Article Review

Long-time readers of the blog may have noticed a change in the literature review methodology, which has recently consisted more of cites to SSRN than of reviews of the latest journals.  There are several reasons for this.  First, the literature reviews are quite time-consuming when they involve collating abstracts from selected journals.  SSRN is quite user-friendly, and involves much less time and effort on my part.  Second, SSRN often provides full-text links to the articles, which is a tremendous boon, IMO.  Third, I like to support open-source projects wherever possible. 

In any case, I will endeavor to continue reviewing selected journals where possible, but the aforementioned reasons make it more likely that I will largely use SSRN in the foreseeable future.  Those who disagree with this perspective or, better yet, who wish to offer their services in helping me compile the journal articles (!) are invited to communicate as such.

With that said, a number of interesting articles have appeared on SSRN recently.  Topics covered below the fold include neuroethics, comparative mental disability law, equal access and global health disparities, and tort reform.

Law, Responsibility, and the Brain (PLoS Biology, Vol. 5, No. 4 pp. 693-700, April 2007)

Dean Mobbs (University College London), Hakwan C. Lau (University College London), Owen D. Jones (Vanderbilt -- Law & Dept. of Biosciences), Christopher D. Frith (University College London)

Abstract:

This article addresses new developments in neuroscience, and their implications for law. It explores, for example, the relationships between brain injury and violence, as well as the connections between mental disorders and criminal behaviors. It discusses a variety of issues surrounding brain fingerprinting, the use of brain scans for lie detection, and concerns about free will. It considers the possible uses for, and legal implications of, brain-imaging technology. And it also identifies six essential limits on the use of brain imaging in courtroom procedures.

Neuroethics is a burgeoning subdiscipline, as well as a personal interest of mine.  Adam Kolber's fine blog is entirely devoted to the intersection of neuroethics and law, and many of the issues addressed in this article are treated in detail over there.

International Human Rights and Comparative Mental Disability Law: The Universal Factors (Syracuse Journal of Int'l Law and Commerce, Vol. 34, No. 2, 2007)

Abstract:

An examination of comparative mental disability law reveals that there are at least five dominant, universal, core factors that must be considered carefully in any evaluation of the key question of whether international human rights standards have been violated. Each of these five factors is a reflection of the shame that the worldwide state of mental disability law brings to all of us who work in this field. Each is tainted by the pervasive corruption of sanism that permeates all of mental disability law. Each reflects a blinding pretextuality that contaminates legal practice in this area.

These are the factors that I identify:

- Core factor #1: Lack of comprehensive legislation to govern the commitment and treatment of persons with mental disabilities, and failure to adhere to legislative mandates
- Core factor #2: Lack of independent counsel and lack of consistent judicial review mechanisms made available to persons facing commitment and those institutionalized
- Core factor # 3: A failure to provide humane care to institutionalized persons
- Core factor #4: Lack of coherent and integrated community programs as an alternative to institutional care
- Core factor # 5: Failure to provide humane services to forensic patients

In this paper, I discuss each of these universal factors, and offer examples from many regions of the world (not primarily from caselaw nor from sophisticated jurisprudential analyses but mostly from reports done by advocacy agencies and non-governmental organizations). Although the picture I paint is bleak, there are some rays of optimism involvement (albeit tardily) of "global" human rights groups such as Amnesty International, heroic work by mental disability law-specific groups such as Mental Disability Rights International and the Mental Disability Advocacy Center, the greater readiness of international human rights courts and commissions to consider the substantive claims in institutional condition cases, and the publication of the UN Convention on the Rights of Persons with Disabilities.

Admittedly, I am particularly interested in disability studies, so this article appeals to me.  I particularly like the notion of "sanism" as a mental health corollary of disablism.  The history of mental health policy in the Western world, at the very least, is almost unbelievable, and, yet again, the dialectic model is plain.

Rethinking Equal Access: Agency, Quality, and Norms (Global Public Health, Vol. 2, No. 1 pp. 78-96, 2007)

Jennifer Prah Ruger (Yale -- Medicine)

Abstract:

In 2005 the Global Health Council convened healthcare providers, community organizers, policymakers and researchers at Health Systems: Putting Pieces Together to discuss health from a
systems perspective. Its report and others have established healthcare access and quality as two of the most important issues in health policy today. Still, there is little agreement about what equal access and quality mean for health system development.

At the philosophical level, few have sought to understand why differences in healthcare quality are morally so troubling. While there has been considerable work in medical ethics on equal
access, these efforts have neglected health agency (individuals' ability to work toward health goals they value) and health norms, both of which influence individuals' ability to be healthy. This paper argues for rethinking equal access in terms of an alternative ethical aim: to ensure the social conditions in which all individuals have the capability to be healthy. This perspective requires that we examine injustices not just by the level of healthcare resources, but by the: (1) quality of those
resources and their capacity to enable effective health functioning; (2) extent to which society supports health agency so that individuals can convert healthcare resources into health
functioning; and (3) nature of health norms, which affect individuals' efforts to achieve functioning.

I agree that few have engaged in a sustained philosophical analysis as to why health disparities are so morally troubling.  I've often heard the perspective that it is the needs of others that are morally compelling, and yet it doesn't seem to follow from the fact that persons have needs that others are morally obligated to fulfill them.  Other inferential steps are needed to draw this conclusion (and let me say that I wholly agree with the conclusion; my point is simply that more analysis is needed to flesh out the argument itself).

Dispatches from the Tort Wars: A Review Essay (Texas Law Review, Vol. 85, 2007)

Anthony J. Sebok (Brooklyn Law School)

Abstract:

It is difficult to avoid the conclusion that, as a political matter, the modern tort reform movement has been very successful. This essay reviews three books that either rebut the tort reform movement's central theses or analyze the strategies that allowed the movement to prevail. I discuss Tom Baker's The Medical Malpractice Myth, Herbert Kritzer's Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States, and William Haltom & Michael McCann's Distorting the Law: Politics, Media, and the Litigation Crisis. Although each book has a very different focus from the other two, I argue that a common theme which runs through all three books is that the tort reformers' success relies on promoting myths about how plaintiff's lawyers put their own interests above those of their clients and reject the political culture of individualism that forms the bedrock of American civil society. While I do not want to deny that there is a need for a rebuttal of this part of tort reformers' worldview, I argue that rebutting it has limited value to those who want to defend the current tort system. I argue that an exclusive focus on the myths that the tort reformers have told leaves unanswered other critiques of the current tort system which cannot be so easily dismissed. For example, the tort reformers, as well as others, have noted that the tort system dramatically expanded and changed in the 1960's and 1970's, and that this expansion was often based on academic and political arguments that celebrated the tort system's ability to perform certain functions beyond private redress for wrongs, such as cost-spreading or providing regulation in the face of legislative inaction. By failing to recognize these possible criticisms, the authors of the three books, I argue, leave the hardest battles for another day.

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I have pulled several more fascinating articles from SSRN, and hope to have them up sometime this weekend.  Topics include: medical futility, lethal injection, and consumer-directed health care.

Comments

[John]

Nice observation, thanks.