Monday, July 30, 2007

Preparing for Our Enhanced Future

My paper "Preparing For Our Enhanced Future" is now available in the latest issue of the Journal of Medical Licensure and Discipline (published by the Federation of State Medical Boards of the United States). A subscription is needed to access it.

Here is the abstract:

Rapid advances in human genetics raise the prospect that one day we may be able to develop genetic enhancements to promote a diverse range of phenotypes (e.g., health, intelligence and behavior, etc.). Perhaps the biggest challenge that genetic enhancements pose for medical practitioners is that they will compel us to re-think a good deal of the conventional wisdom of the status quo. Radical enhancements are likely to have this effect for a variety of reasons. First, the status quo is premised (at least in large part) on a sharp distinction between treatment and enhancement; a distinction that at least some genetic enhancements will call into question. Second, the prospect of radical enhancements requires us to keep an open mind concerning how we conceive of the harm of non-intervention (i.e., the harm of the status quo). Third, some enhancements might compromise the preservation of personal identity. All of these issues may have important consequences for state medical boards, ranging from the way we view the aspiration to prevent harm and ensure reasonable standards of care, to malpractice, continuing competency and medical specialization.


Saturday, July 21, 2007

Main Menu (July 2007)

Friday, July 20, 2007

Possible Expansion of the Children’s Health Insurance Program

This piece in the NY Times reports the encouraging news that the US Senate Finance Committee has approved a major expansion of the Children’s Health Insurance Program. Here is a sample:

Defying a veto threat from President Bush, the Senate Finance Committee approved a major expansion of the Children’s Health Insurance Program on Thursday, with a majority of Republicans joining all Democrats on the panel in supporting the legislation.

The vote, 17 to 4, sends the measure to the full Senate, which is expected to take it up within two weeks

Mr. Bush has repeatedly denounced the bill as a step toward “government-run health care for every American,” describing it as a “massive expansion of the federal role” in health care, financed by “a huge tax increase.”

....The bill calls for a total of $60 billion in spending over the next five years, which is $35 billion more than it would cost to continue spending at current levels. In the House, Democratic leaders are developing a proposal calling for a total of $75 billion. By contrast, President Bush has proposed a $5 billion increase, for a total of $30 billion.

....To finance expansion of the program, the Senate bill would increase tobacco taxes. The federal excise tax on cigarettes would rise to $1 a pack, from 39 cents.

The bill would also roll back waivers granted by the Bush administration that have allowed some states to cover childless adults with money from the program.


Thursday, July 19, 2007

What Justice Requires, “Many-things-Considered”

Theories of distributive justice seek to help enlighten us concerning what constitutes a fair distribution of different things (e.g. rights and freedoms, income, opportunities for education, healthcare, welfare, etc.). What, for example, would constitute a fair distribution of wealth and income among compatriots (or generations, or nations, etc.)? Or how should society distribute scarce medical provisions to those in need of medical treatment? Some theories of justice champion a principle of equality, others principles of liberty, sufficiency, priority, democracy, utility, etc.

A theory of distributive justice can help us diagnose the ills of our own societies and help inspire sage prescriptions for transforming the status quo into something that is more humane and fair. So I believe political philosophers have an important role to play in terms of helping us grapple with the difficult and complex issue of how we ought, collectively, to live together. Yet having said that, I think philosophers also need to exercise some humility when deliberating about what justice requires. Unfortunately the contemporary focus on deriving what *the* principles of justice are has lead many a philosopher astray as most attention is given to fine-tuning one’s analytic skills rather than being attuned to the empirical realities of real societies. I have posted a few blogs on these themes before, and this forthcoming book expresses my general concerns with ideal theory and the principled paradigm. But today I wish to raise a different, though related, issue.

Our attention to the demands of justice can be developed at many different levels of abstraction. Here is a simplistic typology of the different levels of analysis one could be concerned with:

(1) what the demands of justice are, “all-things-considered”
(2) what the demands of justice are, “many-things-considered”
(3) what the demands of justice are, “some-things-considered”
(4) what the demands of justice are ,“when only abstract concepts (e.g. equality) are considered” (or, what justice requires when justice is construed purely as an abstract ideal or Platonic form).

