Skip to main content

Full text of "Indiana Law Review"

See other formats 


r' 


3  0000  063  226  942 


> 

Q. 

o 
o 

o 

z 

o 

z 

00 


n 


D 


n 


n 


D 


n 


n 


n 


1 

< 

QC 

LU 

1— 

■:--i 

< 

^'-j** 

:? 

'..'<? 

■  — '. 

,  1 

KH 

o 

3: 

CC  LU 

COS 
=>< 

CLtO 


< 

o 
o 
o 


< 

Z 

UJ 


cTi 


"A 
'--to 


LU 
LU 


O 

OLIJ 

m  u- 


co 


z 

_J 

-J 
O 


m 

i 

m: 


1 


C\''\ 


<<y 


Q 


C-O 
o 
o 
< 


9^ 


N 
X  S 
DC 
LU 
> 

o 
o 


O 

Z  «J 

—  c 

>r.2 

is 

v  to 

xr 
x^ 


X  5> 


Q  3: 


3: 


p      25  <l  Pd 
h-}  kJJ  Ctt 


C4  i-(  O 
Cs3  C^3  03 

r  ^ 


CD 


o 
o 

t3q 


o 

CD 

CD 
( 


01 

O 

Cm 


05 


o 
o 


SEP  0  5  100^ 


Indiana 

Law    c. 

Review 


C'^ 


Mar 


^  8  iQQj] 


^lBRj{f^ 


y 


Volume  33  No.  1  1999 


A  SYMPOSIUM  ON  LAW  AND  TECHNOLOGY 
IN  THE  NEW  MILLENNIUM:  CLOSING  THE  GAP 

Introduction:  The  Ability  of  the  Current  Legal  Framework  to 

Address  Advances  in  Technology 

Lawrence  P.  Wilkins 

Is  Bioethics  Broke?:  On  the  Idea  of  Ethics  and  Law 

"Catching  Up"  with  Technology 

Michael  H.  Shapiro 

The  Misperception  That  Bioethics  and  the  Law  Lag 

Behind  Advances  in  Biotechnology: 

A  Response  to  Michael  H.  Shapiro 

David  Orentlicher 

The  Changing  Face  of  Privacy  Protection  in  the 

European  Union  and  the  United  States 

Fred  H.  Cate 

Identity,  Privacy,  and  the  New  Information  Scalpers:  Recalibrating  the 

Rules  of  the  Road  in  the  Age  of  the  Infobahn: 

A  Response  to  Fred  H.  Cate 

Ronald  J.  Krotoszynski,  Jr. 

The  Internet  Is  Changing  the  Face  of  American  Law  Schools 
Henry  H.  Perritt,  Jr. 

Closing  One  Gap  but  Opening  Another?:  A  Response  to  Dean  Perritt 
and  Comments  on  the  Internet,  Law  Schools,  and  Legal  Education 

Michael  Heise 

NOTES 

In  re  Lindsey:  A  Needless  Void  in  the  Government  Attorney-Client  Privilege 

Amanda  J.  Dickmann 

Rockin'  Down  the  Highway:  Forging  a  Path  for  the  Lawful  Use  of 

MP3  Digital  Music  Files 
Mary  Jane  Frisby 

Closing  the  Doors  on  Unsupported  Speculation:  Joiner's,  Effect 
on  the  Admissibility  of  Expert  Testimony 
Theresa  M.  Moore 


Family  In  Law. 


In  1933,  BNA  first  published  The  United  States  Law  Week. 
With  that  first  issue,  BNA  set  a  new  standard  for  high-quality 
legal  reporting  and  research.  Following  Law  Week's 
precedent,  BNA  has  since  launched  a  family  of  information 
services  for  legal  professionals. 

BNA's  notification  services  cover  key  areas  of  the 
legal  field.  They  include:  Family  Law  Reporter;  BNA's 
Bankruptcy  Law  Reporter;  Business  Law  Adviser; 
Corporate  Governance  Report;  Mergers  &  Acquisitions 
Law  Report;  BNA's  Patent,  Trademark  &  Copyright 
Journal;  and  Criminal  Law  Reporter. 

Whichever  publication  you  choose,  you'll  notice  the 
family  resemblance  —  comprehensive,  accurate,     ' 
in-depth  coverage. 

Ask  your  professor  for  details  on  low 
student  rates  for  BNA 
information  services. 


mA 


The  Bureau  of  National  Affairs,  Inc. 
1231  25th  Street,  NW 
Washington,  DC  20037 
Customer  Relations:  1-800-372-1033 
email:  riskfree@bna.com 
http://www.bna.com 


Indiana  Law  Review 


>o 


Volume  33 


1999-2000 


Editor-in-Chief 
Lorena  Bray  Driscoll 


Executive  Managing  Editor 

Pamela  J.  Hensler 


Executive  Notes  and  Topics  Editor 

Erin  E.  Heuer  Lantzer 


Executive  Articles  Editors 

Joshua  P.  Hollingsworth 
Theresa  M.  Moore 


Symposium  Editor 

Jennifer  K.  Bagby 


Articles  Editors 

Grace  M.  Baumgartner 

Terry  E.  Hall 

Shawn  A.  Neal 

Michelle  L.  Neff 

Patrick  James  Olmstead 

James  C.  Owen 

Tara  J.  Stapleton 

Chris  A.  Wrede 


Note  Development  Editors 

Jamie  R.  Brashear 

Amanda  J.  Dickmann 

Kelley  A.  Kam 

Susan  W.  Kline 

Cynthia  A.  Muse 

Jill  M.  Ceding 


Brittany  R.  Abemathy 

Elijah  D.  Farrell 

A.  Jack  Finklea 

Mary  Jane  Frisby 


Associate  Editors 


Chad  J.  Melchi 

Gregory  A.  Neibarger 

Patrick  A.  Scheiderer 

Tiffany  A.  Sharpley 


Members 


Michael  J.  Adler 

Matthew  T.  Albaugh 

Richard  C.  Ascroft 

Jill  Baniewicz 

Michelle  L.  Blank 

Todd  J.  Cochran 

Julee  C.  Fischer 

Matthew  D.  Fisher 

Alexander  D.  Forman 

Katherine  S.  Green 


Eliza  Houston 

Angela  K.  Imel 

Kathryn  L.  Infanger 

David  J.  Karnes 

Tina  L.  Korty 

Stephanie  Hardy  Moore 

Kenneth  J.  Munson 

Danel  M.  Nickels 

Jennifer  Pruitt 

Jennifer  E.  Riley 


Libby  L.  Roberts 
Jason  M.  Schiesser 
Ann  Williams  Schneider 
Gene  Schulstad 
Howard  A.  Setzer 
Michele  L.  Stevenson 
Ann  L.  Thrasher 
Jonathan  Yarling 


Editorial  Specialist 

Chris  Paynter 


Faculty  Advisor 
David  R.  Papke 


Indiana  Law  Review 

(ISSN  0090-4198) 

Published  four  times  a  year  by  Indiana  University.  Editorial  and  Business  Offices  are  located  at: 

Indiana  Law  Review 

735  W.  New  York  Street 

Indianapolis,  IN  46202-5194 

(317)274-4440 

Subscriptions.  For  the  following  academic  year,  subscription  rates  will  be  $30.00  per  four-issue 
(domestic  mailing)  and  $35.00  (foreign  mailing).  Unless  the  Business  Office  receives  notice  to  the 
contrary,  all  subscriptions  will  be  renewed  automatically.  Address  changes  must  be  received  at 
least  one  month  prior  to  publication  to  ensure  prompt  delivery  and  must  include  old  and  new 
address  and  the  proper  zip  code. 

Single  and  Back  Issues.  Current  single  regular  issues  may  be  obtained  from  the  Law  Review 
Business  Office  for  $10.00.  Current  Survey  issues  may  be  purchased  for  $20.00.  The  Symposium 
Issue  may  be  purchased  for  $15.00.  Please  enclose  payment  with  order.  Complete  sets  and  single 
issues  of  prior  volumes  are  also  available  from  the  Law  Review  Business  Office.  Unless  a  claim 
is  made  for  nonreceipt  of  issues  within  one  year  of  the  mailing  date,  we  cannot  guarantee  supplying 
the  issues  without  charge. 

Manuscripts.  The  Indiana  Law  Review  invites  submission  of  unsolicited  manuscripts.  All 
citations  should  conform  to  The  Bluebook  A  Uniform  System  of  Citation  (16th  ed.  1996). 
Manuscripts  should  be  double-spaced  with  standard  one-inch  margins.  The  Indiana  Law  Review, 
as  a  matter  of  policy,  promotes  the  use  of  gender-neutral  language,  and  alternate  use  of  the  female 
or  male  pronoun  is  intended  to  refer  to  both  female  and  male. 

Copyright:  Copyright  2000.  The  Trustees  of  Indiana  University.  Except  as  may  be  expressly 
provided  elsewhere  in  this  publication,  permission  is  hereby  granted  to  produce  and  distribute 
copies  of  individual  works  from  this  publication  for  nonprofit  education  purposes,  provided  that 
copies  are  distributed  at  or  below  cost,  and  that  the  author,  source,  and  copyright  notice  are 
included  on  each  copy.  This  permission  is  in  addition  to  rights  of  reproduction  granted  under 
Sections  107,  108,  and  other  provisions  of  the  U.S.  Copyright  Act. 

The  INDIANA  LAW  REVIEW  (ISSN  0090-4198)  is  the  property  of  Indiana  University  and 
is  published  quarterly  by  the  Indiana  University  School  of  Law — Indianapolis,  which  assumes 
complete  editorial  responsibility  thereof  Following  academic  year  subscription  rates  will  be:  one 
year  domestic  $30.00;  foreign  $35.00.  Please  notify  us  one  month  in  advance  of  any  change  in 
address  and  include  both  old  and  new  addresses  with  zip  codes  to  ensure  delivery  of  all  issues. 
Send  all  correspondence  to  Law  Review  Specialist,  Indiana  Law  Review,  Indiana  University  School 
of  Law — Indianapolis,  735  W.  New  York  Street,  Indianapolis,  Indiana  46202-5 194.  Publication 
office:  735  W.  New  York  Street,  Indianapolis,  Indiana  46202-5194.  Periodicals  postage  paid  at 
Indianapolis,  Indiana  46201. 

POSTMASTER:  Send  address  changes  to  INDIANA  LAW  REVIEW,  735  W.  New  York 
Street,  Indianapolis,  Indiana  46202-5194. 


® 


The  entire  text  of  this  Law  Review  is  printed  on  recycled  paper. 


Indiana 
International 
&  Comparative 
Law  Review 


The  Indiana  International  &  Comparative  Law  Review,  published  by  the  Indiana 
University  School  of  Law — ^Indianapolis  since  1991,  is  a  student-edited  law  journal  which 
provides  a  forum  for  the  discussion  and  analysis  of  contemporary  issues  in  public  and  private 
international  law.  The  Review  publishes  articles  by  prominent  legal  scholars,  practitioners,  and 
policy  makers  from  around  the  world,  as  well  as  student-written  notes  and  comments. 

The  Review  is  published  twice  annually,  with  a  periodic  third  issue  devoted  to  a  specific 
topic  in  international  or  comparative  law.  In  1994,  in  conjunction  with  the  Italian  Academy  for 
Advanced  Studies  in  America  at  Columbia  University,  the  Review  published  a  special  issue  on 
the  political  and  social  aspects  of  Italian  law.  In  1996,  the  Review  published  an  issue 
addressing  various  aspects  of  Chinese  law. 


Visa  Mastercard 


Name 


School/Firm/Business  Credit  Card  Number 


Address  Expiration  Date 


City,  State,  Zip  Code  Signature  (Required) 

I  enclose  $ for subscriptions  to  the  Indiana  International  and  Comparative 

Law  Review  (Subscriptions  $18.00  per  year  within  the  U.S./$21.00  per  year  outside  the  U.S.). 
Please  make  your  check  payable  to  Indiana  International  &  Comparative  Law  Review. 

Mail  to:  Executive  Production  Editor 

Indiana  International  &  Comparative  Law  Review 
735  West  New  York  Street 
Indianapolis,  Indiana  46202 


Digitized  by  the  Internet  Archive 

in  2011  with  funding  from 

LYRASIS  IVIembers  and  Sloan  Foundation 


http://www.archive.org/details/indianalawreview33199unse 


Please  enter  my  subscription 

to  the 
INDIANA  LAW  REVIEW 


NAME 
ADDRESS: 


Enclosed  is  $ 


for 


subscription(s) 


Mail  to:       ATTN:  Law  Review  Specialist 

at 
INDIANA  LAW  REVIEW 

INDIANA  UNIVERSITY  SCHOOL  OF  LAW-INDIANAPOLIS 

735  West  New  York  Street 
Indianapolis,  Indiana  46202-5194 

For  the  following  academic  year,  the  subscription  rate  for  four  issues  will  be: 

^Domestic,  $30;  Foreign,  $35;  Student,  $20* 

^Single  Issue,  $10;  Survey  Issue,  $20* 

*Symposium  Issue,  $15* 


Indiana  University  School  of  Law — Indianapolis 
1999-2000  ADMINISTRATIVE  OFFICERS  AND  FACULTY 

Administrative  Officers 

Myles  Brand,  President  of  the  University.  Ph.D.  in  Philosophy,  University  of  Rochester  (New 

York). 
Gerald  L.  Bepko,  Vice-President  for  Long-Range  Planning,  Indiana  University;  Chancellor, 

Indiana  University-Purdue  University  at  Indianapolis  and  Professor  of  Law.  J.D., 

ITT/Chicago-Kent  College  of  Law;  LL.M..  Yale  University. 
Norman  Lefstein,  Dean  and  Professor  of  Law.  LL.B..  University  of  Illinois;  LL.M., 

Georgetown  University. 
Susanah  M.  Mead,  Associate  Dean  for  Academic  Affairs  and  Professor  of  Law.  B.A.,  Smith 

College;  J.D.,  Indiana  University — Indianapolis. 
Cynthia  Baker,  Director,  Program  on  Law  and  State  Government.  B.A.,  J.D.,  Valparaiso  University. 
Elizabeth  L.  DeCoux,  Assistant  Dean  for  Student  Affairs.  J.D.,  Mississippi  College  School  of 

Law 
Angela  M.  Espada,  Assistant  Dean  for  Admissions.  J.D.,  Indiana  University — Bloomington. 
JoNNA  M.  Kane,  Assistant  Dean  for  External  Affairs.  J.D..  Indiana  University — Indianapolis. 
Karen  Marks,  Director  of  Career  Services.  B.S.,  St.  Joseph's  College;  M.S.,  Illinois  State 

University. 
JONi  D.  Thompson,  Assistant  Dean  for  Development.  M.A.,  Ball  State  University. 

Faculty 

Cynthia  M.  Adams,  Lecturer  in  Law.  B.  A.,  Kentucky  Wesleyan  College;  J.D.,  Indiana  University — 

Indianapolis. 
Thomas  B.  Allington,  Professor  of  Law.  B.S.,  J.D.,  University  of  Nebraska;  LL.M.,  New  York 

University 
Edward  P.  Archer,  Professor  of  Law.  B.M.E.,  Renesselaer  Polytechnic  Institute;  J.D.,  LL.M., 

Georgetown  University. 
James  F.  Bailey,  III,  Professor  of  Law  and  Director  of  Law  Library.  A.B.,  J.D.,  M.A.L.S., 

University  of  Michigan. 
Gerald  L.  Bepko,  Vice  President  for  Long-Range  Planning,  Chancellor,  and  Professor  of  Law. 

B.S.,  Northern  Illinois  University;  J.D.,  IIT/Chicago-Kent  College  of  Law;  LL.M., 

Yale  University. 
Frank  Bowman,  Associate  Professor  of  Law.  B.A.,  Colorado  College;  J.D.,  Harvard  Law  School. 
Robert  Brookins,  Professor  of  Law.  B.S.,  University  of  South  Florida;  J.D.,  Ph.D.,  Cornell 

University. 
Daniel  H.  Cole,  M.  Dale  Palmer  Professor  of  Law.  A.B.,  Occidental  College;  A.M.,  Univereity  of 

Chicago;  J.D.,  Lewis  and  Clark  College;  J.S.M.,  J.S.D.,  Stanford  Law  School. 
Jeffrey  O.  Cooper,  Assistant  Professor  of  Law,  A.B.,  Harvard  University;  J.D.,  University  of 

Pennsylvania. 
Paul  N.  Cox,  Centennial  Professor  of  Law.  B.S.,  Utah  State  University;  J.D.,  University  of  Utah; 

LL.M.,  University  of  Virginia. 
Kenneth  D.  Crews,  Associate  Dean  of  the  Faculties  for  Copyright  Management  and  Associate 

Professor  of  Law  and  Library  and  Information  Science.  B.A.,  Northwestern  University; 

J.D.,  Washington  University;  M.L.S.,  University  of  California,  Los  Angeles;  Ph.D., 

University  of  California,  Los  Angeles. 
Clyde  Harrison  Crockett,  Professor  of  Law.  A.B.,  J.D.,  University  of  Texas;  LL.M.,  University 

of  London  (The  London  School  of  Economics  and  Political  Science). 
James  D.  Dimitri,  Lecturer  in  Law.  B.S.,  Indiana  University;  J.D.,  Valparaiso  University  School 

of  Law. 
George  E.  Edwards,  Associate  Professor  of  Law  and  Director,  Program  in  International 

Human  Rights  Law.  B.A.,  North  Carolina  State  University;  J.D.,  Harvard  Law  School. 
Paul  J.  Galanti,  Professor  of  Law.  A.B.,  Bowdoin  College;  J.D.,  University  of  Chicago. 
Harold  Greenberg,  Professor  of  Law.  A. B.,  Temple  University;  J.D.,  University  of  Pennsylvania. 
Jeffrey  W.  Grove,  Professor  of  Law.  A.B.,  Juniata  College;  J.D.,  George  Washington 

University. 
Frances  Watson  Hardy,  Clinical  Associate  Professor  of  Law.  B.S.,  Ball  State  University;  J.D., 

Indiana  University — Indianapolis. 


W.  William  Hodes,  Professor  of  Law.  A.B.,  Harvard  College;  J.D.,  Rutgers,  Newark. 
Lawrence  A.  Jegen,  III,  Thomas  F.  Sheehan  Professor  of  Tax  Law  and  Policy.  A.B.,  Beloit 

College;  J.D.,  M.B.A.,  The  University  of  Michigan;  LL.M.,  New  York  University. 
Henry  C.  Karlson,  Professor  of  Law.  A.B.,  J.D.,  LL.M.,  University  of  Illinois. 
Eleanor  D.  Kinney,  Samuel  R.  Rosen  Professor  of  Law  and  Co-Director  of  the  Center  for  Law  and 

Health.  B.A.,  Duke  University;  M.A.,  University  of  Chicago;  J.D.  Duke  University; 

M.P.H.,  University  of  North  Carolina. 
Ronald  J.  Krotoszynski,  Jr.,  Paul  E.  Beam  Fellow  and  Associate  Professor  of  Law.  B.A.,  M.A., 

Emory  University;  J.D.,  LL.M.,  Duke  University. 
Norman  Lepstein,  Dean  and  Professor  of  Law.  LL.B.,  University  of  Illinois;  LL.M., 

Georgetown  University. 
Lynn  A.  McDowell,  Clinical  Associate  Professor  of  Law.  B.S.  Indiana  University;  J.D.,  Indiana 

University— Indianapolis. 
Deborah  McGregor,  Lecturer  in  Law  and  Assistant  Director  of  Legal  Writing.  B.A.,  University 

of  Evansville;  J.D.,  Georgetown  University. 
Susanah  M.  Mead,  Associate  Dean  and  Professor  of  Law.  B.A.,  Smith  College;  J.D.,  Indiana 

University — Indianapolis. 
Mary  H.  Mitchell  Professor  of  Law.  A.B.,  Butler  University;  J.D.,  Cornell  Law  School. 
James  P.  Nehf,  Cleon  H.  Foust  Fellow  and  Professor  of  Law.  B.A.,  Knox  College;  J.D.,  University 

of  North  Carolina. 
David  Orentlicher,  Samuel  R.  Rosen  Professor  of  Law  and  Co-Director  of  the  Center  for  Law  and 

Health.  A.B.,  Brandeis  University;  J.D.,  M.D.,  Harvard  College. 
Joanne  Orr,  Clinical  Associate  Professor  of  Law.  B.S.,  Indiana  State  University;  J.D., 

California  Western. 
David  R.  Papke,  R.  Bruce  Townsend  Professor  of  Law  and  Professor  of  American  Studies.  A.B., 

Harvard  College;  J.D.,  Yale  University;  M.A.  in  American  Studies.  Yale  University; 

Ph.D.  in  American  Studies,  The  University  of  Michigan. 
H.  Kathleen  Patchel,  Associate  Professor  of  Law.  A.B.,  Huntington  College;  J.D.,  University 

of  North  Carolina;  LL.M.,  Yale  University. 
Fran  Quigley,  Clinical  Associate  Professor  of  Law.  B.A.,  Hanover  College;  M.A.,  Indiana 

University — Bloomington;  J.D.,  Indiana  University — Indianapolis. 
Florence  Wagman  Koisuku,  Associate  Professor  of  Law.  B.A.,  University  of  Connecticut;  LL.B., 

Harvard  Law  School. 
Richard  J.  Ross,  Associate  Professor  of  Law.  B.A.,  J.D.,  Ph.D.,  Yale  University. 
JoanM.  Ruhtenberg,  ClinicalProfessorof  Law  and  Director  of  Legal  Writing.  B.A.,  Mississippi 

University  for  Women;  J.D.,  Indiana  University — Indianapolis. 
E.  Gary  Spitko,  Assistant  Professor  of  Law.  A.B.,  Cornell  University;  J.D.,  Duke  University 

Law  School. 
June  O.  Starr,  Associate  Professor  of  Law.  B.A.,  Smith  College;  M.A.,  Columbia  University; 

Ph.D.,  University  of  California,  Berkeley;  M.S.L.,  Yale  University;  J.D.,  Stanford 

Law  School. 
James  W.  Torke,  Carl  M.  Gray  Professor  of  Law.  B.S.,  J.D.,  University  of  Wisconsin. 
James  Patrick  White,  Professor  of  Law  and  Consultant  on  Legal  Education  to  the  American 

Bar  Association.  A.B.,  University  of  Iowa;  J.D.,  LL.M.,  George  Washington  University. 
Lawrence  P.  Wilkins,  Professor  of  Law.  B.A.,  The  Ohio  State  University;  J.D.,  Capital  University 

Law  School;  LL.M.,  University  of  Texas. 
Lloyd  T.  Wilson,  Jr.,  Lecturer  in  Law.  B.A.,  Wabash  College;  M.A.,  Duke  University;  J.D.,  Indiana 

University  School  of  Law— Bloomington. 
Mary  T.  Wolf,  Clinical  Professor  of  Law  and  Director  of  Clinical  Programs.  B.A.,  Saint  Xavier 
College;  J.D.,  University  of  Iowa. 

Emeriti 

Agnes  P.  Barrett,  Associate  Professor  of  Law  Emerita.  B.S.,  J.D.,  Indiana  University. 

Cloen  H.  Foust,  Professor  of  Law  Emeritus.  A.B.,  Wabash  College;  J.D.,  University  of  Arizona. 

David  A.  Funk,  Professor  of  Law  Emeritus.  A.B.,  College  of  Wooster;  J.D.,  Case  Western  Reserve 

University;  M.A.,  The  Ohio  State  University;  LL.M.,  Case  Western  Reserve  University; 

LL.M.,  Columbia  University. 


Helen  P.  Garfield,  Professor  of  Law  Emerita.  B.S.J.  Northwestern  University;  J.D.,  University  of 

Colorado. 
William  F.  Harvey,  Carl  M.  Gray  Professor  of  Law  <ft  Advocacy  Emeritus.  A.B.,  University  of 

Missouri;  J.D.,  LL.M.,  Georgetown  University. 
William  Andrew  Kerr,  Professor  of  Law  Emeritus.  A.B.,  West  University  University.;  J. D., 

LL.M.,  Harvard  University;  B.S.,  Duke  University. 
Melvin  C.  Poland,  Cleon  H.  Foust  Professor  of  Law  Emeritus.  B.S.,  Kansas  State  University; 

LL.B.,  Washburn  University;  LL.M.,  University  of  Michigan. 
Ronald  W.  Polston,  Professor  of  Law  Emeritus.  B.S.,  Eastern  Illinois  University;  LL.B.,  University 

of  Illinois. 
Kenneth  M.  Stroud,  Professor  of  Law  Emeritus.  A.B.,  J.D,  Indiana  University—Bloomington. 

Law  Library  Faculty 

James  F.  Bailey,  III,  Professor  and  Director  of  Law  Library.  A.B.,  J.D.,  M.A.L.S.,  University 

of  Michigan. 
Richard  Humphrey,  Reference  Librarian.  A. A.,  Brewton-Parker  Junior  College;  B.A.,  Georgia 

Southwestern  College;  M.L.S.,  University  of  Kentucky. 
Wendell  E.  Johnting,  Assistant  Director  for  Technical  Services.  A.B.,  Taylor  University;  M.L.S., 

Indiana  University. 
Bruce  Kleinschmidt,  Reference  Librarian.  B.A.,  Furman  University;  J.D.,  University  of  Louisville; 

M.L.S.,  University  of  North  Texas. 
Chris  E.  Long,  Catalog  Librarian.  B.A.,  Indiana  University;  M.A.,  Indiana  University;  M.L.S., 

Indiana  University. 
Mahnaz  K.  Moshfegh,  Acquisition/Serials  Librarian.  B.A.,  National  University  of  Iran;  M.S., 

Tehran  University;  M.A.,  Ball  State  University;  M.L.S.,  Ph.D.,  Indiana  University. 
Kiyoshi  Otsu,  Computer  System  Specialist.  A.  A.,  Parkland  College;  A.B.,  M.S.,  C.A.S.,  University 

of  Illinois. 


Indiana  Law  Review 


Volume  33 1999 Number  1 

Copyright  ©  2000  by  the  Trustees  of  Indiana  University 

TABLE  OF  CONTENTS 

A  SYMPOSIUM  ON  LAW  AND  TECHNOLOGY 
IN  THE  NEW  MILLENNIUM:  CLOSING  THE  GAP 


Introduction:  The  Ability  of  the  Current  Legal 
Framework  to  Address  Advances 
in  Technology Lawrence  P.  Wilkins       1 

Is  Bioethics  Broke?:  On  the  Idea  of  Ethics  and  Law 

"Catching  Up"  with  Technology Michael  H.  Shapiro     17 

The  Misperception  That  Bioethics  and  the  Law  Lag 
Behind  Advances  in  Biotechnology: 
A  Response  to  Michael  H.  Shapiro  David  Orentlicher  163 

The  Changing  Face  of  Privacy  Protection  in  the 

European  Union  and  the  United  States   FredH.  Cate  173 

identity,  Privacy,  and  the  New  Information  Scalpers: 
Recalibrating  the  Rules  of  the  Road 
in  the  Age  of  the  Infobahn: 
A  Response  to  Fred  C.  Cate Ronald  J.  Krotoszynski,  Jr.  233 

The  Internet  Is  Changing  the  Face  of  American 

Law  Schools Henry  H.  Perritt,  Jr.  ,253 

Closing  One  Gap  but  Opening  Another?:  A  Response 
to  Dean  Perritt  and  Comments  on  the  Internet, 
Law  Schools,  and  Legal  Education Michael  Heise  275 

NOTES 

In  re  Lindsey:  A  Needless  Void  in  the  Government 

Attorney-Client  Privilege    Amanda  J.  Dickmann  291 

Rockin'  Down  the  Highway:  Forging  a  Path 
for  the  Lawful  Use  of  MP3  Digital 
Music  Files    Mary  Jane  Frisby  317 

Closing  the  Doors  on  Unsupported  Speculation: 
Joiner's  Effect  on  the  Admissibility 
of  Expert  Testimony    Theresa  M.  Moore  349 


Volume  33  Number  1 


Indiana  Law  Review 

Volume  33  1999  Number  1 


SYMPOSIUM 


Introduction:  The  Ability  of  the  Current  Legal 
Framework  to  Address  Advances  in  Technology 


Lawrence  P.  Wilkins* 


Introduction 

An  inquiry  into  the  ability  of  the  current  legal  framework  to  address  advances 
in  technology  quickly  encounters  two  different  contexts  in  which  the  question 
arises:  The  first,  on  a  general  plane,  is  the  adoption  and  use  of  technology  in 
non-legal  endeavors  which  enable  new  human  capabilities  which  in  turn  give  rise 
to  legal  problems.  The  second,  on  a  more  specific  plane,  is  the  adoption  and  use 
of  technology  by  lawyers,  judges,  and  others  working  in  and  with  the  law,  which 
allow  new  capabilities  for  users  and  which  may  or  may  not  lead  to  problems. 

