Welcome to the Nexus of Ethics, Psychology, Morality, Philosophy and Health Care

Welcome to the nexus of ethics, psychology, morality, technology, health care, and philosophy
Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts

Saturday, February 24, 2024

Living in an abortion ban state is bad for mental health

Keren Landman
vox.com
Originally posted 20 Feb 24

Here is an excerpt:

What they found was, frankly, predictable: Before the Court’s decision, anxiety and depression scores were already higher in trigger states — a population-wide average of 3.5 compared with 3.3 in non-trigger states. After the decision, that difference widened significantly, largely due to changes in the mental health of women 18 to 45, what the authors defined as childbearing age. Among this subgroup, anxiety and depression scores subtly ticked up in those living in trigger states (from 4.62 to 4.76) — and dropped in those living in non-trigger states (from 4.57 to 4.49). There was no similar effect in older women, nor in men.

These differences were small but statistically meaningful, especially since they sampled the entire population, not just women considering an abortion. Moreover, they were consistent across trigger states, whether their policies and political battles around abortion had been high- or low-profile. Even when the researchers omitted data from states with particularly severe restrictions on women’s reproductive health (looking at you, Texas), the results held up.

It’s notable that the different levels of mental distress across states after Roe was overturned weren’t just a consequence of worsened anxiety and depression in states with trigger bans. Also contributing: an improvement in these symptoms in states without these bans. We can’t tell from the study exactly why that is, but it seems plausible that women living in states that protect their right to access necessary health care simply feel some relief.


Here is the citation to the study:

Thornburg B, Kennedy-Hendricks A, Rosen JD, Eisenberg MD. Anxiety and Depression Symptoms After the Dobbs Abortion Decision. JAMA. 2024;331(4):294–301. doi:10.1001/jama.2023.25599

Conclusions and Relevance  In this study of US survey data from December 2021 to January 2023, residence in states with abortion trigger laws compared with residence in states without such laws was associated with a small but significantly greater increase in anxiety and depression symptoms after the Dobbs decision.

Thursday, November 2, 2023

Doesn't everybody jaywalk? On codified rules that are seldom followed and selectively punished

Wylie, J., & Gantman, A. (2023).
Cognition, 231, 105323.
https://doi.org/10.1016/j.cognition.2022.105323
Abstract

Rules are meant to apply equally to all within their jurisdiction. However, some rules are frequently broken without consequence for most. These rules are only occasionally enforced, often at the discretion of a third-party observer. We propose that these rules—whose violations are frequent, and enforcement is rare—constitute a unique subclass of explicitly codified rules, which we call ‘phantom rules’ (e.g., proscribing jaywalking). Their apparent punishability is ambiguous and particularly susceptible to third-party motives. Across six experiments, (N = 1440) we validated the existence of phantom rules and found evidence for their motivated enforcement. First, people played a modified Dictator Game with a novel frequently broken and rarely enforced rule (i.e., a phantom rule). People enforced this rule more often when the “dictator” was selfish (vs. fair) even though the rule only proscribed fractional offers (not selfishness). Then we turned to third person judgments of the U.S. legal system. We found these violations are recognizable to participants as both illegal and commonplace (Experiment 2), differentiable from violations of prototypical laws (Experiments 3) and enforced in a motivated way (Experiments 4a and 4b). Phantom rule violations (but not prototypical legal violations) are seen as more justifiably punished when the rule violator has also violated a social norm (vs. rule violation alone)—unless the motivation to punish has been satiated (Experiment 5). Phantom rules are frequently broken, codified rules. Consequently, their apparent punishability is ambiguous, and their enforcement is particularly susceptible to third party motives.


Here's my quick summary: 

This research explores the concept of "phantom rules". Phantom rules are rules that are frequently broken without consequence for most, and are only occasionally enforced, often at the discretion of a third-party observer. Examples of phantom rules include jaywalking, speeding, and not coming to a complete stop at a stop sign.

The authors argue that phantom rules are a unique subclass of explicitly codified rules, and that they have a number of important implications for our understanding of law and society. For example, phantom rules can lead to people feeling like the law is unfair and that they are being targeted. They can also create a sense of lawlessness and disorder.

The authors conducted six experiments to investigate the psychological and social dynamics of phantom rules. They found evidence that people are more likely to punish violations of phantom rules when the violator has also violated a social norm. They also found that people are more likely to justify the selective enforcement of phantom rules when they believe that the violator is a deserving target.

The authors conclude by arguing that phantom rules are a significant social phenomenon with a number of important implications for law and society. They call for more research on the psychological and social dynamics of phantom rules, and on the impact of phantom rules on people's perceptions of the law and the criminal justice system.

Monday, May 29, 2023

Rules

Almeida, G., Struchiner, N., Hannikainen, I.
(April 17, 2023). Kevin Tobia (Ed.), 
Cambridge Handbook of Experimental Jurisprudence. 
Cambridge University Press, Forthcoming

Abstract

Rules are ubiquitous. They figure prominently in all kinds of practical reasoning. Rules are especially important in jurisprudence, occupying a prominent role in answers to the question of “what is law?” In this chapter, we start by reviewing the evidence showing that both textual and extra-textual elements exert influence over rule violation judgments (section II). Most studies about rules contrast text with an extra-textual element identified as the “purpose” or “spirit” of the rule. But what counts as the purpose or the spirit of a rule? Is it the goal intended by the rule maker? Or is purpose necessarily moral? Section III reviews the results of experiments designed to answer these questions. These studies show that the extra-textual element that's relevant for the folk concept of rule is moral in nature. Section IV turns to the different explanations that have been entertained in the literature for the pattern of results described in Sections II and III. In section V we discuss some other extra-textual elements that have been investigated in the literature. Finally, in section VI, we connect the results about rules with other issues in legal philosophy. We conclude with a brief discussion of future directions.

