8221;</p>
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		<title>&#8220;Don&#8217;t Resist Until It&#8217;s Too Late&#8221;</title>
		<link>http://www.concurringopinions.com/archives/2008/03/dont_care_till.html</link>
		<comments>http://www.concurringopinions.com/archives/2008/03/dont_care_till.html#comments</comments>
		<pubDate>Mon, 10 Mar 2008 07:01:24 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/03/dont-resist-until-its-too-late.html</guid>
		<description><![CDATA[<p>The debate on cognitive enhancement has reached BoingBoing and the NYT.  I&#8217;ve been skeptical of the topic before, and this snippet from Benedict Carey&#8217;s article gave me little reason to change my mind:</p>
<p>Dr. Anjan Chatterjee, an associate professor of neurology at the University of Pennsylvania who foresaw this debate in a 2004 paper, argues that the history of cosmetic surgery — scorned initially as vain and unnatural but now mainstream as a form of self-improvement — is a guide to predicting the trajectory of cosmetic neurology, as he calls it. . . . </p>
<p>The public backlash against brain-enhancement, if it comes, may hit home only after the practice becomes mainstream, Dr. Chatterjee suggested. “You can imagine a scenario in the future, when you’re applying [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="frogboil.jpg" src="http://www.concurringopinions.com/archives/images/frogboil.jpg" width="180" height="240" align="right" hspace="5" />The debate on cognitive enhancement has reached <a href="http://www.boingboing.net/2008/03/09/debate-around-brain.html">BoingBoing</a> and the <a href="http://www.nytimes.com/2008/03/09/weekinreview/09carey.html?ref=weekinreview">NYT</a>.  I&#8217;ve been <a href="http://www.concurringopinions.com/archives/2007/12/cops_on_steroid.html">skeptical of the topic</a> before, and this snippet from Benedict Carey&#8217;s article gave me little reason to change my mind:</p>
<blockquote><p>Dr. Anjan Chatterjee, an associate professor of neurology at the University of Pennsylvania who foresaw this debate in a 2004 paper, argues that the history of <a href="http://www.concurringopinions.com/archives/2007/06/vanity_tax_vs_w.html">cosmetic surgery</a> — scorned initially as vain and unnatural but now mainstream as a form of self-improvement — is a guide to predicting the trajectory of cosmetic neurology, as he calls it. . . . </p></blockquote>
<blockquote><p>The public backlash against brain-enhancement, if it comes, may hit home only after the practice becomes mainstream, Dr. Chatterjee suggested. “You can imagine a scenario in the future, when you’re applying for a job, and the employer says, ‘Sure, you’ve got the talent for this, but we require you to take Adderall.’ Now, maybe you do start to care about the ethical implications.”</p></blockquote>
<p>On this line of thought, in the early stages of the development of enhancement technology, it&#8217;s untoward to object to its deployment because it&#8217;s rare.  One person&#8217;s use of the drug doesn&#8217;t appear to harm anyone directly.  But by the time the &#8220;Adderall requirement&#8221; arises, the drug is so common that it&#8217;s likely futile to resist the requirement to take it.  It&#8217;s the old <a href="http://en.wikipedia.org/wiki/Boiling_frog">&#8220;boiled frog&#8221; syndrome</a>.</p>
<p><span id="more-11928"></span><br />
I will concede that one apologist makes a good argument about performance enhancement here (which I obliquely anticipated <a href="http://www.concurringopinions.com/archives/2007/05/limits_of_perfo.html">in this post</a>):</p>
<blockquote><p>“I think the analogy with sports doping is really misleading, because in sports it’s all about competition, only about who’s the best runner or home run hitter,” said Martha Farah, director of the Center for Cognitive Neuroscience at the University of Pennsylvania. “In academics, whether you’re a student or a researcher, there is an element of competition, but it’s secondary. The main purpose is to try to learn things, to get experience, to write papers, to do experiments. So in that case if you can do it better because you’ve got some drug on board, that would on the face of things seem like a plus.”</p></blockquote>
<p>Nevertheless, I think there are likely several situations where a wider distribution of opportunities to do good might alleviate the need to &#8220;enhance&#8221; a select class of brains chemically (and leave all better off).  For example, if more people had the science education necessary to become a doctor (and the government funded <a href="http://www.concurringopinions.com/archives/2007/01/transscientific.html">more medical education</a>), we might not need to rely on a relatively small cadre of residents to go through so many sleepless nights. . . . precisely the type of exhausting experience that enhancers like Provigil are designed to counter.</p>
<p>PS: For a more sanguine view, check out the <a href="http://kolber.typepad.com/ethics_law_blog/2008/02/an-ivy-league-p.html">Neuroethics &#038; Law Blog</a>.  On the other hand, Nancy Kress&#8217;s science fiction novel <a href="http://en.wikipedia.org/wiki/Beggars_in_Spain">Beggars in Spain</a> does a great job challenging complacency on the topic.</p>
<p>Photo Credit: <a href="http://flickr.com/photos/cactusbones/537105931/">Cactusbones</a>.</p>
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		<title>The Culture of Cosmetic Surgery Reaches Iran</title>
		<link>http://www.concurringopinions.com/archives/2008/03/the_culture_of.html</link>
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		<pubDate>Wed, 05 Mar 2008 01:04:40 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Health Law]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/03/the-culture-of-cosmetic-surgery-reaches-iran.html</guid>
		<description><![CDATA[<p>Mehrdad Oskouei&#8217;s documentary &#8220;Nose Iranian Style&#8221; offers a fascinating (if depressing) look at the rhinoplasty capital of the world: Iran.  Here&#8217;s the summary:</p>