In  the  former  context,  the  concern  is  whether  and  to  what  extent  the  legal 
system,  including  legal  education,  can  deal  with  issues  that  are  presented  by 
advances  in  such  fields  as  genetic  engineering  and  medical  technology,  or 
electronic  transmission  of  private  and  commercial  information  over  global 
networks.  The  papers  to  be  presented  in  this  symposium  will  deal  with  these 
issues  at  length.  In  the  latter  context,  the  concerns  are  about  how  legal  work  can 
be  done  using  state-of-the  art  technology  and  whether  adjustments  must  be  made 
in  the  legal  system  to  accommodate  the  changes  that  technology  enables.  The 
main  focus  of  these  introductory  remarks  will  be  upon  the  ability  of  the  current 
legal  framework  to  address  advances  in  technology  in  this  latter  context.  In  Part 
II,  the  remarks  will  briefly  examine  the  history  of  development  of  technology 
pertinent  to  information  systems.  Part  III  will  consider  the  rate  of  change  and 
make  some  observations  of  the  extent  of  adoption  of  information  technology  by 
those  who  do  legal  work.  Part  IV  examines  some  factors  pertaining  to  why  the 
adoption  of  technology  is  a  matter  of  some  hesitancy  in  some  quarters.  Part  IV 


*  Professor  of  Law  and  Director,  Program  for  Management  of  Legal  Information  Systems, 
Indiana  University  School  of  Law— Indianapolis.  Director  of  the  Symposium.  The  author 
dedicates  this  Article  to  Minde  Glenn  Browning,  Assistant  Director,  Program  for  Management  of 
Legal  Information  Systems  and  Assistant  Director  of  Readers  Services,  Indiana  Universit>'  School 
of  Law— Indianapolis  Law  Library,  who  was  an  inspiring,  creative  colleague  and  dear  friend  whose 
passing  created  a  void  in  the  realm  of  law  and  technology  that  will  never  be  filled.  The  author 
thanks  Kristyn  Kimery,  Symposium  Editor  of  the  Indiana  Law  Review  for  proposing  the  idea  for 
the  Symposium  and  all  of  her  many  hours  of  dedicated  effort  in  making  it  become  a  reality.  The 
author  also  thanks  Bruce  Kleinschmidt  and  Chris  Long  of  the  Indiana  University  School  of 
Law— Indianapolis  Law  Library  for  assistance  in  researching  this  Article. 


INDIANA  LAW  REVIEW  [Vol.  33:1 


presents  some  introductory  thoughts  along  the  general  plane  of  the  inquiry, 
hoping  to  set  the  stage  for  the  presentations  and  responses  comprising  this 
Symposium.  Finally,  Part  VI  offers  some  conclusions  about  the  general  ability 
of  the  legal  system  to  address  technological  change. 

I.  Information  Technology  in  Historical  Context 

References  in  this  section  to  technology  adopted  in  the  legal  community 
pertain  to  information  systems:  combinations  of  hardware  and  software  that 
enable  people  doing  legal  work  to  generate,  analyze,  augment,  manipulate,  store, 
retrieve,  transmit  and  receive  information  in  the  performance  of  their  various 
tasks.  Such  technology  involves  the  use  of  devices  and  processes  that  allow  the 
extension  and  transformation  of  human  thinking  into  any  form  that  can  be  shared 
with  anyone  who  has  access  to  the  same  technology.  The  term  is  used  here  in 
contrast  to  such  other  systems  as  those  for  transportation,  security  and 
entertainment,  even  though  it  may  have  some  elements  in  common  with  these 
other  systems. 

This  assessment  of  the  ability  of  the  current  legal  framework  to  address 
advances  in  technology  will  examine  what  has  been  done  up  to  now,  bring  into 
high  relief  some  of  the  changes  that  have  occurred  and  then  try  to  project  those 
changes  into  the  future.  To  do  that  will  require  some  reference  to  technological 
advances  outside  the  realm  of  legal  endeavors. 

To  borrow  an  idea  from  Richard  Susskind,  who  has  written  an  excellent 
examination  of  the  impact  of  information  technology  on  legal  work,  we  can 
obtain  a  sense  of  the  influence  technology  has  had  by  simply  reflecting  upon 
relatively  recent  developments  and  projecting  our  present  circumstance 
backward.'  Incidentally,  we  can  also  obtain  a  sense  of  the  difficulty  of  assessing 
the  ability  of  the  legal  system  to  deal  with  future  developments.  If  we  had 
conducted  this  Symposium  in  1979,  we  would  be  prognosticating  the  use  of 
personal  computers  in  law  offices.  Those  devices  did  not  arrive  on  the  market 
until  1981.  Could  we  have  foreseen  then  how  widespread  and  important  their  use 
would  become  in  the  profession? 

If  we  were  to  have  conducted  the  Symposium  in  1989,  we  could  have 
predicted  that  the  World  Wide  Web  might  have  some  possible  application  in  the 
legal  field;  but,  it  was  not  developed  until  1 990,  and  who  could  have  foreseen  the 
dimensions  that  it  was  so  quick  to  assume? 

Today,  employing  powerful  personal  computers,  network  servers,  and 
Internet  technology,  lawyers  and  law  firms  around  the  world  maintain  websites 
and  home  pages  on  the  Web.  Local,  state,  and  federal  governments  and  their 
agencies  have  official  websites.  Vast  libraries  of  information  are  forming  on  the 
Web,  and  electronic  commerce  using  Web  technology  continues  to  grow  at  a 
rapid  pace.  Taking  advantage  of  the  strengths  of  the  Web  in  its  capabilities  for 
easily  storing,  searching,  and  transmitting  data  to  users.  Web-based  providers  of 


1.    See  Richard  E.  Susskind,  The  Future  of  Law:    Facing  the  Challenges  of 
Information  Technology  ( 1 996). 


1 999]  ADVANCES  IN  TECHNOLOGY 


data  have  created  vast  and  expanding  sets  of  resources  for  legal  researchers' 
accession  through  Web  browsers.  These  developments  have  occurred  just  in  this 
current  decade,  and  most  of  it  during  the  past  five  years. 

Deepening  our  perspective  along  the  time  dimension  and  considering  the 
pace  of  technological  development  in  a  much  earlier  age  increases  our 
appreciation  of  the  pace  of  change  that  confronts  us  today.  One  hundred  and 
twenty-five  years  ago,  E.  Remington  &  Sons,  the  gun  manufacturer,  looking  to 
open  new  markets  after  its  boom  years  manufacturing  weaponry  for  the  war 
effort,  introduced  the  first  typewriter.  The  device  had  actually  been  patented  one 
hundred  and  sixty  years  earlier,  but  had  been  considered  only  experimental 
technology  until  Remington  put  it  into  commercial  use.^ 

Samuel  Clemens  purchased  a  typewriter  that  first  year  and  became  the  first 
author  to  submit  a  typed  manuscript  to  a  publisher.^  He  soon  developed  a  love- 
hate  relationship  with  the  machine  that  resembles  the  relationship  that  some  of 
us  have  developed  with  modern  technology.  Part  of  his  first  message  stated:  "I 
am  trying  to  get  the  hang  of  this  new-fangled  writing  machine,  but  am  not  making 
a  shining  success  of  it.  However,  this  is  the  first  attempt  I  ever  have  made,  &  yet 
I  perceive  that  I  shall  soon  and  easily  acquire  a  fine  facility  in  its  use.'"*  Twain 
later  said  the  thing  was  ruining  his  morals  because  it  made  him  want  to  swear.^ 

During  the  1 893  World's  Fair  in  Chicago,  Elisha  Gray  introduced  a  machine 
that  he  called  the  "teleautograph."  The  function  of  this  invention  was  to 
automatically  print  out  on  a  typing  machine  at  one  end  of  a  wire  the  matter  that 
had  been  written  on  another  typing  machine  at  the  other  end  of  the  wire.  The 
device  was  later  developed  commercially  by  a  number  of  people  as  the 
teletypewriter,  or  teletype.^ 


2.  The  device  was  first  patented  in  1714  in  England  by  an  engineer  named  Mills,  but  the 
first  practical  design  was  not  obtained  until  1 867  when  Christopher  Latham  Sholes,  Carlos  Glidden 
and  S.W.  Soule  did  so  in  Milwaukee,  Wisconsin.  Remington's  machine  was  based  on  this  design. 
See  Donald  Hoke,  Ingenious  Yankees:  The  Rise  of  the  American  System  of  Manufacture 
IN  the  Private  Sector  141-150  (1990);  see  also  12  The  New  Encyclopaedia  Britannica  86 
(15th  ed.  1997). 

3.  The  manuscript  was  likely  for  Mississippi  Story.  See  Albert  Bigelow  Paine,  Mark 
Twain:  A  Biography  535-38  (1912)  (containing  a  digital  representation  of  a  photograph  of  the 
first  letter  Twain  typed  on  a  typewriter)  cited  in  Jim  Zwick,  A  Typewriter,  and  a  Joke  on  Aldrich 
(visited  Mar.  24,  1999)  <http://marktwain.miningco.com/library/biography/bl_paine_bio_ch099. 
htm>. 

4.  Id.  The  quotation  is  from  a  letter  that  Twain  wrote  to  his  brother,  Orion  Clemens.  See 
id. 

5.  See  id. 

6.  See  Lewis  Coe,  The  Telegraph:  A  History  of  Morse's  Invention  and  its 
Predecessors  in  the  United  States  20  (1993).  Elisha  Gray  was  the  inventor  who  lost  out  to 
Alexander  Graham  Bell  by  a  few  hours  in  receiving  a  patent  on  the  telephone.  For  his  efforts  with 
the  telegraph,  he  may  well  be  considered  the  great-grandfather  of  the  Internet.  See  also  Irwin 
Lebow,  Information  Highways  and  Byways:  From  the  Telegraph  to  the  2 1  st  Century  36, 
41,196(1995). 


INDIANA  LAW  REVIEW  [Vol.  33 : 1 


In  1890,  William  Seward  Burroughs  put  his  business  adding  machine  into 
production,  but  it  was  not  to  become  successful  until  1898.  Mr.  Burroughs 
founded  the  Borroughs  Corporation,  and  his  machines  became  standard 
equipment  in  most  American  offices  until  they  were  replaced  by  modem 
electronic  calculators.^ 

In  1895,  Guglielmmo  Marconi  demonstrated  the  first  wireless  transmission 
of  electromagnetic  signals.^  The  telegraph,  however,  was  the  dominant  means 
of  long-distance  communication,  and  Marconi's  technology  was  not  to  be 
exploited  for  several  more  years.  Marconi's  main  interest  was  in  ship-to-shore 
wireless  transmissions  for  the  maritime  industry.^  Radios  continued  to  be  viewed 
as  experimental  devices  or  expensive  toys  for  several  more  years. '^  The  first 
commercial  broadcasting  station  did  not  go  on  the  air  until  1920."  The  famous 
case  of  The  T.J.  Hooper, ^~  in  which  Judge  Learned  Hand  effectively  made  radio 
receivers  standard  equipment  in  sea-going  tugboats  was  decided  in  1932. 

We  can  see  then,  that  the  last  decade  of  the  19th  century  was  a  period  of 
great  inventiveness.  However,  with  some  notable  exceptions,  the  general  pattern 
of  development  and  usage  indicate  that  these  useful  devices  were  developed  at 
a  fairly  leisurely  pace  and  many  were  developed  as  curiosities  or  entertainment 
devices.  Technology  did  not  occupy  such  an  important  place  in  our  working 
culture,  and  new  inventions  were  not  rushed  to  market  and  quickly  replaced  with 
the  latest  and  greatest  upgrade.  However,  once  devices  were  developed  to  the 
point  that  they  made  work  more  efficient,  they  generally  caught  on  . . .  and  stayed 
on.  It  seems  that  they  underwent  a  period  of  casual  acceptance  in  that  part  of 
peoples'  lives  in  which  they  posed  no  real  threat  to  the  status  quo.  Once  they 
were  shown  to  have  some  value,  then  they  were  readily  adopted  as  important  and 
long-lasting  tools  for  working  with  information. 

Little  evidence  exists  over  this  historical  period  to  suggest  that  lawyers  and 
judges  either  lagged  behind  or  outpaced  the  rest  of  the  community  in  employing 
new  information  systems.  One  item,  however,  was  reported  almost  exactly  one 
hundred  years  ago  that  stands  out.  A  New  York  Times  article  describes  a  "New 
Use  for  the  Telephone"  in  which  a  lawyer  in  Tennessee,  who  could  not  make  it 
to  trial  because  of  a  snowstorm,  examined  witnesses  and  gave  his  final  argument 
over  the  phone. '^  He  won  the  case,  and  the  article  concludes  by  stating:  "There 


7.  See  Bryan  Morgan,  Total  to  Date:  The  Evolution  of  the  Adding  Machine:  The 
Story  of  Burroughs  30,  47  (1953);  see  also  National  Inventors  Hall  of  Fame  Website,  William 
Seward  Burroughs  (visited  Mar.  24,  1999)  <http://www.invent.org/booic/book-text/17.html>. 

8.  See  Orrin  E.  Dunlap,  Marconi:  The  Man  and  His  Wireless  17  (1971);  ^^e  also 
Orrin  E.  Dunlap,  Communications  in  Space:  From  Marconi  to  Man  on  the  Moon  7  ( 1 970). 

9.  See  Steven  Lubar,  Infoculture:  The  Smithsonian  Book  of  Information  Age 
Inventions  102-107  (1993). 

10.  See  id.  dXlU. 

11.  Seeid.dXZA. 

12.  The  T.J.  Hooper  v.  Northern  Barge  Corp.,  60  F.2d  737  (2d  Cir.),  cert,  denied,  287  U.S. 
662(1932). 

13.  New  Use  of  the  Telephone,  N.Y.  TIMES,  Mar.  12,  1899,  at  1. 


1 999]  ADVANCES  IN  TECHNOLOGY 


is  much  interest  among  lawyers  as  to  whether  it  will  serve  as  precedent."''' 

Others  did  not  approach  technology  with  such  optimism.  In  1 899,  at  the  end 
of  this  decade  of  extraordinary  inventiveness,  Mr.  Charles  H.  Duell,  who  was 
Commissioner  of  the  United  States  Office  of  Patents,  uttered  one  of  the  most 
curious  statements  of  the  time.  Possibly  bowled  over  by  the  burst  of  activity  that 
had  occurred  in  the  90s,  he  declared  that  the  Patent  Office  should  be  abolished 
because  "everything  that  can  be  invented  has  been  invented."'^ 

II.  ADOPTION  OF  Legal  Information  Technology  in 
THE  Modern  Legal  System 

This  historical  thumbnail  sketch  contains  no  surprises:  we  have  come  a  long 
way.  But,  after  all,  an  entire  century  has  passed  since  that  bygone  age  of 
inventiveness,  and  the  devices  of  that  time  are  bound  to  seem  primitive  and 
quaint.  However,  the  rate  of  change  can  be  better  appreciated  when  these 
developments  are  placed  on  a  time  line.  For  one  hundred  years,  the  typewriter 
was  the  machine  of  choice  for  word  processing.  Advances?  Yes,  but  its  basic 
function  remained  the  same  throughout  that  period.  It  remains  in  use  in  some 
quarters,  but  the  personal  computer  has  rendered  it  obsolete  in  virtually  every 
business  and  law  office.  During  that  same  period  of  time,  separate  machines 
were  used  for  creation,  storage,  and  manipulation  of  documents  and  the 
information  that  they  contained.  All  of  the  machines  used  in  those  various 
functions  did  so  in  only  in  print  form.  In  mid-twentieth  century,  few  could  have 
presaged  how  common  central  processing  units,  integrated  function  software, 
searchable  databases,  electronic  communications  networking,  and  laser 
technology  would  have  become  in  law  offices  and  courthouses.  If  personal 
computers  with  Internet  connections  and  e-mail  software,  fax  machines,  and 
photocopiers  were  to  suddenly  disappear  from  law  offices,  those  offices  would 
simply  not  be  able  to  continue  to  deliver  legal  services  in  the  ways  that  clients 
have  learned  to  expect. 

Today  in  some  courtrooms  across  the  country,  lav^ers,  judges,  and  court 
administrative  personnel  are  using  personal  computers  equipped  with  software 
and  peripheral  devices  enabling  them  to  more  efficiently  present  and  manage 
evidence.  With  the  use  of  scanners,  documents  and  images  of  non-documentary 
evidence  can  be  converted  into  digital  form  for  storage  and  retrieval.  The 
medium  for  storage  is  CD-ROM,  enabling  storage  of  massive  amounts  of 
material  in  a  lightweight  and  portable  form  from  which  the  stored  material  can 
be  quickly  retrieved.  "Light  pens"  connected  to  these  computers  can  be  passed 
over  bar-coded  labels  in  a  trial  notebook  to  instruct  the  computer  to  find,  retrieve, 
and  display  on  the  screens  of  the  participants  the  digital  representation  of  the 
evidence  so  labeled  in  a  matter  of  seconds. 


14.  Id. 

15.  Kurt  L.  Glitzenstein,  A  Normative  and  Positive  Analysis  of  the  Scope  of  the  Doctrine 
of  Equivalents,  7  Harv.  J.  LAW  8l  Tech.  281,  315  n.  148  (1994)  (citing  Jack  Smith,  Criticizing 
Inventions  as  Not  an  Incandescent  Idea,  L.A.  TIMES,  Oct.  3,  1991,  at  El)). 


INDIANA  LAW  REVIEW  [Vol.  33:1 


As  testimony  is  given,  computer-aided  systems  employed  by  court  reporters 
can  instantaneously  translate  the  court  reporters'  stenographic  symbols  into 
digital  form  allowing  the  judges  and  attorneys  to  read  the  transcript  on  screen  in 
"real  time."  With  the  use  of  document  cameras,  video  cassette  recorders  and 
players,  digital  projectors,  and  presentation  software,  lawyers  are  supplementing 
their  oral  presentations  of  evidence  and  arguments  to  aid  the  triers  of  fact  in  their 
consideration  of  the  evidence.  Video  conferencing  enables  participants  to 
visually  and  orally  communicate  with  each  other  without  meeting  in  the  same 
room  and  enduring  the  travel  and  inconvenience  that  face-to-face  meetings 
require.  Some  courts  have  employed  "electronic  noticing"  in  which  the  courts' 
orders  are  sent  by  e-mail  to  the  lawyers  of  interested  parties. ^^ 

How  are  information  systems  likely  to  change  the  way  legal  work  is  done  in 
the  new  millennium?  Upon  reflection,  the  past  twenty  five  and  past  one  hundred 
years  should  demonstrate  the  futility  of  attempts  to  prognosticate  with  any  degree 
of  precision.  Some  ideas  of  what  might  transpire  can  be  gained,  however,  by 
taking  some  clues  from  developments  that  have  already  occurred.  Just  within  the 
last  decade  the  size,  weight,  and  cost  of  personal  computing  equipment  have 
decreased  dramatically.  At  the  same  time,  the  power,  speed,  and  capacity  of 
these  machines  have  increased.  Continued  development  along  these  lines  will 
enable  larger  proportions  of  the  general  population  to  use  these  tools  more 
conveniently  and  in  a  wider  range  of  applications.  The  personal  digital  assistants 
or  PDAs  of  today  will  give  way  to  or  evolve  into  powerful  hand  held  computers 
that  will  do  what  the  best  of  our  desk  top  computers  can  do  and  even  more.  The 
integration  of  personal  computing  and  Internet  technology  with  television 
technology  that  we  are  witnessing  in  its  beginning  stages  will  enable  the 
expansion  and  improvement  of  information  systems  in  general;  legal  information 
systems  will  enjoy  parallel  gains.  Improvements  in  speed,  bandwidth  and  storage 
capacity  of  the  infrastructure  servicing  the  "information  superhighway"  will  give 
legal  workers  instant  access  to  vast  arrays  of  information.  Improvements  in 
indexing  and  search  and  retrieval  technologies  will  allow  users  of  legal 
information  systems  to  conduct  research  with  greater  speed,  accuracy  and 
efficiency.'^ 

Continued  development  of  security  measures  will  enable  greater  and  greater 
amounts  of  information  to  be  shared  securely  across  the  Internet.'^  Information 
providers,  who  have  been  utilizing  Internet-based  services  only  a  few  years  or 
months,  will  reach  mature  status  and  with  the  development  of  more  sophisticated 


16.  See  Monica  Perin,  Seeing  Is  Believing  in  New  Frontier  of  Electronic  Trials,  26  HOUS. 
Bar  J.  29,  May  9,  1997. 

1 7.  See  generally  RICHARD  SUSSKIND,  THE  FUTURE  OF  LAW:  FACING  THE  CHALLENGES  OF 
Information  Technology,  at  x-xxi  (1998)  (providing  more  detailed  and  specific  predictions). 
See  also  Stephen  T.  Maher,  Lawfutures,  or,  Will  You  Still  Need  Me,  Will  You  Still  Feed  Me,  when 
I'm  Sixty  Four?,  1  RICH.  J.  L.  &  TECH.  6  (1995)  <http://www.urich.edu/~jolt/vl  il/maher.html>. 

18.  See  Karim  Benyekhlef,  Dematerialized  Transactions  on  Electronic  Pathways:  A 
Panorama  of  Legal  Issues,  in  THE  ELECTRONIC  SUPERHIGHWAY  93  (Ejan  McKaay  &  Pierre  Trudel 
eds.,  1995). 


1 999]  ADVANCES  IN  TECHNOLOGY 


and  powerful  equipment  will  be  able  to  provide  legal  researchers  with  extremely 
current  resources  having  high  degrees  of  reliability  and  accuracy. 

Continued  development  of  voice  recognition  systems  will  enable  oral 
testimony  to  be  instantaneously  digitized  and  transcribed  into  text  capable  of 
being  read  on  a  computer  screen.  Expansion  of  data  storage  capacity  and 
improvement  of  retrieval  capabilities  will  mean  that  entire  records  of  cases  will 
be  easily  accessible  to  legal  researchers.  The  combination  of  these  developments 
will  make  those  records  available  to  researchers  almost  as  soon  as  they  are 
created. 

Greater  quantities  of  increasingly  sophisticated  data  will  be  usable  across  a 
wider  spectrum  of  software  applications.  For  example,  lawyers  may  come  to  rely 
routinely  upon  legal  "expert  systems,"'^  designed  to  enhance  the  analysis  of  legal 
problems  to  aid  them  in  providing  advice  and  services  to  clients.  More 
information  currently  available  only  in  print  form  will  be  converted  to  digital 
form  and  placed  on-line  for  electronic  search  and  retrieval.  Measurement  of 
library  holdings  in  bytes  will  become  as  important  as  the  current  conventional 
measurement  in  volumes. 

III.  Hesitancy  TO  Adopt  Technology 

Despite  the  widespread  adoption  of  legal  information  systems  and  the  ready 
embrace  of  other  technology  in  many  parts  of  the  legal  system,  significant 
hesitancy  or  outright  resistance  remains  in  many  quarters.  This  section  presents 
a  set  of  factors  that  are  likely  to  affect  the  willingness  to  adopt  technology 
generally  with  some  consideration  of  their  effects  in  the  realm  of  legal  work. 

Observing  technology  indirectly  as  it  interacts  with  humankind  can 
sometimes  evoke  expressions  of  interest,  perhaps  even  awe  or  contempt.^^ 
Observing  the  use  of  technology  by  others  is  something  quite  apart  from  using 
it  to  perform  one's  daily  work  functions.  Many  people  remain  hesitant  to  interact 


1 9.  An  expert  system  is  software  written  with  judgment  rules  drawn  from  experts  in  a  given 
field  written  into  the  code  so  that  when  given  a  set  of  data  and  queried,  the  software  returns 
information  drawn  according  to  logic  based  upon  the  judgment  rules  to  enable  the  user  to  better 
evaluate  the  problem  at  hand.  The  technology  is  currently  being  used,  for  example  in  the  medical 
field  in  the  HELP  system,  in  which,  upon  being  queried  about  a  patient's  symptoms  the  software 
refers  to  a  database  of  diseases,  symptoms,  blood  chemistry  and  drug  therapies  to  aid  diagnosis. 
Early  efforts  in  legal  expert  systems  in  law  were  demonstrated  by  Reed  C.  Lawlor  and  Fred  Kort 
at  the  Second  National  Law  and  Electronics  Conference  in  1962.  The  systems  presented  by  Lawlor 
and  Kort  were  designed  to  predict  the  outcomes  of  judicial  proceedings,  using  data  drawn  from 
United  States  Supreme  Court  cases  involving  right  -to-counsel  issues.  See  Reed  Dickerson,  Some 
Jurisprudential  Implications  of  Electronic  Data  Processing,  28  LAW  &  CONTEMP.  Probs.  53,  54 
(1963). 

20.  The  1996  chess  match  between  Gary  Kasparov  and  "Deep  Blue,"  an  IBM  computer 
captured  and  maintained  the  attention  of  public  media  for  some  time.  See  Kasparov  Downs  Big 
Blue  to  Win  Series  (last  modified  May  6,  1997)  <http://www.usatoday.com/sports/other/chess30. 
htm>. 


INDIANA  LAW  REVIEW  [Vol.  33:1 


with  technology.  A  brief  consideration  of  factors  pertaining  to  that  hesitancy  and 
why  it  persists  follows,  including  some  suggestions  for  what  should  be  done  to 
address  those  factors. 

A.  Reliability — or  the  Lack  Thereof 

Technology  is  wonderful — ^when  it  works.  Too  often  with  today's  hardware 
and  software  applications,  it  seems  that  the  more  complex  the  technology  the 
higher  the  probability  that  it  will  fail  when  needed.  Persons  who  are  most 
comfortable  with  the  employment  of  technology  are  often  those  with  above- 
average  familiarity  with  the  basic  processes  underlying  the  systems  as  well  as  the 
troubleshooting  techniques  needed  to  solve  operational  problems.  Lawyers  and 
judges  in  the  performance  of  their  obligations  do  not  want  to  risk  the  loss  of 
credibility  and  authority  that  can  accompany  a  technological  failure.  Electronic 
technology  for  legal  information  systems  has  improved  significantly  over  a  very 
short  period  of  time,  but  systems  engineers  and  developers  must  continue  efforts 
to  push  failure  rates  closer  to  zero  before  full  and  widespread  adoption  can  be 
expected.  Reliability  rates  are  much  higher  today  than  in  the  early  days  of  the 
personal  computer,  but  "stability"  (i.e.,  reliability)  remains  as  a  major 
consideration  in  evaluating  operating  systems.  When  that  aspect  of  new  systems 
disappears  as  an  issue,  technology  will  gain  new  adherents. 