I believe that something like this typology is very useful and can help political philosophers and theorists explain a lot of what is going on between proponents of different theoretical traditions. Egalitarians believe that others (like libertarians) ignore the harmful effects of the free market (e.g. the vulnerability of the worst off, inequality, etc.). Libertarians believe that egalitarians ignore the importance of side constraints or the inefficiency of the planned economy, etc. Feminists believe liberals ignore the realities of patriarchy. Multiculturalists believe that liberals ignore the fact of cultural inequality. And finally deliberative democrats believe justice-theorists ignore the limitations of their own armchair theorizing and the importance of democratic practices and institutions, disagreement, etc. One could go on and on, revealing how some theories are attuned to different kinds of concerns and ignore (or bracket) others.

These various considerations have lead me to be much more a pluralist than I once was. Certain values have an important role to play in certain contexts but not others, and figuring out when they have a role to play is the real important challenge. So for me the real action takes place in (2) (with (1) being a kind of ideal that we strive for but never reach), rather than in (3) or (4).

The most influential example of (3) is John Rawls’s theory of “justice as fairness”. Rawls takes some important considerations (e.g. moderate scarcity, pluralism, impartiality, etc.) seriously but he also invokes a number of idealizing assumptions that impoverish his theory (e.g. full compliance, society is closed and full of normal functioning people). And these idealized assumptions really skew and impair the prescriptions of Rawlsian justice.

Those partial to (4) might argue that I am confusing two different things- principles of justice and principles of regulation. This of course raises important questions concerning what kind of principles the principles of justice are (e.g. do they serve as a guide for human action). And this adds a further layer of debate to these issues. For me, there is no substantive difference between principles of justice and principles of regulation (though not every principle of justice need be a principle to regulate an institution). The principles of justice are those principles that dictate how a just society is to be regulated. That is why I think the important action takes place closer to (1) and (2) rather than (3) or (4).

The ideal/non-ideal theory debate, which is beginning to gain real momentum, will hopefully lead to a more serious debate about which kinds of considerations should be incorporated into (2). Which considerations- of the many, many considerations that arise- should a normative theorist take seriously? (and which should we ignore, etc.) Asking, and attempting to answer, that question will result (hopefully!) in us taking a “big picture” perspective on these issues. And that could really transform our moral sensibilities in important ways. It could open our eyes to new concerns we tended to ignore (e.g. the limitations of government, dangers of group polarization, etc.) or it could help us realize that certain convictions or beliefs are no longer tenable, etc.

I believe the best consequence that will likely result of our taking this big picture perspective is that it is more likely to lead us to taking a *proportionate* response to the different demands of justice that arise in real, non-ideal societies. To ensure our response to any particular demand of justice (X) is fair and proportionate we must appreciate not only the moral stakes at risk in pursuing X (e.g. equality, liberty, sufficiency, etc.), but also the costs, risks and tradeoffs involved with aggressively pursuing X rather than other laudable aims (e.g. Y and Z).

I think further benefits will be reaped by taking “justice-many-things-considered” (rather than (3) or (4)) seriously. It should make normative theorists realize how limited their armchair theorizing is. Defensible normative theories must take empirical considerations seriously and strive for something more meaningful than winning an abstract “first-best conceptualism” debate. A serious debate about which constraints or considerations we should take seriously will necessitate interdisciplinary dialogue and research, and this should help philosophers become more aware of the contentious assumptions they make (but do not have to defend) when they only engage in debate and dialogue amongst themselves. Furthermore, taking these various constraints seriously will make us realize that the demands of justice are provisional (both morally and politically provisional).

I will finish this post by re-stating some comments I made before:

…the most difficult decisions we face in life, both as individuals and collectively as a society, are typically decisions we don’t have to answer, once and for all, at one particular moment in time. They are questions we continue to revisit, time and time again (e.g. healthcare reform, the environment, the economy, balancing work and family, etc.). As time goes on the circumstances change, new information comes to light, our moral sensibilities evolve. How we respond to these changing circumstances is really the measure of our moral integrity, rather than appeals to consequentialism or deontology.

We view the moral agent as one who learns from experience, who exercises the appropriate amount of humility, who is willing to defer judgment when faced with tough decisions they are not well positioned to answer, who is willing to consult with others, and who is open-minded. This is all lost if we say— “the right decision is that which promotes the best consequences or moral principles”. Such a vision of ethics is worrisome for a variety of reasons. One concern is that it can delude us into thinking that we can be self-sufficient at living a moral life. That all we need to do, if we want to make the right decision, is get the information about the consequences right, or properly deduce what the principles from some hypothetical original position are.