<p>A large and growing percentage of . . .  people in Iran [about 60-70,000 per year] . . . have their noses made smaller through rhinoplasty, even young Moslem women who hide most of their faces with traditional scarves. Filmmaker Mehrdad Oskouei explores this phenomenon [by interviewing] a number of teens who have either had the operation or are considering it, the parents to give their blessings to this practice (and their money to the plastic surgeon), and trends in Middle Eastern culture which may be contributing to this wave of new noses.</p>
<p>The film starts with a group of girls cheering [...]]]></description>
			<content:encoded><![CDATA[<p>Mehrdad Oskouei&#8217;s documentary &#8220;<a href="http://movies.nytimes.com/movie/355664/Nose-Iranian-Style/overview">Nose Iranian Style</a>&#8221; offers a fascinating (if depressing) look at the rhinoplasty capital of the world: Iran.  Here&#8217;s the summary:</p>
<blockquote><p>A large and growing percentage of . . .  people in Iran [about 60-70,000 per year] . . . have their noses made smaller through rhinoplasty, even young Moslem women who hide most of their faces with traditional scarves. Filmmaker Mehrdad Oskouei explores this phenomenon [by interviewing] a number of teens who have either had the operation or are considering it, the parents to give their blessings to this practice (and their money to the plastic surgeon), and trends in Middle Eastern culture which may be contributing to this wave of new noses.</p></blockquote>
<p>The film starts with a group of girls cheering upon hearing that Iran is &#8220;nose job&#8221; capital of the world, and a series of uncomfortable (if illuminating) encounters and montages follow.  News reports have <a href="http://www.cbsnews.com/stories/2005/05/02/eveningnews/main692495.shtml">tracked the trend</a> for a while, but the film does an extraordinary job juxtaposing the pre- and post-modern aspects of contemporary Iranian life that contribute to the pressure to abrade, upturn, and minimize noses.  Though some religious authorities oppose the trend, they appear feckless throughout the film.  (One plastic surgeon states that &#8220;Plastic surgery is better appearance for people, and I think God [would] like this.&#8221;)  A few more thoughts on the comparative role of law and norms in addressing the rise of the rhinoplasties below.</p>
<p><span id="more-11951"></span><br />
The <a href="http://64.233.169.104/search?q=cache:u2kps7VhwtoJ:www.smediaint.com/documentary/nose/English_Dialogue_list.doc+nose,+iranian+style&#038;hl=en&#038;ct=clnk&#038;cd=20&#038;gl=us">documentary script</a> contains several provocative quotes from interviewees.  Here&#8217;s a plastic surgeon attempting to explain the fad:</p>
<blockquote><p>The youth are after identity, they are seeking acceptance. Different societies and their needs are rapidly changing. The young people are more sensitive and desire more excitement; they are after new issues. Our youth are no exception. The demands for change are in the face, especially the nose. You see the change of nose in a front and a silhouette angle.</p></blockquote>
<p>What I found bizarre about this assertion is that virtually everyone in the film who deeply desires a nose job looks fine. . . as this dialogue suggests:</p>
<blockquote><p>Filmmaker: Doctor, her nose is so beautiful, does she really need a nose job?</p></blockquote>
<blockquote><p>Dr.: It’s extraordinarily beautiful but she will become more beautiful.</p></blockquote>
<p>Admittedly, a plastic surgeon does bring up a few pictures that are out of the ordinary, but these are skillfully balanced by the filmmaker with mishandled jobs that were genuinely disfiguring&#8211;and irreversible.</p>
<p>While the plastic surgeons rhapsodize about finding one&#8217;s own identity, the youths themselves offer a very different perspective.  Attracting a marriage partner appears to be the key rationale, but some despairing social commentary emerges as well:</p>
<blockquote><p>Girl: A girl that is more beautiful will have a better chance to be picked.</p></blockquote>
<blockquote><p>Girl: They girls must have a nose job, become beautiful and then get married. </p></blockquote>
<blockquote><p>Girl: There is a lack of husband[s in the country]…</p></blockquote>
<blockquote><p>Filmmaker:	Which grade are you in? [10th Grade]</p></blockquote>
<blockquote><p>Girl: It’s a variety for us. We can’t wear an orange manteau in the street. So we are forced to have a nose job.</p></blockquote>
<blockquote><p>Girl: Unfortunately we are feeling vain and futile. And nothing is as it should be. We are always looking for a healthy and profound relationship and friendship, but we’re unsuccessful. The nose job is epidemic and everyone has caught it more or less.</p></blockquote>
<p>As I&#8217;ve <a href="http://www.concurringopinions.com/archives/2007/06/vanity_tax_vs_w.html">blogged before</a>, the personal is inevitably political here, because of the positional pressure that prevalent cosmetic surgery can perpetuate.  When one person in a group gets rhinoplasty, they may stand out positively.  But when virtually everyone gets it, no one in that group ends up &#8220;ahead&#8221; of one another&#8211;but the few who are left out can be all the more stigmatized for being more unusual now.</p>
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		<title>&#8220;The Notion that We Should All Look the Same is Hatred&#8221;</title>
		<link>http://www.concurringopinions.com/archives/2008/02/the_notion_that.html</link>
		<comments>http://www.concurringopinions.com/archives/2008/02/the_notion_that.html#comments</comments>
		<pubDate>Mon, 11 Feb 2008 17:13:38 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Health Law]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/02/the-notion-that-we-should-all-look-the-same-is-hatred.html</guid>
		<description><![CDATA[<p>So argued Marilynn Wann (author of Fat?So!) in response to a recent bill introduced in the Mississippi legislature to ban the obese from being served in &#8220;any food establishment that is required to obtain a permit from the State Department of Health . . . that 12 operates primarily in an enclosed facility and that has five (5) or more seats for customers.&#8221;  Wann believed that Miss. House Bill 282 would amount to size discrimination.</p>