B.  Authenticity 

A  map  is  not  the  territory  it  represents,  and  digital  representations  of 
evidence  are,  of  course,  not  the  facts  being  represented.  People  have  a  natural 
and  healthy  skepticism  about  digitally-created  representations.  Computer- 
generated  images  portraying  fantastic  but  realistically-appearing  occurrences 
have  become  commonplace  in  television  commercials  and  motion  pictures. 
Some  people  see  these  manipulations  of  "virtual  reality"  and  inductively 
conclude  that  it  is  easy  to  manipulate  digital  representations  of  documents  and 
images.  The  technical  features  and  visual  appeal  of  digital  presentations  of 
evidence  can  be  so  impressive  that  underlying  substantive  weaknesses  might  be 
concealed.^'  For  significant  segments  of  the  population,  the  concepts  and 
parlance  of  computerized  information  systems  are  arcane  and  mysterious. 
Lawyers  and  judges,  together  with  technicians  and  developers,  should  address  the 
protocols  for  authenticating  digital  documents,  signatures,  and  other  electronic 
evidence  which  will  allow  triers  of  fact  to  evaluate  such  evidence  without  bias 
for  or  against  the  electronic  form  in  which  it  comes  to  them. 

C.  Convenience— or  Lack  Thereof 

This  factor  is  related  to  the  reliability  factor  in  the  sense  that  equipment  that 
does  not  work  properly  is  inconvenient.  Here,  the  emphasis  is  upon  expenditure 


21 .     Informal  parlance  in  the  field  of  information  technology  refers  to  this  phenomenon  as 
'The  Gee  Whiz  Factor." 


1999]  ADVANCES  IN  TECHNOLOGY  9 


of  time  and  effort  to  develop  the  skills  necessary  to  use  the  technology  even 
when  it  works  as  intended.  For  example,  no  one  wants  to  spend  hours  producing 
an  electronically-enhanced  presentation  of  a  piece  of  evidence  unless  the 
resulting  presentation  is  more  effective  than  a  simple  direct  proffer  of  the  actual 
physical  evidence.  Attorneys  will  not  spend  valuable  time  producing  a  digital 
presentation,  lug  several  pounds  of  equipment  into  the  courtroom,  and  spend 
even  more  time  setting  up  the  equipment  unless  the  use  of  that  system  adds 
materially  to  the  strength  of  the  case.^^  The  skills  needed  to  manipulate 
sophisticated  information  technology  are  substantial,  and  the  time  needed  to 
acquire  those  skills  is  not  trivial.  People  doing  legal  (and  other)  work  would 
rather  be  spending  their  time  and  effort  doing  that  work  rather  than  learning 
methods  and  operation  of  a  new  version  of  software.  It  may  well  be 
unreasonable  to  expect  sophisticated  systems  to  do  their  work  simply  by  pressing 
the  "on"  button,  but  it  is  also  unreasonable  to  expect  widespread  adoption  of 
technology  that  is  difficult  to  learn  and  complicated  to  use.^^ 

Improvement  of  systems  with  the  convenience  factor  in  mind  should  be  a 
byproduct  of  a  multi-disciplinary  collaborative  effort  between  legal  and  non-legal 
workers.  Systems  engineers  should  apply  increasing  amounts  of  their  resources 
to  develop  platforms  and  applications  that  are  easier,  rather  than  more  difficult, 
to  use  than  their  predecessor  systems.  Legal  information  systems  software 
developers  should  redouble  efforts  to  consult  directly  with  members  of  the  legal 
system '  s  workforce  to  learn  where  efforts  aimed  at  improvements  can  be  focused. 
Legal  workers  should  actively  communicate  their  needs  and  desires  to 
developers.  In  litigation,  the  adoption  of  technology  to  aid  the  presentation  of  a 
case  at  trial  will  be  out  of  the  question  if  the  actual  use  of  that  technology  in  the 
courtroom  cannot  be  realistically  anticipated.  It  is  unreasonable  to  expect  courts 
to  provide  connectivity  for  and  facilitate  employment  of  every  conceivable 
system  that  lawyers  might  wish  to  use  in  courtrooms  and  in  communications  with 
the  court.  However,  court  administrative  officers  should  develop  within  their 
staffs  a  continuing  awareness  of  innovations  in  the  field  of  legal  information 
systems  and  be  able  to  recognize  standards  that  emerge  which  will  enable  those 
who  adopt  standardized  systems  to  interact  with  the  technology  in  the  courts  at 


22.  This  aspect  of  the  problem  is  not  new: 

One  of  the  most  persuasive  arguments  against  a  specific  use  of  technology  in  the  law  is 
that  for  the  purposes  of  the  particular  problem,  its  language  and  methods  are 
overelaborate.  But  whether  an  adequate  mathematical  model  can  be  created  and 
whether — if  created — it  is  worth  the  effort  and  expense  to  program  it  for  a  computer,  has 
not  particular  relevance  here  beyond  the  general  point  that  a  lawyer  is  always  well 
advised  not  to  use  a  method  or  device  that  is  more  complicated  than  his  particular 
problem  warrants. 
Dickerson,  supra  note  19,  at  65. 

23.  The  Indiana  University  School  of  Law— Indianapolis,  through  its  Program  for 
Management  of  Legal  Information  Systems,  with  which  the  author  has  been  involved  since  1997, 
has  begun  to  address  some  of  these  concerns  with  efforts  to  educate  not  only  law  students,  faculty 
and  staff,  but  also  lawyers  and  judges  in  the  use  of  electronic  tools. 


10  INDIANA  LAW  REVIEW  [Vol.  33:1 


an  optimal  level.^"*  Lawyers  contemplating  the  use  of  technology  in  litigation 
should  not  assume  that  the  court  is  completely  "wired"  and  should  seek 
permission  to  use  technology  that  they  plan  to  bring  into  the  courtroom. 

D.  Expense 

Prices  for  equipment  and  software  that  make  up  some  legal  information 
systems  have  rapidly  declined  in  the  past  year,  but  technology  in  general  remains 
fairly  expensive.  The  basic  investment  is  sizeable  and  upgrades  become 
necessary  as  the  technology  continues  to  develop.  Those  who  become  interested 
in  adopting  technology  soon  confront  the  decisional  paradox  presented  by  the 
advice  that  one  should  not  purchase  technology  until  it  is  proven  but  one  should 
not  purchase  technology  that  will  soon  be  made  obsolete  by  new  advances.  Few 
people  outside  the  special  realm  of  "beta  testers"  want  to  be  a  guinea  pig  for 
version  1.0  of  new  software,  and  fewer  people  want  to  purchase  version  2.0  of 
that  software  if  version  3.0  will  be  released  in  a  few  months  without  some  price 
protection.  Equipment  leasing  may  be  an  attractive  alternative  to  purchasing  for 
some  applications.  Software  vendors  have  become  more  sensitive  to  the 
problem,  and  many  now  offer  incentives  to  purchase  a  piece  of  software  late  in 
its  development  cycle  with  subscription  plans  or  free  or  reduced-price  upgrades 
within  specified  periods.  Decision  makers  for  legal  workers  should  explore  with 
vendors  all  available  cost-saving  alternatives  before  committing  significant 
financial  resources  to  information  systems  technology.  Most  of  those  decision 
makers  would  not  make  comparable  expenditures  for  medical  intervention 
without  seeking  a  second  opinion.  The  same  should  be  true  in  the  purchase  of 
information  systems. 

E.  Threat 

Two  aspects  to  this  factor  are  important:  (1)  technology  that  promises 
efficiency  carries  with  it  a  potential  for  eliminating  jobs;^^  (2)  on  a  smaller  scale, 


24.  The  Institute  for  Forensic  Imaging,  located  on  the  campus  of  Indiana 
University — Purdue  University  Indianapolis,  with  which  the  author  has  been  involved,  has,  since 
1995,  been  working  to  improve  the  quality  of  visual  evidence  and  develop  a  set  of  standard 
operating  procedures  or  protocols  for  the  authentication  of  digital  images  that  will  enhance  the 
admissibility  those  images  into  evidence.  More  information  about  the  Institute  and  its  activities  is 
available  at  its  website  <http://www.advancetek.org/ifi/index.html>. 

25.  See  NICHOLAS  A.  ASHFORD  &  CHARLES  C.  CALDART,  TECHNOLOGY,  LAW,  AND  THE 

Working  Environment  ( 1 99 1 ). 

For  industrial  workers,  these  changes  [wrought  by  mass  production  through  assembly 
lines,  specialized  machines,  standardized  goods]  meant  a  reduction  in  responsibility, 
security,  and  control  of  their  work.  As  craft  skills  were  replaced  and  supervision 
tightened,  workers  were  treated  more  and  more  like  an  appendage  to  the  machine, 
interchangeable  with  others,  needing  little  in  the  way  of  education  and  training. 

Id.  at  4. 

[These]  [n]ew  information  technologies  have  facilitated  the  globalization  of  production 


1 999]  ADVANCES  IN  TECHNOLOGY  1 1 


the  thought  of  interacting  with  a  powerful  machine  connected  to  a  global  network 
to  manipulate  huge  volumes  of  information  stored  in  mysterious  and  intangible 
"information  warehouses"  can  be  intimidating  to  some  people.  With  respect  to 
the  former,  those  who  think  their  jobs  may  be  modified  or  eliminated  by 
technology  are  not  likely  to  warmly  embrace  it  and  may  actively  resist  its 
adoption  out  of  a  sense  of  self-preservation.  From  the  perspective  of  individuals 
affected  by  the  adoption  of  new  information  systems,  this  may  well  be  an 
intractable  problem. ^^  In  many  situations,  however,  the  adoption  of  new 
technology  presents  new  and  additional  opportunities  for  those  who  anticipate 
the  change  and  prepare  themselves  by  developing  some  expertise  in  the 
technology  before  the  change.  Regarding  the  second  aspect,  increasing  the 
sophistication  of  technology  necessarily  takes  it  beyond  the  ken  of  persons  not 
educated  in  the  field  and  places  it  within  the  realm  of  mystery .  Adoption  may  lag 
simply  because  the  decision  maker  has  not  reached  a  comfortable  level  of 
understanding  of  what  the  system  does  and  the  risks  it  poses  for  those  interacting 
with  it.  In  addition,  the  more  intrusive  the  technology  becomes  in  managing  the 
daily  affairs  of  people,  the  greater  the  occasion  for  distrust  borne  of  lack  of 
understanding.  So  long  as  the  development  and  control  of  technology  remains 
in  the  hands  of  a  small  cadre  of  persons  with  specialized  knowledge,  the  real 
potential  for  abuse  and,  just  as  importantly,  the  perceived  potential  for  abuse 
remain.  Information  systems  managers,  developers  and  vendors  should  consider 
these  sensitivities  in  pressing  their  objectives  upon  legal  workers  and  continually 
renew  their  efforts  to  allay  the  concerns  and  address  the  problems  that  arise. 

IV.  Addressing  Technology-Related  Issues  in  the  Legal  System 

The  focus  so  far  has  been  upon  gadgetry,  and  though  it  is  easy  to 
compartmentalize  thinking  of  technology  as  fully-embodied  in  gadgetry,  this 
Symposium  is  about  technology  in  a  much  wider  sense.  The  concern  here  is 
about  applications  of  knowledge  and  invention  through  the  sciences  and 
engineering  to  address  the  needs  and  problems  of  humankind  whether  or  not  they 
involve  hardware  and  digitally-coded  software. 

In  this  broader  sense,  the  advances  we  have  made  as  a  society  over  the  past 
century  are  no  less  remarkable  than  the  marvelous  inventions  we  have  come  to 


by  reducing  the  cost  and  increasing  the  speed  of  international  coordination  of  economic 
activity.  They  have  led  to  dramatic  changes  in  the  organization  of  production,  making 
it  possible  to  reorganize  manufacturing  away  from  dominant,  standardized  long-run 
mass  production  systems  toward  more  flexible,  shorter-run  niche  strategies.  They  have 
had  widespread  impact  on  the  structure  of  industry  and  occupations  and  on  the  nature 
of  work  in  the  American  economy.  They  have  also  created  their  own  set  of  occupational 
health  hazards. 
Id.  at  12  (citing  The  Microelectronics  Industry,  in  1  OCCUPATIONAL  MEDICINE:  STATE  OF  THE  ART 
REVIEWS  1-197  (1985)). 

26.     For  example,  a  librarian  whose  job  will  be  eliminated  when  a  county  court  closes  a  text- 
based  library  to  convert  to  a  CD-ROM  based  information  system  may  face  few,  if  any,  options. 


12  INDIANA  LAW  REVIEW  [Vol.  33:1 


enjoy.  When  America  was  last  poised  upon  the  verge  of  a  new  century,  the 
health,  safety  and  well-being  of  its  citizenry  were  matters  of  great  concern  in  the 
public  eye.  From  the  perspective  derived  from  one  hundred  years  of 
breakthroughs  and  advances,  life  in  the  late  nineteenth  century  appears  to  us  as 
dangerous  and  unhealthy.  A  program  of  vaccination  for  diphtheria  had  begun  in 
1895,  but  by  1899,  physicians  still  hotly  debated  the  methods  of  combating  the 
disease,  with  proponents  of  time-honored  chlorine  treatment  on  one  side  and 
advocates  of  antitoxins  on  the  other.^^  Smallpox  vaccinations  had  been  in  use  for 
more  than  one  hundred  years,  but  sizeable  outbreaks  of  the  disease  were  still 
frequently  reported  throughout  the  country.^*  Congress,  through  a  special  court 
of  inquiry,  was  conducting  a  sweeping  investigation  of  meat-packing  practices. 
In  March  of  1899,  Theodore  Roosevelt,  then  Governor  of  New  York,  testified 
about  the  extent  of  illness  that  canned  beef  had  wreaked  upon  his  troops  when 
he  commanded  the  "Rough  Riders"  in  Cuba.^^ 

On  the  more  general  plane  of  consideration  of  the  relationship  between  law 
and  technology,  the  problem  becomes  one  of  assaying  the  ability  of  the  legal 
system  to  deal  with  new  issues  posed  in  the  realm  of  human  interaction  by  the 
development  of  technology.  The  development  of  new  technologies  sometimes 
brings  with  it  a  clash  of  interests,  a  modified  status,  or  a  new  form  of  interaction 
for  human  beings  that  have  not  been  anticipated.^*^  The  law  has  sometimes  been 
seen  as  laggardly  in  its  response  to  such  issues:^' 

Today  science  does  not  remain  isolated  in  laboratories;  it  becomes 
involved  with  human  life  almost  instantaneously.  The  protective  time 
barrier  between  creating  knowledge  through  science  and  applying 
knowledge  through  technology  has  disappeared. . .  As  the  gap  between 
scientific  creation  and  technological  development  disappears  and  as  the 
rate  of  technological  innovation  increases,  the  law  loses  its  time  for 
reflection.  The  profusion  of  new  legal  problems  removes  the  period  of 
contemplation  that  lay  behind  the  law's  taking  a  decisive,  calculated 
direction.^^ 

With  respect  to  some  problems  the  resolution,  if  one  is  at  hand,  may  simply 


27.  See  Chlorine  for  Diphtheria,  N.  Y.  TIMES,  Mar.  8,  1 899  at  7. 

28.  See  Smallpox  in  a  Hospital,  N.  Y.  TIMES,  Mar.  1 ,  1 899,  at  3 ;  Students  Leave  Princeton: 
Smallpox  Scare  Drives  Them  Away,  Mar.  2,  1 899,  at  3;  Smallpox  in  a  Hospital,  N.  Y.  TIMES,  Mar. 
6, 1 899,  at  2;  Smallpox  in  the  South,  N.  Y.  TIMES,  Mar.  1 6, 1 899,  at  2;  More  Smallpox  Cases  at  Fall 
River,  ]unQ  11,  1899  at  3. 

29.  See  Roosevelt  on  Army  Beef:  Testifies  that  the  Caned  Roast  Stuff  Sickened  His  Men, 
N.Y.  TIMES,  Mar.  26,  1899,  at  2. 

30.  See  ASHFORD  &,  Caldart,  supra  note  25,  at  3. 

31.  See  Wendy  R.  Leibowitz,  High-Tech  Need,  No-Tech  Courts:  Judges  Move  Slowly  to 
the  fFeZ>,THENATiONAL  Law  Journal,  (Dec.  1, 1997)  <http://www.ljx.com/tech/wendy/wendy63. 
html>. 

32.  Oliver  Schroeder,  Jr.,  The  Dynamics  Of  Technology:  From  Medicine  and  Law 
TO  Health  and  Justice  5  8  ( 1 972). 


1999]  ADVANCES  IN  TECHNOLOGY  13 


be  a  matter  of  applying  existing  principles  of  law  to  the  issue  posed  by  the  new 
technology.  The  issue  of  whether  a  user  of  technology  accepts  the  offer  of  an 
Internet-based  vendor  when  she  clicks  on  the  "submit"  button  at  the  vendor's 
website  ought  to  find  resolution  in  existing  commercial  contract  principles,  for 
example."  Principles  of  the  law  of  privacy  should  be  applicable  in  disputes 
about  whether  the  manufacturers  of  a  new  computer  chip  that  automatically 
identifies  the  computer  owner  and  supplies  information  about  the  owner  to  others 
connected  to  the  same  network  has  enabled  others  to  invade  the  privacy  interests 
of  the  computer  owner.  Principles  undergirding  public  policy  against  commerce 
in  babies  should  be  able  to  guide  decisions  about  whether  persons  who  have 
offered  to  purchase  the  eggs  of  a  woman  of  specified  physical  and  intellectual 
attributes  are  engaged  in  socially-acceptable  conduct. 

On  the  other  hand,  the  problem  may  be  a  matter  of  whether  existing 
principles  of  law  do  or  should  address  the  matter  at  all.  For  example,  astounding 
technological  breakthroughs  in  the  human  reproductive  process  have  given  rise 
to  issues  such  as:  (a)  what  should  be  done  with  frozen  embryos  when  the  male 
and  female,  who  supplied  the  sperm  and  egg  for  the  embryos,  die;  (b)  whether 
cloning  a  human  being  ought  to  fall  within  the  category  of  prohibited  conduct; 
(c)  whether  it  is  appropriate  for  reproductive  scientists  to  perform  impregnation 
procedures  upon  persons  whose  medical  circumstances  present  relatively  high 
probabilities  of  multiple  births  when  their  other  life  circumstances  raise  doubts 
about  their  ability  to  care  for  several  children;  (d)  whether  parents  of  embryos 
exhibiting  evidence  of  non-fatal  genetic  disease  should  be  permitted  to  discard 
the  embryo  in  favor  of  one  without  the  undesired  genetic  markers? 

Professor  Steven  Goldberg,  in  his  thoughtful  analysis  of  the  relationship  of 
law  and  science  in  America,  makes  the  point  that  some  lack  of  synchronicity 
between  the  development  of  technology  and  the  law's  ability  to  address  it  is 
inevitable  because  of  science's  emphasis  upon  progress  and  law's  emphasis  upon 
process: 

Thus  the  fundamental  difference  in  values  between  science  and  law  is 
subtle,  but  important.  Science  is  not  a  compendium  of  timelessly  true 
statements.  It  is,  in  a  sense,  a  process  for  formulating  and  testing 
hypotheses  that  are  not  always  open  to  revision.  But  in  science  this 
process  is  a  means  to  an  end,  and  that  end  is  progress  in  our  knowledge 
of  the  world.  In  law,  process  is  not  simply  or  primarily  a  means  to  an 
end.  In  an  important  sense,  process  is  the  end.  A  fair,  publicly  accepted 
mechanism  for  peacefully  resolving  disputes  is  often  the  most  one  can 
reasonably  ask  for  in  human  society.  As  Justice  Felix  Frankfurter  wrote 
in  an  opinion  for  the  U.S.  Supreme  Court,  ". . .  the  history  of  liberty  has 
largely  been  the  history  of  observance  of  procedural  safeguards. "^^ 


33.  See  Chris  Swindells  &  Kay  Henderson,  Legal  Regulation  of  Electronic  Commerce,  3 
J.  Inf.  L.  &TECH.  (Oct.  30,  1998)  <http://www.law.warwick.ac.uk/jilt/98-3/swindells.html>. 

34.  Steven  Goldberg,  Culture  Clash:  Law  and  Science  in  America  19(1 994). 


14  INDIANA  LAW  REVIEW  [Vol.  33:1 


Conclusion 

A  brief  examination  of  the  history  of  the  development  of  technology  related 
to  information  systems  and  its  adoption  in  the  legal  system  shows  that,  generally, 
the  legal  system  is  able  to  positively  address  advances  in  technology,  and  that, 
in  many  respects,  recent  advances  have  transformed  the  way  in  which  legal  work 
is  done.  Some  lag  may  occur,  and  a  full  embrace  of  modern  technological 
gadgets  by  the  legal  system  may  remain  in  the  realm  of  speculation.  Reasons  for 
the  lag  are  susceptible  to  analysis;  however,  a  consideration  of  the  factors  of 
technological  reliability,  authenticity,  convenience,  expense  and  threat  by  those 
responsible  for  the  development  and  adoption  of  electronic  tools  in  the  legal 
system  should  aid  in  the  reduction  of  that  lag. 

Gaps  may  arise,  and  fortunes  may  hang  in  the  balance  as  the  courts  and 
legislatures  of  the  land  struggle  with  the  more  profound  problems  posed  by 
advancements  in  technology  and  issues  never  before  contemplated  confront  us. 
Participants  in  the  legal  system  on  all  fronts  should  avoid  abdicating  the 
responsibility  to  engage  in  the  struggle  to  decide,  even  though  completely 
satisfactory  decisions  may  elude  early  efforts.  An  examination  of  our  society's 
historic  relationship  with  technology  reveals  its  Janus-like  capabilities:  It  is 
capable  of  wondrous  life-preserving  or  life-destroying  application,  and  persons 
alive  today  have  witnessed  its  awesome  powers  of  destruction  as  well  as  its 
powers  of  creation.  Ironically,  the  antidote  to  the  ills  of  technology  may  well 
have  been  best  articulated  by  an  operative  of  a  hateful  regime  who  well- 
appreciated  the  destructive  power:  "Today  the  danger  of  being  terrorized  by 
technocracy  threatens  every  country  in  the  world.  In  modem  dictatorships  this 
appears  to  be  inevitable.  Therefore,  the  more  technical  the  world  becomes,  the 
more  necessary  is  the  promotion  of  individual  freedom  and  the  individual's 
awareness  of  himself  as  a  counterbalance."^^ 

So  long  as  the  courts  remain  open  to  the  assertions  of  individual  awareness 
and  freedom  and  remain  willing  to  fashion  remedies  that  do  justice  to  those 
whose  interests  have  been  injured,  so  long  as  legislatures  remain  committed  to 
keeping  open  avenues  of  expression  of  individual  awareness  and  freedom  in  their 
resolution  of  competing  claims  to  public  goods,  the  dangers  of  technology  can 
be  ameliorated  while  the  benefits  can  be  enjoyed  on  a  wide  scale. 

My  role  in  this  Symposium  remains  an  introductory  one,  and  so  I  shall  not 
engage  in  these  questions  in  depth.  Other  presenters  will  take  up  specific 
questions  within  this  larger  field  of  inquiry.  Professor  Michael  H.  Shapiro, 
Dorothy  W.  Nelson  Professor  of  Law  at  University  of  Southern  California,  and 
author  of  Bioethics  and  Law,  takes  on  the  sweeping  question  of  whether  the 
advances  in  medical  technology  surpassed  the  ability  of  the  current  legal 
framework  (herein  "bioethics").  He  addresses  that  question  with  an  equally- 
sweeping  analysis  with  perhaps  some  surprising  suggestions  and  conclusions. 


35.  Albert  Speer,  Transcript  of  International  Military  Tribunal,  Nuremberg,  Germany,  3 1 
August  1946,  at  405,  quoted  in  OLIVER  SCHROEDER,  Jr.,  The  DYNAMICS  OF  TECHNOLOGY:  From 
Medicine  and  Law  to  Health  And  Justice  31(1 972). 


1 999]  ADVANCES  IN  TECHNOLOGY  1 5 


David  Orentlicher,  Samuel  R.  Rosen  Professor  of  Law  and  Co-Director  of  our 
own  Center  for  Law  and  Health,  will  respond.  Professor  Fred  H.  Cate,  Professor 
of  Law  and  Director  of  the  Information  Law  and  Commerce  Institute  at  Indiana 
University  School  of  Law — Bloom ington  and  the  author  of  Privacy  in  the 
Information  Age,  among  other  works,  considers  in  depth  the  debate  prompted  by 
the  development  of  information  systems  that  have  been  built  upon  the  collection 
and  dissemination  of  private  information.  Professor  Ronald  Krotoszynski,  one 
of  our  own  faculty  members  and  an  expert  on  communications  law,  will  respond. 
Henry  Perritt,  Dean  of  the  Chicago-Kent  College  of  Law,  author  of  Law  and  the 
Information  Superhighway,  among  many  other  works  related  to  technology  and 
law,  reflects  upon  the  connection  between  law  and  information  technology  and 
the  ramifications  that  connection  poses  for  legal  education.  Michael  Heise  from 
our  faculty,  Professor  of  Law  and  Director  of  the  Program  on  Law  and  Education 
will  respond. 


Is  BiOETHics  Broke?:  On  the  Idea  of  Ethics  and  Law 
"Catching  Up''  with  Technology 


Michael  H.  Shapiro* 


Table  OF  Contents 

Introduction:  The  Topic — What  Does  It  Mean? 20 

A.  In  General 20 

1 .  Some  Constituent  Issues 21 

2.  The  Planned  Analysis 21 

B.  Dissing  Bioethics:  A  First  Look  at  Why  It  Don  7  Get  No 

Respect  (or  at  Least  Not  a  Lot)    24 

C    Some  Clarifications  Concerning  Catching-up,  Kinds  of  Critiques 

and  Ethical  Theory 27 

1 .  Critiques  of  Discourse  vs.  Critiques  of  Technological  Uses 

and  Their  Underlying  Knowledge,  Theoretical 

and  Technical 27 

2.  "Standard  Ethics"  vs.  "New  Ethics"    27 

3.  The  Demand  for  Answers  and  an  End  to  OTOHs  (E-Mail 

Jargon  for  "On  the  One  Hand"  and  "On  the 

Other  Hand") 30 

a.  If  others  can  answer  the  questions  facing  their  disciplines, 

why  can't  you?   30 

b.  The  moral  "oracle":  Expertise  and  democracy 31 

4.  Technology  and  Psychic  Overload  from  "Too  Many  Options"  .  34 

5.  The  Quality  of  Debate  "Within"  Bioethics   35 

6.  The  Inside/Outside  Perspectives 38 

7.  Does  the  "Technological  Imperative"  Make  Catching  Up 

Impossible  38 

I.  The  Ascent  of  Technology  and  the  Decline  of  Humanity:  On  the 

Distinctiveness  of  Bioethics 39 

A.  The  Descent 39 

B.  Is  Bioethics  Distinctive  and  on  What  Notion  of  "Distinctiveness  "?; 

A  Definitional  Inquiry   40 

II.  Is  Bioethics  "Broke?":  Elaborating  on  Its  Dissing 43 

A.  Preface  43 

B.  Kinds  of  Critiques:  Outcomes  and  Bottom-line  Disagreements; 

Philosophical/Value  Disagreements;  Ideological  Differences; 

and  Mistakes 44 

1 .    Outcome  and  Process 44 


*  Dorothy  W.  Nelson  Professor  of  Law,  University  of  Southern  California.  Thanks  to 
Professor  Roy  G.  Spece,  Jr.,  and  to  my  research  assistants,  Mark  Lemke,  Daniel  Houser,  and 
Christopher  Perkins. 


