End-of-life decision-making, the principle of double effect, and the devil's choice: a response to Roger Magnusson

Recently, the principle of double effect has come under scrutiny by Magnusson who believes it provides a subterfuge for those who act so as to end the lives of their patients. Specifically, he argues that the conceptual distinction between foresight and intention is dubious and, moreover, renders patients vulnerable to involuntary euthanasia. At the same time, Magnusson wants to protect doctors from criminal liability when faced with (what he understands to be) a "devil's choice" between ending the life of a patient or under-treating pain. Hence, Magnusson proposes that, subject to specific conditions, a so-called "defence of necessity" be recognised through either common law doctrine or legislation. However, to safeguard this defence, he must rely on what he most wants to reject: a fundamental aspect of the principle of double effect.     

Contracts, Necessity and Ex Ante Optimality

In this paper I return to the issue of incentives to justify a narrowing of the applicability of a fair price rule to contracts of necessity. It is argued that such contracts should be viewed as part of a set of ex ante choices, one of which will minimize the costs of dealing with the risks associated with a period of temporary necessity. The Pareto optimality of a contract of necessity depends on whether the contract price would be seen by a potential victim of necessity as optimal ex ante, relative to her other choices with which to deal with the risk. It is shown that in the special case of a discrete choice set a fair price rule of law may not lead to efficient behavior on the part of both agents.     

UNDERSTANDING CRIME DISPLACEMENT: AN APPLICATION OF RATIONAL CHOICE THEORY

It has been claimed that the rational choice perspective, which sees criminal behavior as the outcome of decisions and choices made by the offender, can provide a useful framework for analyzing crime control policies. By developing the concept of "choice-structuring properties," which refers to the constellation of opportunities, costs, and benefits attaching to particular kinds of crime, this paper attempts to develop rational choice theory in order to improve analysis of crime displacement—a concept frequently invoked by the critics of opportunity-reducing measures of crime prevention.     

Social justice in the modern regulatory state: duress,necessity and the consensual model in law

This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a collective societal responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being.     

Rational Choice,Agency and Thoughtfully Reflective Decision Making: The Short and Long-Term Consequences of Making Good Choices

Notions of human agency are a prominent part of some but not all criminological theories. For example, McCarthy (Annu Rev Sociol 28:417–442, 2002) argues that rational choice theory, which allows persons great involvement in decision making, is more congenial with notions of human agency than others. It would appear from his argument that rational choice theory offers fertile ground to develop a clearly defined role for human agency in criminal behavior. In this paper we have taken up McCarthy’s view and argue that an important part of what is human agency consists of thoughtfully reflective decision making. We outline four elements of thoughtfully reflective decision making, and claim that it is a characteristic that varies both across persons and within persons over time. It is in short the process by which good decisions are made because by using this process one increases the likelihood that choices made will be consistent with preferences. We develop a clear operational definition of thoughtfully reflective decision making and link it to the concept of human agency. We also articulate testable hypotheses about the short-term and longer-term implications of thoughtfully reflective decision making. We conclude with a discussion of what we think lies ahead for future conceptual and empirical work.

A simulation for exploring the effects of the "trait list" method's subjectivity on consistency and accuracy of ancestry estimations

The nonmetric "trait list" methodology is widely used for estimating ancestry of skeletal remains. However, the effects of the method's embedded subjectivity on subsequent accuracy and consistency are largely unknown. We develop a mathematical simulation to test whether variation in the application of the "trait list" method alters the ancestry estimation for a given case. Our simulation explores how variations in (i) trait selection, (ii) number of traits employed, and (iii) ancestry choice thresholds affect the ancestry estimation of an unidentified skeleton. Using two temporally and geographically diverse samples, the simulation demonstrates that trait selection, trait quantity, threshold choices, and the exclusion of high-frequency traits had minimal effect on estimation of general ancestry. For all data sets and Runs, Accuracy(AS) was maintained above 90%. The authors close with a discussion on the logistical issues present when choosing traits, and how to avoid ancestry bias.     