<p>I find the bill bizarre&#8211;less a constructive solution than an effort to stigmatize. Kelly Hills offers some measured commentary on the anti-obesity push generally:</p>
<p>[Some of the obese] are comfortable with their weight, and don&#8217;t appreciate being &#8220;bullied&#8221; by society to adhere to an ideal they don&#8217;t believe is accurate. These [...]]]></description>
			<content:encoded><![CDATA[<p>So argued Marilynn Wann (author of <a href="http://books.google.com/books?id=UdDrk3rMTxYC&#038;dq=fat+so&#038;pg=PP1&#038;ots=r1GXOMfPse&#038;sig=627Gvf831O55UveNNRG9jPYdAx0&#038;hl=en&#038;prev=http://www.google.com/search?sourceid=gmail&#038;q=fat%3Fso!&#038;sa=X&#038;oi=print&#038;ct=title&#038;cad=one-book-with-thumbnail">Fat?So!</a>) in response to a recent bill introduced in the Mississippi legislature <a href="http://www.anorak.co.uk/anorak-in-new-york/180135.html">to ban the obese</a> from being served in &#8220;any food establishment that is required to obtain a permit from the State Department of Health . . . that 12 operates primarily in an enclosed facility and that has five (5) or more seats for customers.&#8221;  Wann believed that Miss. House Bill 282 would amount to <a href="http://www.tolerance.org/teach/magazine/features.jsp?cid=779">size discrimination</a>.</p>
<p>I find the bill bizarre&#8211;less a constructive solution than an effort to stigmatize.<a href="http://womensbioethics.blogspot.com/2007/08/obesity-in-news-or-why-language-matters.html"> Kelly Hills</a> offers some measured commentary on the anti-obesity push generally:</p>
<blockquote><p>[Some of the obese] are comfortable with their weight, and don&#8217;t appreciate being &#8220;bullied&#8221; by society to adhere to an ideal they don&#8217;t believe is accurate. These folks often espouse the motto &#8220;healthy regardless of weight&#8221;, placing an emphasis on health outside of weight. After all, the reasoning goes, if someone is 65 lbs overweight, but perfectly healthy otherwise, what business is it of anyone just what that weight is? People come in all sizes, and as long as the individual is healthy, what that size is shouldn&#8217;t matter to anyone.</p></blockquote>
<p>The anti-obesity movement has to be predicated on a &#8220;<a href="http://www.concurringopinions.com/archives/2007/05/three_critiques.html">duty to be healthy</a>&#8220;&#8211;and some would say that focus on the individual itself is a controversial priority of health reform, given that there is so much that can be done to change social structures that would lead to better health outcomes.  As Michael Pollan has noted, <a href="http://www.nytimes.com/2007/11/04/opinion/04pollan.html">changes to the farm bill</a> could probably do more to improve America&#8217;s eating habits than individual stigmatization.  The<a href="http://thesituationist.wordpress.com/2007/09/05/common-cause-combating-the-epidemics-of-obesity-and-evil/"> context of food choices</a>&#8211;not cultivation of willpower&#8211;is key.</p>
<p>Hat Tip: <a href="http://www.medhumanities.org/2007/08/more-on-obesity.html">Medical Humanities Blog</a>.</p>
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		<title>Police on Steroids, Profs on Ritalin</title>
		<link>http://www.concurringopinions.com/archives/2007/12/cops_on_steroid.html</link>
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		<pubDate>Sat, 22 Dec 2007 03:05:55 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Culture]]></category>
		<category><![CDATA[Current Events]]></category>
		<category><![CDATA[Law and Inequality]]></category>
		<category><![CDATA[Law and Psychology]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2007/12/police-on-steroids-profs-on-ritalin.html</guid>
		<description><![CDATA[<p>There has been some excellent blawgospheric comment on the Mitchell Report, a Black Sox scandal for our age (see, e.g., Jeff Lipshaw, Howard Wasserman, Michael Dimino and Alfred Yen).  My question is: what will be the cultural impact?   I think two recent stories on performance enhancement in other fields provide some clues, and suggest the wisdom of the PCBE&#8217;s worries.</p>
<p>First, the Village Voice has a long story on some possibly inappropriate steroid/HGH use in the NYPD.  I say &#8220;possibly&#8221; for two reasons: 1) the slippery &#8220;therapy/enhancement&#8221; distinction here and 2) the threat posed by bulked up criminals. The Voice reports that &#8220;the Brooklyn District Attorney&#8217;s Office knows of 29 cops and at least 10 NYPD civilian employees—all well under the age [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="cyborgflower.jpg" src="http://www.concurringopinions.com/archives/images/cyborgflower.jpg" width="225" height="314" align="right" hspace="5"/>There has been some excellent blawgospheric comment on the Mitchell Report, a <a href="http://en.wikipedia.org/wiki/Black_Sox_Scandal">Black Sox</a> scandal for our age (see, e.g., Jeff <a href="http://www.concurringopinions.com/archives/2007/12/a_quick_primer.html">Lipshaw</a>, Howard <a href="http://sports-law.blogspot.com/2007/12/overall-thoughts-on-mitchell-report.html">Wasserman</a>, Michael <a href="http://prawfsblawg.blogs.com/prawfsblawg/2007/12/the-mitchell-re.html">Dimino</a> and Alfred <a href="http://madisonian.net/archives/2007/12/18/andy-pettitte-and-the-technology-of-performance-enhancement/">Yen</a>).  My question is: what will be the cultural impact?   I think two recent stories on performance enhancement in other fields provide some clues, and suggest the wisdom of the <a href="http://www.bioethics.gov/reports/beyondtherapy/chapter3.html">PCBE&#8217;s worries</a>.</p>