1 8  INDIANA  LAW  REVIEW  [Vol.  33:17 


2.  Warring  Philosophical  Movements  or  Dispositions    47 

3.  Disagreements  over  the  Status  of  Particular  Values,  Such  as 

Autonomy,  Fairness,  Justice,  Equality,  Privacy, 

and  Utility   47 

4.  Disagreements  About  Matters  of  Fact — or  Are  They?   47 

5.  Semantic  Confusion 48 

C.  Excessive  Focus  Within  Bioethics  on  the  Application  of  Rules, 

Principles,  and  Standards;  Formalism   49 

1 .  Abstractions  and  Formalism 49 

a.  Generalism  in  general   49 

b.  Who  has  missed  what?;  examples 50 

c.  Formalism:  More  on  abstractions  and  concretions 55 

(i)   Formalism  in  legislative  or  administrative 

rule-making 57 

(ii)  Formalism  in  common  law  rule-making 58 

(iii)  Formalist  interpretive  theories  applied  by 

adjudicators 59 

(iv)  Formalism  and  being  stuck  at  lower-level 

abstractions 60 

(v)  Formalism  and  bioethics 60 

2.  Principlism 64 

3.  Casuistry  and  Pragmatism:  Preferred  Modalities? 65 

a.  Maxims  and  postulates    65 

b.  Pragmatism   66 

4.  Insufficient  Empirical  Research,  Beyond  Characterization 

of  Particular  Situations    68 

D.  Insufficient  Focus  on  the  Most  General  Abstractions   70 

E.  Excessive  Focus  on  Autonomy 71 

1.  Ignoring  the  Preconditions  for  the  Exercise  of  Autonomy 74 

2.  Inattention  to  Ideas  of  Community  and  Responsibility 76 

3.  Inattention  to  Matters  of  Culture,  Ethnicity,  Race, 

and  Gender 77 

4.  Inattention  to  Risks  of  Reifying  Autonomy,  on  the  One  Hand, 

and  Compounding  Professional  Hegemony,  on  the  Other . .  78 

F.  Excessive  Attention  to  Rights 83 

G.  Overlegalization   87 

1.    What  Is  It? 87 

a.  Having  legal  rules  (whether  legislative,  administrative,  or 

common  law)  dealing  with  personal  matters  that  should 
be  left  to  private  ordering  89 

b.  Vindicating  certain  interests  through  the  mechanism  of 

formal  legal  rights,  powers,  etc 91 

c.  Subjecting  matters  of  choice  that  should  be  resolved 

intuitively  and  according  to  the  situation  at  hand, 
instead  of  by  rules  and  rule-governed  resolution 
mechanisms 91 


1999]  IS  BIOETHICS  BROKE?  19 


d.  Varying  from  traditional  patterns  of  human  interaction — 

including  the  formation  of  personal  relationships 
based  on  kinship,  friendship,  and  mating — and 
making  them  matters  of  formal  agreement  by 
contract  or  other  legal/commercial  devices 92 

e.  Finally,  the  idea  that,  within  the  legal  field,  the  wrong 

legal  neighborhood  has  been  chosen,  e.g.,  opting 
for  criminal  sanctions  when  civil  or  administrative 
sanctions  would  do  as  well  or  better;  and  opting  for 
formal  adjudication  rather  than  informal  dispute 

resolution 92 

2.    Further  Applications  to  Bioethics:  Law  and  Courts 93 

a.  Private  ordering 93 

b.  Overlegalization  and  "catching  up" 95 

c.  Rule  of  law  via  rule  of  courts:  When  legal  "progress"  may 

consist  of  public  ordering  by  formal  adjudication  rather 
than  either  private  ordering,  on  the  one  hand,  legislation 

or  administrative  rule-making,  on  the  other 96 

H.   Bioethics  as  We  Know  It  Ratifies  Establishment  Practices  and 
Values  and  Fails  to  Question  Foundation  to  a  Sufficient 

Degree   103 

/.     Bioethics  Bears  the  Smell  of  the  Lamp  and  Offers  No  Practical 

Guides 107 

J.     There  Is  No  Unified  Theory  Underlying  Bioethical  Analysis  and 

Problem  Solving 107 

K.    So  Is  Bioethics  Broke  or  Not? 108 

1 .  Disagreement  with  Outcomes    1 09 

2.  Inappropriate  Methods/Concepts  of  Analysis  and  Valuation    .109 
L.    A  More  Suitably  Limited  Critique  of  Bioethics  Which,  if 

Implemented,  Would  Clearly  Count  as  Some  Progress 110 

1.  Loose  Talk .110 

2.  Refocusing  on  Interpersonal  Bonds  in  an  Age  of  "Investing" 

in  Genetic  and  Nongenetic  Human  Engineering  Plans: 

The  Risks  of  Reduction 119 

III.  The  Idea  of  Progress  in  Ethics  and  Law,  and  Science  and  Technology: 

If  Bioethics  Were  Broke,  How  Would  We  Fix  It? 120 

A.  Preface:  The  Domains  and  Senses  of  Progress 120 

1.  Advancement,  Stasis,  Regress,  and  Falls 120 

2.  Categorizing  Progress 120 

B.  The  Search  for  Final  Answers  and  the  Impossibility  of  Progress 

(in  That  Sense)  125 

1.  Setting  Up  a  Search  125 

2.  A  Search 125 

C.  Progress  in  What?:  Behavior,  Theory,  Insight,  and 

Deliberation 127 

1.    Progress  in  Moral  Behavior  and  Law-abidingness 128 


20  INDIANA  LAW  REVIEW  [Vol.  33:17 


2.  Progress  in  the  Quality  of  Moral  and  Legal  Theory  and 

Deliberation;  Normative  Insights  and  New  Conceptual 

Tools  as  Progress;  Micro  and  Macro  Progress;  the 

Limits  of  Progress  in  the  Face  of  Indeterminancy 129 

a.  Does  moral  progress  rest  on  discerning  objective  truths 

about  moral  reality? 130 

b.  Examples 131 

c.  "Micro"  vs.  "macro"  progress:  Personal  moral  "closure" 

and  objective  moral  progress 135 

3.  Progress  in  Bioethics  137 

a.  Conceptual  constraints  on  the  idea  of  progress 137 

(i)  Again,  the  example  of  principlism   137 

(ii)  The  example  of  distributing  scarce  lifesaving 

resources,  especially  organs:  When  paradox 

blocks  "progress";  lotteries  and  rationality    142 

b.  Catching  up  on  "catching  up":  Is  it  progress  to  knov^  that 

progress  is  impossible?;  remarks  on  markets  and 
decentralized  choice   149 

4.  Terminating  Technology;  Technological  Imperatives  Again   .  1 52 
IV.  A  Reversal:  When  Science  and  Technology  Catch  Up  with  Human 

Thought — Implementing  the  Idea  of  Progress 153 

A.  In  General 1 53 

B.  Neuroscience,  Genetics,  Ethics,  and  Law 154 

Conclusion:  Bioethics  Defended  Against  the  Charge  That  It  Is  Presently 

Inadequate  to  the  Task  of  Appraising  Biological  Technology  ....  157 


Introduction:  The  Topic — What  Does  It  Mean? 

A.  In  General 

In  its  grandest  form,  the  topic  of  this  Symposium  is  "Law  and  Technology 
in  the  New  Millennium,"  and  the  subtopic  I  was  asked  to  address  is  "Do  law  and 
ethics  have  to  catch  up  with  science  and  technology?"^     Whatever  one 


1 .     To  be  precise 

The  theme  of  the  symposium  is  whether  technological  developments  have  outstripped 

the  ability  of  legal  ideas,  processes,  institutions,  and  the  profession  to  address  some  of 

the  issues  presented  by  those  developments.  .  .  .    The  question  [is]  whether  the 

advances  in  medical  technology,  such  as  those  in  the  areas  of  genetics  or  transplantation, 

have  surpassed  the  ability  of  the  current  legal  framework  to  address  them. 

E-mail  from  Kristyn  E.  Kimery,  Symposium  Editor,  Indiana  Law  Review,  Volume  32  (Jan.  21, 

1999)  (on  file  with  author).    The  idea  has  been  expressed  many  times.    See,  e.g.,  Courtney  S. 

Campbell,  In  Search  of  a  Reason  to  Clone,  12  Med.  Human.  Rev.  80  (1998)  ("A  commonplace 

lament  of  contemporary  bioethics  is  that  ethics  and  law  are  continually  racing  to  catch  up  with 

scientific  research."). 


1999]  IS  BIOETHICS  BROKE?  21 


understands  by  the  latter  formulation,  it  is  a  sprawling  subject.    I  will  try  to 
impose  some  order  on  it  by  addressing  the  following  questions  and  issues: 

1.  Some  Constituent  Issues. — The  question  "Do  law  and  ethics  have  to  catch 
up  with  science  and  technology?"  is  not  entirely  bereft  of  meaning,  though  it  is 
hard  to  say  what  it  is.  This  is  not  meant  as  a  complaint  about  the  symposium 
framers'  formulation;  it  is  frequently  heard  in  all  quarters — from  persons  on  the 
bus,  scientists,  and  professional  commentators.  Its  very  awkwardness  is 
instructive.  It  seems  reasonable  to  assume  that  something  coherent  and  important 
underlies  the  question,  though  when  stated  more  rigorously  it  might  be  less 
catchy.  Trying  to  unearth  this  something  leads  to  several  groups  of  questions 
concerning:  (a)  what  constitutes  progress  in  moral  behavior;  (b)  what  constitutes 
progress  in  moral  theory  or  philosophy;  (c)  certain  aspects  of  law  and  legal 
theory  and  what  constitutes  progress  in  these  spheres;  (d)  the  idea  of  scientific 
and  technological  change  or  progress  and  how  it  differs  from  that  of  moral  and 
legal  change  or  progress;  (e)  how  these  distinct  inquiries  are  linked;  (f)  whether 
these  different  domains  of  progress  are  sufficiently  commensurate  to  allow  us  to 
compare  rates  of  progress;  and,  finally,  (g)  what  a  coherent  reconstruction  of 
"law  and  morality  lagging  behind  technology"  might  mean,  if  anything. 

Of  course,  being  led  to  these  issues  is  one  thing;  resolving  them  is  another, 
and  in  some  cases  it  is  impossible. 

2.  The  Planned  Analysis. — I  will  focus  upon  biological  technologies  and 
some  of  the  legal,  moral,  and  general  philosophical  discourses  applied  to  them. 
We  often  call  these  discourses  "bioethics"  or,  for  our  purposes,  "bioethics  and 
law."  This  is  a  field  that  must  be  evaluated  when  asking  whether  law-and-ethics 
have  lagged  behind  science-and-(bio)technology .  Perhaps  such  probing  can  help 
explain  what  is  outpacing  what  and  on  what  sort  of  roadway.^ 


Although  in  various  contexts  the  terms  "moral"  and  "ethical"  have  different  meanings  (the 
latter  is  often  applied  to  canons  of  professional  behavior,  for  example)  I  use  them  interchangeably 
here. 

2.  "Technology  assessment"  is  a  related  field  of  inquiry  that  has  been  pursued,  from  time 
to  time,  by  the  federal  government.  The  Congressional  Office  of  Technology  Assessment  ceased 
to  exist  on  Oct.  1,  1995.  See  Newt's  Science  Breakfast  Club?,  270  SCIENCE  223  (1995).  The 
Office  of  Science  and  Technology  Policy  (in  the  Executive  Office  of  the  President),  42  U.S.C.  § 
661 1  (1994),  formed  the  National  Bioethics  Advisory  Commission  within  the  Executive  Branch. 
The  Commission  was  to  be  "charged  to  consider  issues  of  bioethics  arising  from  research  on  human 
biology  and  behavior,  and  the  applications  of  that  research."  National  Bioethics  Advisory 
Commission  Proposed  Charter,  59  Fed.  Reg.  41,584  (1994).  The  Commission  has  since  produced 
various  reports  and  studies.  See,  e.g. ,  CLONING  HUMAN  BEINGS:  REPORT  AND  RECOMMENDATIONS 
OF  THE  National  Bioethics  Advisory  Commission  ( 1 997). 

Some  readers  may  view  bioethics  as  a  subcategory  of  "technology  assessment."  If  the  latter 
phrase  is  interpreted  broadly,  this  might  be  so.  Others  may  think  the  reverse — ^that  technology 
assessment  is  a  part  of  bioethics.  Some  assessments  are  oriented  toward  listing  and  quantifying 
certain  kinds  of  agreed-upon  sets  of  risks  and  benefits  rather  than  probing  into  normative  and  legal 
foundations  and  applications.  However,  the  former  Office  of  Technology  Assessment  regularly 
addressed  distinctively  bioethical  issues  in  the  course  of  its  assessments.   See,  e.g..  Office  of 


22  INDIANA  LAW  REVIEW  [Vol.  33:17 


The  "disciplines"^  of  bioethics  and  of  bioethics  and  law  are  hard  to 
characterize  because  of  the  multiplicity  and  diversity  of  their  spheres  of  activity 
and  of  their  practitioners'  pursuits.  There  is  no  unitary  "bioethics." 
Nevertheless,  the  assembled  fields  have  a  near-defining  characteristic:  because 
of  the  technological  rearrangement  of  basic  life  processes,  the  resulting  issues  are 
hard  to  track  within  our  existing  normative  and  legal  architecture.  Still,  the 
assemblage  is  not  ineffable,  and  I  will  try  to  show  why  many  of  the  problems 
generated  by  biological  technologies  are  structurally  different  from  those  driven 
by  other  technologies. 

As  is  often  so,  what  is  distinctive  or  novel  depends  in  part  on  the  level  of 
abstraction  involved  and  on  the  features  of  existing  baselines.  There  is  nothing 
new  about  human  reproduction,  but  acquiring  precise  knowledge  of  certain  traits 
of  developing  offspring  through  prenatal  screening  is  novel.  Investigating  why 
bioethical  problems  seem  particularly  intractable  at  any  of  these  levels  may 
explain  why  some  think  we  are  being  outrun  by  our  technologies. 

After  mentioning  the  singular  characteristics  of  some  bioethical  problems, 
I  will  then  outline  how  bioethics  has  dealt  with  them,  but  I  will  do  this  by 
addressing  and  critiquing  the  critiques  of  bioethics.  I  will  also  try  to  elaborate 


Technology  Assessment,  Infertility:  Medical  and  Social  Choices  35-37  (1988). 

3.  It  may  seem  fussy  to  comment  on  this  term,  but  doing  so  illustrates  some  analytical 
problems  that  have  to  be  faced  here.  It  is  too  simple  to  say  the  discipline  is  whatever  we  say  it  is 
because  we  have  to  decide  what  we  ought  to  say  it  is.  To  compare  and  contrast  the  disciplines  of 
chemistry  and  physics  is  not  that  hard,  even  conceding  their  obvious  links  and  the  perennial  efforts 
of  some  physicists  to  reduce  everything  to  physics.  But  the  discipline  of  bioethics?  In  our  context, 
it  refers  at  least  to  systematic  study  of  several  fields  with  a  view  toward  understanding  the  material 
issues  and  making  recommendations  for  appropriate  action  or  inaction.  Specifying  these  fields  is 
dealt  with  briefly  in  the  text.  Bioethics  of  course  implicates  a  formidable  array  of  other, 
independent  disciplines:  the  study  of  law  and  legal  process;  philosophy  generally  and  moral  and 
political  theory  in  particular;  the  social  and  behavioral  sciences;  and  the  physical  and  biological 
sciences.  Because  we  are  in  an  academic  legal  setting,  it  is  especially  appropriate  to  ask  whether 
legal  analysis  of  the  body  of  legislation,  common  law,  administrative  processes,  and  the  nature  of 
other  legal  systems  is  part  of  bioethics.  I  think  it  is  and  it  seems  to  be  so  regarded  by  many,  but  I 
would  not  want  to  be  responsible  for  defending  this  to  the  editorial  board  of  the  Oxford  English 
Dictionary.  For  their  take  on  "discipline,"  see  IV  Oxford  English  Dictionary  734-36  (2d  ed. 
1989).  As  indicated  in  the  text,  the  term  will  refer  to  the  systematic  study  of  the  legal,  medical, 
scientific,  philosophical,  social,  political  and  economic  problems  I  describe;  the  literature  reflecting 
and  communicating  this  study;  the  body  of  common  law,  legislation,  administrative  regulation,  and 
custom  in  dealing  with  these  problems;  and  the  various  institutions  constructed  to  aid  in  assessment 
and  decision  making,  such  as  ethics  committees.  Institutional  Review  Boards,  Government- 
sponsored  Commissions,  etc.  In  this  sense,  the  U.S.  Supreme  Court  was  "doing  bioethics"  when 
it  decided  Vacco  v.  Quill,  521  U.S.  793  (1997)  (holding  that  under  the  circumstances  there  was  no 
equal  protection  violation  in  banning  assisted  suicide);  Washington  v.  Glucksberg,  521  U.S.  702 
(1 997)  (holding  that  under  the  circumstances  there  was  no  liberty  interest  in  securing  assistance  in 
suicide);  and  Cruzan  v.  Director,  Missouri  Department  of  Health,  497  U.S.  261  (1990)  (dealing 
with  the  nature  of  the  liberty  interest  in  refusing  medical  treatment). 


1 999]  IS  BIOETHICS  BROKE?  23 


upon  possible  meanings  of  the  we-must-catch-up-with-technology  exhortation 
and  indicate  some  major  confusions  of  expression  or  thought  that  it  reflects. 

If  I  achieve  anything  in  this  paper,  it  will  be  a  "meta-showing"  about  our 
ethical  and  legal  theories  and  behaviors  and  about  how  we  can  and  should  do  the 
catching  up  we  are  urged  to  do.  The  "showing"  is  this,  (a)  Saying  that 
{morality /moral  philosophy/law}  must  catch  up  to  {science/technology}  reflects 
our  discomfort  with  certain  aspects  of  our  technological  societies.  Nevertheless, 
(b)  it  seriously  misconceives  the  nature  of,  and  connection  between,  these 
differing  domains  to  talk  this  way,  at  least  without  substantial  qualification,  (c) 
The  only  forms  "progress"  can  take  here,  improvements  in  moral  behavior  aside, 
involve  (i)  incremental  improvements  in  our  thinking  about  critical  moral  and 
legal  concepts  that  (ii)  may  allow  individuals  to  better  discern  morally  and 
legally  relevant  considerations  and  (iii)  heighten  the  prospects  for  consensus,  but 
do  not  and  cannot  provide  determinate  answers  for  all  serious  moral  and  legal 
issues.  Such  progress  may  facilitate  individual  reflective  decision,  although  the 
decisionmakers  may  recognize  both  that  others  may  decide  otherwise  and  that 
individual  views  may  not  reflect  an  objective  moral  reality. 

The  main  progress  in  such  circumstances,  then,  is  not  that  greater  efforts 
dazzlingly  reveal  moral  truths  that  all  must  acknowledge,  but  that  individual 
moral  agents  acting  in  good  faith  will  believe  that  their  positions  are  adequately 
defended."* 

These  efforts  to  characterize  and  reconstruct  the  catch-up  admonition  bump 
into  a  fundamental  problem  in  jurisprudence  and  in  legal  philosophy  generally: 
analyzing  the  link  between  moral  evaluation  and  legal  process,  especially  formal 
adjudication.^  Laws  and  judicial  decisions,  after  all,  are  often  criticized  for 
failing  to  follow  the  right  moral  path  or  of  being  insensitive  to  morally  relevant 
perspectives.  The  former  complaint,  standing  alone,  is  generally  no  basis  for 
concluding  that  law  has  to  catch  up  with  technology;  the  right  moral  path  is  often 
precisely  what  is  contested.  The  latter  protest  suggests  a  basis  for  reforming  law 
but  presupposes  some  agreement  on  what  the  morally  relevant  perspectives  are. 

I  will  not  review  the  history  of  bioethics,^  although  I  will  consider  past 
examples  of  putative  catching-up,  as  well  as  possible  future  ones.  Of  course, 
recording  certain  developments  as  progress  presupposes  some  resolution  of  what 
"progress"  means.  There  may  be  some  consensus,  however,  that  the  workings 


4.  This  is  not  "moral  relativity."  Cf.  William  A.  Galston,  Value  Pluralism  and  Political 
Liberalism,  16  PHIL.  «&  PUBLIC  POL'Y.  7,  8  (1996)  ("Value  pluralism  is  not  an  argument  for  radical 
skepticism,  or  for  relativism.  The  moral  philosophy  of  pluralism  stands  between  relativism  and 
absolutism.");  Dan  W.  Brock,  Public  Moral  Discourse,  in  SOCIETY'S  CHOICES:  SOCIAL  and 
Ethical  Decision  Making  in  Biomedicine  215,  236-37  (Ruth  Ellen  Bulger  et  al.  eds.,  1995) 
(discussing  moral  relativism);  see  also  infra  note  268  (discussing  "justificatory  relativism"). 

5.  For  a  recent  lucid  commentary  on  this  problem,  see  Kent  Greenawalt,  Too  Rich,  Too 
Thin,  in  THE  AUTONOMY  OF  LAW:  EsSAYS  ON  LEGAL  POSITIVISM  1  (Robert  P.  George  ed.,  1996). 

6.  For  historical  reviews  and  analyses,  see  generally  David  J.  Rothman,  Strangers  at 
THE  Bedside:  A  History  of  How  Law  and  Bioethics  Transformed  Medical  Decision  Making 
(1991)  and  Albert  R.  Jonsen,  The  Birth  of  Bioethics  (1998). 


24  INDIANA  LAW  REVIEW  [Vol.  33:17 


of  the  discipline  have  altered  thought  and  conduct  for  the  better  in  some  areas. 
As  Jonsen  and  Toulmin  observe,  "[t]he  medical  profession  [prior  to  the  1960s] 
had  slowly  achieved  a  moral  preeminence  that  almost  ruled  out  debate  about 
medical  ethics."^  That  very  debate  transformed  notions  about  physician  authority 
and  informed  consent,  a  change  that  should  count  as  progress  by  those  who 
consider  autonomy  an  important  value.  Furthermore,  those  renovated  notions, 
whether  viewed  as  new  normative  insights  or  old  insights  made  more  salient, 
seem  linked  to  advances  in  legal  and  medical  behavior,  although  it  is  hard  to  fix 
the  direction  of  causality.  Our  conceptual  understanding,  the  quality  of  our  moral 
deliberations,  and  our  behavior  seem  to  have  improved,  a  point  that  can 
tentatively  be  accepted  even  without  a  coherent  theory  of  progress — which  may 
never  be  available.  Cases  such  as  Cobbs  v.  Grant ^  replacing  disclosure  customs 
of  physicians  as  the  informed  consent  standard  with  a  needs-of-the-reasonable- 
patient  standard;  the  crystallization  of  rights  to  and  against  treatment;  the 
development  of  Institutional  Review  Boards;  the  specific  articulation  of  slighted 
perspectives  and  voices;  the  very  recognition  of  certain  ethical  and  legal 
problems  in  health  care;  and  the  development  and  use  of  biological 
technologies — all  are  advances  of  sorts.^  However,  thinking  this  is  all  progress 
does  not  make  it  so;  we  cannot  stop  here. 

B.  Dissing  Bioethics:  A  First  Look  at  Why  It  Don 't  Get  No  Respect 

(or  at  Least  Not  a  Lot) 

Some  specific  and  oft-made  criticisms  of  bioethics  and  of  bioethics  and  law'° 
will  be  laid  out  briefly  as  I  move  along.  Here  I  note  one  of  my  conclusions  in 
advance.  To  ask  "What  is  wrong  with  bioethics?,"  a  question  that  seems  to 
presuppose  that  ethical  and  legal  progress  lags  behind  science  and  technology, 
is  hugely  ambiguous.  A  claim  that  bioethics  as  a  discipline  is  seriously  infirm 
may  mask  a  series  of  different  beliefs  and  viewpoints.  For  example,  such  a  claim 
could  result  from  a  substantive,  bottom- line  disapproval  of  proposed  conduct,  or 
of  a  state  of  affairs,  rather  than  from  a  consideration  of  which  bioethical 


7.  Albert  R.  Jonsen  &  Stephen  Toulmin,  The  Abuse  of  Casuistry:  A  History  of 
Moral  Reasoning  304-05  (1988). 

8.  502  P.2d  1  (Cal.  1 972)  (adopting  the  "reasonable  patient  standard"  for  informed  consent, 
in  place  of  exclusive  reliance  on  physician  practice), 

9.  For  example,  the  development  of  the  informed  consent  doctrine  has  its  dark  side. 
Candidates  for  imperfections  include  burdens  of  disclosure  that  may  be  too  onerous  resulting  in 
misallocation  of  medical  resources  and  increases  in  health  care  costs;  excessive  reliance  on  the 
"informed  consent,"  i.e.,  the  disclosure  papers  to  be  signed,  as  the  entire  process  of  securing  fair 
assent;  adoption  of  informed  consent  standards  that  simply  ratify  current  practices,  good  or  bad;  and 
so  on. 

10.  Recall  that  "bioethics"  here  includes  whatever  other  disciplines  and  forms  of  social 
ordering  that  inform  and  partly  constitute  its  deliberations.  There  is  a  minor  problem  about  whether 
critiques  of  bioethics  are  themselves  part  of  bioethics — a  kind  of  self-referential  puzzle — but  it  is 
well  worth  ignoring. 


1999]  IS  BIOETHICS  BROKE?  25 


processes  of  reasoning  and  argumentation  are  deficient.  As  for  the  latter,  one 
may  think  that  bioethical  processes  are  logically  flawed;  empirically  unrealistic; 
perspectivally  incomplete,  i.e.,  akin  to  "false  consciousness";''  laced  with 
conflicts  of  interest,  dishonesty,  or  corruption;  oriented  toward  upholding  the 
establishment  and  its  values;  oriented  toward  up-ending  existing  values  to  further 
radical  goals;  mired  in  theory  and  thus  insufficiently  attentive  to  situational 
particulars  and  the  need  for  bottom-line  conclusions;  mired  in  situational  details, 
inadequate  heuristic  guides,  and  ad  hoc  battle  plans,  and  thus  insufficiently 
attentive  to  theory,  and  so  on.  (If  indeed  bioethics  is,  or  is  doing,  all  these  things, 
it  cannot  be  all  bad.) 

I  will  conclude  that,  for  the  most  part,  no  such  core  deficiencies  in  bioethics 
exists — nothing  to  match,  say,  a  healing  theory  that  disavows  the  germ  theory  of 
disease,  or  a  school  of  cosmology  that  ignores  gravitational  effects.  There  is,  for 
example,  nothing  in  bioethics  akin  to  moral,  legal  or  public  policy  analysis 
premised  upon  the  notion  that  certain  minorities  have  only  the  merest  touch  of 
the  elevated  mental  and  emotional  capacities  of  the  majority,  and  are  thus  far  less 
entitled  to  the  respectful  consideration  of  others.'^ 

If  bioethics  is  not  so  bereft,  in  what  sense  is  something  "wrong"  with  it? 
True,  if  results  seem  consistently  wrong  to  any  given  observer,  then  the  substance 
and  procedure  residing  within  the  discipline  should  be  scrutinized.  However,  if 
the  complaints  are  largely  result-oriented,  then  the  disagreement'^  is  really  about 


11.  I  use  this  term  several  times  here.  It  is  frequently  used  to  describe  a  group's  general 
thought  patterns  and  ideologies  when  they  are  formed  without  adequate  knowledge  of  or  attention 
to  important  moral/political  perspectives.  The  elite  in  any  society,  for  example,  may  have  no 
adequate  idea  of  the  needs,  aspirations,  abilities,  suffering,  or  indeed  the  human  worth  of  persons 
in  other  classes.  This  sort  of  perspectival  insufficiency  also  applies  to  persons,  say,  those  brought 
up  to  think  that  the  only  proper  role  for  women  is  childbearing  and  homemaking.  See  generally 
Raymond  Geuss,  The  Idea  of  a  Critical  Theory:  Habermas  and  the  Frankfurt  School  §2, 
at  12  (1981).  For  an  example  of  applying  the  term  to  individuals,  see  Gerald  Dworkin,  Autonomy 
and  Behavior  Control,  HASTINGS  CENTER  REP.,  Feb.  1976,  at  23, 25  ("[AJuthentic  behavior  leaves 
no  room  for  'false  consciousness.'").  Cf.  THOMAS  Nagel,  The  View  from  Nowhere  5  (1986) 
("[Ojbjectivity  allows  us  to  transcend  our  particular  viewpoint  and  develop  an  expanded 
consciousness  that  takes  in  the  world  more  fully.").  However,  note  Nagel's  later  remark  that  "the 
detachment  that  objectivity  requires  is  bound  to  leave  something  behind."  Id.  at  87.  Nagel  also 
discusses  these  issues  in  Thomas  Nagel,  Moral  Epistemology,  in  Society's  Choices:  Social  and 
Ethical  Decision  Making  in  Biomedicine  201  (Ruth  Ellen  Bulger  et  al.  eds.  1995). 