I look forward to having many substantial debates on what should and should not be included in an account of what justice requires, “many-things-considered”. Such an account of justice is one that will accommodate our democratic commitments (which I believe is imperative). For our democratic institutions and practices are essential for ensuing that we keep an open mind concerning what should be included in a determination of what justice demands, “many-things-considered”.


Update: As I was finishing this post I happened to come across this excellent post by Jim Johnson. On that post he cites the following insightful passage from Sheldon Wolin:

"Theorists have given us pictures of political life in miniature, pictures in which what is extraneous to the theorist's purpose has been deleted. The necessity for doing this lies in the fact that political theorists, like the rest of mankind, are prevented from "seeing" all political things at first hand. The impossibility of direct observation compels the theorist to epitomize a society by abstracting certain phenomena and providing interconnections where none can be seen. Imagination is the theorist's means for understanding a world he can never "know" in an intimate way."

Wolin’s passage captures nicely some of the concerns I have expressed here. The theorist has to employ some abstraction to help provide us with a “bird’s eye view” of the moral/political landscape. That is why I believe the notion of justice, “all-things-considered”, is unattainable (though perhaps it is an ideal we strive for).

The key issue then becomes- what can a theorist justifiably delete from the picture? Human nature? History? Scarcity? etc. If the abstraction is taken too far I believe it perverts the theoretical exercise as it diminishes, rather than enhances, our understanding of the world. And that is why I believe the real action concerns what justice requires, “many-things-considered”.

Saturday, July 14, 2007

UTLJ Review Article

My paper "The Institutional Theory of Legal Interpretation" is forthcoming in The University of Toronto Law Journal. This paper is a review article of Adrian Vermeule's excellent book Judging Under Uncertainty.

It was a real joy reading Vermeule's book. Legal theory has long been dominated by debates concerning the primacy of different high-level conceptual commitments, like democracy and constitutionalism. Vermeule documents the chronic condition of institutional blindness in Anglo-American interpretive theory, covering the contributions of important historical figures — like William Blackstone and Jeremy Bentham — to the most important contemporary contributions, such as the theories of H.L.A Hart, Ronald Dworkin, and Richard Posner. Rather than trying to win a debate concerning "first-best conceptualism", Vermeule makes the case for developing a second-best interpretive theory. Second-best interpretive theories ask how nonideal interpreters of law should proceed in light of widespread disagreement about competing first-best theories and given the institutional constraints and political conditions that actually obtain in the legal system.

There are a lot of important insights Canadian legal theorists can incorporate from Vermeule's institutional theory, especially for the "dialogical model" of judicial review which I am interested in (see here). And Vermeule's concerns parallel many of those I have for political philosophy more generally (esp. theories of distributive justice). I will post some more specific thoughts on these issues later. For now, here is the abstract of my forthcoming review article:

In his provocative and masterly book Judging Under Uncertainty Adrian Vermeule seeks to displace the dominance of what he calls ‘first-best conceptualism’ in legal theory and instead argues that interpretive law needs to take an institutional turn. Vermeule’s focus on the empirical problems of institutional interpretation is a welcome and long overdue contribution to legal theory. Judging Under Uncertainty is an ambitious book and a valuable contribution to legal theory. The book deals exclusively with American law and Vermeule’s institutional approach to legal interpretation takes the existing status quo of the American system as a given. This, one might be tempted to complain, limits the scope and application of the institutional theory advanced by Vermeule. I shall raise some of these concerns towards the end of this review article when I consider some of the insights Canadian jurisprudence could contribute to the development on an institutional theory of legal interpretation (as well as the insights Canadian legal theorists can take from Vermeule’s compelling and important arguments).


Monday, July 09, 2007

BMJ "head-to-head" piece on genetic privacy

The BMJ has a "head-to-head" debate on genetic information and privacy (though it is framed as a debate about ownership of genetic information, which I think is mistaken). The first contribution, from Anneke Lucassen, is here and she argues that family members should have access to the results of DNA analysis. Here is a sample:

Where genetic information points to an intervention that would decrease the morbidity or mortality from a disease, taking an individual ownership stance could lead to harm in others. Take the following analogy. A company identifies traces of a contaminating, toxic substance in a batch of tinned beans after one woman develops symptoms. The woman owns her contaminated tin but does not own the other tins in the batch, which have the same chance of causing illness in others. The woman is entitled to privacy and patient confidentiality but cannot say that she does not want others informed of the danger; nor can she prevent disclosure on the basis that she owns the information about the poisoning.