Judges and Statutes: Essays on Agent Orange

Judges characteristically ignore or deny the choices they make when statutes surround or underlie a case. The statute based claims of veterans exposed to Agent Orange provide both an opportunity to unearth the questions that now determine outcome and to suggest what those questions should be. Asking the questions proposed, judges would determine the extent to which uncertainty and thus real choice cannot be reduced, evaluate the potential for interaction between court and legislature on the issue, and reach the underlying value choices that are unavoidably theirs and that determine outcome.     

The doctrine of informed consent: a tale of two cultures and two legal traditions

In this article, the author compares and contrasts the notion of informed consent in medical decision making in the Western legal system with the traditional Jewish biblical legal system. Walter critically examines the philosophical underpinnings of disease and medical healing in both legal systems, and describes the practical consequences that emanate from the different ideologies in terms of the individual's rights of choice of treatment. She explains that the Western system is predicated on notions of individual autonomy and self determination. Patients therefore have the autonomous ability to select and direct their own medical therapy. By contrast, the traditional biblical system of law is based on the concept that the body does not belong to the individual. Instead, the body is given to man by God as a trust to respect and preserve. Therefore, the individual patients "has no absolute right to control his body and ... he has no real decision making power as to medical treatment choices." In the Jewish biblical tradition, consent is not necessary for obviously beneficial or obviously non-beneficial procedures; consent is only necessary in decisions with uncertain outcomes or when making choices between equal options. Patients are encouraged to seek the counsel of religious authorities and to conform to rabbinical interpretations of the traditional Jewish law.     

Modeling Micro-Level Crime Location Choice: Application of the Discrete Choice Framework to Crime at Places

Discrete choice recently emerged as a new framework for analyzing criminal location decisions, but has thus far only been used to study the choice amongst large areas like census tracts. Because offenders also make target selection decisions at much lower levels of spatial aggregation, the present study analyzes the location choices of offenders at detailed spatial resolutions: the average unit of analysis is an area of only 18 residential units and 40 residents. This article reviews the discrete choice and spatial choice literature, justifies the use of geographic units this small, and argues that because small spatial units depend strongly on their environment, models are needed that take into account spatial interdependence. To illustrate these points, burglary location choice data from the Netherlands are analyzed with discrete choice models, including the spatial competition model.     

Reproductive choices and informed consent: fetal interests, women's identity, and relational autonomy

In this Article, I describe and examine the severe shortcomings in women's autonomy in the context of reproductive choices in the medical arena. The reproductive choices I explore are those choices that involve gestation: abortion, fertility treatments, and interventions during pregnancy. Due to state and medical interests in the fetus, I describe how information conveyed to patients making reproductive choices is biased towards fetal interests, relies on female stereotypes, and is still conveyed with the objective authority of the medical profession. Moreover, reproductive choices implicate women's values and identity interests that reach beyond medical concerns, which are not part of the informed consent doctrine at all. The narrow, individualistic informed consent torts doctrine intended to protect patient autonomy does not do enough in this context to balance bias nor does it mandate discussion of important identity interests and values. Accordingly, I argue that when faced with reproductive choices, women are not provided the balanced and comprehensive information needed to promote their autonomy. In response to the breakdown in patient autonomy I describe, instead of leaving women alone to make choices or regulating in order to protect them from their choices, a broader framework for supporting reproductive choices should be established. In light of the interdependence of woman and fetus, as well as the broader social context shaping these decisions, I argue that a more contextual, relational perspective of autonomy should be the goal of informed consent in the context of reproductive choices. I suggest a number of reforms that aim to optimize patient autonomy from a relational perspective. I suggest a broad, deliberative doctor-patient consultation and legal reforms that create more balance between the pull towards intervention and fetal protection on the one hand, and non-intervention and protection of women's personal identity interests on the other.     