12.  Recall  Plessy  v.  Ferguson,  163  U.S.  537  (1896),  and  its  claim  that  the  sense  of  insult, 
injury,  and  stigma  felt  by  black  persons  because  of  racial  segregation  in  public  transportation  was 
simply  their  own  construction  of  the  situation  and  had  no  standing  as  a  constitutional  harm. 

We  consider  the  underlying  fallacy  of  the  plaintiffs  argument  to  consist  in  the 
assumption  that  the  enforced  separation  of  the  two  races  stamps  the  colored  race  with 
a  badge  of  inferiority.  If  this  be  so,  it  is  not  by  reason  of  anything  found  in  the  act,  but 
solely  because  the  colored  race  chooses  to  put  that  construction  upon  it. 
Id  at  551. 

13.  Pinpointing  the  disagreements  present  in  moral  disputes  can  be  pretty  difficult.   Cf. 


26  INDIANA  LAW  REVIEW  [Vol.  33:17 


these  results,  and  not  primarily  about  deficiencies  in  the  discipline.  Opponents 
of  the  result  will  likely  think  ill  of  the  quality  of  any  discussion  that  defends  it  or 
any  procedure  that  produces  it,  even  if  the  discussion  is  relatively  well-rounded 
and  thoughtful.  They  may  single  out  a  stage  of  assessment  at  which  they  would 
have  taken  a  different  path,  but  this  hardly  establishes  the  infirmity  of  the 
process.  If,  for  example,  they  complain  that  there  is  "too  much  emphasis  on 
autonomy  as  opposed  to  community,"  this  is  simply  a  moral-theoretic 
disagreement,  however  well-  or  ill-thought  out,  about  autonomy  and  community. 
If  the  disciplines'  typical  member  overvalues  autonomy,  why  is  the  discipline 
necessarily  at  fault?  From  the  perspective  of  bioethics,  one  might  symmetrically 
ask,  "What  is  wrong  with  anti-bioethics?  Why  do  you  under-value  autonomy?" 

As  suggested,  for  some  observers,  any  process  that  reaches  a  moral 
conclusion  they  think  wrong  necessarily  entails  that  the  process  is  defective  at 
some  point.  Of  course,  something  may  indeed  be  wrong.  If  the  players  on  a  little 
league  team  persistently  run  the  bases  clockwise,  their  training  is  probably 
askew.  Defenders  of  mass  murder  or  genocide  are  mistaken  at  the  core.  But,  for 
those  who  rank-order  certain  claims  (say,  of  autonomy)  higher  or  lower  than 
other  kinds  of  claims  (say  of  community)  to  ask,  "What  is  wrong  with  the 
contents  of  your  thoughts  and  the  processes  of  your  mind?"  is  lamentably 
arrogant,  and,  far  worse,  conceptually  and  normatively  confused.  For  those  who 
think  that  many  bioethicists  are  systematically  using  the  wrong  tools,  or  assigning 
the  wrong  ranking  to  values  under  a  governing  standard  that  these  bioethicists  are 
too  purblind  to  apprehend,  the  answer  is  simple:  recruit  more  persons  who  think 
like  you  to  get  into  the  arena.  Although  I  am  not  identifying  a  field  of  thought 
with  its  membership,  a  field  may  generate  a  differently-oriented  literature  with 
a  change  in  personnel,  while  still  remaining  the  same  field. 

Admittedly,  there  is  not  always  a  clear  distinction  between  disagreeing  with 
an  outcome  and  attacking  the  processes  and  disciplines  that  yielded  it.  It  may  be 
hard  to  distinguish  between  the  local  football  team  improperly  executing  its  tasks 
even  with  the  best  training,  on  the  one  hand,  and  the  inadequacy  of  the  overall 
football  plans  hatched  by  the  coaches  on  the  other.  However,  we  manage  with 
hazy  distinctions  in  every  field,  a  matter  I  return  to  later  in  discussing  what  could 
constitute  progress  in  a  given  field. 

The  core  point  is  that  many  critics  of  bioethics  who  disagree  with  particular 
outcomes  believe  they  result  from  an  incorrect  moral  ordering.  If  gender  and 
cultural  differences  are  improperly  de-emphasized  in  the  hands  of  various 


Nagel,  supra  note  11,  at  206  (describing  conflicts  between  natural  rights  theory  and  rule- 
utilitarianism). 

The  disputants  may  agree  roughly  on  their  substantive  moral  judgments  of  central  cases, 
but  they  disagree  over  what  is  fundamental  and  what  is  derivative:  They  disagree,  in 
other  words,  about  the  correct  moral  explanation  of  those  substantive  intuitions  in 
which  they  agree.  And  this  may  in  turn  be  connected  with  disagreements  about  less 
obvious  substantive  questions,  which  will  be  decided  differently  by  the  extension  of 
different  justificatory  principles. 
Id 


1999]  IS  BIOETHICS  BROKE?  27 


participants,  the  proper  response  is  not  "there  is  something  wrong  with  the  field's 
methods  as  such,"  but  "let  us  recruit  personnel  with  different  views."  I  suppose, 
however,  one  could  plausibly  say  that  a  field  is  flawed  because  it  is  heavily 
populated  with  the  wrong  people,  but  one  must  distinguish  between  rival 
conceptual  and  normative  systems  and  a  field's  current  membership.  Neither  can 
be  reduced  to  the  other.  The  U.S.  Congress  is  not  fundamentally  flawed  because 
at  any  given  time  it  has  more  Democrats  than  Republicans  or  the  reverse. 
Neither  the  Senate  nor  the  House  of  Representatives  is  fundamentally  flawed 
simply  because  the  former  acquitted  President  Clinton  on  much  the  same 
evidence  that  the  latter  used  to  impeach  him.  Perhaps  it  is  acceptable  to  say 
loosely  that  "there  was  something  wrong  with  Congress  during  the  reign  of  the 
Republicrats,"  or  "there  is  something  wrong  with  bioethics  as  long  as  the  male 
chauvinists  in  the  field  outnumber  the  female  chauvinists,"  but  such  claims  are 
misleading  because  much  could  be  changed  through  the  substitution  of  personnel 
without  even  remotely  reinventing  anything.  True,  one  might  say  that  if  the 
wrong  crowd  is  attracted  in  the  first  place,  then  there  is  something  inherently 
wrong  with  the  field,  but  this  requires  supporting  evidence  and  analysis. 

C.  Some  Clarifications  Concerning  Catching-up,  Kinds  of  Critiques, 

and  Ethical  Theory 

1.  Critiques  of  Discourse  vs.  Critiques  of  Technological  Uses  and  Their 
Underlying  Knowledge,  Theoretical  and  Technical. — Debates  about  technology 
and  how  we  manage  it  often  seem  to  shift  without  notice  between  critiques  of 
ethical  and  legal  evaluation,  on  the  one  hand,  and  critiques  of  the  technological 
uses  that  draw  our  attention  and  dismay,  on  the  other.  Those  who  object  to 
acquiring  or  using  certain  kinds  of  knowledge  may  criticize  those  who  secured 
or  applied  it.  They  may  also  criticize  writers  who  discuss  these  enterprises  but 
fail  to  denounce  them;  or  legislatures  and  courts  that  do  not  properly  react;  and 
possibly  the  false  consciousness  of  a  somewhat  demented  public. 

If  the  critical  reactions  derive  from  a  failure  within  bioethics  to  deal  with 
material  problems,  or  from  infirm  perception  or  reasoning,  then  the  criticisms  are 
at  least  partly  well  taken.  However,  if  the  disagreement  stems  from  deep 
differences  in  values,  it  is  misleading  and  question-begging  to  say  that  the 
discipline,  or  some  segment  of  it,  is  at  fault  for  anything  other  than  taking  a 
different  position  from  that  of  its  critics.  Of  course,  those  in  deep  moral 
disagreement  are  very  likely  to  find  their  opponents  guilty  of  material  omissions 
and  failures  of  insight.  Although  it  is  sometimes  hard  to  separate  critiques  of 
applied  technology  from  critiques  of  technology  assessment,  complaints  about 
a  technological  use  and  complaints  about  how  we  morally  and  legally  assess  it 
are  not  the  same. 

2.  ''Standard Ethics  "  vs.  "New  Ethics.  " — Some  may  ask  whether  bioethics 
is  just  standard  ethics  applied  to  certain  problems  in  biological  science  and 
medicine  or  is  some  distinct  and  peculiar  addition  to  ethical  theory.  One  might 
ask  a  parallel  question  about  legal  theory.  What  are  the  differences  between  a 
novel  application,  a  revision,  or  a  replacement  of  a  conceptual  structure  in  moral 
or  legal  analysis?  In  some  cases,  there  may  be  no  difference,  and  if  there  is,  it 


28  INDIANA  LAW  REVIEW  [Vol.  33:17 


may  make  no  difference  under  the  circumstances.  Does  the  idea  that  separating 
and  restructuring  basic  life  processes  "fragment"  our  preexisting  concepts 
suggest  that  we  need  something  new  in  ethics  and  law  to  guide  us?''*  When  half 
of  a  child's  genes  come  from  one  woman  but  gestation  occurs  in  another,  who  is 
the  "natural  mother,"  given  the  separation  of  begetting  and  bearing?  If  a  man 
carries  a  fetus  to  term,  as  we  are  told  may  one  day  be  possible,  is  he  the  natural 
mother?  If  we  resort  to  the  original  intentions  of  the  parties  to  the  reproductive 
process,  is  this  "new,"  or  an  application  of  existing  moral  and  legal  notions  of 
procreational  autonomy?  When  one's  human  identity  as  a  functioning  person  is 
permanently  lost  but  her  body  endures,  who  or  what,  if  anything,  is  dead  and  who 
or  what  is  not?  Would  recognizing  this  condition  as  death  reflect  new  ethical 
theory,  or  a  creative  application  of  extant  notions  of  what  the  death  of  one  party 
means  to  others — ^the  irrevocable  absence  of  her  conscious,  interacting  presence? 
Is  what  is  "new"  the  intensity  of  our  focus  on  some  problem  set?  Think,  for 
example,  of  a  renewed  interest  in  determinism  and  responsibility  stimulated  by 
findings  of  the  inverse  correlation  between  low  levels  of  the  neurotransmitter 
serotonin  and  poor  impulse  control;  or  of  special  attention  to  the  possible  moral 
claims  of  future  generations,  occasioned  by  the  threat  of  irreversible  changes  that 
we  pose  to  the  human  gene  pool  or  the  environment.  Here,  our  moral-analytic 
tools  and  concepts  have  not  changed  at  their  core:  our  interests  have  changed, 
and  we  have  creatively  elaborated  familiar  ways  of  thought. 

On  the  other  hand,  pursuing  questions  about  the  novelty  of  what  we  are  doing 
is  an  enterprise  with  rapidly  diminishing  returns.  The  principal  benefit  of  asking, 
"What's  new?"  is  that  it  secures  our  attention  on  matters  relatively  less 
investigated.  In  most  circumstances,  however,  the  appellations  "new"  and  "old" 
convey  only  marginal  information.  For  whatever  benefit  they  provide,  one  must 
locate  precisely  at  which  point  in  an  ethical  or  legal  argument  structure  some  idea 
or  maneuver  might  plausibly  be  called  new. 

Thus,  new  biological  knowledge,  techniques,  and  entities  that  escape  our 
evaluative  frameworks  change  the  domain  of  ethics  and  law,  and  this  may  shift 
our  attention  and  inspire  conceptual  reconstruction.  This  does  not  mean, 
however,  that  ethics  has  been  radically  transformed.  Metaethics  and  normative 
ethical  theory  do  make  progress  of  sorts  (see  Part  IV),  but  they  have  not  morphed 
into  some  ineffable  new  kind  of  moral  analysis.  If  the  complaint  about  ethics  and 
law  being  laggards  is  that  they  have  not  renovated  themselves  into  different  kinds 
of  structures,  it  is  hard  to  understand  it. 

It  is  only  at  the  lower  levels  of  abstraction,  then,  that  the  question  concerning 
new"  versus  "old"  ethics  might  be  fruitful.  Bioethical  problems  are  novel,  even 


i( 


14.  See  infra  Part  II.B;  see  also  Ronald  M.  Green,  Method  in  Bioethics:  A  Troubled 
Assessment,  1 5  J.  Med.  8l  Phil.  1 79, 1 84  ( 1 990)  (stating  that  "[t]he  third  objection  to  characterizing 
bioethics  as  having  moral  philosophy  as  its  core  discipline  stems  from  the  challenge  to  received 
theory  posed  by  the  unusual  and  often  novel  questions  raised  in  this  field"  and  concurring  with 
Clouser's  view  that  new  technology  "presses  ethics  'not  to  find  new  principles  or  foundations,  but 
to  squeeze  out  all  the  relevant  implications  from  the  ones  it  already  has.'")  (quoting  K.  Danner 
Clouser,  Bioethics,  in  1  ENCYCLOPEDIA  OF  BIOETHICS  115,  125  (Warren  T.  Reich  ed.,  1978)). 


1999]  IS  BIOETHICS  BROKE?  29 


radical  in  some  respects,  but  not  so  in  others,  and  not  at  every  level  of 
generality.*^  We  all  will  thus  continue  to  refer  to  the  most  general  abstractions, 
e.g.,  good,  bad,  right  and  wrong;  to  rely  on  certain  fundamental  concepts  of  moral 
analysis,  e.g.,  justice,  fairness,  autonomy,  liberty,  equality,  and  utility;  to 
formulate  moral  theories  embedding  these  notions;  and  to  appraise  these  theories 
from  a  metaethical  framework  and  apply  them  to  real  world  problems.'^  That  is, 
at  the  threshold,  moral  and  legal  analysis  of  technology  will  bring  all  the  modern 
tools  of  philosophical  and  jurisprudential  analysis  to  the  problems  at  hand.  Still, 
one  notices  differences  of  emphasis  and  order  of  difficulty  in  various  bioethical 
problems.  Such  difficulties  may  inspire  rethinking  of  conceptual  structures  and 
hierarchies  in  novel  ways.  Because  of  this,  in  some  hard-to- specify  sense,  the 
ways  in  which  we  think  may  indeed  change.'^  Changes  in  emphasis,  placing 
previously  sub-visible  matters  in  italics,  noticing  things  previously  only  dimly 
perceived — all  are  properly  called  changes  in  thinking,  possibly  sea  changes. 
Such  changes  have  long  been  under  way  as  part  of  the  development  of  bioethics 
and  of  moral  and  legal  analysis  of  technology  generally.  The  content  of  moral 
and  legal  analysis  and  the  issues  under  discussion  evolve  through  an  ongoing 
cycle  of  revision  and  reconstruction.  Whether  we  will  view  the  results  as  truly 
new  normative  insights  is  unforeseeable. 

Sometimes  these  new  insights  are  inspired  by  changes  in  factual 
understandings  that  radically  shift  our  attention.  At  some  point,  for  example,  a 
critical  mass  of  persons  in  any  political  unit  may  come  to  realize  that  racial  or 
minority  groups  are  not  just  slightly  more  elevated  than  primates  found  in  the 
wild,  but  actual  persons  who  think,  feel,  and  can  be  hurt  emotionally  and 
physically.  In  a  later  section,  I  discuss  what  might  count  as  moral  progress,  and 
whether  such  partially  fact-driven  insights  should  be  so  considered. 

To  the  extent  that  one  separates  secular  ethics  from  theological  analysis, 
much  the  same  holds:  there  may  be  different  emphases  and  applications,  but 
there  is  no  "new  theology,"  however  stretched  the  present  framework  might  be.'^ 


15.  Daniel  Callahan  suggests  that  bioethics  "represents  a  radical  transformation  of  the  older, 
more  traditional  domain  of  medical  ethics,"  while  at  the  same  time  raising  questions  that  "are 
among  the  oldest  that  human  beings  have  asked  themselves."  Daniel  Callahan,  Bioethics,  in  1 
Encyclopedia  of  Bioethics  247-48  (Warren  T.  Reich  ed.,  1995).  Cf.  Robert  L.  Holmes,  The 
Limited  Relevance  of  Analytical  Ethics  to  the  Problems  of  Bioethics,  15  J.  MED.  &  PHIL.  143,  145 
(1990)  (discussing  bioethics  as  a  "branch  of  applied  ethics"  in  the  sense  he  specifies,  and  also  as 
belonging  to  "substantive  morality" — the  process  of  making  moral  judgments). 

16.  See  generally  Green,  supra  note  1 4,  at  1 80,  drawing  on  Clouser,  supra  note  1 4,  at  1 1 6. 

17.  See  Michael  H.  Shapiro,  Law,  Culpability  and  the  Neural  Sciences,  in  THE 
Neurotransmitter  Revolution:  Serotonin,  Social  Behavior,  and  the  Law  (Roger  D. 
Masters  &  Michael  T.  McGuire  eds.,  1994). 

18.  Cf  Green,  supra  note  14,  at  182-84  (theologians  in  bioethics  use  the  methods  of 
philosophical  analysis). 


30  INDIANA  LAW  REVIEW  [Vol.  33:17 


3.  The  Demand  for  Answers  and  an  End  to  OTOHs  (E-Mail  Jargon  for  "On 
the  One  Hand''  and  "On  the  Other  Hand''). — 

a.  If  others  can  answer  the  questions  facing  their  disciplines,  why  can 't 
you? — The  complaint  that  current  ethical  analysis  is  a  turtle  chasing  a  hare  often 
rests  on  a  simple  matter:  such  analysis  may  not  provide  answers,  at  least 
definitive  this-is-the-way-it-is-and-must-be  answers,  to  difficult  moral  issues.  If 
a  medical  laboratory  can  determine  cell  counts  within  a  narrow  range  of 
uncertainty,  or  that  the  fibula  is  fragmented,  or  that  your  zorch  is  inflamed,  why 
is  ethics  unable  to  yield  definitive  answers?  If  it  cannot,  what  good  is  it? 

Here  is  a  brief  illustration  of  the  sorts  of  expectations  some  have  when 
appealing  to  the  discipline  of  bioethics  for  answers. 

Scientists  trying  to  map  genes  think  they  are  on  the  verge  of  figuring  out 
how  to  build  an  artificial  life  form. 

J.  Craig  Venter  hopes  to  salvage  DNA  from  dead  bacteria  to  construct 
an  artificial  organism.  His  interest  centers  on  a  tiny  bacterium  called 
Mycoplasma  genitalium.  It  lives  in  the  human  genital  tract  and  lungs, 
causing  no  known  disease,  but  has  the  distinction  of  having  fewer  genes 
than  any  other  organism  mapped  so  far,  making  it  a  good  model  for 
figuring  out  precisely  which  genes  are  essential  for  life. 

"We  are  attempting  to  understand  what  the  definition  of  life  is,"  said  Dr. 
Venter  of  Celera  Genomics  Corp.  in  Rockville,  Md. . . .  "We  are  trying 
to  understand  what  the  minimum  set  of  genes  is." 

Before  he  goes  any  further.  Dr.  Venter  said  he  wants  advice  from  experts 
on  ethics  and  religion.  "We  are  asking  whether  it  is  ethical  to 
synthetically  make  life,"  he  said.'^ 

Well,  he's  asking  you  a  question.  What's  the  answer?  O.K.,  you  can  do 
OTOH  and  OTOH  for  a  while.  Scientists  and  auto  mechanics  do  this,  but  they 
come  up  with  real  answers  a  fair  proportion  of  the  time:  it  was  the  transmission; 
there  really  are  tiny  life  forms  that  can  infect  us  and  make  us  sick.  Why  are  you 
unable  to  answer  Dr.  Venter's  question?  You  really  have  fallen  behind;  you  have 
to  get  up  to  speed,  or  we  will  have  to  replace  you  with  smarter  or  differently 
educated  people.  Yes,  that's  it.  Remember  how  the  physicists  and  chemists  took 
over  the  life  sciences  and  turned  them  into  molecular  biology  and  explained  life, 
in  a  manner  of  speaking,  and  started  raking  in  Nobel  Prizes?  After  Watson  and 
Crick  came  Baltimore  and  Temin  and  Gilbert  and  so  on.  We  will  find  people 
better  than  you  are.  We  will  recruit  the  scientists  themselves,  who  obviously 
know  about  progress  and  answers.  All  you  know  is  how  to  endlessly  incant 
"OTOH,  OTOH."  You  are  either  not  a  respectable  discipline  or  not  a  respectable 
discipline.  A  respectable  discipline  takes  questions  and  answers  them,  or  at  least 
tells  you  what  an  answer  would  look  like.  You  people  cannot  even  agree  on  what 


1 9.     Geneticists  Plan  Attempt  to  Create  Artificial  Life,  WALL  ST.  J.,  Jan.  25,  1 999,  at  B2. 


1 999]  IS  BIOETHICS  BROKE?  3 1 


you  are  looking  for,  never  mind  what  might  constitute  evidence  of  it. 

These  remarks  reflect  some  serious  misunderstandings,  but  it  is  no  simple 
task  to  define  them  because  there  is  no  clear  answer  to  why  there  are  no  clear 
answers.  Indeed,  entire  fields  of  study  try  to  explain  why  certain  matters  cannot 
be  fully  explained.  Even  though  the  call  for  definitive  answers  is  naive,  it  is  not 
stupid.  Any  account  of  this  indeterminacy  implicates  huge  domains  of  thought 
about  how  we  ought  to — and  do — make  moral  and  legal  decisions,  and  about 
what  might  constitute  advances  in  these  processes.  Progress  in  the  quality  of 
moral  reflection,  if  there  is  any,  is  incremental  and  hard  to  identify.  Indeed, 
given  the  very  premise  that  answers  are  hard  to  fmd,  how  could  we  ever  agree  on 
what  counted  as  progress  without  begging  our  questions?  Whatever  progress 
occurs  may  also  be  largely  disvalued  because  it  may  not  yield  unique  answers 
either.  Moreover,  the  very  idea  of  progress  in  moral  reflection  may  be  viewed 
as  backward  by  some  intuitionists  and  pragmatists.  Not  all  serious  moral 
decisions  are  made  from  the  top-down,  leading  us  to  some  final  moral  insight  and 
judgment.  Decisions  are  often  bottom-up  or  at  least  bi-directional  processes  in 
which  there  is  an  initial  notion  of  what  is  right  or  wrong  or  good  or  bad. 
Justification  or  rationalization  is  then  sought,  if  sought  at  all,  at  the  levels  of 
normative  ethics  and  some  forms  of  metaethics. 

Just  as  legal  theories  at  various  levels  can  be  manipulated  to  yield  different 
outcomes,  conceptualizations  at  those  levels  can  often  be  applied  to  justify 
inconsistent  judgments.  Moreover,  if  one's  intuition  yields  a  clear  and 
apparently  certain  judgment,  there  may  be  little  incentive  to  bother  with 
inspecting  possible  justifications.^^  So,  even  if  one  thinks  she  has  the  right 
answer,  the  moral  cacophony  may  remain.  We  either  have  answers  without 
justification,  or  justifications  without  answers. 

b.  The  moral  ''oracle'*:  Expertise  and  democracy . — When  the  touted  expert 
fails  to  deliver  The  Answers,  our  disappointment  and  anger  are  compounded 
because  of  our  expectations.^'  We  rely  on  forestry  experts  to  tell  us  what  rates 
of  timber  harvesting  and  reforestation  are  required  to  keep  the  forest  in  a  more 
or  less  steady  state.  But  whom  do  we  ask  to  tell  us  if  saving  the  forest  is  more 
important  than  saving  jobs  in  the  local  economy?  Economists?  Philosophers? 
Lawyers? 

Although  some  may  think  that  ethics  experts  have  special  knowledge  about 
rightness  and  goodness,  that  view  is  doubted  by  many,  including  most  ethical 
theorists  and  "ethicists."  Indeed,  some  modern  democratic  movements  seem  to 
reject  the  very  possibility  of  special  moral  insight  or  expertise.^^    Perhaps  it 


20.  See  Holmes,  supra  note  1 5,  at  1 49-50;  see  also  Baruch  A.  Brody,  Quality  ofScholarship 
in  Bioethics,  15  J.  MED.  &  PHIL.  161,  170  (1990)  (discussing  upwards-down  and  downwards-up 
models  of  moral  analysis). 

21.  Perhaps  this  is  linked  to  the  view  that  happiness  does  not  necessarily  increase  with 
technological  development.  See  Charles  Frankel,  The  Idea  of  Progress,  in  6  ENCYCLOPEDIA  OF 
Philosophy  483,  486  (Paul  Edwards  ed.,  1967). 

22.  See  Nagel,  supra  note  1 1,  at  212  (contrasting  scientific  and  moral  expertise).  Nagel 
states  that 


32  INDIANA  LAW  REVIEW  [Vol.  33:17 


would  be  too  strong  to  call  it  a  mass  delusion,  but  many  within  democratic 
systems  think  that  one  person's  views  on  most  matters  are  as  good  as  another's. 
In  particular,  bottom-line  moral  conclusions  are  thought  to  be  as  fit  for  one 
citizen  as  for  another  if  one  assumes  that  the  relevant  situational  facts  are 
available  to  all.  It  may  well  be  true,  for  example,  as  Professor  Robert  Holmes 
urges,  that  neither  meta-,  normative,  nor  applied  ethicists  can  "make  better  moral 
judgments  in  particular  situations  than  anyone  else.""^ 

Nevertheless,  the  romantic  view  persists  in  some  quarters  that  courts,  and 
perhaps  some  other  officials,  have  special  access  to  moral  truths,  either  by  virtue 
of  training  or  special  aptitude  or  both  (see  Part  III.G.2.b).  The  basic  rationales 
for  free  speech  in  a  republic  are  not  founded  on  a  belief  that  personal  views  are 
equal  across  the  board.  They  do  include  a  belief  that  the  "marketplace  of  ideas" 
is  an  effective  way  to  avoid  tyranny  despite  the  presence  of  much  junk 
commentary.^'^  Our  very  penchant  for  recognizing  rights  suggests  that  we  all 
need  protection  against  implementation  of  the  alarming  views  of  others.  Still, 
outside  of  religious  contexts,  there  is  only  limited  scope  for  strong  deference  to 
moral  or  even  policy  expertise,  at  least  as  far  as  the  more  populist  citizenry  is 
concerned. ^^ 


there  is  much  less  room  for  expertise  with  regard  to  the  moral  and  evaluative  aspects  of 
policy.  Moral  judgments  are  everyone's  job,  and  while  some  people  are  better  at  them 
than  others,  the  reasons  behind  them  ought  to  be  made  available,  for  the  purposes  of 
public  choice  ....  We  do  not  live  in  a  theocracy,  where  some  people  are  thought  to 
have  a  privileged  and  direct  line  to  the  moral  truth. 
Id.  See  also  Scot  D.  Yoder,  Experts  in  Ethics?  The  Nature  of  Ethical  Expertise,  HASTINGS  CENTER 
Rep.,  Nov.-Dec.  1998,  at  1 1,  12  (providing  a  useful  review  of  the  idea  of  moral  experts). 

23.  Holmes,  supra  note  1 5,  at  1 47.  See  also  Yoder,  supra  note  22,  at  1 2.  Yoder  challenges 
what  he  sees  as  three  assumptions  regarding  ethics  expertise: 

The  first  is  that  in  order  for  there  to  be  expertise  in  ethics  there  must  be  objective  moral 

knowledge  ....  The  second  is  that  ethics  expertise  is  ethics  expertise — ^that  there  is  a 

single  type  of  knowledge  or  set  of  skills  by  virtue  of  which  the  academic  scholar,  the 

ethicist  involved  in  public  policy  formulation,  and  the  medical  ethics  consultant  can  all 

claim  to  be  experts.  The  third  is  that  professional  expertise  is  equivalent  to  or  at  least 

requires  specialization. 