....In conclusion, this debate is more about privacy than ownership, but if anyone is to own genetic information it has to be all those who have inherited it. More importantly, it must be available to all those who might be at risk. Methods for sharing information need to be sensitive and relevant, but today's increasingly individualistic modern medicine must find ways of facilitating this. It should not be denied because of a narrow view of information ownership.

Angus Clarke weighs in on the other side of the debate here. Here is a sample from his argument:

Those who argue that genetic information belongs to the family because their genes are shared are guilty of the naturalistic fallacy—that "is" implies "ought." I am not seeking to deny that family members have mutual obligations and should be prepared to share important medical information with their relatives, including genetic test results, as they usually do.

Two particular problems arise: firstly, when an individual fails to pass potentially important information to his relatives, such as the fact that he or his child has a serious genetic condition that may be present in other family members; and, secondly, when someone forbids health professionals to release or use genetic test results to provide more accurate or relevant medical advice to her relatives. These are very different types of information.

The first issue relates to the tension between the wish of some people to keep secret some of their medical history and their simultaneous obligation to disclose it to others, when it may be important for those others to find out about it. This is not specific to genetic issues but applies to sexually transmitted diseases, some other infectious diseases, and certain other environmental hazards such as chemical or radioactive contamination. Affected people are obliged to disclose such risks as soon as they realise that they may be a danger to others. If they fail to perform this duty, health professionals may have a duty to warn others instead. In many jurisdictions, legislation forces doctors to disclose information concerning some infectious diseases and also, in relation to driving, personal information about epilepsy and other potential problems.

....In conclusion, I suggest that genetic information should be regarded as private and personal; to treat it as if it were owned in common by a body as vague and ill defined as "the family" is flawed. In the case of known disease causing mutations, however, the genetic information can be argued to belong to the laboratory or the health service that generates it and not to either the individual or the family.


Saturday, July 07, 2007

Update on Cancer Gene Therapy

The latest issue of Cancer Gene Therapy has a very informative review article on the state of cancer gene therapy. Here is a sample:

"Recent developments in the use of adenoviruses and immunotoxins in cancer gene therapy"
Z R Yang et. al.

Gene therapy, initially hailed as a revolutionary biomedical technology with enormous potential for curing almost any disease, has come a long way on a turbulent course in a relatively short period of two decades. Its original concept for treating disease by replacing a lost or defective gene has broadened to encompass a variety of approaches of introducing genetic materials into cells for therapeutic purposes. A large number, nearly 1000, gene therapy clinical trials have been or are being conducted worldwide, and two-thirds of these are for cancer.1 While the technology itself is still evolving, gene therapy is particularly suitable for cancer, since most patients with cancer who are eligible for clinical trials, are terminal with poor prognosis and dismal outcomes due to failing conventional treatment. Thus gene therapy, with its limited efficacy (in part due to the late stage of disease at which patients are treated in clinical trials) and sometimes severe side effects, often provides the best or the only alternative for patients who are refractory to conventional treatments. In addition, the lower cost of gene therapy when compared with conventional treatments makes it especially attractive particularly to patients with limited financial means and those in developing countries.

Cancer gene therapy has made remarkable progress over the past few years, reaching some significant milestones. The first cancer gene therapy clinical trial was performed in the early 1990s in the US; however, in China it was 10 years later – in the Spring of 2004 – that the first therapeutic gene, adenovirus (Ad)-p53, was approved for commercial use by China's State Food and Drug Administration (SFDA) for head and neck squamous cell carcinoma (HNSCC). Gendicine is a biologically active, replication incompetent, recombinant Ad-p53, and has been used in clinical trials for hepatocellular (HCC), nasopharyngeal (NPC), gastric, liver, lung, breast, prostate and ovarian cancers in addition to HNSCC. The infectivity of the virus is limited to one cycle and the Ad vector does not integrate into the host genome. Doses are 1–4 virus particle units (v.p.u.)/injection/week usually for 4 consecutive weeks. Side effects have been predominantly self-limited fever in 32% of patients and responses to date have been in patients often refractory to conventional treatments. Some of the best results with this treatment have been seen when Gendicine has been used in combination with conventional treatments such as with radiation to treat NPC3 or with transcatheter hepatic arterial chemoembolisation to treat HCC.


The image here is "breast cancer: cancer cell." Online Photograph. Encyclopædia Britannica Online. 7 July 2007]