Yesterday's war; tomorrow's technology: peer commentary on ‘Ethical,legal, social and policy issues in the use of genomic technologies by the US military’

A recent article by Maxwell J. Mehlman and Tracy Yeheng Li, in the Journal of Law and the Biosciences, sought to examine the ethical, legal, social, and policy issues associated with the use of genetic screening and germ-line therapies (‘genomic technologies’) by the US Military. In this commentary, we will elaborate several related matters: the relationship between genetic and non-genetic screening methods, the history of selection processes and force strength, and the consequences and ethics of, as Mehlman and Li suggest, engineering enhanced soldiers. We contend, first, that the strengths of genomic testing as a method of determining enrollment in the armed forces has limited appeal, given the state of current selection methods in the US armed forces. Second, that the vagaries of genetic selection, much like other forms of selection that do not bear causally or reliably on soldier performance (such as race, gender, and sexuality), pose a systematic threat to force strength by limiting the (valuable) diversity of combat units. Third, that the idea of enhancing warfighters through germ-line interventions poses serious ethical issues in terms of the control and ownership of ‘enhancements’ when members separate from service.     

Proportionality, Territorial Occupation, and Enabled Terrorism

Some collateral harms affecting enemy civilians during a war are agentially mediated – for example, the US-led invasion of Iraq in 2003 sparked an insurgency which killed thousands of Iraqi civilians. I call these ‘collaterally enabled harms.’ Intuitively, we ought to discount the weight that these harms receive in the ‘costs’ column of our ad bellum proportionality calculation. But I argue that an occupying military force with de facto political authority has a special obligation to provide minimal protection to the civilian population. As a result, when an occupying military force collaterally enables a harm affecting the civilian population, the weight that the harm ought to receive in the ad bellum proportionality calculation is unaffected by the fact that the harm is agentially mediated – it ought to be weighed at least as heavily as those harms that the occupying force collaterally commits directly. As a result, satisfying the ad bellum proportionality constraint in wars of territorial occupation is more difficult than it has been thought.     

Rorschach Tests,Pluralism, and Hopes for the Future: A Response to the Responses

In this essay, I address some of the concerns raised by contributors to the Symposium on Invitation to Law & Society: An Introduction to the Study of Real Law. I argue that law and society scholarship focusing on race increasingly offers some of our field's best empirical analyses of the interpenetration of law and society; I emphasize the importance of the methodological and theoretical diversity that characterizes our fragmented field, arguing that our pluralism is one of our greatest strengths; I clarify my intended meaning of the term “real law” as I use it in the book's subtitle, as a way to underscore the socially constituted quality of all law; I attempt to rescue the reputation of dialectics from charges of “relativism”; and I reiterate my appreciation for our field's engagement with questions of social justice that has characterized it since its inception. In the second half of the essay, I briefly describe my current prison research and offer some thoughts for the future of our field.     

Egg freezing,stratified reproduction and the logic of not

This commentary examines social and political implications of social egg freezing in a market that is stratified, globalized, and part of a larger bioeconomy. John Robertson''s article and public discourse prompted by Facebook and Apple''s ‘corporate egg freezing’ benefits provide touchstones for interrogating social and industry practices that embrace making reproductive capacity marketable. Supply of the cells and bodies necessary for assisted reproductive technology use depends on market thinking and structural inequality. What the industry produces are carefully calibrated social-political distances between participants in egg freezing and banking, as well as ‘third party reproduction.’     

Trust,vulnerable populations,and genetic data sharing

Recent policies and proposed regulations, including the Notice of Proposed Rulemaking for the Common Rule and the 2014 NIH Genetic Data Sharing Policy, seek to improve research subject protections. Protections for subjects whose genetic data is shared are critical to reduce risks such as loss of confidentiality, stigma, and discrimination. In the article ‘It depends whose data are being shared: considerations for genomic data sharing policies’, Robinson et al. provide a response to our article, ‘The Growth and Gaps of Genetic Data Sharing Policies’. Robinson et al. highlight the importance of individual and group preferences. In this article, we extend the conversation on models for improving protections which will mitigate consequences for individuals and groups that are vulnerable to stigma and discrimination.     

Prisons,Proportionality and Recent Penal History

A leading aim of the Criminal Justice Act 1991 was to install the principle of proportionality as the primary rationale for sentencing and to bring about a reduction in the use of imprisonment.  In the decade that followed the prison population in England and Wales rose steeply.  This article examines the reasons for the rising use of prison, in order to assess whether proportionality (or ‘just deserts’) was tried and failed.  It argues that in practice the proportionality principle was overwhelmed by other influences, and that deterrence and incapacitation were the main drivers of the increasing use of imprisonment.  The article goes on to argue that proportionality theories have within them the resources to produce penal moderation, notably the ‘drowning out’ argument, the human rights argument, and decrementalism.  The article concludes by rejecting the claim that proportionality theories are likely in practice to result in escalating punishment.     