Id.  Yoder  states  that  "[t]he  key  is  to  see  that  expertise  in  ethics  is  connected  with  justification — ^a 

claim  to  ethics  expertise  is  not  based  on  the  truth  of  one's  judgment  but  on  one's  ability  to  provide 

a  coherent  justification  for  them."  Id.  at  13. 

24.  J.S.  Mill's  endorsement  of  plural  voting,  i.e.,  greater  voting  power  for  superior  persons, 
reflects  a  different  view  of  democracy.  See  John  Stuart  Mill,  Representative  Government,  in 
Utilitarianism,  Liberty,  and  Representative  Government  3  76, 381-90  (Dutton  &  Co.  1 950). 
Mill  seems  to  have  had  some  later  reservations  about  the  recommendation;  see  also  Dennis  F. 
Thompson,  John  Stuart  Mill  and  Representative  Government  100  (1976). 

25.  See  generally  Yoder,  supra  note  22;  Jan  Crosthwaite,  Moral  Expertise:  A  Problem  in 
the  Professional  Ethics  of  Professional  Ethicists,  9  BlOETHlCS  361  (1995);  Richard  Delgado  & 
Peter  McAllen,  The  Moralist  as  Expert  Witness,  62  B.U.  L.  REV.  869  (1982);  Colloquy,  Bioethics, 
Expertise,  and  the  Courts,  22  J.  Med.  &  PHIL.  291  (1997).   For  a  discussion  of  the  distinction 


1999]  IS  BIOETHICS  BROKE?  33 


Moral  expertise,  however,  may  unearth  a  variety  of  paths  to  our  bottom  lines, 
and  knowledge  of  these  options  is  precisely  where  the  expertise  lies.  Yoder 
quotes  Ruth  Shalit,  a  critic  of  the  offerings  of  ethicists,  who  says  that  "[t]he 
philosopher's  recommendation  depends  on  a  set  of  criteria  that  is  not  agreed 
upon,  but  varies  from  culture  to  culture  and,  more  and  more,  from  individual  to 
individual."^^  However,  this  observation  does  not  defeat  the  notions  of  expertise 
or  progress  in  ethics  and  ethical  theory.  On  the  contrary,  it  helps  reveal  the  very 
stuff  of  moral  analysis,  the  competing  criteria  in  question.^^ 

Thus,  the  suggestion  that  "[t]he  expertise  of  the  moral  philosopher  leads  to 
informed  moral  judgments,  not  necessarily  to  the  right  answer,"^*  seems  sound, 
provided  that  one  understands  that  the  phrase  "informed  moral  judgments"  may 
itself  be  contested.  "Informed  by  what?",  a  skeptic  may  ask,  and  perhaps  claim 
that  a  purported  moral  judgment  is  not  properly  informed  because  the  criteria 
used  to  determine  morality  are  improper,  or  because  they  have  not  been  ordered 
properly  so  that  conflicts  can  be  dealt  with  adequately.  Knowledge  of  this  layer 
of  uncertainty  is  itself  part  of  a  body  of  ethical  understanding,  and  thus  of  moral 
progress,  however  paradoxical  this  may  seem.  Much  the  same  applies  to 
defending  ethical  expertise  and  progress  as  "facilitating"  the  "coherent 
justification"^^  of  moral  problems.  What  amounts  to  a  coherent  justification  may 
be  in  dispute. 

In  thinking  about  moral  expertise,  focus  again  on  the  final  moral  judgment 
about  particular  conduct  or  a  specific  state  of  affairs.  Robert  Holmes  may  be 
right  about  "moral  equality  at  the  decision  point,"  but  with  this  critical 
qualification.  Unless  one  is  a  thoroughgoing  intuitionist  who  believes  in  direct 
observation  of  moral  reality — of  the  truth  value  of  moral  claims  in  particular 
situations'^ — one's  final  moral  judgment  ought  to  be  consciously  informed  by  the 
recognition  of  morally  relevant  factors.  Once  revealed,  they  may  seem  obvious, 
but  there  are  many  obvious  matters  hidden  from  sight.  How  many  of  us  always 
consider  the  moral  relevance  of  conflicts  of  interest?  Critics  of  Health 
Maintenance  Organizations  (HMOs),  for  example,  emphasize  the  internal 
incentive  systems  that  create  conflicts  of  interest  for  physicians.  Do  they  also 
realize  that  fee-for-service  has  its  own  obvious  built-in  conflicts  of  interest,  such 
as  physician  incentives  to  overtreat  and  overcharge?  Moral  analysis  can  bring 


between  "doing  ethics"  and  "doing  policy,"  see  Brock,  supra  note  4,  at  218-19. 

26.  Yoder,  supra  note  22,  at  13. 

27.  "Criterion"  is  a  somewhat  obscure  term  itself,  but  here  it  refers  to  matters  of  moral 
relevance  as  defined  and  expressed  in  rules,  principles,  standards,  and  even  in  maxims  and  moral 
heuristics  generally.  Although  it  is  not  a  primitive  term,  I  take  it  as  such  for  now. 

28.  Yoder,  supra  note  22,  at  14. 

29.  Id.  at  14,  16. 

30.  See  WILLIAM K.  Frankena,  Ethics  14-15  (2d  ed.  1973);  see  also  Loretta  M.  Kopelman, 
What  Is  Applied  About  "Applied"  Philosophy,  15  J.MED.  &  PHIL.  199, 203-08  (1990);  c/ JEFFREY 
Stout,  Ethics  After  Babel  157  (1988)  ("The  intuitionist  and  the  theorist  of  moral  sense  leave 
us  at  the  mercy  of  our  feelings  and  hunches.  The  answer  is  not,  however,  to  ignore  feelings  and 
hunches  altogether.  Without  them,  ethical  theory  loses  contact  with  the  data  of  moral  experience."). 


34  INDIANA  LAW  REVIEW  [Vol.  33: 17 


the  obvious  to  mind  and  render  the  nonobvious  obvious.  It  cannot,  however, 
always  resolve  indeterminacies  at  the  point  of  decision,  and  here,  expertise  may 
well  run  out. 

Thus,  even  if  experts  and  non-experts  are  equal  at  the  penultimate  decision 
point,  the  skills  of  nonexperts  may  nevertheless  be  aided  by  the  experts'  moral 
analyses.  The  ideas  of  knowledge,  expertise,  and  progress  in  moral  inquiry  do 
not  and  cannot  rest  on  a  belief  in  an  objective  moral  reality  that  always  provides 
firm  and  certain  answers.  There  may  be  a  moral  reality,  but  it  is  a  reality 
different  from  other  realities,  despite  the  parallels  among  them,  and  its  reality 
cannot  be  reduced  to  some  other  form  of  reality.^' 

4.  Technology  and  Psychic  Overload  from  "Too  Many  Options.  " — ^There  is 
at  least  one  sense  in  which  the  claim  that  "technology  has  outrun  ethics  and  law" 
is  not  that  puzzling.  People  often  complain  of  having  too  much  information  or 
too  much  choice^^  and  perhaps  even  too  many  ethical  theories  on  the  philosophy 
supermarket  shelves.  The  "too  much"  label  is  a  somewhat  tendentious 
description;  we  may  well  be  better  off  overall  with  more  information  and 
opportunities. 

Nevertheless,  increased  choice  and  knowledge  bear  certain  costs,  at  least  for 
some  decision  makers — e.g.,  a  sense  of  oppression  from  a  felt  responsibility  to 
assure  the  best  outcome  by  canvassing  all  options  and  considering  all 
information.  It's  easier  and  quicker  to  buy  cereal  from  a  convenience  store  than 
from  a  supermarket.  The  annoying  but  useful  occurrence  of  regret  also  plays  a 
central  role  here.  There  are  many  stores  and  many  toasters.  Hidden  somewhere 
out  there,  alongside  "the  truth,"  is  the  "best  toaster" — ^the  perfect  combination  of 
ftanction,  quality,  appearance,  ease  of  operation,  range  of  choice,  and  price.  But, 
games  and  contests  aside,  seriously  trying  to  find  it  through  a  complete  search  of 
every  toaster  on  sale  in  the  vicinity  and  beyond  evidences  derangement.  Most  of 
us  will  "satisfice."  We  may  vaguely  wonder  if  we  made  the  best  buy,  because 
we  certainly  did  not  canvass  all  the  choices,  but  this  is  unlikely  to  ruin  our  day." 

The  problem  with  biomedical  technology,  however,  is  not  simply  that  we 
have  more  options  and  information  of  the  same  sort  that  we  had  before — more 
toasters,  more  cereal,  and  more  vehicles.  We  have  new  kinds  of  choices:  choices 
over  the  traits  of  offspring  (prenatal  and  preconception  testing;  cloning);  choices 
concerning  control  of  mind  and  behavior  (antipsychotic  drugs;   intellect- 


3 1 .  See  Yoder,  supra  note  22,  at  13. 

32.  See,  e.g. ,  Gerald  Dworkin,  Is  More  Choice  Better  Than  Less?,  7  MIDWEST  STUD.  IN  PHIL. 
47  (1982);  Michael  H.  Shapiro,  Fragmenting  and  Reassembling  the  World:  Of  Flying  Squirrels, 
Augmented  Persons,  and  Other  Monsters,  51  OHIO  ST.  L.J.  331,  349-50  (1990)  (suggesting  that 
"[n]ew  choice  may  ...  be  too  much  choice."). 

33.  See  generally  David  M.  Grether  et  al..  The  Irrelevance  of  Information  Overload:  An 
Analysis  of  Search  and  Disclosure,  59  S.  Cal.  L.  Rev.  277,  301  (1986)  (arguing  that  "the 
information  overload  idea — that  too  much  information  causes  dysfunction — is  a  myth.  Instead, 
when  choice  sets  become  large  or  choice  tasks  complex  relative  to  consumers'  time  or  skill, 
consumers  satisfice  rather  than  optimize.").  "But  they'll  satisfice"  does  not  answer  the  claim  about 
dysfunction;  it  only  partly  explains  why  dysfunction  may  occur. 


1999]  IS  BIOETHICS  BROKE?  35 


enhancing  drugs);  choices  about  lifesaving  efforts  (organ  transplantation);  and 
so  on.  Furthermore,  we  have  new,  possibly  exaggerated  visions  of  ourselves,  our 
powers,  and  our  progression.  We  may  see  our  thought  and  behavior  as  less 
"free"  and  more  "determined,"  and  worry  over  the  blurring  of  the  boundaries 
between  ourselves  and  other  forms  of  life,  or  even  machines.  We  encounter  new 
difficulties  of  description  and  evaluation  that  may  seem  deeper  and  reflect  far 
greater  dangers  than  do  those  arising  from  choice  in  other  contexts.  The  fact  that 
we  cannot  get  a  precise  fix  on  what  these  dangers  might  be  makes  matters  worse 
because  of  the  very  namelessness  of  the  risks.  The  range  and  difficulty  of  choice 
over  matters  we  have  never  or  only  marginally  dealt  with  before  may  seem  to 
exceed  our  capacities  for  rational  choice.  What  is  that  wretched  state  in  which 
one  permanently  loses  all  faculties  of  thought  and  feeling,  but  one's  bodily 
functions  continue?  Should  we  choose  to  say  it  is  death  because  the  person  we 
knew  seems  irretrievably  gone,  despite  his  body's  endurance?  Who  is  the  natural 
parent  of  a  cloned  offspring,  or  is  there  even  any  such  thing? 

This  expanded  range  of  choice  reflects  moral/conceptual  difficulties,  not  just 
an  increase  things  to  choose  from.  However,  this  is  not  what  prevents  moral  and 
legal  analysis  from  gaining  on  technology.  Such  analysis  does  not  progress  or 
advance  in  the  same  way  as  technology.  They  are  not  even  on  the  same  race 
track.  Determining  how  Sarah  Jr.  shall  be  constructed  when  we  have  her  germ 
line  in  hand  in  an  early  embryo  cannot  be  answered  just  by  gathering  more 
information,  or  running  brilliant  experiments,  or  even  by  getting  smarter. 

5.  The  Quality  of  Debate  "  Within  "  Bioethics.— Saying  that  many  bioethical 
debates  are  weak  is  different  from  saying  that  bioethics  is  itself  infirm  because 
of  inattention  to  substantive  material  matters,  conflicts  of  interest,^'*  false 
consciousness,  the  need  to  replace  elderly  paradigms,  etc.  The  problems  of 
bioethics,  as  I  argue,  don't  go  that  deep.  But  there  is  a  problem,  not  with 
bioethics'  foundations,  but  with  the  quality  of  many  debates  within  bioethics. 
Quality  here  concerns  systemic  analytical  weaknesses  that  affect  reasoning  in  all 
fields,  as  well  as  particular  bad  habits  more  associated  with  bioethics  than  with 
other  fields. 

I  am  not  offering  a  demonstration  of  this  backed  by  an  extensive  sampling 
of  the  now  immense  bioethics  literature.  A  few  examples  of  flawed  arguments 
that  are  often  repeated  will  do  for  now.  True,  this  lack  of  rigor  impairs  the 
quality  of  my  own  argument,  but  quality  is  not  an  all-or-nothing  matter. 

Consider  the  debate  about  objectification,  an  important  idea  concerning  a 
central  premise  of  bioethical  analysis.  We  are  rightly  concerned  with  the  risk  of 
transforming  our  view  of  ourselves  as  persons  into  a  view  of  ourselves  as 
manipulable  objects.  It  is  said  that  bioethics  undervalues  risks  of 
objectification — our  descent  from  persons  to  objects.  Objectification,  however, 
is  one  of  the  most  heavily  discussed  issues  in  bioethics.   Indeed,  in  bioethics 


34.     See  Peter  D.  Toon,  After  Bioethics  and  Towards  Virtue?,  1 9  J.  MED.  ETHICS  1 7  ( 1 993). 
See  generally  CONFLICTS  OF  INTEREST  IN  CLINICAL  Practice  and  Research  (Roy  G.  Spece,  Jr.  et 
al.  eds.,  1996)  [hereinafter  Conflicts  of  Interest];  Miles  Little,  Research,  Ethics  and  Conflicts 
of  Interest,  25  J.  MED.  ETHICS  259  (1999). 


36  INDIANA  LAW  REVIEW  [Vol.  33:17 


more  people  credit  the  risk  of  objectification  than  discount  it.  If  something  is 
wrong  with  bioethics  here,  it  is  that  it  overestimates  that  risk.  In  any  case,  search 
the  literature  for  articles  that  do  more  than  throw  the  term  around.  You  will  find 
some — but  they  do  not  characterize  the  field. 

Instead,  you  will  find  material  suggesting  that  simply  using  the  term 
"products"  to  refer  to  children  bom  of  artificial  technology  indicates  that  we  have 
already  plunged  into  the  abyss  and  are  treating,  say,  babies  born  of  invitro 
fertilization  ("IVF")  as  things  to  be  used  as  we  wish.^^  There  is  zero  evidence  to 
back  this  up;  there  is  not  even  evidence  to  support  the  colorable  view  that 
investing  heavy  monetary,  physical,  and  psychic  resources  in  creating  the  child 
will  result  in  intrusive  parental  control  designed  to  assure  a  proper  return  on  the 
investment.  Even  the  term  "objectification,"  used  to  describe  a  legitimate 
concern  of  bioethics,  has  itself  been  reduced  to  an  analytically  used  slogan.^^ 

You  will  also  find  writing  that  likens  the  life  support  maintenance  of  a  dead 
pregnant  woman  until  delivery  of  her  child  to  using  her  as  a  flowerpot.^^  The 


35.  See  BARBARA  Katz  Rothman,  Recreating  Motherhood:  Ideology  and 
Technology  in  a  Patriarchal  Society  19  (1989)  (claiming  that  "our  society  is  also  coming  to 
think  of  children  as  products"  and  offering  an  example — ^the  use  of  the  phrase  ''the  products  of 
conception^)',  see  also  DOROTHY  Nelkin  &  LAURENCE  R.  Tancredi,  Dangerous  Diagnostics 
17(1989): 

These  metaphors  of  the  body  and  mind  ["systems,"  "chemical  building  blocks," 
"hardware,"  "software"]  have,  in  effect,  objectified  the  person,  who  becomes  less  an 
individual  than  a  set  of  mechanical  parts  or  chemical  processes  that  can  be  calibrated 
or  well  defined.  This  objective  image  of  the  person  has  encouraged  the  use  of  biological 
tests  as  means  of  classification  and  as  instruments  of  control. 
Id. 

36.  For  an  example  of  the  inflated  use  of  the  idea,  see  the  quotations  from  scientists  in  Sarah 
Lyall,  A  Country  Unveils  Its  Gene  Pool  and  Debate  Flares,  N.Y.  TIMES,  Feb.  16,  1999,  at  Fl. 
Iceland,  with  an  unusually  homogeneous  genetic  pool  said  to  be  derived  from  Viking  settlers  over 
1 100  years  ago  without  much  additional  genetic  infusion,  is  now  debating  a  new  law  "giving  an 
Icelandic  biotechnology  concern  the  right  to  develop  a  giant  database  combining  the  health  records, 
genealogical  backgrounds,  and  DNA  profiles  of  every  person  in  Iceland."  Id.  One  observer,  a 
scientist,  said:  "'It  is  not  right  to  use  a  population  as  a  commodity  in  this  way.  ...  I  fear  that  we 
could  be  used  as  a  well-defined  guinea  pig  population  in  the  future.'"  Id.  Another  scientist  said: 

"'It's  akin  to  treating  people  as  objects  rather  than  human  beings I  flatly  reject  the  notion  that 

you  have  to  make  concessions  on  patients'  rights  in  order  to  do  human  genetic  research.'"  Id. 

Is  the  objection  that  this  plan  will  benefit  a  private  company?  Would  the  critics  withdraw  their 
objection  if  the  government  were  doing  this?  None  of  us  believes  that  people  should  be  treated  as 
"guinea  pigs,"  but  what  does  this  plan  have  to  do  with  such  treatment?  A  broad-based  social 
experiment  in  sharing  medical  information  might  not  be  a  great  idea  and  might  violate  people's 
rights,  but  not  every  bad  idea  is  bad  because  it  objectifies,  and  not  every  invasion  of  rights 
constitutes  objectification.  The  critics'  characterizations  are  all  but  useless.  To  the  extent  that  such 
indefensibly  broad  characterizations  are  offered  in  bioethics,  then  pro  tanto,  the  discipline  is  infirm. 
But  of  course,  the  discipline  as  a  whole  also  includes  commentaries  such  as  mine. 

37.  "To  what  extent . . .  should  the  common  good  of  refusing  to  perpetuate  images  of  women 


1 999]  IS  BIOETHICS  BROKE?  37 


metaphor  is  clumsy  and  offensive.  Children  aren't  flowers  or  any  other  sort  of 
object,  living  or  nonliving.  Is  the  risk  of  objectification  here  so  clear  that  we  are 
to  suffer  two  human  deaths  instead  of  one?  Where  the  burdens  on  a  woman's 
living  body  are  not  at  stake,  there  is  no  reason  not  to  view  a  developing  fetus  as 
a  person-on-the-way — indeed,  we  must.^^ 

Still  more  writing  urges  us  to  discount  serious  reasoning  and  instead  to 
evaluate  new  reproductive  technologies  on  the  basis  of  how  repugnant  the 
process  and  the  product  seem.^^ 

You  will  even  find  circular  arguments  suggesting  that  certain  actions  or 
processes  are  simply  wrong,  apparently  by  definitional  fiat  or  arbitrary 
stipulation.  For  example,  "Surrogacy  'necessarily'  commodifies  women. '"^^ 

None  of  this  establishes  that  bioethics  requires  either  reconstruction  or 
deconstruction.   It  just  suggests  that  some  discussants  should  do  a  better  job. 


as  maternal  backgrounds  or  flowerpots  constrain  a  prospective  father's  preference  for  sustaining 
a  postmortem  pregnancy  for  more  than  a  few  days?"  Hilde  Lindemann  Nelson,  Dethroning  Choice: 
Analogy,  Personhood,  and  the  New  Reproductive  Technologies,  23  J.L.  Med.  &  ETHICS  129,  134 
(1995).  The  reduction-to-flowerpots  argument  is  also  raised  in  Barbara  Katz  Rothman, 
Reproductive  Technologies  and  Surrogacy:  A  Feminist  Perspective,  25  CreightonL.  Rev.  1599, 
1603  (1992)  (associating  the  idea  with  Caroline  Witpick:  Women  are  "just  the  flowerpot  in  which 
men  plant  it  [i.e.,  "the  little  person"].").  The  implication  seems  to  be  that  only  the  men  are 
interested  in  the  little  flower  persons — reproduction  is  their  idea. 

38.  Martha  Field  writes  that  "[i]t  may  seem  peculiar  that  the  state  has  a  greater  interest  in 
preventing  the  fetus  from  being  harmed  than  from  being  killed,  but  such  is  the  case. . . .  Nothing 
in  Roe  v.  Wade  contradicts  the  existence  of  a  strong  and  legitimate  state  interest  in  the  health  of 

newborns The  different  and  stronger  state  interest  that  exists  when  the  mother  intends  to  carry 

to  term  also  helps  to  explain  why  the  trimester  system  that  applies  to  abortion  has  no  application 
to  controls  on  the  mother-to-be."  Martha  A.  Field,  Controlling  the  Woman  to  Protect  the  Fetus, 
1 7  Law  Med.  &,  Health  Care  1 1 4,  1 23-24  ( 1 989). 

39.  See  generally  Leon  R.  Kass,  The  Wisdom  of  Repugnance,  THE  NEW  REPUBLIC,  June  2, 
1997,  at  17. 

40.  Isabel  Marcus  et  al..  Looking  Toward  the  Future:  Feminism  and  Reproductive 
Technologies,  37  BUFF.  L.  REV.  203,  214  (1988)  (quoting  Barbara  Katz  Rothman)  ("Surrogacy 
entails  the  notion  that  one  can  rent  a  womb  and  can  affix  an  arbitrary  price  tag  on  pregnancy,  often 
$10,000.")  (emphasis  added);  see  also  2  Royal  Commission  on  New  Reproductive 
Technologies,  Proceed  With  Care:  Final  Report  of  the  Royal  Commission  on  New 
Reproductive  Technologies  683-84  ( 1 993). 

The  premise  of  commercial  preconception  contracts  is  that  a  child  is  a  product  that  can 
be  bought  and  sold  on  the  market.  .  .  .  The  commodification  of  children  entailed  by 
preconception  arrangements  ignores  these  essential  values  [that  children  are  not 
commodities  or  instruments].  .  .  .  Commercial  preconception  contracts  by  their 
nature — the  exchange  of  money  for  a  child— contradict  one  of  the  fundamental  tenets 
of  the  Commission's  ethical  framework. 
Id.  (emphasis  added).  Perhaps  the  thought  behind  these  remarks  is  less  conclusory  than  their 
textual  presentation  suggests,  but  it  requires  some  non-conclusory  explanation. 


38  INDIANA  LAW  REVIEW  [Vol.  33:17 


which  is  probably  true  of  most  disciplines  and  most  writers.'*'  The  questionable 
quality  of  particular  debates  does  not  impeach  the  discipline,  and  perhaps  not 
even  the  author. 

6.  The  Inside/ Outside  Perspectives. — ^A  distinction  is  sometimes  drawn 
between  persons  outside  the  bioethics  discipline  who  comment  on  its  qualities 
and  those  inside  it — the  people  doing  bioethics."^^  There  are  some  puzzles  here: 
does  one  become  an  insider  by  pursuing  a  critique  of  the  inside?  If  one  wants  to 
change  a  discipline,  should  one  join  it  and  seek  change  from  within,  or  stay 
outside  and  mount  an  attack?  How  could  we  tell  the  difference?  Perhaps  the 
criterion  is  that  one  remains  outside,  regardless  of  the  critique,  as  long  as  one 
insists  that  she  is  not  a  bioethicist.  If  the  critique  of  bioethics  is  within  bioethics, 
then  how  infirm  can  bioethics  be  if  it  contains  within  itself  the  appropriate 
counter-considerations?  Yet  if  the  critique  is  itself  badly  flawed,  then  locating 
it  within  bioethics  compromises  the  disciplines'  status  by  adding  a  misguided 
sub-discipline.  I  have  nothing  further  to  say  on  this  because,  though  amusing  for 
its  self-referential  paradox,  it  is  not  to  the  point  here. 

7.  Does  the  ''Technological  Imperative  "  Make  Catching  Up  Impossible? — 
The  point  here  is  simple.  It  is  hard  to  catch  up  with  a  target  moving  away  from 
you  at  a  greater  velocity  than  yours.  Worse,  the  target  technology  is  not  only 
going  to  keep  moving,  it  will  inevitably  accelerate. 

Here  the  difficulty  becomes  apparent.  Unless  people  see  technology  literally 
as  a  sentient  entity  holding  humanity  in  its  tractor  beam,  they  will  instead  believe 
that  technological  developments  are  a  result  of  people's  actions  and  thus  can  be 
controlled.  However,  "technological  imperative"  is  not  that  nonsensical  a 
concept.  It  refers  to  matters  of  individual  and  social  psychology.  If  enough 
people  share  an  ethic  of  "progress"  (in  certain  senses),  believe  humanity  can  and 
should  strive  to  acquire  knowledge  and  to  control  at  least  some  aspects  of  nature, 
want  labor-saving  tools,  and  are  willing  to  make  heavy  financial  and  emotional 
investments  in  science  and  technology,  then  resistance  to  all  technological 
development  in  a  human  population  of  more  than  five  billion  is  futile. 

The  right  question  of  course  is  not  about  halting  all  technology,  as  the 
Unabomber  seemed  to  prefer  (even  as  he  used  technology  to  blow  people  up),  but 
halting  or  heavily  regulating  particular  technologies.  That  too  is  difficult.  It  is 
true  that  we  have  used  atomic  weapons  in  war  only  once,  and  that  many  are 
trying  to  stamp  out  the  development  and  use  of  pathogenic  agents  and  poison  gas, 
but  one  cannot  confidently  say  that  these  areas  will  continue  to  represent  success 
stories.  "Catching  up,"  by  sharply  attenuating  the  technological  imperative  thus 
requires  a  striking  and  unlikely  change  in  human  behavior.  Of  course,  this  does 
not  bar  the  possibility  that  specific  areas  of  technological  development  can  be 
controlled. 

In  any  case,  as  I  said  earlier,  catching  up  is  not  simply  about  our  trying  to 


41 .  To  the  extent  that  the  mistaken  criticisms  of  the  foundations  of  bioethics  are  part  of  the 
corpus  of  bioethics,  one  might  well  mount  a  case  that  bioethics  is  bruised,  but  not  broke. 

42.  See  K.  Danner  Clouser  &  Loretta  M.  Kopelman,  Philosophical  Critique  of  Bioethics: 
Introduction  to  the  Issue,  15  J.  MED.  &,  PHIL.  121  (1990). 


1999]  IS  BIOETHICS  BROKE?  39 


accelerate  our  thinking  or  regulating.  If  it  means  anything,  it  means  working 
harder  at  unearthing  the  most  important  issues  governing  an  expanding  set  of 
technological  capabilities.  In  some  cases,  it  may  refer  to  the  even  more  basic 
accomplishment  of  recognizing  that  there  is  an  issue  and  starting  to  think  about 
it.  One  might  view  any  of  this  as  catching  up,  but  there  will  be  no  checkered  flag 
to  mark  success  or  failure. 