Interpretation,confidence and application of the standardised terms: Identified,Probable, Possible,Exclude and Insufficient in forensic odontology identification

Forensic odontology identification scales are used to express certainty of identifications of deceased persons. These standardized scales are assumed to convey unambiguous expert opinions and facilitate communication between forensic odontologists and end users. However, to date no studies have investigated how the experts interpret and use these scales.Forensic odontology identification scales are used to express certainty of identifications of deceased persons. These standardized scales are assumed to convey unambiguous expert opinions and facilitate communication between forensic odontologists and end users. However, to date no studies have investigated how the experts interpret and use these scales.This paper aims to examine the interpretation of the DVISYS forensic identification scale and choices of the levels in the scale subsequent to, and derived from, comparison of pairs of dental radiographs by extending the analysis of the data collected in the study by Page and Lain et. al. 2017.The studied variables: self-reported confidence, forced binary decision of match and non-match, choice of level in the DVISYS scale (Identified, Probable, Possible, Insufficient and Exclude) were further analysed in this study using mixed models for relationships between the choices of level in the identification scale and the fundamental beliefs of likelihood of identification.The results of this further analysis showed that the reported confidence of the decisions was correlated to the difficulty of cases, and as confidence decreased the use of less definitive terms (‘Probable’, ‘Possible’ and ‘Insufficient’) increased. ‘Probable’ and ‘Possible’ were used mainly in underlying beliefs below that of ‘Identified’ whereas ‘Insufficient’ was used mainly to convey a sublevel of ‘Exclude’. The use of ‘Insufficient’ in this study was not consistent with the prescribed definition of the term.The participants of the original study were not aware of the difficulty grading of the cases nor were required to grade them, however the reported confidence was systematically correlated to difficulty. Furthermore, indicated confidence level was correlated with choice of level on the scale in general, but the interpretation of the definition and application of the terms varied.The findings reported here contribute to the foundational knowledge of factors governing the interpretation and application of the DVISYS forensic odontology identification scale and suggest that this scale may need to be modified.     

In the laboratory of the states: the progress of Glucksberg's invitation to states to address end-of-life choice

It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation that would allow terminally ill individuals the choices they had previously sought through litigation. Oregon's experience with its Death with Dignity Act, which grants terminally ill, mentally competent individuals the choice to end their lives through self-administered medication, has proven that such laws provide comfort not only to those who, faced with the prospect of a horrible death from a terminal illness, choose to end their lives in a peaceful and dignified manner, but also to those to ultimately choose not to. Additionally, Oregon's experience shows that the fears that originally attended the "assisted suicide" debate are unfounded so long as proper procedures are in place. Because Oregon's Death with Dignity Act has proven both useful and harmless, this Article concludes that it is time for other states to follow Oregon's lead and enact their own legislation to allow their citizens an alternative to what otherwise could be a prolonged and painful death from terminal illness.     

Strain, Coping, and Socioeconomic Status: Coping Histories and Present Choices

Objectives

Using household survey data from three major cities in foreign countries, we add to research concerning General Strain Theory (GST) by focusing on aspects that have been ignored or under-researched. First, we address questions concerning SES variations in the operation of the processes of GST, with particular focus on whether various relationships specified by the theory are more likely in the lower SES group. Second, we explore the extent to which prior coping strategies influence subsequent coping choices. Finally, we seek to determine the links between SES, coping histories, and subsequent coping choices.

Methods

The study analyzes the effects of past and contemporaneous strain/negative emotions and prior coping efforts on various coping strategies across three SES groupings using negative binomial, ordered logit, and OLS regression.

Results

We find that, with some variations, the basic processes of GST are operative across all SES categories. However, whereas strain appears to have a moderate association with alcohol-related and criminal coping strategies, avoidant coping appears to be largely irrelevant for anybody who faces strain. Our data also demonstrate that specific forms of prior coping partially influence the types of coping employed later. But, with few exceptions, these effects are not more pronounced among those of lower SES.

Conclusion

In sum, our findings suggest that individuals in various SES groupings may prefer certain types of coping, whereas different types of attempted coping may predispose individuals to specific forms of subsequent adaptation.     

Retracing One’s Steps: Searching for the Ethics of Legal Interpretation

The article discusses the problem of interpretation in law. Are there some criteria by which we can distinguish a good interpretation from a bad one, interpretation from over-interpretation? It is argued in this article that there is always a choice in defining the meaning of a text and this choice can be seen as an ethical one. This article thus studies the question of limits of interpretation by focusing on the ethical elements of interpretation. It is argued here that legal interpretation contains a requirement of justice that shapes the responsibility that the interpreter carries for his choices of meaning. Therefore the ethical elements of interpretation are especially pressing in the interpretation of legal texts.     