Conclusion

In this chapter, we have provided an overview of the experimental jurisprudence of rules. We started by reviewing evidence that shows that extra-textual elements influence rule violation judgments (section II). We then have seen that those elements are likely moral in nature (section III). There are several ways to conceptualize the relationship between the moral and descriptive elements at play in rule violation judgments. We have reviewed some of them in section IV, where we argued that the evidence favors the hypothesis that the concept of rule has a dual character structure. In section V, we reviewed some recent studies showing that other elements, such as enforcement, also play a role in the concept of rule. Finally, in section VI, we considered the implications of these results for some other debates in legal philosophy.

While we have focused on research developed within experimental jurisprudence, empirical work in moral psychology and experimental philosophy have investigated several other questions related to rules which might be of interest for legal philosophers, such as closure rules and the process of learning rules (Nichols, 2004, 2021). But an even larger set of questions about the concept of rule haven’t been explored from an empirical perspective yet. We will end this chapter by discussing a few of them.


If you do legal work, this chapter may help with your expertise. The authors explore how ordinary people understand the law. Are they more intuitive in terms of interpretation or do they think that law is intrinsically moral?

Thursday, May 4, 2023

The Unchecked Rise of Psychological Testing Evidence in United States Courts.

King, C., & Neal, T. M. (2022, June 7).
https://doi.org/10.31234/osf.io/4hfd6

Abstract

Psychological testing, based on psychometric science, is often used in court to aid judges and juries in making legal decisions that profoundly affect people’s lives, such as eligibility for disability benefits, psychological damages, child custody, and whether and where someone will serve a criminal sentence. We provide a novel estimate of the pattern of psychological tests introduced as legal evidence throughout the entire history of United States case law, finding a sharp increase in this type of expert evidence in recent years. Although the law requires judges to screen evidence for relevance and reliability before allowing an expert to testify about it in court, legal challenges to psychological testing evidence are rare: across 28,824 judicial opinions citing psychological tests, just 479 involved a potential admissibility challenge (1.66%). This finding informs and raises questions for the public as well as legal and mental health professionals.

Discussion

Our results indicate that psychological testing evidence in U.S. courts has been increasing steadily in civil, family, and criminal cases over the past half-century, beginning roughly around the time that psychological testing emerged as a specialty in the field of psychology. Although we used a sizable sample, psychological testing evidence has undoubtedly occurred in many more cases than we could capture—with such evidence either not specified in written opinions, or judicial decisions not incorporated, for various reasons, into the large legal database we searched.

We also found evidence that legal professionals either rarely scrutinize psychological testing evidence, or admissibility decisions about such evidence are not typically deemed significant enough to warrant written explanations. This seems to be true irrespective of shifts in the strictness of admissibility standards over time. Potential challenge rates did, however, vary across individual psychological tests, and at least a third of the examined tests were challenged at least once. The two most commonly challenged types of tests provide a clue as to the type of case most likely to involve testing-related challenges: litigation concerning the civil commitment of certain convicted sex offenders. Nevertheless, the generally unchecked rise in psychological testing evidence, as suggested by this study, raises questions about the rigor of current admissibility standards, the functioning of the enforcers of those rules, and the seemingly broad deference afforded to mental health professionals’ highly varied test selections.

Monday, April 3, 2023

The Mercy Workers

Melanie Garcia
The Marshall Project
Originally published 2 March 2023

Here are two excerpts:

Like her more famous anti-death penalty peers, such as Bryan Stevenson and Sister Helen Prejean, Baldwin argues the idea that people should be judged on more than their worst actions. But she also speaks in more spiritual terms about the value of unearthing her clients’ lives. “We look through a more merciful lens,” she told me, describing her role as that of a “witness who knows and understands, without condemning.” This work, she believes, can have a healing effect on the client, the people they hurt, and even society as a whole. “The horrible thing to see is the crime,” she said. “We’re saying, ‘Please, please, look past that, there’s a person here, and there’s more to it than you think.’”

The United States has inherited competing impulses: It’s “an eye for an eye,” but also “blessed are the merciful.” Some Americans believe that our criminal justice system — rife with excessively long sentences, appalling prison conditions and racial disparities — fails to make us safer. And yet, tell the story of a violent crime and a punishment that sounds insufficient, and you’re guaranteed to get eyerolls.

In the midst of that impasse, I’ve come to see mitigation specialists like Baldwin as ambassadors from a future where we think more richly about violence. For the last few decades, they have documented the traumas, policy failures, family dynamics and individual choices that shape the lives of people who kill. Leaders in the field say it’s impossible to accurately count mitigation specialists — there is no formal license — but there may be fewer than 1,000. They’ve actively avoided media attention, and yet the stories they uncover occasionally emerge in Hollywood scripts and Supreme Court opinions. Over three decades, mitigation specialists have helped drive down death sentences from more than 300 annually in the mid-1990s to fewer than 30 in recent years.