I.  The  Ascent  of  Technology  and  the  Decline  of  Humanity: 
On  the  Distinctiveness  of  Bioethics 

A.  The  Descent 

One  of  the  central  critiques  of  applied  life  science  technologies'*^  is  easy  to 
state,  but  hard  to  interpret  and  confirm.  The  complaint  is  that  technological 
power  over  fundamental  life  processes  results  in  a  decline  in  the  moral  qualities 
of  human  interaction. '*'*  In  particular,  technological  progress  causes  human 
regress  by  reducing  people  to  objects."*^ 

But  what  is  this  human  decline  about?  It  is  not  about  a  reversion  to  lower 
primatehood  and  a  return  to  our  home  in  the  trees.  Perhaps  it  is  more  like  our 
becoming  drones  in  the  Borg  hive."*^  The  plunge  toward  objecthood  can  only 
refer  to  changes  in  our  attitudes  about  what  personhood  and  human  interaction 
should  entail  and  thus  to  changes  in  how  we  come  to  treat  each  other.  Fears  of 
such  retrograde  slides  are  reflected  in  bioethics  commentaries  denouncing 
technology-assisted  objectification,  especially  in  the  fields  of  reproduction, 
genetics,  and  performance  enhancement,  though  transplantation  and  control  of 
dying  are  not  far  behind."*^  Here,  biotechnology  is  not  alone;  assessments  of  other 


43.  I  make  no  effort  to  define  "technology"  precisely.  One  definition  that  I  have  quoted 
elsewhere  is  this:  "Following  the  Dutch  philosopher  Piet  de  Bruin,  I  define  technology  as  the 
control  of  nature  by  way  of  combining  its  forces  according  to  a  design  conceived  of  by  human 
understanding.  The  resulting  combination  is  a  new  work  of  nature  that  can  be  used  as  a  means  to 
realize  a  specific  end."  T.  Maarten  T.  Coolen,  Philosophical  Anthropology  and  the  Problem  of 
Responsibility  in  Technology,  in  TECHNOLOGY  AND  RESPONSIBILITY  43-44  (Paul  T.  Durbin  ed., 
1987).  The  apparent  oxymoron  "new  work  of  nature"  calls  attention  to  the  difficulty  of  defining 
"natural"  and  "artifactual"  and  distinguishing  one  from  the  other. 

44.  By  "technological  power"  I  mean  both  what  can  be  done  and  the  very  idea  that  such 
power  is  possible  and  is  likely  to  be  developed  sooner  or  later  if  there  are  no  preventive  efforts. 

45.  I  leave  aside  whether  and  to  what  extent  this  applies  beyond  life  science  technologies. 

46.  In  Star  Trek:  The  Next  Generation  (Twentieth  Century  Fox  Television  Broadcast),  the 
Borg  is  a  huge  collective  unit  made  up  of  formerly  separate  individuals.  They  were  "assimilated" 
into  the  collective  mind,  although  enough  individuation  remains,  to  allow  Borg  "drones"  to  be 
restored  to  independent  personhood.  I  refer,  of  course,  to  Seven  of  Nine,  in  the  Voyager  series. 

47.  See  Martha  C.  Nussbaum,  Objectification,  24  PHIL.  &  PUB.  Aff.  249,  262  n.20  ( 1 995) 
(a  critical  analysis  of  objectification  arguments);  see  also  Michael  H.  Shapiro,  Illicit  Reasons  and 
Means  for  Reproduction:  On  Excessive  Choice  and  Categorical  and  Technological  Imperatives, 
47  Hastings  L.J.  1081  (1996)  (a  critique  of  objectification  arguments  against  the  use  of 


40  INDIANA  LAW  REVIEW  [Vol.  33:17 


technologies  often  present  this  same  view  of  human  devolution/^ 

The  indictment  of  applied  biology  is  often  accompanied  by  claims  that 
bioethics  is  infirm  because  it  has  failed  to  stop  or  even  slow  the  onslaught  of 
personhood-impairing  technological  advances.  It  has  failed  because  its 
intellectual  structure  is  impoverished  or  beholden  to  the  wrong  groups  or  values 
and  so  hastens  our  decline."*^  This  is  so  whether  bioethics  is  viewed  as  a 
scholarly  discipline,  a  body  of  law  and  legal  practices,  a  set  of  customs  and 
clinical  practices,  a  set  of  attitudes  and  perspectives  held  by  various  groups,  or 
any  or  all  of  these.^°  Whatever  it  is,  it  is  said  to  lack  relevant  perspectives, 
embrace  the  wrong  values  and  value  priorities,  use  the  wrong  paradigms  and 
models  and  other  modes  of  thought,  and  to  be  patriarchal  and  too  oriented  toward 
establishment  culture. 

The  task  here  is  to  expose  the  vulnerabilities  of  these  attacks.^'  In  this 
"critique  of  the  critique"  of  biological  technology  and  bioethics,  I  will  complain, 
among  other  things,  about  how  debates  on  the  uses  of  life  science  technologies 
are  framed  and  pursued  in  confused,  confusing,  and  often  misleading  terms.^^ 

B.  Is  Bioethics  Distinctive  and  on  What  Notion  of  ''Distinctiveness  "?; 

A  Definitional  Inquiry 

One  way  of  entering  this  meta-critique  may  seem  roundabout  but  is  not.  To 
critique  the  critique  of  bioethics  requires  some  account  of  what  bioethics  is.  I 
will  try  to  show  why  bioethical  problems  are  exceptionally  troublesome,  and  this 
requires  identifying  what  causes  the  trouble. 

The  explanation  lies  largely  in  a  showing  of  how  practices  which  radically 
rearrange  life  processes  to  suit  specific  wants  generate  conceptual  and  normative 
monsters:^^  persons,  entities,  relationships,  situations,  and  behaviors  that  escape 


reproductive  technologies). 

48.  See  generally  Bruce  Mazlish,  The  Fourth  Discontinuity,  8  TECH.  &  CULTURE  1  ( 1 967); 
Bruce  Mazlish,  The  Fourth  Discontinuity:  The  Co-evolution  of  Humans  and  Machines 
(1993). 

49.  See  Susan  M.  Wolf,  Shifting  Paradigms  in  Bioethics  and  Health  Law:  The  Rise  of  a 
New  Pragmatism,  20  AM.  J.L.  &  MED.  395,  397  (1994).  See  generally  Is  Bioethics 
'broke '?— Critiques  of  Bioethics,  in  MICHAEL  H.  SHAPIRO  ET  AL.,  BIOETHICS  AND  LAW:  CASES, 
Materials  and  Problems  (2d  ed.  Part  I  forthcoming  2001). 

50.  On  defining  bioethics  as  a  field,  see  also  Callahan,  supra  note  15,  at  250-51 
(distinguishing  sub-branches  of  bioethics:  theoretical,  clinical,  regulatory  and  policy,  and  cultural). 

51.  For  attacks  on  technology  generally,  see  Jacques  Ellul,  The  Technological  Society 
(1964);  Victor  Ferkiss,  The  Future  of  Technological  Civilization  (1 974). 

52.  These  infirmities  do  not  warrant  an  inference  that  foundations,  paradigms,  or 
perspectives  are  fatally  flawed.  My  complaints  are  thus  not  inconsistent  with  my  defense  of 
bioethics.  The  disagreements  here  represent  value  differences  or  what  I  think  are  insufficiently 
rigorous  or  otherwise  faulty  argument  structures.  This  is  not  fatal  to  the  discipline  as  a  whole.  It 
is  not  even  necessarily  fatal  to  the  specific  work  under  attack. 

53.  See  David  Bloor,  Polyhedra  and  the  Abominations  of  Leviticus:   Cognitive  Styles  in 


1999]  IS  BIOETHICS  BROKE?  41 


the  major  abstractions  we  use  to  describe,  explain,  and  evaluate  human  actions 
and  circumstances.^'*  Of  course,  we  encounter  daily  anomalies  that  do  not  fit 
nicely  into  our  conceptual  bins,  but  the  failures  recited  here  are  special  not  only 
because  they  fit  so  poorly,  but  because  they  deal  with  foundational  matters: 
whether  we  will  come  into  or  continue  our  existence,  in  what  form,  and  under 
what  constraints  and  circumstances. 

Why  the  emphasis  on  an  arid  inquiry  into  classification?  Classification  is  at 
the  core  of  human  thinking,  but  this  broad  proposition  is  not  of  special  concern 
here.  What  does  concern  us  is  that  there  is  a  major  difference  between  problems 
that  challenge  our  principal  conceptual  implements  and  those  that  do  not.  To  be 
sure,  this  also  involves  a  classification  problem;  the  issues  we  face  are  not  neatly 
distinguishable  on  the  basis  of  the  gravity  of  their  challenge  to  our  main 
concepts.  Some  classification  problems  seem  to  remove  the  flooring,  others 
merely  cause  light  tremors,  still  others  are  resolved  without  much  notice  on  our 
part,  and  some  elude  these  classifications  also. 

The  big  ticket  challenges,  however,  do  seem  different  from  the  usual  sort  of 
classification  problems  that  we  encounter,  whether  in  legal  disputes  or  ordinary 
daily  living.  Our  conceptual  system  is  not  assaulted  because  we  cannot  identify 
a  clear  boundary  between  negligence  and  due  care,  or  between  due  and  undue 
process.  Nor  is  everyday  language  fatally  flawed  because  there  is  no  clear  border 
between  being  tall  and  not  being  tall.  Few  would  claim  that  we  should  abandon 
all  concepts  and  distinctions  because  some  of  their  applications  are  unclear, 
indeterminate,  or  change  with  time.  Even  simple  conceptual  vagueness, 
however,  can  lead  to  serious  normative/conceptual  problems  as  the  world 
changes.  Six-footers  used  to  be  giants  and  still  are  among  some  groups,  but 
among  other  groups — ^think  of  the  N.B.A. — six  feet  is  pretty  short.  Do  persons 
projected  to  be  no  more  than  six  feet  tall  need  growth  hormone?  Do  early 
embryos  from  short  people  require  genetic  enhancement? 

Similarly,  as  we  saw,  it  is  no  garden-variety  puzzle  to  be  unable  to  identify 
a  single  natural  mother  when  a  fertilized  ovum  from  one  woman  is  gestated  by 
another  woman,  who  of  course  has  no  genetic  connection  to  it.  Here,  the  very 
structure  of  elemental  notions  like  "mother"  is  in  question.  The  concept  itself 
has  been  fragmented  as  a  result  of  our  reconfiguration  of  the  reproductive 
process.^^ 


Mathematics,  in  ESSAYS  IN  THE  SOCIOLOGY  OF  PERCEPTION  191,1 97-98  (Mary  Douglas  ed.,  1 982) 
(relying  on  Imre  Lakatos,  PROOFS  AND  Refutations:  The  Logic  of  Mathematical  Discovery 
(1976)  (discussing  mathematical  "monsters")). 

54.  It  should  be  clear  from  this  that  I  do  not  use  "bioethics"  to  refer  to  all  moral  and  legal 
problems  within  the  realms  of  medical  ethics,  health  care,  and  biology.  Cf.  Ezekiel  J.  Emanuel, 
Where  Civic  Republicanism  and  Deliberative  Democracy  Meet,  HASTINGS  CENTER  REP.,  Nov.-Dec. 
1996,  at  12  (suggesting  the  inclusion  of  matters  of  health  care  coverage  within  medical  ethics,  and 
asking,  "Is  there  a  relationship  between  defects  in  our  medical  ethics  and  the  reason  the  United 
States  has  repeatedly  failed  to  enact  universal  health  coverage?"). 

55.  Cf.  JONSEN  &  TOULMIN,  supra  note  7,  at  3  20-2 1 , 

After  a  sex  change,  the  everyday  presuppositions  built  into  the  term  "marriage"  (notably. 


42  INDIANA  LAW  REVIEW  [Vol.  33:17 


This  divide-conquer-and-conflise  aspect  of  some  biological  technologies 
leads  us  to  other  characteristics  of  bioethical  problems.  Among  the  more  notable 
are  the  reinforcement  of  the  idea  of  the  determinate,  predictable,  controllable, 
algorithmic  person;  the  introduction  of  new  purposes  for  our  old  life  processes, 
as  in  producing  fetuses  to  provide  transplantable  tissue  rather  than  to  reproduce; 
providing  opportunities  to  further  existing  purposes  with  greater  precision,  as  in 
controlling  behavior  with  psychotropic  drugs;  and,  more  generally,  substantially 
increasing  our  control  over  life  processes,  enabling  greater  predictability  of  traits 
and  behavior.  The  very  existence  of  such  choice  over  matters  not  previously 
under  our  control  is  itself  something  of  a  conceptual  anomaly.  Think,  for 
example,  of  being  able  to  determine  the  entire  genome  of  a  person-to-be  through 
cloning,  or  of  being  able  to  heavily  influence  particular  traits.  If  we  can 
"construct"  a  person  through  technological  alteration  of  her  physiological  system 
or  her  germ  line,  what  sort  of  being  should  we  construct?^^  What  new  or 
strengthened  purposes  ought  to  be  installed  for  life  functions?  What  purposes  for 
reproduction  should  be  added  or  extended?  The  possibility  of  bone  marrow 
transplantation  suggests  having  babies — ^not  just  fetuses — ^to  provide  compatible 
tissue  for  transplantation.  The  prospect  of  cloning  may  inspire  reproductive  acts 
resting  on  the  (mistaken)  view  that  clones  are  locked  into  some  common  fate 
shared  by  all  who  have  their  defining  genome.  A  given  act  of  cloning  may  thus 
reflect  the  novel  purpose,  not  simply  of  having  children,  but  of  perpetuating  a 
line  of  identical  persons  raised  to  pursue  some  sharply  bounded  set  of  tasks 
requiring  that  their  talents  be  matched  to  their  assigned  roles  in  life.  Here,  then, 
biological  technology  restructures  reproductive  processes  in  a  way  that  generates 
anomalous  lineage  relationships,  reinforces  the  images  of  persons  as  determinate 
entities,  and  provides  us  with  additional  reasons,  possibly  mistaken  or 
objectionable,  for  using  procreational  mechanisms. 

So,  the  arguably  distinctive  features  of  classic  bioethical  problems  are  that 
they  involve,  at  the  most  abstract  level,  the  directed  revision  of  life  processes  and 
what  this  entails:  the  idea  of  the  determinate  person;  the  substitution  of  new 
purposes  in  using  human  capacities;  and  the  general  expansion  of  choice  in 
constructing,  controlling,  and  predicting  life  processes,  in  partial  displacement 
of  the  natural  randomness  of  life. 

These  distinctive  features  of  bioethics  are  not  fully  independent.  The  core 
idea  is  still  the  reordering  of  life  processes  into  unclassified  forms,  giving  us 
relationships  (e.g.,  gestational  mothers  and  "their"  children  and  the  children's 
"genetic  parents");  entities  (such  as  cryopreserved  embryos);  and  powers  (over 
our  own  fundamental  structures,  individually  and  collectively)  that  we  often  do 


the  assumption  that  the  partners  to  a  marriage  contract  have  permanent  and  definite 
genders)  are  so  deeply  undercut  that  this  term,  as  it  stands,  no  longer  covers  all  the 
relevant  practical  problems.  We  must  now  ask  ourselves  what  its  moral  force  is,  in 
future,  to  be. 


Id 


56.      See  generally  JONATHAN  GLOVER,  WHAT  SORT  OF  PEOPLE  SHOULD  THERE  BE?  ( 1 984) 
(examining  the  moral  dilemmas  involved  in  controlling  human  traits). 


1999]  IS  BIOETHICS  BROKE?  43 


not  know  how  to  deal  with.  Some  believe  that  this  transforms  our  vision  of 
persons  as  free  into  an  anti-vision  of  persons  as  machine-like  or  lower-animal- 
like— predictable,  explainable,  and  controllable. 

As  we  saw,  all  these  features  of  bioethics  create  an  ever-increasing  range  of 
choices  over  matters  we  traditionally  regarded  as  fixed  or  as  changing  only  very 
slowly  over  time.  This  expanded  set  of  choices  will  not  be  universally  viewed 
as  a  benefit  simply  because  it  promotes  autonomy-as-opportunity,^^  In  matters 
of  creating  and  maintaining  life,  the  very  existence  of  choice  over  what  formerly 
was  given  offends  many,  conveying  images  of  the  reduction  of  persons  to  a  set 
of  manufactured  modules. 

I  do  not  argue  that  these  considerations  distinguish  everything  in  or  out  of  the 
realm  of  bioethics,  but  they  suffice  here.  They  all  do  a  number  on  our  conceptual 
system,  making  it  especially  difficult  to  know  what  to  make  of  a  given  problem,^* 
and  there  is  only  so  much  that  moral,  legal,  and  policy  analysis  can  do.  This  is 
the  gist  of  the  response  to  the  complaint  that  bioethics,  as  it  stands,  is  inadequate 
to  the  task  before  it— perhaps  inadequate  even  to  define  the  task.  But  to  say  this 
reflects  confusion  about  what  the  task  could  be. 

II.  Is  Bioethics  "Broke?":  Elaborating  on  Its  Dissing 

A.  Preface 

Critiques  of  bioethics  have  centered  on  several  purported  defects  of  the 
discipline.  Some  complaints  are  about  its  intellectual  structure — particularly  the 
dominance  of  a  given  set  of  perspectives  to  the  exclusion  or  devaluation  of 
others.  Both  scholarly  works  and  legal  outcomes  may  exhibit  this  dominance, 
enhanced  by  mutual  interaction.  Other  complaints,  not  entirely  independent,  deal 
with  the  internal  processes  of  the  discipline.  I  emphasize  the  scholarship  and  law 
here,  but  do  not  entirely  ignore  the  latter. 

Here,  then,  are  some  of  the  specific  complaints.^^  The  first  three  are  closely 


57.  See  Shapiro,  supra  note  32,  at  349-50. 

58.  As  part  of  the  defining  aura  of  bioethics,  one  might  also  invoke  the  idea  of  "forbidden 
knowledge"  of  the  very  springs  of  life  and  behavior.  Whether  we  think  that  some  form  of 
knowledge  should  be  avoided  is  partially  a  function  of  the  hostility  we  have  toward  the  technology 
that  rests  upon  the  knowledge.  There  may  also  be  a  general  demoralization  effect  in  knowing,  say, 
of  the  physical  foundations  of  our  thought  and  conduct  or  of  our  evolutionary  antecedents.  Still, 
the  idea  that  some  sorts  of  knowledge  should  not  be  sought  or  possessed,  while  hardly  limited  to 
life  sciences,  seems  to  have  a  particular  application  to  them,  and  is,  to  some  extent,  independent  of 
the  actual  uses  of  the  technologies  involved.  Some  are  disturbed,  for  example,  by  claims  that 
human  emotion  and  thought  are  strongly  linked  to  workings  of  neurotransmitters.  For  a  more 
general  account  of  issues  in  limiting  scientific  research,  see  generally  General  Topic,  Forbidden 
Knowledge,  79  MONIST  183  (1996). 

59.  I  do  not  claim  to  be  exhaustive  here,  and  concede  that  the  account  reflects  my  own 
perspectives.  There  is  no  help  for  this:  we  can  only  see  from  where  we  stand,  while  trying  to 
imagine  how  it  is  to  stand  elsewhere — a  point  well  made  by  Nagel.  See  Nagel,  supra  note  11,  at 


44  INDIANA  LAW  REVIEW  [Vol.  33:17 


linked:  excessive  focus  on  the  use  of  formal  rules,  principles,  and  standards;  an 
obsession  with  autonomy  and  rights,  to  the  exclusion  of  other  frameworks  of 
thought;  and  overlegalization.^^  Other  major  changes  include  insufficient 
attention  to  community,  responsibility,  and  duty;  and  undervaluing  or  ignoring 
circumstances  that  threaten  the  very  possibility  autonomy,  individuality,  and 
appropriate  recognition  of  rights. 

In  turn,  these  circumstances  are  said  to  include  oppression  based  on 
disfavored  traits  such  as  race,  ethnicity,  gender,  religion,  sexual  preference, 
disability,  and  stage  of  life;  and  oppression  (including  coercion,  exploitation,  and 
undue  influence)  within  professional  relationships  in  which  powerful  elites 
exercise  authority.  Here,  the  concern  arises  from  the  structure  of  crystallized 
relationships —  physician  and  patient;  researcher  and  subject;  lawyer  and  client; 
agent  and  client  (as  in  brokerage  for  surrogacy  relationships);  one  contracting 
party  and  another  (surrogacy  is  again  an  example,  and  physician-patient 
relationships  have  a  contractual  aspect);  and,  more  grandly,  institutions  and  their 
personnel  on  the  one  hand  (government,  hospitals,  HMOs,  prisons,  mental  health 
facilities,  etc.),  and  persons,  families  or  other  groups,  on  the  other.  Conflicts  of 
interest  are  of  special  concern  here.  Autonomy,  individuality,  and  rights  are  also 
weakened  by  oppression  stemming  from  one's  status  within  important  personal 
relationships,  such  as  husband  and  wife  or  other  couplings;  parent  and  child; 
kinship  and  cultural  groups;  and  the  various  communities  to  which  one  belongs. 
Again,  conflicts  of  interest  require  particular  attention. 

Such  failures  are  presumably  why  we  are  told  that  bioethics  needs  some 
"paradigm  shifts."  (As  I  note  later,  pragmatists  might  complain  about 
overemphasizing  "paradigms"  in  the  first  place.) 

B.  Kinds  of  Critiques:  Outcomes  and  Bottom-line  Disagreements; 
Philosophical/Value  Disagreements;  Ideological  Differences;  and  Mistakes 

1.  Outcome  and  Process. — Before  commenting  on  the  charges  just 
mentioned,  we  must  ask  how  to  characterize  the  principal  critiques  of  bioethics, 
or  even  whether  they  are  rightly  called  critiques  of  bioethics  as  opposed  to 
commentaries  or  complaints  about  something  else. 

One  can  plausibly  criticize  a  discipline  as  conceptually  and  normatively 
impoverished  because  it  fails  to  consider  all  material  matters;  that  it  proceeds 
illogically,  incoherently,  or  otherwise  carelessly  or  irrationally;  that  it  is  beset  by 
conflicts  of  interest  and  imbalances  of  power;  that  it  is  biased,  rigidly  constrained 
by  ideology,  afflicted  with  false  consciousness;  and  so  on. 

It  is  less  plausible,  however,  to  complain  because  one  simply  disagrees  with 
an  outcome,  without  express  regard  to  the  approach  used;  or  because 
(unthinkingly)  the  critic  and  the  criticized  assign  different  meanings  to  the  same 


5  ("[0]bjectivity  allows  us  to  transcend  our  particular  viewpoint  and  develop  an  expanded 
consciousness  that  takes  in  the  world  more  fully."). 

60.     A  rights  orientation  is  often  viewed  as  law-inspired,  perhaps  even  when  dealing  with 
moral  rights. 


1999]  IS  BIOETHICS  BROKE?  45 


terms  or  concepts  used  in  the  decision  making  process.  For  example,  rights-talk 
by  one  party  may  be  at  a  different  level  of  generality  from  that  used  by  another; 
or  a  claim  about  prima  facie  rights  might  be  taken  as  an  absolute  claim  by 
another;  or  a  claim  about  non-interference  rights  might  be  conflated  with  a  claim 
about  rights  to  affirmative  assistance. 

It  is  particularly  important  to  see  both  the  separations  and  the  connections 
between  outcomes  and  the  processes  that  led  to  them.  Process  and  outcome  are 
not  the  same,  but  they  are  not  completely  distinct  either.  "Outcome"  can  be 
described  in  ways  that  reflects  aspects  of  its  origins  and  "process"  can  be 
formulated  to  embrace  certain  outcomes.^' 

Now,  at  some  point  in  seemingly  identical  processes,  persons  reaching 
different  outcomes  must  diverge  on  something,  including  identification  or  use  of 
criteria.  This  can  happen  at  any  point.  One  must  thus  determine  at  what  stage 
or  level  of  abstraction  or  particularly  a  process  is  being  attacked,  whatever  the 
conclusion.  Something  may  well  have  gone  wrong,  in  the  critic's  eyes,  whether 
at  the  end  or  earlier  in  the  process.  But,  the  critic  may  mistakenly  look  only  to 
the  outcome  to  determine  that  the  field  is  radically  infirm. 

Consider  this  exchange:  "No,  I  reject  physician-assisted  suicide  because  it 
is  too  likely  that  life  will  be  lost  when  it  should  not  be."  "Wrong,  it  is  not  that 
likely."  If  this  is  a  disagreement  on  the  rough  probability  of  erroneous  suicide 
is,  neither  side  can,  without  more,  rightly  complain  of  the  quality  of  the  other 
side's  moral  analysis,  unless  their  moral  frameworks  have  distorted  their 
empirical  lenses.  On  the  other  hand,  if  the  disagreement  is  about  whether  a 
certain  error  rate  is  too  great  to  bear,  or  about  what  even  constitutes  an  error,  it 
is  likely  to  be  a  moral  disagreement.  It  would  be  inappropriate,  however,  for  the 
one  side  to  say  that  the  other  side's  position  is  radically  infirm  solely  because, 
using  the  same  basic  moral  architecture,  it  arrives  at  a  different  moral  conclusion. 

Of  course,  the  differences  may  start  at  the  beginning.  The  disputants  may 
strongly  disagree  on  what  sorts  of  lives  should  or  should  not  be  lost,  a 
disagreement  more  likely  to  rest  on  value  differences  than  on  factual  disputes. 
Or  they  may  agree  on  certain  threshold  matters  (e.g.,  on  which  values  are  the 
dominant  ones)  and  then  disagree  on  either  factual  issues  (e.g.,  how  do 
physicians  actually  behave  in  end-of-life  situations?)  or  particular  value  issues 
(say,  about  whether  limiting  a  patient's  suffering  morally  edges  out  the  risk  that 
she  will  die  weeks  or  even  months  too  soon).  These  outcome  differences  are 
hardly  trivial,  but  it  vastly  overstates  the  case  to  say  that  the  one  side  or  the  other 
is  invoking  the  wrong  paradigms  or  is  indifferent  to  various  legitimate  interests. 

So,  outcome  disagreement  does  not  warrant  mutual  accusations  that  the 
processes  behind  the  conclusions  must  have  broken  down  because  of  design 
defects  or  flawed  reasoning.  There  are  kinds  and  degrees  of  breakdown  and 
ultimate  failure.  Additionally,  there  may  be  irremediable  disagreement  on  what 
even  constitutes  failure  of  any  sort.  Failure  has  a  complex  structure  and 
taxonomy.  An  analogy,  for  example,  may  yield  different  results  for  different 


61.     "Process,"  in  this  context,  includes  tiie  substantive  criteria  used  to  describe  and  to 
evaluate. 


46  INDIANA  LAW  REVIEW  [Vol.  33:17 


analogizers.  The  analogy  is  not  broken  down  or  useless  because  of  this. 

Consider,  for  example,  the  idea  of  a  commercial  transaction  as  applied  to 
human  reproduction.  A  surrogacy  arrangement  can  be  as  much  a  commercial 
exchange  as  the  purchase  of  a  clothes  dryer.  But  saying  this  and  abruptly  ending 
the  analysis  is  an  immense  descriptive  and  normative/conceptual  error.  Some 
indeed  use  the  comparison  to  attack  surrogacy  as  causing  or  constituting  human 
commodification  (the  commercial  version  of  objectification)  by  stressing  the 
similarities  between  the  two  transactions — and  then  stopping  without  considering 
their  differences.  It  is  hard  to  see  how  the  analysis  could  possibly  be  complete 
without  doing  both;  there  is  no  other  rational  way  to  deal  with  a  purported 
parallelism.  Moreover,  the  analogy  is  mishandled  if  one  does  not  see  that  what 
even  counts  as  "similarity"  or  "difference"  may  be  contested.  If  a  commentator 
or  a  discipline  characteristically  fail  to  confront  both  similarities  and  differences 
and  the  difficulties  in  recognizing  them  as  such,  then  its  decision  making 
processes  are  indeed  infirm.  Making  comparisons  with  blinders  on  may  reflect 
bias  and  prejudgment,  conflicts  of  interest,  lack  of  time  for  reflection,  or  lack  of 
acuity.  Disagreement  about  the  results  of  the  comparison,  of  course,  does  not 
nullify  its  worth;  one's  final  judgment,  however,  is  far  better  informed. 

Moreover,  an  analogy  may  be  useful  in  some  contexts  and  not  in  others.  For 
example,  some  nontrivial  constitutional  value  probably  applies  to  most  forms  of 
assisted  sexual  reproduction — artificial  insemination  ("AI"),  IVF,  etc.:  with 
respect  to  sexual  union  in  the  general  biological  sense,  they  are  identical.  The 
social  relationships  involved  may  vary,  but  few  doubt  the  status  of  these 
processes  as  human  reproduction  entitled  to  some  constitutional  protection. 