<p>First, the Village Voice has a <a href="http://radio.villagevoice.com/news/0751,gardiner,78667,2.html">long story </a>on some possibly inappropriate steroid/HGH use in the NYPD.  I say &#8220;possibly&#8221; for two reasons: 1) the slippery &#8220;therapy/enhancement&#8221; distinction here and 2) the threat posed by bulked up criminals. The Voice reports that &#8220;the Brooklyn District Attorney&#8217;s Office knows of 29 cops and at least 10 NYPD civilian employees—all well under the age of 60—who have received prescriptions for [steroids for] hypogonadism.&#8221;  Doctors quoted in the story find it implausible that so many officers would have this disorder&#8211;but there are probably other physicians who have a <a href="http://www.businessweek.com/magazine/content/05_14/b3927027_mz005.htm">much broader concept of disease</a>.   And if suspects are bulking up on illegal substances, who can blame the cops for trying to catch up?</p>
<p>The other story is on <a href="http://volokh.com/posts/1198272753.shtml">concentration-enhancing drugs </a>increasingly used not only by students (an old problem), but <a href="http://andrewsullivan.theatlantic.com/the_daily_dish/2007/12/professors-litt.html">now by professors</a>.  Andrew Sullivan asks, &#8220;So if a prof wants to do a little Provigil, it&#8217;s no worry for me. Why should it be a worry for anyone but the prof himself?&#8221;  I think there are <a href="http://www.concurringopinions.com/archives/2007/05/limits_of_perfo.html">several reasons</a>, not least the potential for medicalized competition to invade spheres of life we now deem <a href="http://www.concurringopinions.com/archives/2007/10/the_market_for_1.html">constitutive of our identity</a>.  But for now let me just focus on how the police and profs examples intersect.</p>
<p><span id="more-12277"></span><br />
Think about the balance of scholarship produced in a regime where some labor under the supercharging influence of Provigil, and others forbear.  The former will presumably generate more work than the latter.  That may be fine in relatively technical fields (who wants to slow down the sequencing of a genome?).  But in areas where ideology matters, the potential power of the pill-poppers can be a problem.  We need to ask: what are the reasons people are not taking the drugs?  A (wise) risk-aversion?  A fear of disadvantaging others who can&#8217;t afford them?  A religious concern about &#8220;playing God&#8221;?  And finally, are the people who have all these concerns really the ones we want to be drowned out by super-stimulated, super-productive others?</p>
<p>My basic point here is that Sullivan (and many other libertarians) make an erroneous presumption that the decision to use the drug is wholly distinct from whatever ideology a particular person has.  To them, the technology is neutral in itself, and can be freely used (or not used) by anyone.  In fact, the drugs fit in very well with certain ideologies and not at all with others. This is an old theme in the <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=615088">philosophy of technology</a>, but is hard to encapsulate in a soundbite (<a href="http://www.amazon.com/Going-Negative-Stephen-Ansolabehere/dp/0684837110">itself a technology </a>far more amenable to some ideologies than others).</p>
<p>At risk of stretching an analogy to the breaking point, I think professors and police face a similarly competitive landscape. The former battle for &#8220;<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=980797">mind share</a>,&#8221; the latter for order.  The more we understand the true lesson of Darwin/Dawkins&#8211;the pervasiveness of competitive struggle in daily life&#8211;the better we can see the need for &#8220;<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002463">arms control agreements</a>&#8221; regarding enhancement technologies.  (Hopefully they will be <a href="http://www.concurringopinions.com/archives/2007/08/the_law_and_eco.html">more effective </a>than the <a href="http://www.boingboing.net/2007/12/05/slates-jack-shafer-o.html">failed policies </a>of the past.)  The <a href="http://www2.hawaii.edu/~zuern/demo/heidegger/">question</a> is whether we will permit ourselves to direct evolution or to be the <a href="http://www.usd.edu/~ssanto/ellul.html">mere products of blind technological forces</a>.  Those opting for the latter route make Benjamin&#8217;s words on the &#8220;angel of history&#8221; all too prophetic:</p>
<blockquote><p>This is how one pictures the angel of history. His face is turned toward the past. Where we perceive a chain of events, he sees one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise; it has got caught in his wings with such violence that the angel can no longer close them. This storm irresistibly propels him into the future to which his back is turned, while the pile of debris before him grows skyward. This storm is what we call progress.</p></blockquote>
<p>&#8211;Walter Benjamin, &#8220;On the Concept of History&#8221;, cited <a href="http://www.ctheory.net/articles.aspx?id=586">here</a>.</p>
<p>Photo Credit: Cyborg Flower, <a href="http://flickr.com/photos/jumpinroo/399463907/">jumpinroo</a>.</p>
<p>UPDATE: Bridget Crawford has more <a href="http://feministlawprofs.law.sc.edu/?p=2714">insights here</a>.  If you&#8217;re interested in the law, tech, and theory angle, here&#8217;s a <a href="http://techtheory.blogspot.com/2006/11/new-kind-of-academic-exchange.html">blog/symposium that Gaia Bernstein, Jim Chen, and I put together</a>.</p>
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		<title>The Worst Self-Justifying Column You&#8217;ll Ever Read</title>
		<link>http://www.concurringopinions.com/archives/2007/12/the_worst_selfj_1.html</link>
		<comments>http://www.concurringopinions.com/archives/2007/12/the_worst_selfj_1.html#comments</comments>
		<pubDate>Wed, 05 Dec 2007 16:23:07 +0000</pubDate>
		<dc:creator>Dave Hoffman</dc:creator>
				<category><![CDATA[Bioethics]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2007/12/the-worst-self-justifying-column-youll-ever-read.html</guid>
		<description><![CDATA[<p>Is here.  Romana: immediately contact your divorce lawyers!  (I hope she retained the copyright on her illustrations.)  Seriously, though, is anyone meant to be convinced by silly arguments like these?