Facts,Preferences, and Doctrine: An Empirical Analysis of Proportionality Judgment

Legal proportionality is one of the most important principles for adjudicating among conflicting values. However, rather little is known about the factors that play a role in the formation of proportionality judgments. This research presents the first empirical analysis in this regard, relying on a sample of 331 legal experts (lawyers and legal academics). The policy domain addressed by the experiment is the antiterrorist military practice of targeted killings, which has been the subject of a legal debate. Our experimental findings suggest that proportionality judgments are receptive to normatively relevant facts. We also find strong correlational evidence for the effect of ideological preferences on such judgments. These results are consistent for two proportionality doctrines. We suggest that proportionality judgment is anchored jointly in the experts’ policy preferences and the facts of the case. We outline the implications of the findings for the psychological and legal literature.     

The federalism dimension of proportionality

EU Treaties contain an arsenal of purpose-defined and ambiguous competences that are enjoyed by EU institutions, yet devote little attention to the restraining impact of EU competences on Member States' autonomy and policies. While the focus has traditionally been on subsidiarity to deal with competence issues, the judgment of the Bundesverfassungsgericht in Weiss revitalises the discussion on the potential of proportionality to guide competence issues. This inquiry seeks to highlight both the existing traces of competence proportionality employed by the Court to allocate competences as well as the potential of the proportionality standard to temper the spillovers on Member States' autonomy accruing from the exercise of EU competences. While the Treaty restricts proportionality to reviewing the use (not existence) of EU competences, the Court has implicitly employed proportionality considerations to verify the existence of EU competences. In addition, drawing from established case law, competence proportionality assessments could rely on an effect-based substantive review in combination with procedural duties allowing a meaningful balancing of national autonomy against the dynamics of deeper integration.     

Military government, political control and crime: The case of Israeli Arabs

This paper deals with the different methods used to control the Israeli Arab population during the military government (1948–1966). I have sought to expand the standard conceptual framework that serves most criminologists in Israel, and discuss the broader context in which the political control of the Arab population took place. It is vital to consider this context because a significant amount of criminality among the Arab population was an outcome of the political control imposed upon it. The principal goal of the analysis is to clarify the ways in which the political control influenced the criminal process, and to point out to the theoretical and empirical importance of the links between politics and crime, when discussing crime amongst the Arab minority in Israel.     

Proportionality and Self-Defense

Proportionality is widely accepted as a necessary condition of justified self-defense. What gives rise to this particular condition and what role it plays in the justification of self-defense seldom receive focused critical attention. In this paper I address the standard of proportionality applicable to personal self-defense and the role that proportionality plays in justifying the use of harmful force in self-defense. I argue against an equivalent harm view of proportionality in self-defense, and in favor of a standard of proportionality in self-defense that requires comparable seriousness and takes into account the wrong, as opposed simply to the harm that the victim is fending off. I distinguish the standard of proportionality in self-defense from proportionality in circumstances of necessity, and I discuss whether proportionality is an internal or an external constraint on the right of self-defense.     

Introduction: Structure or strategy? Essays on family, demography, and labor from the Dutch N.W. Posthumus Institute

The concept of ‘family strategies’ has yielded much valuable research when used in the classic ‘quantitative’ and ‘anthropological’ approaches to the history of family life. Its continued use as a research concept requires, however, that significantly more attention be paid to the relationships between families as social units and their individual members, to the great variety of families and households, and to the different motives that guided families in charging strategies. These questions are brought to the forefront when the history of the family is investigated cross-culturally and comparatively, as the articles of this Special Issue, written by researchers of the Dutch N. W. Posthumus Institute, seek to do.     

Restorative Justice,Consistency and Proportionality: Examining the Trade-off

Abstract

Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants.

Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim satisfaction. However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made.     

Varieties of vigilantism: conceptual discord,meaning and strategies

The practice of vigilantism raises a number of broader provocative questions regarding state–society relations. But before pursuing these questions, we must first ask a critical conceptual question: what is vigilantism? In this article, I offer a conceptual analysis of vigilantism to identify and analyse the points of conceptual discord that make vigilantism an essentially contested concept. To address these challenges, I establish the concept’s core definitional dimensions and range of attributes. I then develop a root concept of vigilantism as the collective use or threat of extra-legal violence in response to an alleged criminal act. The root concept better positions researchers to effectively utilise different strategies to amend the concept for varying theoretical and empirical ends, avoid analytical pitfalls that beset existing conceptualisations and pursue promising new research questions.     