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The term “mitigation specialist” is often credited to Scharlette Holdman, a brash Southern human rights activist famous for her personal devotion to her clients. The so-called Unabomber, Ted Kaczynski, tried to deed his cabin to her. (The federal government stopped him.) Her last client was accused 9/11 plotter Khalid Shaikh Mohammad. While working his case, Holdman converted to Islam and made a pilgrimage to Mecca. She died in 2017 and had a Muslim burial.

Holdman began a crusade to stop executions in Florida in the 1970s, during a unique moment of American ambivalence towards the punishment. After two centuries of hangings, firing squads and electrocutions, the Supreme Court struck down the death penalty in 1972. The court found that there was no logic guiding which prisoners were executed and which were spared.

The justices eventually let executions resume, but declared, in the 1976 case of Woodson v. North Carolina, that jurors must be able to look at prisoners as individuals and consider “compassionate or mitigating factors stemming from the diverse frailties of humankind.”

Sunday, February 19, 2023

Organs in exchange for freedom? Bill raises ethical concerns

Steve LeBlanc
Associated Press
Originally published 8 FEB 23

BOSTON (AP) — A proposal to let Massachusetts prisoners donate organs and bone marrow to shave time off their sentence is raising profound ethical and legal questions about putting undue pressure on inmates desperate for freedom.

The bill — which faces a steep climb in the Massachusetts Statehouse — may run afoul of federal law, which bars the sale of human organs or acquiring one for “valuable consideration.”

It also raises questions about whether and how prisons would be able to appropriately care for the health of inmates who go under the knife to give up organs. Critics are calling the idea coercive and dehumanizing even as one of the bill’s sponsors is framing the measure as a response to the over-incarceration of Hispanic and Black people and the need for matching donors in those communities.

“The bill reads like something from a dystopian novel,” said Kevin Ring, president of Families Against Mandatory Minimums, a Washington, D.C.-based criminal justice reform advocacy group. “Promoting organ donation is good. Reducing excessive prison terms is also good. Tying the two together is perverse.”

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Offering reduced sentences in exchange for organs is not only unethical, but also violates federal law, according to George Annas, director of the Center for Health Law, Ethics & Human Rights at the Boston University School of Public Health. Reducing a prison sentence is the equivalent of a payment, he said.

“You can’t buy an organ. That should end the discussion,” Annas said. “It’s compensation for services. We don’t exploit prisoners enough?”

Democratic state Rep. Carlos Gonzalez, another co-sponsor of the bill, defended the proposal, calling it a voluntary program. He also said he’s open to establishing a policy that would allow inmates to donate organs and bone marrow without the lure of a reduced sentence. There is currently no law against prisoner organ donation in Massachusetts, he said.

“It’s not quid pro quo. We are open to setting policy without incentives,” Gonzalez said, adding that it is “crucial to respect prisoners’ human dignity and agency by respecting their choice to donate bone marrow or an organ.”

Monday, September 5, 2022

Advance directives for mental illness raise deep ethical questions

Tania Gergel
psyche.co
Originally posted 3 AUG 2022

Here is an excerpt:

What about the potential drawbacks? 

Medical ethicists worry that self-binding directives might allow involuntary treatment to be imposed on someone at an early stage of illness, while they are still capable of making an informed decision about treatment. How can we be sure that someone lacks what is known, in medical law, as ‘decision-making capacity’ and that we should be turning to the instructions in a document rather than what they are saying right now? Human rights advocates, such as the United Nations Committee on the Rights of Persons with Disabilities, go so far as to state that all involuntary treatment is a violation of an individual’s fundamental human rights.

The debate over self-binding directives has been working through these issues since the 1980s. However, one voice that was largely missing was the voice of ‘lived experience’. The arguments have gone backwards and forwards without asking the opinions of those who have the most intimate knowledge of what it is like to be unwell, and the likely consequences of illness; the very people who have found themselves hospitalised for mental illness and who may well have received involuntary treatment.

As part of ongoing research into mental health advance directives, our team at King’s College London conducted an internet survey in partnership with the charity Bipolar UK. We asked people who have lived with bipolar lots of questions about their views and any experiences of any forms of advance decision-making in relation to their condition. One of the questions we asked participants was whether they thought self-binding directives were a good idea and why they thought this. We found that 82 per cent of participants endorsed the self-binding directive idea, with the vast majority explaining this endorsement in terms of experiencing a determinate shift to distorted thinking and decision-making when they are unwell.

While ethicists might feel that the risk that someone retains decision-making capacity is a barrier to self-binding directives, many participants were adamant that their decision-making is impaired when they are unwell, and often mentioned ‘capacity’ in their responses, even though it was not alluded to within the questions themselves. A good example was this response:
You are unwell and lack capacity. I [recognise this now] looking back at when I was last sectioned, but my views were very different at the time due to my illness. It is my well views and opinions that should be acted upon.
Some people described this transition in terms of a shift of ‘self’, suggesting that illness makes them an entirely different person from their well self. As a philosopher working on medical ethics and law, I am particularly interested in questions about personal identity and illness, so it was fascinating to see answers such as this:
When psychotic or manic or depressed you can become another person and irrational. It is easy to make bad decisions when ill that may not be in my best interest.
When participants referred to the practical consequences and risks of illness, they were often related to suicide. People talked about how their ill self impelled them towards death in a way that was utterly inconsistent with their wishes when well.