&#8220;From a Darwinian perspective, sexual jealousy is easily understood. Natural selection of our wild ancestors plausibly favored males who guarded their mates for fear of squandering economic resources on other men&#8217;s children. On the female side, it is harder to make a Darwinian case for the sort of vindictive jealousy  . . . No doubt hindsight could do it, but I want to make a different point. Sexual jealousy may in some Darwinian sense accord with nature, but &#8220;Nature, Mr. Allnutt, is what we are put in this world to rise above.&#8221; [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="800px-Man_and_woman_undergoing_public_exposure_for_adultery_in_Japan-J__M__W__Silver.jpg" src="http://www.concurringopinions.com/archives/800px-Man_and_woman_undergoing_public_exposure_for_adultery_in_Japan-J__M__W__Silver.jpg" width="200" height="125" align="right" hspace="5"/>Is <a href="http://richarddawkins.net/article,1926,Banishing-the-Green-Eyed-Monster,Richard-Dawkins-On-Faith">here</a>.  <a href="http://en.wikipedia.org/wiki/Lalla_Ward">Romana</a>: immediately contact your divorce lawyers!  (I hope she retained the copyright on her illustrations.)  Seriously, though, is anyone meant to be convinced by silly arguments like these?<br />
<blockquote>&#8220;From a Darwinian perspective, sexual jealousy is easily understood. Natural selection of our wild ancestors plausibly favored males who guarded their mates for fear of squandering economic resources on other men&#8217;s children. On the female side, it is harder to make a Darwinian case for the sort of vindictive jealousy  . . . No doubt hindsight could do it, but I want to make a different point. Sexual jealousy may in some Darwinian sense accord with nature, but &#8220;Nature, Mr. Allnutt, is what we are put in this world to rise above.&#8221; Just as we rise above nature when we spend time writing a book or a symphony rather than devoting our time to sowing our selfish genes and fighting our rivals, so mightn&#8217;t we rise above nature when tempted by the vice of sexual jealousy?  I, for one, feel drawn to the idea that there is something noble and virtuous in rising above naturein this way. I admit that I have, at times in my life, been jealous, but it is one of the things I now regret. Assuming that such practical matters as sexually transmitted diseases and the paternity of children can be sorted out (and nowadays DNA testing will clinch that for you if you are sufficiently suspicious, which I am not), what, actually, is wrong with loving more than one person? Why should you deny your loved one the pleasure of sexual encounters with others, if he or she is that way inclined? The British writer Julie Burchill is not somebody I usually quote  . . .  but I was struck by one of her remarks. I can&#8217;t find the exact quote, but it was to the effect that, however much you love your mate (of either sex in the case of the bisexual Burchill) sex with a stranger is almost always more exciting, purely because it is a stranger. An exaggeration, no doubt, but the same grain of truth lurks in Woody Allen&#8217;s &#8220;Sex without love is an empty experience, but as empty experiences go it&#8217;s one of the best.&#8221;"</p></blockquote>
<p>Ladies and Gentlemen, <em>meet biology&#8217;s version of</em> <a href="http://www.amazon.com/Sex-Reason-Richard-Posner/dp/0674802802">Richard Posner</a>, minus any sense of how people actually think or act.  What&#8217;s the argument here?  That jealousy is a legitimate emotion because it is genetically based (for men, but not for women) or that regardless of the Darwinian pull, it is something that women should must now rise above, because Dawkins wants to step out?</p>
<p>(Image Source:  <a href="http://commons.wikimedia.org/wiki/Image:Man_and_woman_undergoing_public_exposure_for_adultery_in_Japan-J._M._W._Silver.jpg">A japanese couple being shamed for adultery</a>, wikicommons).</p>
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		<title>Stem Cell Research and the Presidential Race</title>
		<link>http://www.concurringopinions.com/archives/2007/12/stem_cell_resea_1.html</link>
		<comments>http://www.concurringopinions.com/archives/2007/12/stem_cell_resea_1.html#comments</comments>
		<pubDate>Mon, 03 Dec 2007 17:19:55 +0000</pubDate>
		<dc:creator>Russell Korobkin</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Health Law]]></category>
		<category><![CDATA[Politics]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2007/12/stem-cell-research-and-the-presidential-race.html</guid>
		<description><![CDATA[<p>Thanks to Dan and Frank for inviting to blog about my new book, Stem Cell Century: Law and Politics for a Breakthrough Technology.  The book analyzes a broad range of issues related to stem cell research and regenerative medicine.  Only one chapter out of 10 (“The Embryo Wars”) considers the debate over the ethics of conducting research that requires the destruction of human embryos and the Bush policy of severely limiting federal funding of research on stem cell lines derived from embryos.  But the announcement, two weeks ago, that two teams of scientists have succeeded in reprogramming adult cells to behave like embryonic stem cells has the potential to open a new chapter of the embryo wars that will play out in [...]]]></description>
			<content:encoded><![CDATA[<p>Thanks to Dan and Frank for inviting to blog about my new book, <a href="http://www.stemcellcentury.com">Stem Cell Century: Law and Politics for a Breakthrough Technology</a>.  The book analyzes a broad range of issues related to stem cell research and regenerative medicine.  Only one chapter out of 10 (“<a href="http://www.stemcellcentury.com/Chapters.aspx">The Embryo Wars</a>”) considers the debate over the ethics of conducting research that requires the destruction of human embryos and the Bush policy of severely limiting federal funding of research on stem cell lines derived from embryos.  But the announcement, two weeks ago, that two teams of scientists have succeeded in reprogramming adult cells to behave like embryonic stem cells has the potential to open a new chapter of the embryo wars that will play out in the presidential campaign.</p>
<p>Two weeks ago, it seemed pretty clear that embryonic stem cell research was a wedge issue that the Democrats would exploit in the 2008 election.  All of the Democratic candidates not only favor federal funding of research on stem cell lines derived from embryos, they are quick to point out their position and criticize Presiden&#8217;t Bush&#8217;s funding restrictions.  Most Americans, including most Democrats, most independents, and perhaps half of Republicans, support the research.  The Republican candidates, on the other hand, tend to downplay the issue, whether they appear to support the research (McCain, Giuliani) or oppose it (Thompson, Romney&#8211;although the latter has changed his position, as he has on many issues, since he was the governor of Massachusetts), because the issue tends to split religious conservatives and economic conservatives.</p>