Herd behavior in designer genes

The ability of individuals to choose their children's genes has increased over time and may ultimately culminate in a world involving free market reprogenetic technologies. Reprogenetic technologies combine advances in reproductive biology and genetics to provide humans increased control over their children's genes. This Article offers economic perspectives that are helpful in understanding the possibly unexpected ethical, legal, and social issues at stake in using reprogenetic technologies for trait enhancement selection. The Appendix analyzes two competitive games that might arise in such a biotechnological society. Specifically, the Article focuses on herd behavior, caused by either a popularity contest or positional competition, in the choice of genetic traits. The analytical game-theoretic models in the Appendix can have several equilibrium outcomes in terms of individual reprogenetic technological choices and corresponding beliefs about such choices by others. This multiplicity of potential social outcomes suggests that a society can attain efficiency if the state or some private organization transforms individual parents' beliefs over the choices of other parents regarding their children's traits and, thus, coordinates parental reprogenetic decisions by selecting, as focal, certain beliefs over parents' reprogenetic decisions.     

A democratic responsiveness approach to real reform: an exploration of health care systems' resilience

Real reforms attempt to change how health care is financed and how it is rationed. Three main explanations have been offered to explain why such reforms are so difficult: institutional gridlock, path dependency, and societal preferences. The latter posits that choices made regarding the health care system in a given country reflect the broader societal set of values in that country and that as a result public resistance to real reform may more accurately reflect citizens' personal convictions, self-interest, or even active social choices. "Conscientious objectors" may do more to derail reform than previously recognized.     

After the Velvet Revolutions: Altered Life-Chances, Fragile Legitimacy, and Split-Consciousness in Post-Communist Eastern Europe

This article deals with (i) changes in the objective and subjective life-chances of people in Eastern Europe as affected by the transformation of their economic and political systems, and (ii) the emergence of a new dominant meritocratic ideology of distributive justice and the survival of a now old subordinate egalitarian one. We investigate whether, and if so, how and to what degree, changes in people's (perceived) life-chances influence their (de)legitimation of the market economy and the pluralistic system of democracy as well as their (de/re)legitimation of the ancien regime. Especially, the question of whether, and if so, how and under which conditions, a phenomenon that has been called split-consciousness will occur with respect to people's choices between those opposing systems is answered. Several hypotheses are presented that deal with the above mentioned topics. The hypotheses are tested empirically by using cross-national data stemming from the International Social Justice Project.     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

Egocentric Perceptions of Relationships,Competence, and Trustworthiness in Salary Allocation Choices

This paper presents three experiments that investigate the effects of interpersonal perceptions on simulated monetary and salary allocations. Experiment 1 examined the effects of relationships on choices between interdependent monetary distributions for a sample of students. Experiment 2 examined the effects of relationships and competence on choices between interdependent salary allocations and on discretionary salary allocations in scenarios presented to a sample of working managers. Experiment 3 used a novel measurement of the social motives revealed by interdependent salary allocations and added a manipulation of trustworthiness for a sample of experienced MBA students. Egocentrism and judgments of incompetence or untrustworthiness had strong effects on participants' choices. Allocations also increased for liked others, even though allocators denied any effects for liking.     

BITING ONCE,TWICE: THE INFLUENCE OF PRIOR ON SUBSEQUENT CRIME LOCATION CHOICE

Properties, victims, and locations previously targeted by offenders have an increased risk of being targeted again within a short time period. It has been suggested that often the same offenders are involved in these repeated events and, thus, that offenders’ prior crime location choices influence their subsequent crime location choices. This article examines repeated crime location choices, testing the hypothesis that offenders are more likely to commit a crime in an area they previously targeted than in areas they did not target before. Unique data from four different data sources are used to study the crime location choices of 3,666 offenders who committed 12,639 offenses. The results indicate that prior crime locations strongly influence subsequent crime location choices. The effects of prior crime locations are larger if the crimes are frequent, if they are recent, if they are nearby, and if they are the same type of crime.