Tuesday, June 21, 2022

Gina Haspel Observed Waterboarding at CIA Black Site, Psychologist Testifies

Carol Rosenberg and J. E. Barnes
The New York Times
Originally posted 4 JUN 22

During Gina Haspel’s confirmation hearing to become director of the CIA in 2018, Sen. Dianne Feinstein, D-Calif., asked her if she had overseen the interrogations of a Saudi prisoner, Abd al-Rahim al-Nashiri, which included the use of a waterboard.

Haspel declined to answer, saying it was part of her classified career.

While there has been reporting about her oversight of a CIA black site in Thailand where al-Nashiri was waterboarded, and where Haspel wrote or authorized memos about his torture, the precise details of her work as the chief of base, the CIA officer who oversaw the prison, have been shrouded in official secrecy.

But testimony at a hearing last month in Guantánamo Bay, Cuba, included a revelation about the former CIA director’s long and secretive career. James E. Mitchell, a psychologist who helped develop the agency’s interrogation program, testified that the chief of base at the time, whom he referred to as Z9A in accordance with court rules, watched while he and a teammate subjected al-Nashiri to “enhanced interrogation” that included waterboarding at the black site.

Z9A is the code name used in court for Haspel.

The CIA has never acknowledged Haspel’s work at the black site, and the use of the code name represented the court’s acceptance of an agency policy of not acknowledging state secrets — even those that have already been spilled. Former officials long ago revealed that she ran the black site in Thailand from October 2002 until December 2002, during the time al-Nashiri was being tortured, which Mitchell described in his testimony.

Guantánamo Bay is one of the few places where America is still wrestling with the legacy of torture in the aftermath of the Sept. 11, 2001, attacks. Torture has loomed over the pretrial phase of the death penalty cases for years and is likely to continue to do so as hearings resume over the summer.

Monday, June 20, 2022

The Christian Right is violating the First Amendment by banning abortion

Noah Berlatsky
NBC News Cultural Critic
Originally published 18 JUN 22

The anti-abortion rights movement is largely faith based. Catholics and evangelical Christians argue that life begins at conception, and that fetuses have souls. On those grounds, they want to prevent anyone from obtaining abortion services.

They’ve had a good deal of success with that recently. A leaked Supreme Court draft opinion suggests the high court is set to overturn Roe v. Wade, effectively gutting the constitutional right to abortion. In anticipation, many conservative states have passed sweeping anti-abortion legislation.

But not everyone is Christian. And imposing Christian morality and Christian dogma on non-Christians is a good working definition of religious tyranny — which the First Amendment of the Constitution explicitly rejects. 

That principle of religious freedom is the basis of a lawsuit brought by Congregation L’Dor Va-Dor, a synagogue in Boynton Beach, Florida, against a sweeping state abortion ban set to take effect on July 1. Congregation L’Dor Va-Dor is challenging a single law on behalf of a single religion. But the case is also a broader challenge to the anti-abortion rights movement, which conflates a right-wing Christian demand for forced birth with universal morality, and insists on subjugating the country to a sectarian code.

The new Florida law bans most abortions after 15 weeks. There are no exceptions for cases of incest, rape or human trafficking. It does allow an abortion to save a pregnant person’s life or to prevent serious physical injury. But these exceptions aren’t enough to keep the law from violating the free exercise of the Jewish faith. The congregation’s lawsuit states that the Florida law violates Jewish religious beliefs holding that abortion “is required if necessary to protect the health, mental or physical well-being of the woman,” among other reasons.

Monday, June 13, 2022

San Diego doctor who smuggled hydroxychloroquine into US, sold medication as a COVID-19 cure sentenced

Hope Sloop
KSWB-TV San Diego
Originally posted 29 MAY 22

A San Diego doctor was sentenced Friday to 30 days of custody and one year of house arrest for attempting to smuggle hydroxychloroquine into the U.S. and sell COVID-19 "treatment kits" at the beginning of the pandemic.  

According to officials with the U.S. Department of Justice, Jennings Ryan Staley attempted to sell what he described as a "medical cure" for the coronavirus, which was really hydroxychloroquine powder that the physician had imported in from China by mislabeling the shipping container as "yam extract." Staley had attempted to replicate this process with another seller at one point, as well, but the importer told the San Diego doctor that they "must do it legally." 

Following the arrival of his shipment of the hydroxychloroquine powder, Staley solicited investors to help fund his operation to sell the filled capsules as a "medical cure" for COVID-19. The SoCal doctor told potential investors that he could triple their money within 90 days.  

Staley also told investigators via his plea agreement that he had written false prescriptions for hydroxychloroquine, using his associate's name and personal details without the employee's consent or knowledge.  

During an undercover operation, an agent purchased six of Staley's "treatment kits" for $4,000 and, during a recorded phone call, the doctor bragged about the efficacy of the kits and said, "I got the last tank of . . . hydroxychloroquine, smuggled out of China."  