<p>The cell reprogramming success has not weakened the commitment to embryonic stem cell research of most members of the scientific community, because it is too early to tell whether the new cells – called induced pluripotent stem cells – will actually be as useful as embryonic stem cells, and because the new cells are made by inserting genes (which can cause cancer) with retroviruses (which can cause cancer).  Not only does this mean that the IPS cells could not be used to create treatments that would be injected into humans (a long-term goal of stem cell research), it also suggests that they might not serve as good models of diseases for the more immediate goals of stem cell research: studying how degenerative conditions develop and creating large quantities of diseased cells in order to more efficiently screen chemical compounds that might be effective as treatments.  Some prominent scientists believe the drawbacks of IPS cells at the current time are likely to be overcome; others think they are not.</p>
<p>The average American swing voter might not see things quite this way, however.  Many people who favor embryonic stem cell research find the destruction of early-stage embryos troubling but justified by the potential medical benefits.  Voters in this group might think that the creation of IPS cells has changed the cost-benefit analysis.  A number of conservative commentators have already argued aggressively that the IPS discovery vindicates the Bush funding policy and shows that neither medical research nor ethics need to be compromised, and the Romney campaign issued a press release saying essentially the same thing.  Meanwhile, all the pro-research candidates – Democrats and Republicans – have been noticeably silent the issue since the IPS announcement.   I haven’t seen a statement or comment by any of them (if any readers have, please let me know).  My guess is they are waiting to see polls that show whether the majority of Americans still favor embryo research.  For the first time since 2001, the pro-research side is now on the defensive.</p>
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		<title>Are Survivors&#8217; Costs a Pro-Life Issue?</title>
		<link>http://www.concurringopinions.com/archives/2007/07/are_survivors_c.html</link>
		<comments>http://www.concurringopinions.com/archives/2007/07/are_survivors_c.html#comments</comments>
		<pubDate>Wed, 11 Jul 2007 19:00:18 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Economic Analysis of Law]]></category>
		<category><![CDATA[Empirical Analysis of Law]]></category>
		<category><![CDATA[Health Law]]></category>
		<category><![CDATA[Intellectual Property]]></category>
		<category><![CDATA[Law and Inequality]]></category>
		<category><![CDATA[Legal Theory]]></category>
		<category><![CDATA[Philosophy of Social Science]]></category>
		<category><![CDATA[Technology]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2007/07/are-survivors-costs-a-pro-life-issue.html</guid>
		<description><![CDATA[<p>The conservative Manhattan Institute recently commissioned a study of a gap in life-expectancy gains over the past 20 years.  The data that inspired the study are startling:</p>
<p>While U.S. life expectancy increased by 2.33 years from 1991 to 2004, some jurisdictions &#8212; the District of Columbia (5.7 years), New York (4.3 years), California (3.4 years) and New Jersey (3.3 years) &#8212; led the way, while others, such as Oklahoma (0.3 years), Tennessee (0.8 years) and Utah (0.9 years), trailed the national average by significant margins. </p>
<p>To make a long story short, the researcher found that found that &#8220;longevity increased the most in those states where access to newer drugs . . . in Medicaid and Medicare programs has increased the most.&#8221;</p>
<p>Unfortunately, budgetary rules often make [...]]]></description>
			<content:encoded><![CDATA[<p>The conservative <a href="http://www.manhattan-institute.org/">Manhattan Institute</a> recently <a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/07/10/AR2007071001468_pf.html">commissioned a study </a>of a gap in life-expectancy gains over the past 20 years.  The data that inspired the study are startling:</p>
<blockquote><p>While U.S. life expectancy increased by 2.33 years from 1991 to 2004, some jurisdictions &#8212; the District of Columbia (5.7 years), New York (4.3 years), California (3.4 years) and New Jersey (3.3 years) &#8212; led the way, while others, such as Oklahoma (0.3 years), Tennessee (0.8 years) and Utah (0.9 years), trailed the national average by significant margins. </p></blockquote>
<p>To make a long story short, the <a href="http://www.manhattan-institute.org/html/mpr_04.htm">researcher found </a>that found that &#8220;longevity increased the most in those states where access to newer drugs . . . in Medicaid and Medicare programs has increased the most.&#8221;</p>
<p>Unfortunately, budgetary rules often make the federal government concentrate more on the costs of such interventions than their benefits.  For example, the CBO counts &#8220;increased costs to the Medicare program for extending the life of its beneficiaries&#8221; as “survivors&#8217; costs.”  Tim Westmoreland&#8217;s fascinating article on the topic (95 Georgetown L.J. 1555, June 2007) calls this &#8220;euthanasia by budget:&#8221;</p>
<blockquote><p>In describing why its model included costs but no savings from new access to pharmaceuticals, the <a href="http://cbo.gov//ftpdocs/39xx/doc3960/10-30-prescriptiondrug.pdf">Congressional Budget Office said</a>, inter alia, “ [T]o the extent that a drug benefit helps people live longer, they may consume more health care over their remaining lifetime than they would have without the benefit.”  In other words, it is still cheaper for Medicare beneficiaries to die. </p></blockquote>
<p>One wonders if the same reasoning was behind a Texas law that <a href="http://shotofpolitics.blogspot.com/2005/12/if-you-dont-have-money-in-this-country.html">permitted hospital authorities </a>to cut off life support to a conscious woman.</p>
<p>I admit that Daniel Callahan has <a href="http://www.bioethics.gov/background/callahan_paper.html">eloquently questioned </a>the &#8220;research imperative,&#8221; and perhaps his reasoning could be extended to health care more generally.  But it strikes me that in our accounting the costs and benefits of health care in this country, budgetary savings arising out of early death ought to be suspect.</p>
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		<title>Vanity Taxes vs. Worthless Competitions</title>
		<link>http://www.concurringopinions.com/archives/2007/06/vanity_tax_vs_w.html</link>
		<comments>http://www.concurringopinions.com/archives/2007/06/vanity_tax_vs_w.html#comments</comments>
		<pubDate>Wed, 06 Jun 2007 20:39:01 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Behavioral Law and Economics]]></category>
		<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Current Events]]></category>
		<category><![CDATA[Feminism and Gender]]></category>
		<category><![CDATA[Health Law]]></category>
		<category><![CDATA[Philosophy of Social Science]]></category>
		<category><![CDATA[Privacy (Medical)]]></category>
		<category><![CDATA[Tax]]></category>

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		<description><![CDATA[<p>]]></description>