It depends whose data are being shared: considerations for genomic data sharing policies

There is an urgent need for consistent data sharing policies that promote the advancement of science while respecting the values and interests of those providing their genetic data for research. Responding to the article of Jalayne J. Arias, Genevieve Pham-Kanter, and Eric G. Campbell, ‘The Growth and Gaps of Genetic Data Sharing Policies in the United States’, this commentary further explores the challenges of human subjects’ protection in existing data sharing policies. We will elaborate on the need for data sharing policies to accommodate variation in individual and group preferences around data sharing and privacy concerns by comparing our previously published data on patients’ and parents’ consent to data sharing and attitudes about privacy to data from focus groups with HIV-positive, underserved individuals who were asked about their willingness to participate in genetic research and share their data broadly. These studies support the observation of Arias, Pham-Kanter, and Campbell that researchers, and funding agencies will need to balance the privacy interests of groups as well as individuals in future genomic data sharing policies.     

Anxiety,alcohol use,and aggression: Untangling the causal pathways

Given the enormous social and economic costs of alcohol‐related violence, understanding the causal processes that give rise to the relationship between alcohol and violence is of paramount importance. McMurran provides a valuable contribution to this literature by offering a conceptually coherent, empirically grounded, and plausible model of the relationship between anxiety, alcohol intoxication, and aggression ( McMurran, 2011 , pp. 357–371). In this commentary, I first look more narrowly at the proposed causal relationships that link anxiety problems with aggression via alcohol use, suggesting that although they are largely consistent with McMurran's thesis there may be scope to build yet more complexity into the model. In the second part of the commentary, I consider the nature of both anxiety and aggression within the broader framework of our evolutionary history and argue that considering the adaptive functions of anxiety and aggression may contribute to our understanding of the proposed links with alcohol use. In particular, I highlight the potential value of disaggregating the links between anxiety, alcohol use, and aggression by gender, and type of violence.     

When Trumps Clash: Dworkin and the Doctrine of Proportionality

If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper argues that each of these views is mistaken. On the one hand, Dworkin's rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously.     

Class and crime in war-time: Lessons of the American Vietnam war resistance in Canada

Class circumstances follow from as well as causally precede crime, and therelationship between class and crime is highly contingent. This tangled webof causation makes it challenging to meaningfully study links between classand crime. I propose that this tangled causal web can be better understoodif we direct more research to distinctive class settings in which particularkinds of crime occur. This implies directing more research attention to nonrepresentative samples that derive from nonrepresentativesettings, with the goal of increasing our leverage over theoreticallycontingent, class-connected contextual variables. This unconventionalresearch agenda is illustrated through an analysis of the lives of Americanswho resisted the draft and military service in Vietnam by ``dodging' and``deserting' military service and migrating to Canada, a new setting wherethese selective service and military ``criminals' were transformed by theiradopted nation's immigration policy into ``New Canadians' and unexpectedsymbols of Canadian sovereignty.     

The mouse that trolled: the long and tortuous history of a gene mutation patent that became an expensive impediment to Alzheimer's research

This case study presents the tale of the academic discovery of a rare mutation for early-onset Alzheimer''s disease that was patented by a sole inventor and licensed to a non-practicing entity (NPE), the Alzheimer''s Institute of America (AIA). Our aims are (1) to relate this story about patents, research tools, and impediments to medical progress, and (2) to inform ongoing debates about how patents affect research, disposition of university inventions, and the distribution of benefits from publicly funded research. We present an account of the hunt for Alzheimer''s genes, their patenting, assignment, and enforcement based on literature, litigation records and judicial decisions. While AIA''s litigation eventually failed, its suits against 18 defendants, including one university, one foundation, and three non-profit organizations were costly in court years, legal fees, and expert time. Reasons for the failure included non-disclosure of co-inventors, State laws on ownership and assignment of university inventions, and enablement. We discuss the policy implications of the litigation, questioning the value of patents in the research ecosystem and the role of NPEs (“patent trolls”) in biotechnological innovation. The case illustrates tactics that may be deployed against NPEs, including, avenues to invalidate patent claims, Authorization and Consent, legislative reforms specifically targeting NPEs, reforms in the America Invents Act, and judicial action and rules for judicial proceedings. In the highly competitive research environment of Alzheimer''s genetics in the 1990s, patents played a minor, subordinate role in spurring innovation. The case produces a mixed message about the patent system. It illustrates many mistakes in how patents were obtained, administered, and enforced, but, eventually, the legal system rectified these mistakes, albeit slowly, laboriously, and at great cost.