Saturday, March 19, 2022

The Content of Our Character

Brown, Teneille R.
Available at SSRN: https://ssrn.com/abstract=3665288

Abstract

The rules of evidence assume that jurors can ignore most character evidence, but the data are clear. Jurors simply cannot *not* make character inferences. We are so driven to use character to assess blame, that we will spontaneously infer traits based on whatever limited information is available. In fact, within just 0.1 seconds of meeting someone, we have already decided if we think they are intelligent, trustworthy, likable, or kind--based just on the person’s face. This is a completely unregulated source of evidence, and yet it predicts teaching evaluations, electoral success, and even sentencing decisions. Given the pervasive and unintentional nature of “spontaneous trait inferences” (STIs), they are not susceptible to mitigation through jury instructions. However, recognizing that witnesses will be viewed as more or less trustworthy based just on their face, the rules of evidence must permit more character evidence, rather than less. This article harnesses undisputed findings from social psychology to propose a reversal of the ban on character evidence, in favor of a strong presumption against admissibility for immoral traits only. This removes a great deal from the rule’s crosshairs and re-tethers it to its normative roots. My proposal does not rely on the gossamer thin distinction between propensity and non-propensity uses, because once jurors hear about past act evidence, they will subconsciously draw an impermissible character inference. However, in some cases this might not be unfairly prejudicial, and may even be necessary for justice. The critical contribution of this article is that while shielding jurors from character evidence has noble origins, it also has unintended, negative consequences. When jurors cannot hear about how someone acted in the past, they will instead rely on immutable facial features—connected to racist, sexist and classist stereotypes—to draw character inferences that are even more inaccurate and unfair.

Here is a section

Moral Character Impacts Ratings of Intent

Previous models of intentionality held that for an act to be considered intentional, three things had to be present. The actor must have believed that an action would result in a particular outcome, desired this outcome, and had full awareness of his behavior. Research now challenges this account, “showing that individuals attribute intentions to others even (and largely) in the absence of these components.”  Even where an actor could not have acted otherwise, and thus was coerced to kill, study participants found the actor to be more morally responsible for an act if he “identified” with it, meaning that he desired the compelled outcome. These findings do not fit with our typical model of blame, which requires freedom to act in order to assign responsibility.  However, they make sense if we adopt a character-based approach to
blame. We are quick to infer a bad character and intent when there is very little evidence of it.  

An example of this is the hindsight bias called the “praise-blame asymmetry,” where people blame actors for accidental bad outcomes that they caused but did not intend, but do not praise people for accidental good outcomes that they likewise caused but did not intend. The classic example is the CEO who considers a development project that will increase profits. The CEO is agnostic to the project’s environmental effects and gives it the go-ahead. If the project’s outcome turns out to harm the environment, people say the CEO intended the bad outcome and they blame him for it. However, if instead the project turns out to benefit the environment, the CEO receives no praise. Our folk conception of intentionality is tied to morality and aversion to negative outcomes. If a foreseen outcome is negative, people will attribute intentionality to the decision-maker, but not if the foreseen outcome is positive; the overattribution of intent only seems to cut one way. Mens rea ascriptions are “sensitive to moral valence . . . . If the outcome is negative, foreknowledge standardly suffices for people to ascribe intentionality.” This effect has been found not just in laypeople, but also in French judges. If an action is considered immoral, then our emotional reaction to it can bias mental state ascriptions.

Thursday, March 10, 2022

Biden Team Gets It Right on Inadmissibility of Torture Evidence

Tess Bridgeman
JustSecurity.com
Originally posted 1 FEB 22

The Biden administration just took an important step to restore the rule of law in the Al-Nashiri case at the Guantanamo military commissions: it categorically rejected the use of statements obtained through torture at any stage in the proceedings and promised that the government will not seek to admit any statements the petitioner made while in CIA custody. This should be unremarkable, as it clearly reflects U.S. domestic and international legal obligations and Biden administration policy, but the position the Department of Justice (DOJ) took in its brief filed in the D.C. Circuit Court of Appeals on Monday is actually an about-face from the position prosecutors took before the military commission judge. The Al-Nashiri case has a long history, but this most recent controversy stems from prosecutors’ decision to seek to admit statements obtained through torture in pre-trial proceedings in the capital case of Abd Al-Rahim Hussein Al-Nashiri, the “alleged mastermind” of the U.S.S. Cole bombing. Although the prosecution eventually withdrew the particular statements at issue, it had essentially reserved the right to rely on torture-obtained evidence in future proceedings. 

In October of last year, Al-Nashiri filed a petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit that sought “to enjoin the government from offering, and the military commission judge from considering, torture-derived evidence.” The much-awaited U.S. government response — called a “moment of truth” for the Biden administration on torture — came yesterday. 

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The government is taking the issue seriously in this case; but what about the other cases? 

The government brief states that it has “conducted a search of this case’s voluminous record, including the prosecution’s ex parte submissions” to determine whether there have been any “past orders predicated on evidence admitted in violation of” the Military Commissions Act’s prohibition of the admission of statements obtained through torture or CIDT. It found one, and has committed to “move promptly to correct” the error. This shows the administration is taking the issue seriously. 

But given al-Nashiri isn’t the only petitioner who was in the CIA’s black sites, and that the prosecution regularly makes ex parte submissions in commission proceedings, there may be instances in other cases pending before the military commissions where the same problem is lurking and could compromise the prosecution. If it isn’t doing so already, the government would be wise to undertake a thorough review of all commissions cases and withdraw any submissions it might find that contain information obtained from torture or CIDT.

