Depression, responsibility, and criminal defenses

The concepts of voluntary action, agency, free will, and responsibility, while central to moral and legal institutions, are generally poorly understood. Philosophers of law such as H.L.A. Hart, Joel Feinberg, and Robert F. Schopp have contributed significantly to understanding of these concepts through their work on the foundations of criminal defenses, including excuses based on mental illness. In this paper, I summarize and present their valuable insights, in the context of an argument (influenced by personal experience) that clinical depression, even when non-psychotic, may in some cases constitute a legitimate excuse for criminal or otherwise immoral failures to act.     

Character,purpose, and criminal responsibility

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and the Humean approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment.     

Environmental risks,the judgment-proof problem and financial responsibility

This paper examines a setting in which a firm is liable to pay environmental damages caused by its activity but may not have sufficient wealth for repair of damages. In order to induce the full internalization of the environmental cost, the firm is required to demonstrate a financial guarantee from a solvent party that covers this cost. Since the firm and the guarantor are joint liable for the harm caused by the firm, it is in the interest of the guarantor to design the guarantee contract in order to induce the firm to take an adequate level of prevention. First, I show that financial responsibility regime may achieve the social optimum. Secondly, I identify a particular form of contract in the set of contracts which induce the socially optimal level of prevention. This contract is closed to an alternative risk transfer product referred to as the spread loss treaty.     

Pitfalls in diagnosis of occupational lung disease for purposes of compensation--one physician's perspective

Occupational caused lung disease (OLD) is almost always compensable, either by application to workers' compensation agencies or by a civil lawsuit. For this reason the diagnosis usually comes under close scrutiny. Several pitfalls can occur when a physician diagnoses a patient as having lung disease of occupational origin, especially when compensation is at issue. These pitfalls can trap both the attorney advocate and his client, and lead to a result opposite of that intended (e.g., the claim one supports can be denied). For purposes of discussion I have categorized the pitfalls as follows: A. Making an unsupported medical diagnosis (looking for a "quick fix"). B. Echoing an unsupported diagnosis made by someone else. C. Inadequate clarification of 'impairment' and 'disability.' D. Ignoring or minimizing relevant medical history. E. Arguing against yourself. F. Ignoring the possibility of a rare or unusual diagnosis. G. Not obtaining or reviewing independent chest x-rays and reports. H. Attributing causation with certainty when it is unwarranted by the facts. I. Relying on a claimant's own smoking history. J. Misinterpreting pulmonary function and arterial blood gas tests. K. Missing the real cause of a patient's complaint. L. Diagnosing occupational lung disease without attempting to remove the patient from the cause. M. Confusion over basic terminology and pathophysiology in OLD. N. Using sloppy or incorrect language, including misspelling. O. Not saying "I don't know," when you don't know. Pitfalls in diagnosis generally arise from either physician bias or inadequate evaluation. Although most pitfalls seem to be made by physicians on the plaintiff's side, they are also made by physicians on the defendant's side, as when bias interferes with recognizing a condition that is occupational in origin. Ideally, the fact that diagnosis of OLD involves the legal profession should not affect a physician's objectivity or clinical approach. Physicians have an obligation to help assure that deserving patients receive compensation, and that claimants without a compensable occupational illness are not unjustly rewarded. However, the attorney's need to prove a diagnosis "with medical certainty," and the defendant's need to refute that diagnosis with equal certainty, often skew what would otherwise be a straightforward diagnostic process. Resulting pitfalls in diagnosis can, in the end, trap the physician advocate and the side he is trying to help.