			<content:encoded><![CDATA[<p><img alt="vanity.jpg" src="http://www.concurringopinions.com/archives/images/vanity.jpg" width=200" height="269" align="right" hspace="5"/>New Jersey adopted a &#8220;vanity tax&#8221; in 2004, levied on “any medical procedure performed on [an] individual which is directed at improving [his/her] appearance and which does not meaningfully promote the proper function of the body or prevent or treat illness or disease.”  In a critique of the tax, <a href="http://www.informaworld.com/smpp/content~content=a773233966~jumptype=rss">Michael Duel argues </a>that it is sexist and such surgery is frequently nondiscretionary:</p>
<blockquote><p>Women can either feel inferior, enjoy a lower quality of life, and be rejected by mainstream society, or else suffer the pain and toil of cosmetic surgery to achieve the exact same ideals society uses to reject them.</p></blockquote>
<p>Cosmetic surgeons <a href="http://www.modernmedicine.com/modernmedicine/article/articleDetail.jsp;jsessionid=Gm2ct19v8N9WqKF6trZwpvV9w8rwhGCgpnCnkyy6GBvlgRylGrqV!1608178766?id=152136">have also railed against the tax</a>, unctuously declaiming that it &#8220;discriminates against women&#8221; because they buy about 86% of the procedures.</p>
<p>NOW President Kim Gandy has a <a href="http://query.nytimes.com/gst/fullpage.html?res=9406E3D8123FF935A25753C1A9639C8B63">nice response </a>to that canard:</p>
<blockquote><p>In general, I&#8217;m opposed to most things that impact women disproportionately, but disproportionate use isn&#8217;t a good measure if a tax is unfair or not.  I can&#8217;t imagine someone arguing against having a luxury tax on yachts because more of them are bought by men.</p></blockquote>
<p>State Senator Karen Keiser is <a href="http://www.cbsnews.com/stories/2005/01/28/national/main670058.shtml">uppping the redistributive ante </a>in Washington state, with a plan to earmark vanity tax revenue for health insurance for poor children.  As one tax policy analyst claims, &#8220;In this anti-tax climate, these user-based, selective tax proposals are more palatable than broader ones.&#8221;</p>
<p>Duel also attacks the vanity tax as a matter of tax policy, but I have a feeling he misses its point. . .</p>
<p><span id="more-13064"></span><br />
On the basis of Deborah Sullivan&#8217;s 2000 study, he claims</p>
<blockquote><p>Higher levels of attractiveness correlate to increased life satisfaction, less stress, perceived competency, and a positive balance of everyday life.  Therefore, &#8220;the more attractive a person is, the more competent and in control of their lives they feel, affirming the attractiveness stereotype.&#8221; . . .  [G]ood-looking workers generally earn 5% to 10% more in income and hold more prestigious positions. </p></blockquote>
<p>Duel thus argues that vanity taxes discourage the appearance-challenged from laying claim to these very real human goods.  He claims that improved appearance both a) gives individuals a “competitive edge” in various contexts and b) makes them subjectively more satisfied with their lives.  I believe neither of these goals outweigh the advantages of a tax, and the vanity tax may even promote the latter.</p>
<p>In the competitive context, Duel assumes that, if more people become more attractive, all will share in the advantages once enjoyed only by the appearance-favored.  He appears to misunderstand the basic concept of “advantage.”  It is concerned with the distribution of extant goods, not the production of more goods.  Assume, for instance, that three associates at a law firm are bald (A, B, and C), and one has a full head of hair (D).  Only one can make partner, and all have equal performance records and client contacts.  D eventually gets the job on the basis of his presumed higher level of attractiveness to clients.</p>
<p>Now assume that C gets surgical hair implants, to “level the playing field” between him and D.  It is far from likely that the firm will suddenly decide to make two partnerships available rather than one.  The same logic applies to less dramatic allocations of earning power or professional advance.  The role of enhanced appearance has been modeled by economist Robert Frank, who sees it as a classic example of a <a href="http://www.aeaweb.org/annual_mtg_papers/2005/0108_1015_0601.pdf">positional good</a>&#8211;one whose value, far from being inherent, directly derives from its comparison with others.  The appearance game is zero-sum; some move up only by pushing others down by comparison.</p>
<p>Of course, positional competitions can develop among many different axes; associates may also compete by billing more hours, developing their legal skills, or wooing clients.  Note, though, that each of these strategies for success objectively increases the efficiency of the firm and increases the likelihood of expansion of the ultimate “prize,” be it higher pay, more partnerships, or more complex work.</p>
<p>What about the subjective dimensions of Duel&#8217;s claim?  Well, clearly some people are vain and put a lot of emphasis on looking better.  But perhaps the very relativity of attractiveness makes the effort to tax appearance-enhancement the ultimate in efficiency.  Consider <a href="http://www.jstor.org/view/00028282/di950053/95p0025k/0">Ng&#8217;s work on diamond goods</a>&#8211;these are goods that are valued, not necessarily for their intrinsic beauty or worth (a ring of cubic zirconium would have a gleam as sweet as a diamond&#8217;s), as for their ability to show off one&#8217;s wealth.  People have a set &#8220;diamond budget,&#8221; and it doesn&#8217;t really matter if 10% or 90% of that goes to the government or DeBeers.</p>
<p>By the same token, standards of appearance often map to the types of clothing and skin tone that the wealthy can afford.  As one commenter on a <a href="http://thesituationist.wordpress.com/2007/05/30/the-shades-and-marketing-of-prejudice/">brilliant post at the Situationist </a>notes,</p>
<blockquote><p>Supposedly, in medieval Europe, light skin was considered beautiful, and only the rich aristocrats, who didn’t work in the fields like the poor peasants, had skin that wasn’t tanned. In more recent times, when poor people began to work in indoor factories and couldn’t afford to spend much time outdoors in the sun, tanned skin became seen as beautiful. . . . . This suggests a hypothesis: In a given society, the standard of beauty will be associated with whatever physical attributes distinguish between rich and poor. In other words, traits associated with low social status will be considered ugly and traits associated with high social status will be considered beautiful.</p></blockquote>
<p>Therefore, by making the plastic surgery or Botox more expensive, we may well make it all the more desirable for those that get it.</p>
<p>Well, if that bit of trickonomics isn&#8217;t enough to sway you, consider this characterization from <a href="http://72.14.209.104/search?q=cache:wfZBHmsSM8MJ:www.mediareader.org/Issue3Stories/3_BookReview.html+dan+harris+cute+quaint&#038;hl=en&#038;ct=clnk&#038;cd=8&#038;gl=us">Daniel Harris</a>: &#8220;The idealized face of the model has always concealed an unspoken ulitmatum.  Glowering accusingly at the reader, the alabaster mask intimidates her into buying products that cosmetic companies offer as a form of facial blackmail. . . .&#8221;   Far from <a href="http://www.modernmedicine.com/modernmedicine/article/articleDetail.jsp;jsessionid=Gm2ct19v8N9WqKF6trZwpvV9w8rwhGCgpnCnkyy6GBvlgRylGrqV!1608178766?id=152136">maximizing choice</a>, the ready availability of cosmetic procedures just directs it toward trivial outlets.</p>