Tuesday, March 8, 2022

"Without Her Consent" Harvard Allegedly Obtained Title IX Complainant’s Outside Psychotherapy Records, Absent Her Permission

Colleen Flaherty
Inside Higher Ed
Originally published 10 FEB 22

Here are two excerpts:

Harvard provided background information about how its dispute resolution office works, saying that it doesn’t contact a party’s medical care provider except when a party has indicated that the provider has relevant information that the party wants the office to consider. In that case, the office receives information from the care provider only with the party’s consent.

Multiple legal experts said Wednesday that this is the established protocol across higher education.

Asked for more details about what happened, Kilburn’s lawyer, Carolin Guentert, said that Kilburn’s therapist is a private provider unaffiliated with Harvard, and “we understand that ODR contacted Ms. Kilburn’s therapist and obtained the psychotherapy notes from her sessions with Ms. Kilburn, without first seeking Ms. Kilburn’s written consent as required under HIPAA,” the Health Insurance Portability and Accountability Act of 1996, which governs patient privacy.

Asked if Kilburn ever signed a privacy waiver with her therapist that would have granted the university access to her records, Guentert said Kilburn “has no recollection of signing such a waiver, nor has Harvard provided one to us.”

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Even more seriously, these experts said that Harvard would have had no right to obtain Kilburn’s mental health records from a third-party provider without her consent.

Andra J. Hutchins, a Massachusetts-based attorney who specializes in education law, said that therapy records are protected by psychotherapist-patient privilege (something akin to attorney-client privilege).

“Unless the school has an agreement with and a release from the student to provide access to those records or speak to the student’s therapist—which can be the case if a student is placed on involuntary leave due to a mental health issue—there should be no reason that a school would be able to obtain a student’s psychotherapy records,” she said.

As far as investigations under Title IX (the federal law against gender-based discrimination in education) go, questions from the investigator seeking information about the student’s psychological records aren’t permitted unless the student has given written consent, Hutchins added. “Schools have to follow state and federal health-care privacy laws throughout the Title IX process. I can’t speculate as to how or why these records were released.”

Daniel Carter, president of Safety Advisors for Educational Campuses, said that “it is absolutely illegal and improper for an institution of higher education to obtain one of their students’ private therapy records from a third party. There’s no circumstance under which that is permissible without their consent.”

Friday, January 7, 2022

Moral Appraisals Guide Intuitive Legal Determinations

B. Flanagan, G.F.C.F. de Almeida, et al.
researchgate.net

Abstract 

Socialization demands the capacity to observe a plethora of private, legal, and institutional rules.  To accomplish this,  individuals must grasp rules’ meaning and infer the class of conduct each proscribes.  Yet this basic account neglects important nuance in the way we reason about complex cases in which a rule’s literal or textualist interpretation conflicts with deeper values.  In six studies (total N = 2541), we examined legal determinations through the lens of these cases.  We found that moral appraisals—of the  rule’s value (Study  1) and the agent’s character (Studies 2-3)—shaped people’s application of rules, driving counter-literal legal determinations. These effects were stronger under time pressure and were weakened by the opportunity to reflect (Study  4). Our final studies explored the role of theory of mind: Textualist judgments arose when agents were described as cognizant of the rule’s text yet ignorant of its deeper purpose (Study 5). Meanwhile, the intuitive tendency toward counter-literal determinations was strongest when the rule’s purpose could be inferred from its text—pointing  toward an influence  of  spontaneous mental state ascriptions (Studies  6a-6b). Together, our results elucidate the cognitive basis  of  legal reasoning: Intuitive legal determinations build on core competencies in moral cognition, including mental state and character inferences.  In turn, cognitive control dampens these effects, promoting a broadly textualist response pattern.

General Discussion 

Our present studies suggest that moral appraisals shape people’s determinations of whether various rules  have  been  violated.  Counter-literal  judgments emerge when agents violate a rule’s morally laudable purpose, but not when they violate a rule’s evil purpose (Study 1). An impact of moral appraisals  is observed even  when manipulating the transgressor’s broader moral character—such that blameworthy  agents are deemed to violate rules to a greater extent than praiseworthy agents, even when both behaviors fall within the literal scope of the rule (Study 2).  These effects persist when applying two further  robustness checks: (i) when encouraging participants to concurrently and independently  evaluate the  morality as well as the legality of the  target behaviors,  and  (ii)  when  explicitly  denying  any  constitutional constraints on the moral propriety of legal or private rules (Study 3). Turning our attention to the  underlying cognitive mechanisms,  we found that applying time pressure promoted counter-literal judgments (Study 4), suggesting that such decisions are  driven by automatic cognitive  processes.  We  then examined how representations of the agent’s knowledge impacted rule application: Stipulating the agent’s ignorance of the rule’s underlying purpose helped to explain the default tendency toward textualist determinations (Study 5). Finally, we uncovered an effect of spontaneous mental state inferences on  judgments of whether rules had been violated: Participants appeared to automatically represent the likelihood of inferring the rule’s true purpose from its text, and the inferability of a rule’s purpose yielded  greater counter-literal tendencies (Studies 6a-6b)—regardless of the agent’s actual knowledge status. 


In essence, an individual's moral judgments affect their interpretation of laws, and biases the decision-making process.

Saturday, January 1, 2022

New billing disclosure requirements take effect in 2022

American Psychological Association
Originally published 10 December 21

All mental health providers will need to provide estimated costs of services before starting treatment.