<p>Photo Credit: <a href="http://flickr.com/photos/sunnycarrphillips/6789782/">Mart &#038; Gree</a>, Flickr.</p>
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		<title>Limits of Performance Enhancement</title>
		<link>http://www.concurringopinions.com/archives/2007/05/limits_of_perfo.html</link>
		<comments>http://www.concurringopinions.com/archives/2007/05/limits_of_perfo.html#comments</comments>
		<pubDate>Thu, 10 May 2007 19:36:45 +0000</pubDate>
		<dc:creator>Frank Pasquale</dc:creator>
				<category><![CDATA[Bioethics]]></category>
		<category><![CDATA[Intellectual Property]]></category>
		<category><![CDATA[Law and Humanities]]></category>
		<category><![CDATA[Legal Theory]]></category>
		<category><![CDATA[Philosophy of Social Science]]></category>
		<category><![CDATA[Politics]]></category>

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		<description><![CDATA[<p>Imagine it’s 2020, you’ve begun working at a firm, and you’re having trouble keeping up.  All the other employees are working 75 hours a week, take no vacations, and seem both alert and happy all the time.  You ask some confidantes there “how do you do it?”  All mention some variety of cognitive enhancement: one takes modafinil to concentrate, another uses chemicals that were originally designed for fighter pilots.  Do you take the pills to keep up?</p>
<p>That was one of a few hypos posed yesterday during a presentation I made to the Yale Information Society Project.  Though I thought the problematic nature of that situation pretty intuitive, I got pushed to specify exactly what was wrong.  So here are [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="antlers.jpg" src="http://www.concurringopinions.com/archives/images/antlers.jpg" width="225" height="170" align="right" hspace="5"/>Imagine it’s 2020, you’ve begun working at a firm, and you’re having trouble keeping up.  All the other employees are working 75 hours a week, take no vacations, and seem both alert and happy all the time.  You ask some confidantes there “how do you do it?”  All mention some variety of <a href="http://www.cspo.org/documents/FinalEnhancedCognitionReport.pdf">cognitive enhancement</a>: <a href="http://www.slate.com/id/2079113/">one takes modafinil </a>to concentrate, another <a href="http://www.life-enhancement.com/LE/article_template.asp?ID=872">uses chemicals</a> that were originally designed for <a href="http://kolber.typepad.com/ethics_law_blog/2007/05/darpa_unveils_p.html">fighter pilots</a>.  Do you take the pills to keep up?</p>
<p>That was one of a few hypos posed yesterday during a presentation I made to the Yale Information Society Project.  Though I thought the problematic nature of that situation pretty intuitive, I got pushed to specify exactly what was wrong.  So here are some ideas, from different perspectives:</p>
<p>1) Safety: What if the drug shortens lifespan?  Surely that’s a problem that would make this scenario pretty analogous to steroids in sports.  I hope no one seriously thinks that we want to allow athletes to risk terrible consequences in the future to compete better today.  I also think that even a small increase in risk to health ought to render the &#8220;super worker&#8221; pills problematic. . . . though I admit it&#8217;s hard to specify how much.  Shortening life expectancy by a month?  a year?  10 years?  I&#8217;ll admit that the choice between those options is an inevitably ideological one.</p>
<p>But let’s assume for now these pills are as safe as caffeine.  What’s the harm then? Four takes below the fold&#8230;</p>
<p><span id="more-13129"></span><br />
2)  <strong>Human Essentialism:</strong> Might we think that it is human nature to be a bit overwhelmed, somewhat harried, by a 75-hour workweek with no breaks?  I suppose there are always some <a href="http://www.tannerlectures.utah.edu/lectures/sen80.pdf">pleasure-wizards</a> among us able to spin the straw of exertion into golden good cheer.   But this is a case where that naturally small portion of us is becoming a new norm&#8211;or at least a group with disproportionate chance of success.</p>
<p>3) <strong>Unfair Competition</strong>: Though I’m partial to the view that there is an essential human nature, let’s now set the argument in a “thinner” version of public reason, ala <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=944532">Larry Solum </a>and Rawlsian political liberalism.  What if only a few employees know about the cognitive enhancement pills?  There could be some norms of disclosure, or laws requiring it.  But what if cognitive enhancement options are very expensive?  They might end up <a href="http://www.blackwell-synergy.com/doi/abs/10.1111/j.0887-378X.2004.00319.x?cookieSet=1&#038;journalCode=milq">amplifying existing class stratification</a>.  But imagine the pills are well-known and cheap&#8211;are they still a problem?  I think so, for two reasons.</p>
<p>4)<strong> Bad Evolution:</strong> Here&#8217;s where the <a href="http://www.advicegoddess.com/archives/2006/06/keeping_up_with.html">illustration above comes in</a>.  Robert Frank has been looking at parallels between <a href="http://ideas.repec.org/s/spr/joevec.html">evolutionary theory and economic theory</a>.  He worries that certain competitive dynamics in the workplace mirror unhealthy evolutionary processes in animals.  For example, it&#8217;s of great advantage to one elk in a herd to have much bigger antlers than the rest.  But an antler arms race may well destroy his relative advantage.  And it threatens to weigh elks down, increasing health problems.  Peacocks are another classic example.</p>
<p>5) <strong>Sacrifice of Objective Well-Being</strong>: Of course, the question raised by 4) is&#8211;what are the analogs to the health problems caused by massive antlers?  If we can&#8217;t come up with anything along the lines of 1) above, we&#8217;ve got to go back to a &#8220;thicker&#8221; rationale.  My hunch is that we can develop such an idea by developing some of Martha Nussbaum&#8217;s ideas about emotions as implicit judgments of value.  When technology affects the emotional responses that commonly underlie judgments of value, the cart is before the horse: instead of using our values to judge technology, we are letting technology itself erode those values.</p>
<p>So for instance, here, if we commonly had a value that a weekend day was for rest and recreation, the pills I&#8217;ve mentioned may do more than simply focus workers on their tasks and brighten their mood.  That focus may well be achieved by <a href="http://techtheory.blogspot.com/2006/12/two-relationships-between-technology.html">blunting the sense of unease or discomfort </a>that motivates our adherence to a &#8220;day of leisure&#8221; ideal.  To the extent we want (successful) people devoted to more than their job, loss of that ideal is <a href="http://www.concurringopinions.com/archives/2007/04/libertarians_ag.html">objectively bad.</a></p>
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