Beginning January 1, 2022, psychologists and other health care providers will be required by law to give uninsured and self-pay patients a good faith estimate of costs for services that they offer, when scheduling care or when the patient requests an estimate.

This new requirement was finalized in regulations issued October 7, 2021. The regulations implement part of the “No Surprises Act,” enacted in December 2020 as part of a broad package of COVID- and spending-related legislation. The act aims to reduce the likelihood that patients may receive a “surprise” medical bill by requiring that providers inform patients of an expected charge for a service before the service is provided. The government will also soon issue regulations requiring psychologists to give good faith estimates to commercial or government insurers, when the patient has insurance and plans to use it.

Psychologists working in group practices or larger organizational settings and facilities will likely receive direction from their compliance department or lawyers on how to satisfy this new requirement.

Read on for answers to FAQs that apply to practicing psychologists who treat uninsured or self-pay patients.

What providers and what services are subject to this rule?
“Provider” is defined broadly to include any health care provider who is acting within the scope of the provider’s license or certification under applicable state law. Psychologists meet that definition. 

The definition of “items and services” for which the good faith estimate must be provided is also broadly defined to encompass “all encounters, procedures, medical tests, … provided or assessed in connection with the provision of health care.” Services related to mental health substance use disorders are specifically included.

What steps do I need to take and when?

Psychologists are ethically obligated to discuss fees with patients upfront. This new requirement builds on that by adding more structure and specific timeframes for action.


Note: Compliance is not optional.  This is a new, consumer protection, health-care law in the United States.

Wednesday, June 23, 2021

Experimental Regulations for AI: Sandboxes for Morals and Mores

Ranchordas, Sofia
Morals and Machines (vol.1, 2021)
Available at SSRN: 

Abstract

Recent EU legislative and policy initiatives aim to offer flexible, innovation-friendly, and future-proof regulatory frameworks. Key examples are the EU Coordinated Plan on AI and the recently published EU AI Regulation Proposal which refer to the importance of experimenting with regulatory sandboxes so as to balance innovation in AI against its potential risks. Originally developed in the Fintech sector, regulatory sandboxes create a testbed for a selected number of innovative projects, by waiving otherwise applicable rules, guiding compliance, or customizing enforcement. Despite the burgeoning literature on regulatory sandboxes and the regulation of AI, the legal, methodological, and ethical challenges of regulatory sandboxes have remained understudied. This exploratory article delves into the some of the benefits and intricacies of employing experimental legal instruments in the context of the regulation of AI. This article’s contribution is twofold: first, it contextualizes the adoption of regulatory sandboxes in the broader discussion on experimental approaches to regulation; second, it offers a reflection on the steps ahead for the design and implementation of AI regulatory sandboxes.

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In conclusion, AI regulatory sandboxes are not the answer to more innovation in AI. They are part of the path to a more forward-looking approach to the interaction between law and technology. This new approach will most certainly be welcomed with reluctance in years to come as it disrupts existing dogmas pertaining to the way in which we conceive the principle of legal certainty and the reactive—rather than anticipatory—nature of law. However, traditional law and regulation were designed with human agents and enigmas in mind. Many of the problems generated by AI (discrimination, power asymmetries, and manipulation) are still human but their scale and potential for harms (and benefits) have long ceased to be. It is thus time to rethink our fundamental approach to regulation and refocus on the new regulatory subject before us.

Tuesday, June 1, 2021

We Must Rethink the Role of Medical Expert Witnesses


Amitha Kalaichandran
Scientific American
Originally posted 5 May 21

Here are two excerpts:

The second issue is that the standard used by the courts to assess whether an expert witness’s scientific testimony can be included differs by state. Several states (including Minnesota) use the Frye Rule, established in 1923, which asks whether the expert’s assessment is generally accepted by the scientific community that specializes in this narrow field of expertise. Federally, and in several other states, the Daubert Standard of 1993 is used, which dictates the expert show their scientific reasoning (so the determination of validity is left to the courts), though acceptance within the scientific community is still a factor. Each standard has its drawbacks. For instance, in Frye, the expert’s community could be narrowly drawn by the legal team in a way that helps bolster the expert’s outdated or rare perspective, and the Daubert standard presumes that the judge and jury have an understanding of the science in order to independently assess scientific validity. Some states also strictly apply the standard, whereas others are more flexible. (The Canadian approach is derived from the case R v. Mohan, which states the expert be qualified and their testimony be relevant, but the test for “reliability” is left to the courts).

Third, when it comes to assessments of cause of death specifically, understanding the distinction between necessary and sufficient is important. Juries can have a hard time teasing out the difference. In the Chauvin trial, the medical expert witnesses testifying on behalf of the prosecution were aligned in their assessment of what killed Floyd: the sustained pressure of the officer’s knee on Floyd’s neck (note that asphyxia is a common cause of cardiac arrest). However, David Fowler, the medical expert witness for the defense, suggested the asphyxia was secondary to heart disease and drug intoxication as meaningful contributors to his death.

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Another improvement could involve ensuring that courts institute a more stringent application and selection process, in which medical expert witnesses would be required to demonstrate their clinical and research competence related to the specific issues in a case, and where their abilities are recognized by their professional group. For example, the American College of Cardiology could endorse a cardiologist as a leader in a relevant subspecialty—a similar approach has been suggested as a way to reform medical expert witness testimony by emergency physicians. One drawback, according to Faigman, is that courts would be unlikely to fully abdicate their role in evaluating expertise.

Wednesday, February 3, 2021

Research on Non-verbal Signs of Lies and Deceit: A Blind Alley

T. Brennen & S. Magnussen
Front. Psychol., 14 December 2020

Introduction

Research on the detection of lies and deceit has a prominent place in the field of psychology and law with a substantial research literature published in this field of inquiry during the last five to six decades (Vrij, 2000, 2008; Vrij et al., 2019). There are good reasons for this interest in lie detection. We are all everyday liars, some of us more prolific than others, we lie in personal and professional relationships (Serota et al., 2010; Halevy et al., 2014; Serota and Levine, 2015; Verigin et al., 2019), and lying in public by politicians and other public figures has a long and continuing history (Peters, 2015). However, despite the personal problems that serious everyday lies may cause and the human tragedies political lies may cause, it is lying in court that appears to have been the principal initial motivation for the scientific interest in lie detection.

Lying in court is a threat to fair trials and the rule of law. Lying witnesses may lead to the exoneration of guilty persons or to the conviction of innocent ones. In the US it is well-documented that innocent people have been convicted because witnesses were lying in court (Garrett, 2010, 2011; www.innocenceproject.com). In evaluating the reliability and the truthfulness of a testimony, the court considers other evidence presented to the court, the known facts about the case and the testimonies by other witnesses. Inconsistency with the physical evidence or the testimonies of other witnesses might indicate that the witness is untruthful, or it may simply reflect the fact that the witness has observed, interpreted, and later remembered the critical events incorrectly—normal human errors all too well known in the eyewitness literature (Loftus, 2005; Wells and Loftus, 2013; Howe and Knott, 2015).

(as it ends)

Is the rational course simply to drop this line of research? We believe it is. The creative studies carried out during the last few decades have been important in showing that psychological folklore, the ideas we share about behavioral signals of lies and deceit are not correct. This debunking function of science is extremely important. But we have now sufficient evidence that there are no specific non-verbal behavioral signals that accompany lying or deceitful behavior. We can safely recommend that courts disregard such behavioral signals when appraising the credibility of victims, witnesses, and suspected offenders. For psychology and law researchers it may be time to move on.

Friday, December 11, 2020

11th Circuit blocks South FL prohibitions on 'conversion therapy' for minors as unconstitutional

Michael Moline
Florida Pheonix
Originally posted 20 Nov 20

Here is an excerpt:

“We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carve-out for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny,” Grant wrote.

Judge Beverly Martin dissented, pointing to condemnations of the practice by the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, the American School Counselor Association, the U.S. Department of Health and Human Services, and the World Health Organization.

“Today’s majority opinion puts a stop to municipal efforts to regulate ‘sexual orientation change efforts’ (commonly known as ‘conversion therapy’), which is known to be a harmful therapeutic practice,” Martin wrote.

“The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws’ narrow focus on licensed therapists practicing on patients who are minors. Although I am mindful of the free-speech concerns the majority expresses, I respectfully dissent from the decision to enjoin these laws.”

Matt Staver, founder and chairman of Liberty Counsel, the conservative legal organization that represented two counselors who challenged the ordinance, welcomed the ruling.

“This is a huge victory for counselors and their clients to choose the counsel of their choice free of political censorship from government ideologues. This case is the beginning of the end of similar unconstitutional counseling bans around the country,” he said in a written statement.

Monday, November 23, 2020

Ethical & Legal Considerations of Patients Audio Recording, Videotaping, & Broadcasting Clinical Encounters

Ferguson BD, Angelos P. 
JAMA Surg. 
Published online October 21, 2020. 

Given the increased availability of smartphones and other devices capable of capturing audio and video, it has become increasingly easy for patients to record medical encounters. This behavior can occur overtly, with or without the physician’s express consent, or covertly, without the physician’s knowledge or consent. The following hypothetical cases demonstrate specific scenarios in which physicians have been recorded during patient care.

A patient has come to your clinic seeking a second opinion. She was recently treated for cholangiocarcinoma at another hospital. During her postoperative course, major complications occurred that required a prolonged index admission and several interventional procedures. She is frustrated with the protracted management of her complications. In your review of her records, it becomes evident that her operation may not have been indicated; moreover, it appears that gross disease was left in situ owing to the difficulty of the operation. You eventually recognize that she was never informed of the intraoperative findings and final pathology report. During your conversation, you notice that her husband opens an audio recording app on his phone and places it face up on the desk to document your conversation.

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From the Discussion

Each of these cases differs, yet each reflects the general issue of patients recording interactions with their physicians. In the following discussion, we explore a number of ethical and legal considerations raised by such cases and offer suggestions for ways physicians might best navigate these complex situations.

These cases illustrate potentially difficult patient interactions—the first, a delicate conversation involving surgical error; the second, ongoing management of a life-threatening postoperative complication; and the third, a straightforward bedside procedure involving unintended bystanders. When audio or video recording is introduced in clinical encounters, the complexity of these situations can be magnified. It is sometimes challenging to balance a patient’s need to document a physician encounter with the desire for the physician to maintain the patient-physician relationship. Patient autonomy depends on the fidelity with which information is transferred from physician to patient. 

In many cases, patients record encounters to ensure well-informed decision making and therefore to preserve autonomy. In others, patients may have ulterior motives for recording an encounter.