Some  commentators,  however,  think  that  human  asexual  reproduction  is  so 
radically  different  that  all  constitutional  bets  are  off:  it  is  outside  the  Fourteenth 
Amendment's  procreational  autonomy  ballpark.  Its  distance  from  paradigmatic 
sexual  reproduction  cannot  be  measured  because  the  notion  of  "distance"  does 
not  readily  apply.  What  is  contested  here  is  the  very  status  of  sexual 
recombination  as  a  defining  characteristic  of  human  reproduction;  the  birth  of  a 
child  is,  for  some,  not  enough  to  trigger  constitutional  protections  of  procreation. 

For  such  observers  then,  comparison  to  a  paradigm  may  work  pretty  well  for 
AI,  IVF,  and  even  posthumous  reproduction,  but  not  for  human  cloning.^^  The 
paradigm  does  not  help  establish  anything  one  way  or  the  other,  or  so  one  might 
argue.  The  asexual  nature  of  cloning  drives  some  critics  to  say,  in  effect,  that  it 
makes  no  sense  to  talk  of  the  linear  distance  between  sexual  and  asexual 
reproduction:  they  are  utterly  distinct  and  rival  processes  that  should  not  bear  the 
same  designation — "procreation." 

The  upshot  is  that  use  of  analogy  or  comparison  to  a  paradigm  need  not  be 
universally  serviceable;  the  processes  are  not  completely  worthless  merely 
because  they  sometimes  fail.  Much  the  same  applies  to  entire  disciplines:  if  the 
discipline  reaches  a  decision  different  from  yours,  it  will  take  a  lot  more  beyond 
this  bare  fact  to  establish  a  failure  of  process  and  an  impeachment  of  its 


62.     See  Michael  H.  Shapiro,  /  Want  a  Girl  (Boy)  Just  Like  the  Girl  (Boy)  That  Married  Dear 
Old  Dad  (Mom),  9  S.  Cal.  Interdisc.  L.J.  (forthcoming  1999). 


1 999]  IS  BIOETmCS  BROKE?  47 


practitioners. 

2.  Warring  Philosophical  Movements  or  Dispositions. — To  explain  outcome 
disagreement  as  the  result  of  differing  processes  (understood  as  modes  of 
reasoning  and  evaluation)  may  understate  the  gulf  separating  antagonists.  One 
movement  may  claim  to  be  at  war  philosophically  with  how  another  proceeds,  as 
when  a  pragmatist  complains  of  fixations  on  abstractions — not  particular 
abstractions  but  abstractions  generally — as  opposed  to  the  particularized 
circumstances  and  context  of  a  case.  Another  standard  example  is  the  contrast 
between  consequentialism  (utilitarianism  is  its  best  known  theory)  and 
nonconsequentialism.  Even  if  the  distinction  is  somewhat  overdrawn^^  (and  for 
some  it  is  not  exhaustive)  the  two  arenas  are  quite  different. 

3.  Disagreements  over  the  Status  of  Particular  Values,  Such  as  Autonomy, 
Fairness,  Justice,  Equality,  Privacy,  and  Utility. — To  invoke  autonomy  without 
attending  to  countervailing  considerations^"*  is  a  moral  error.  As  I  have  said 
elsewhere,  autonomy  is  not  everything.  But  if  one  is  faulted  for  relying  on 
autonomy  at  all  by  others  who  think  that  it  is  largely  immaterial,  this  deep  moral 
disagreement  is,  again,  not  well  characterized  as  resting  on  mistakes  or  errors  on 
either  side.  Much  the  same  can  be  said  of  persons  who  differ  on  the  placement 
of  autonomy  in  the  hierarchy  of  values. 

4.  Disagreements  About  Matters  of  Fact — or  Are  They? — Disagreement  on 
material  facts  also  accounts  for  discord  on  how  to  evaluate  and  respond  to  actions 
and  situations.  However,  apparent  strife  over  facts  often  masks  serious 
moral/philosophical  disagreement.  Few  scholars  need  to  be  reminded  about  the 
role  that  cognitive  perspectives,  frameworks  (normative  and  otherwise),  schemas, 
scripts,  and  the  like  play  in  our  perceptions.  A  purported  statement  of  fact  may 
represent  a  partial  or  overinclusive  vision  generated  by  one's  attitudes  and 
values.  In  this  sense,  the  factual  claim  is  normatively  ambiguous.^^ 


63.  See  Samuel  Freeman,  Utilitarianism,  Deontology,  and  the  Priority  of  Right,  23  PHIL.  & 
Pub.  Aff.  313,  348  (1994)  (observing  that  "the  teleology/deontology  distinction  does  not  mark  a 
contrast  between  moral  conceptions  that  take  consequences  into  account  and  those  that  do  not.  No 
significant  position  has  ever  held  consequences  do  not  matter  in  ascertaining  what  is  right  to  do."). 

64.  The  primary  meaning  of  "countervailing  considerations"  concerns  jeopardizing  or 
injuring  interests  that  might  be  harmed  by  an  exercise  of  autonomy  (including  at  least  some  harms 
to  the  actor,  under  most  political/moral  philosophies).  These  considerations  can  be  taken  to  include 
the  presuppositions  or  preconditions  of  autonomy:  competence;  authenticity;  voluntariness  and 
absence  of  coercion  and  undue  influence;  (possibly)  deliberation;  and  (possibly)  no  false 
consciousness.  (These  elements  are  not  of  equal  import,  either  as  a  matter  of  theory  or  in  specific 
situations,  but  there  is  no  reason  to  refine  the  specification  here.)  If  any  of  these  presuppositions 
do  not  hold,  a  variety  of  interests  are  imperiled,  including  that  of  the  actor.  For  clarity,  referring 
to  the  presuppositions  as  a  particular  subset  of  countervailing  considerations  seems  better. 

65.  Simple-sounding  statements  such  as  "Doing  x  poses  significant  risks  that  have  been 
scientifically  validated"  are  classic  examples.  What  risks  are  "significanf  rests  in  part  on  value 
judgments;  what  is  "scientifically  validated"  rests  on  value  judgments  about  what  risks  of  factual 
error  we  are  willing  to  tolerate.  For  example,  a  requirement  that  a  randomized  clinical  trial  display 
a  result  that  is  no  more  than  five  percent  likely  to  be  a  matter  of  chance  as  opposed  to  therapeutic 


48  INDIANA  LAW  REVIEW  [Vol.  33:17 


5.  Semantic  Confusion. — In  any  dispute,  there  may  be  misunderstanding  of 
the  meanings  of  basic  terms.  "X  has  a  right  to  advocate  action  Z"  can  be  taken 
as  the  statement  of  a  simple  absolute,  a  defeasible  prima  facie  statement,  or  a 
bottom-line  conclusion  taken  after  considering  all  countervailing  considerations 
(e.g.,  the  risk  of  a  riot  or  other  unlawful  conduct).  Perhaps  some  complaints 
about  excessive  attention  to  rights  take  the  claims  of  right  in  an  absolute  or 
bottom-line  sense  when  this  is  not  intended.  The  moral  premises  underlying 
these  different  kinds  of  rights  claims  can  be  quite  different. 


The  claim  that  bioethics  is  badly  in  need  of  repair  is  thus  no  simple  matter 
to  (dis)confirm.  There  is  repair  and  there  is  repair.  A  leaky  faucet  that  runs  dirty 
water  because  the  household  pipes  are  old  is  one  thing;  a  poisoned  reservoir  is 
something  else.  From  my  viewpoint,  if  bioethics  is  in  some  disarray  (I  have 
strongly  criticized  the  anti-  technology  viewpoint),^^  it  is  not  because  the 
discipline  as  a  whole  has  missed  major  points,  needs  paradigm  replacements,  or 
is  impermissibly  indifferent  to  relevant  moral,  political,  and  factual 
considerations.  It  is  because  some  of  its  practitioners  hold  value-orderings 
different  from  mine  that  lead  them  to  downgrade  considerations  I  find  compelling 
and  in  turn  lead  them  to  present  what  I  see  as  loose  and  incomplete  arguments. 
At  that  level  of  abstraction,  my  own  critique  of  bioethics  is  in  some  ways  the 
reverse  of  what  now  appears  to  be  the  standard  critique,  which  complains  of 
immoderate  attention  to  abstractions,  especially  autonomy,  and  to  legal  rights  and 
processes.^^  However,  my  critique  does  not  suggest  that  the  field  is  now 
oblivious  to  abstractions  and  to  law;  I  do  not  mean  to  make  the  same  sort  of  all- 
or-nothing  error  I  am  complaining  that  others  make. 

The  critique  of  bioethics  that  I  am  opposing  here  in  some  ways  parallels 
better-known  critiques  of  Western  culture  generally:  complaints  about  excessive 
attention  to  particular  values  (primarily  autonomy),  identifiable  rules,  principles 
and  standards,  and  so  on.  Fortunately,  I  cannot  presently  relate  what  I  say  here 


efficacy  is  not  based  on  some  universal  constant  that  defines  scientific  validity.  See  Brock,  supra 

note  4,  at  221. 

It  is  not  that  the  common  intuitive  distinction  between  moral  considerations,  such  as 
promise-keeping,  and  nonmoral  considerations,  such  as  financial  costs,  is  mistaken.  The 
mistake  is  in  thinking  that  moral  judgments  can  avoid  weighing  the  two  when  they  come 
into  conflict;  when  that  occurs,  the  financial  cost  becomes  a  morally  relevant 
consideration  in  the  moral  judgment  about  whether  the  promise  ought  to  be  kept. 

Id. 

66.  See,  e.g.,  Shapiro,  supra  note  47;  Michael  H.  Shapiro,  How  (Not)  to  Think  About 
Surrogacy  and  Other  Reproductive  Innovations,  28  U.S.F.  L.  REV.  647,  664-67  (1994). 

67.  Cf.  Stephen  Darwall  et  al.,  Toward  Fin  de  siecle  Ethics:  Some  Trends,  in  MORAL 
Discourse  and  Practice:  Some  Philosophical  Approaches  3, 32  (Stephen  Darwall  et  al.  eds., 
1997)  (observing  that  "debate  has  now  extended  even  to  the  metaphilosophical  level,  as 
philosophers  have  asked  with  increasing  force  and  urgency  whether,  or  in  what  ways,  theorizing 
is  appropriate  to  morality."). 


1999]  IS  BIOETHICS  BROKE?  49 


68 


to  such  global  commentaries. 

C.  Excessive  Focus  Within  Bioethics  on  the  Application  of  Rules, 
Principles,  and  Standards;  Formalism 

I.  Abstractions  and  Formalism. — 

a.  Generalizations  in  general. — If  the  complaint  is  that  bioethics  or  other 
disciplines  rely  to  any  significant  extent  on  "abstractions" — in  particular,  to 
rules,  principles,  and  standards — it  is  absurd,  and  I  doubt  anyone  really  thinks 
otherwise,  despite  some  loose  talk.  Distinctively  human  thought  and  decision 
making  are  generally  impossible  without  abstractions.  This  holds  whether  the 
abstractions  are  formed  and  used  nonconsciously,  and  whether  we  can  even 
articulately  state  them.  Pragmatists,  as  I  understand  them,  do  not  deny  any  of 
this. 

What,  then,  is  the  claim  of  over-attention  to  generalities  all  about?  The  push 
is  for  lawyers,  judges,  legislators,  agencies,  scientists,  physicians,  and 
commentators  to  pay  more  attention  to  particular  individuating  circumstances  and 
less  attention  to  the  logic  of  the  relevant  abstractions.  Of  course,  one  must 
necessarily  deal  with  both.  Whether  some  level  of  abstract  discourse  is  over  or 
under-done  may  rest  on  contested  moral/conceptual  issues  that  are  familiar  in 
law,  philosophy,  and  public  policy.  When  one  claims,  for  example,  that  "the  rule 
should  be  bent  to  do  equity  in  particular  situations,"  one  is  likely  to  think  that  the 
rule  itself  should  be  clearly  (re)formulated  to  cover  the  contested  situation.  To 
say,  then,  that  one  is  overdoing  the  abstractions  and  underdoing  the  facts  is  at 
bottom  to  call  for  a  review  of  what  particular  circumstances  are  material  in  light 
of  selected  abstractions,  perhaps  in  the  form  of  rules,  principles  or  standards. 
There  may,  of  course,  be  disputes  on  the  interpretation  of  the  abstractions  and  on 
the  very  choice  of  abstractions,  but  the  point  remains  that  the  abstract  statement 
that  one  is  being  too  abstract  itself  rests  on  the  abstractions  selected  and 
interpreted.  Its  bare  articulation  may  simply  be  a  loose  way  to  state  a  moral 
preference.  Depending  on  the  circumstances,  abstractions  can  even  remain 
unmentioned.  Everyday  characterizations  of  right,  wrong,  good  and  bad  do  not 
generally  require  a  display  of  theoretical  underpinnings,  but  these  abstractions 
remain  part  of  the  hidden  infrastructure  of  moral  justification. 

This  account  may  not  dispel  reservations  about  "the  rarified  air  of  conceptual 
analysis,"  the  results  of  which  may  or  may  not  bear  on  "provid[ing]  solutions  to 
practical  moral  problems."^^  However,  there  is  little  to  support  a  claim  that 
bioethics  is  lost  in  the  clouds  or  the  Platonic  realm  of  Forms.  Decisions  are  made 
despite  uncertainties  at  every  level  of  abstraction,  and  it  is  entirely  possible  to 
"compartmentalize"  one's  decision  process  at  particular  levels,  insulating  it  from 


68.  Cf.  Constance  Holden,  Reason  Under  Fire,  268  SCIENCE  1853(1 995)  (quoting  Sandra 
Harding,  "who  thinks  Newton's /'rmc/p/e^  of  Mechanics  reflects  patriarchal,  exploitative  Western 
thinking,  and  therefore  might  as  well  be  called  'Newton's  Rape  Manual'"). 

69.  Cf.  Holmes,  supra  note  15,  at  144. 


50  INDIANA  LAW  REVIEW  [Vol.  33:17 


other  levels7^  Sometimes  it  is  the  Forms  that  require  attention — what  they  are, 
what  they  mean.  Sometimes  they  are  rightly  taken  as  given,  and  it  is  the 
particular  circumstances  that  require  attention.  For  example,  in  Davis  v.  Davis^^ 
the  court,  after  identifying  the  governing  abstraction  of  procreational  autonomy, 
held  that  Mr.  Davis  should  not  be  compelled  to  risk  becoming  a  genetic  father 
because  the  burden  on  him  would  be  greater  than  that  imposed  on  his  former 
spouse. ^^  The  court  therefore  disallowed  the  implantation  of  the  cryopreserved 
embryos  he  shared  with  his  former  wife,  who  wished  to  see  them  implanted  in 
other  women.^^  Presumably,  if  the  issue  again  arises,  the  abstraction  can  be  taken 
as  given  and  everyone  can  concentrate  on  the  particulars.  This  is,  in  fact,  often 
desirable:  we  cannot  give  our  full  attention  to  every  level  of  discourse  even  for 
a  single  pressing  decision.  However,  for  full  validation,  at  some  point  every 
level  requires  attention  to  every  other  level,  or  justification  for  particular 
decisions  will  be  incomplete.^"* 

h.  Who  has  missed  what?;  examples. — Here  is  a  rule:  "If  you  file  your 
complaint  sounding  in  tort  more  than  a  year  after  the  injury  was  inflicted,  your 
claim  is  time-barred."  There  is  no  provision  for  tolling.  It  is  a  flat  rule  that 
admits  no  individuating  circumstances — even  the  fraudulent  conduct  of  the 
physician  or  other  tortfeasor. 

In  some  cases,  this  rule  seems  unfair;  potential  plaintiffs  may  have  many 
plausible  excuses — e.g.,  inability  to  find  a  lawyer,  fraudulent  concealment,  and 
so  on.  However,  the  limitations  rule  says,  "too  bad."  The  legislature  has  decided 
that  attention  to  individuating  circumstances  is  inappropriate  here  because  it  is 
inefficient  and  excessively  burdens  physicians  as  well  as  others.  The  argument 
against  this  is  not  about  whether  we  use  abstractions,  but  about  using  the  wrong 
ones  or  using  sound  ones  inappropriately.  Some  may  urge  that  it  is  too  hamfisted 
to  rely  on  "efficiency"  and  "excessive  burdens"  because  it  bars  just  claims 
against  wrongdoers. 

So,  the  competing  fairness  and  efficiency  arguments  from  patients  and 
physicians  reflect,  in  part,  value  disputes,  and  some  of  them  rest  on  empirical 


70.  Cf.  id.  at  1 5 1  (describing  the  view  that  bioethical  issues  "can  be  analyzed  in  a  way  that 
is  largely  neutral  with  regard  to  such  commitments  [to  normative  and  metaethical  theory]"). 

71.  842  S.W.2d  588  (Tenn.  1992),  cert,  denied,  507  U.S.  91 1  (1993). 

72.  See  id  at  598-604. 

73.  Mr.  Davis  had  a  special  fear  of  being  a  father  with  incomplete  access  to  his  children 
because  as  a  child  he  suffered  from  parental  absence.  See  id.  at  603-04.  The  former  Mrs.  Davis  had 
remarried  and  did  not  want  to  implant  the  embryos  in  herself  See  id.  at  590. 

74.  Cf.  Holmes,  supra  note  1 5,  at  1 45  ("Solutions  to  these  [moral]  problems  may  be  thought 
to  require  the  findings  of  any  or  all  of  the  other  three  areas  of  philosophical  ethics  [metaethics  or 
moral  epistemology;  normative  ethics  (i.e.,  concerning  "the  correct  principles  of  rightness  like 
utilitarianism  or  Kantianism")  and  applied  ethics].").  Holmes  also  characterizes  the  current  views 
on  G.E.  Moore's  metaethical  analyses  ("[m]uch  of  twentieth-century  ethics  has  departed  from 
Moore  in  this  belief  that  the  question  of  metaethics  (particularly  with  regard  to  the  meaning  of 
ethical  concepts)  must  be  answered  before  one  can  effectively  tackle  the  questions  of  normative 
ethics.").  Id.  at  146. 


1999]  IS  BIOETHICS  BROKE?  51 


issues  concerning  physician  and  patient  behavior  under  different  rules.  The 
argument  at  this  stage  is  not  that  a  rule  (an  abstraction)  was  applied — it  is  that  the 
wrong  rule  was  applied. 

The  complaint  about  using  abstractions  is  thus  a  complaint  that  morally 
relevant  individuating  circumstances  are  being  shorted  by  particular  rule.  The 
call  for  action,  then,  is  not  to  quit  the  use  of  abstractions  but  to  make  them  more 
responsive  to  the  varieties  of  different  situations.  Sometimes  particulars  should 
be  shorted,  sometimes  not;  that  is  the  dispute — what  the  very  nature  of  the  rule 
and  its  elements  should  be.  Despite  some  hyperbolic  remarks  by  philosophical 
and  legal  pragmatists,  it  is  unconvincing  to  argue  (using  abstractions,  of  course!) 
that  moral  and  legal  reasoning  simply  require  close  attention  to  particular  facts, 
circumstances,  and  situations.  Oliver  Wendell  Holmes,  Jr.,  did  indeed  say  that 
"[gjeneral  propositions  do  not  decide  concrete  cases."^^  But,  neither  do 
"particular"  propositions;  one  needs  both. 

Now,  for  which  bioethical  issues  or  subdomains  have  bioethicists  paid  too 
much  attention  to  abstractions?  Or,  better  yet,  when  have  they  wrongly  failed  to 
formulate  the  proper  abstractions — those  that  make  outcomes  depend  on  morally 
relevant  particulars?  For  example,  what  issues  in  death  and  dying  reveal  this 
moral  error?  The  physician-assisted  suicide  ("PAS")  debate?  Who  has  missed 
what  issues?  The  Oregon  law  does  not  require  screening  of  PAS  applicants  for 
depression.^^  I  believe  this  is  an  error  because  of  the  likelihood  that  depression 
will  distort  a  person's  thinking  generally,  and  her  perception  of  her  own  settled 
preferences  in  particular.  "Mood"  and  "thought"  do  not  exist  in  disconnected 
universes. 

No  one  has  "missed  an  issue"  here.  Nearly  everyone  knows  of  the  risks  of 
depression- induced  distortions  of  mind — "distortions"  in  the  sense  that  one's 
announced  decisions  may  differ  from  one's  future  settled  preferences.  Why  not 
require  psychiatric  evaluation  and  treatment?  As  far  as  I  know,  psychiatrists  do 
not  have  direct  pipelines  to  The  Truth,  but  they  and  their  medicines  have  been 
shown  to  be  reasonably  effective  (though  even  this  is  contested)  in  treating 
depression.  Perhaps  PAS  supporters  place  too  low  a  value  on  loss  of  life. 
Perhaps  /  place  too  low  a  value  on  the  avoidance  of  suffering.  Perhaps  I 
overestimate  the  risks  of  abuse— or  have  an  overly  expansive  view  of  what  abuse 
is.  Perhaps  the  others  underestimate  the  risks  and  have  an  unduly  narrow  view 
of  what  constitutes  abuse.  Perhaps  I  am  too  fearful  that  institutionalized  PAS 
will  engender  increasing  impatience  with  disability  and  infirmity.  Perhaps  the 
others  aren't  fearful  enough.  We  seem  to  have  different  dispositions  concerning 
what  risks  of  error  we  should  bear.  Recall  that  the  parties  in  Bouvia  v.  Superior 
Courf^  and  Thor  v.  Superior  Courf^  changed  their  minds  about  wanting  to  die. 
Ms.  Bouvia  is  alive  as  of  this  writing,  and  Howard  Andrews,  the  prisoner-patient 
in  Thor^  died  of  other  causes. 


75.  Lochner  v.  New  York,  198  U.S.  45,  76  (1905)  (Holmes,  J.,  dissenting). 

76.  See  Death  With  Dignity  Act,  ORE.  REV.  STAT.  §§  127.800-127.897  (Supp.  1998). 

77.  225  Cal.  Rptr.  297  (Cal.  Ct.  App.  1986). 

78.  5  Cal.  4th  725  (1993). 


52  INDIANA  LAW  REVIEW  [Vol.  33:17 


Moral/factual  disputes  of  this  sort  are  not  evidence  of  a  field's  "breakdown" 
or  its  failure  to  take  into  account  critical  concepts,  interests  and  perspectives.  As 
for  missed  issues:  One  could  say,  trivially,  that  if  two  persons  disagree, 
something  is  being  "missed" — not  seen,  not  felt,  or  insufficiently  appreciated; 
someone  "does  not  get"  something.  Prolonged  absence  of  consensus  is  not 
evidence  of  a  field's  fatal  flaws,  however.  If  anything,  it  is  some  evidence  that 
consensus  is  unlikely  to  or  cannot  be  achieved,  given  the  major  collisions  of 
value  and  the  absence  of  overarching  moral  algorithms  that  can  settle  the 
disputes. 

Obviously,  sometimes  something  is  missed,  or  at  least  one  can  plausibly 
think  so.  But  in  many  cases,  even  claims  that  are  incomplete  or  confused  should 
nevertheless  be  made  for  the  illumination  they  bring.  In  the  debate  over  PAS,  for 
example,  some  critics  of  the  practice  insist  that  patient  screening  for  clinical 
depression  be  mandatory.  Their  position  is  that  the  distortions  of  mood  and 
thought  entailed  by  such  depression  is  incompatible  with  any  rationally  plausible 
autonomy  ideal.  Failure  to  require  such  screening  undervalues  autonomy  and 
overvalues  the  goal  of  avoiding  suffering  in  its  various  forms.  Perhaps  so.  But 
one  of  the  few  discrete  issues  largely  missed  in  the  PAS  debate  is  that  severe, 
long-standing,  refractory  depression  is  arguably  more  of  an  indication /or  PAS 
than  for  blockading  it.  This  point  has  long  needed  to  be  made  and  the  obvious 
value  tensions  further  analyzed.  Yet  that  deficiency  alone  impeaches  neither  the 
debate  nor  bioethics  as  a  field;  the  initial  point  about  screening  for  depression, 
incomplete  as  it  was,  inevitably  leads  to  the  question  of  what  to  do  about 
unmanageable  mental  conditions,  and  beyond  that  to  PAS  for  incompetent 
patients. 

This  foreshadows  a  point  already  mentioned  and  to  be  expanded  later.  In 
many  cases  of  value  conflict,  it  is  impossible  in  principle  to  achieve  theoretical 
moral  closure  with  whatever  moral  theory  or  theories  we  are  armed,  even  if  we 
achieve  (transient?)  consensus.  This  instability  or  indeterminacy  is  built  into  the 
conceptual  and  normative  structures  we  use,  from  foundational  levels  on  down. 
The  disputes  will  no  more  be  settled  than  all  the  digits  of  TTwill  one  day  be 
identified.^^  This  is  not  a  nihilistic  announcement: ^°  such  indeterminacy  is  very 


79.     Cf.  1  Friedrich  a.  Hayek,  Was  Socialism  a  Mistake?,  in  THE  FATAL  CONCEIT:  THE 
Errors  of  Socialism  6, 8  (W.W.  Bartley  III  ed.,  1988). 

Although  I  attack  XhQ  presumption  of  reason  on  the  part  of  socialists,  my  argument  is  in 
no  way  directed  against  reason  properly  used.  By  "reason  properly  used"  I  mean  reason 
that  recognises  its  own  limitations  and,  itself  taught  by  reason,  faces  the  implications  of 
the  astonishing  fact,  revealed  by  economics  and  biology,  that  order  generated  without 
design  can  far  outstrip  plans  men  consciously  contrive. 


Id. 


Cf.  Holmes,  supra  note  15,  at  144. 

[M]uch  of  the  analytically  inspired  work  on  bioethics  has  as  little  practical  value  for  the 
answering  of  the  basic  moral  questions  of  bioethics  as  Aristotle  thought  Plato's  account 
of  the  good  to  have  for  conduct  in  general.  This  is  not  to  disparage  such  ethics  or  to 
deny  its  intrinsic  theoretical  interest;  it  is  only  to  suggest  that  more  should  not  be 


1999]  IS  BIOETHICS  BROKE?  53 


far  from  making  these  structures  meaningless;  indeed,  it  is  logically  linked  to 
their  very  usefulness  as  abstractions. 

Consider  now  an  example  in  assisted  reproduction.  What  have  commentators 
failed  to  track  in  their  literature?  What  have  judges  and  lawmakers  failed  to 
grasp?  What  have  bioethics  practitioners  generally  overlooked?  The  legal 
system  may  have  remained  silent  on  various  matters,  but  this  does  not  entail 
unawareness,  and  may  or  may  not  be  a  sign  of  lack  of  courage.  Who,  anywhere 
in  the  field,  has  simply  assumed  that  "whatever  is,  is  right"  and  acted  blindly  to 
ratify  the  Patriarchal  Establishment?  The  literature  spills  over  with 
commentaries  about  objectification,  commodification,  exploitation, 
marginalization,  dehumanization,  and  so  on.  Is  contesting  the  claim  that  such 
feared  processes  will  occur  or  that  they  are  always  to  be  regretted  a  sign  of 
intellectual  and  moral  collapse?  Perhaps  that  side  just  doesn't  get  it.  On  the 
other  hand,  some  think  that  too  much  is  made  of  bare  opportunities  for 
reproductive  choice  (they  read  it  as  "license")  and  not  enough  of  individual 
coercive  or  exploitative  situations  that  compromise  true  autonomy.  Perhaps  they 
undervalue  autonomy  as  opportunity  for  choice.  Perhaps  this  side — or  even  both 
sides— don't  fiilly  get  it  (whatever  "it"  might  be). 

Another  example  from  a  different  arena  is  behavior  control.  In  Washington 
V.  Harper^^  the  U.S.  Supreme  Court,  though  purporting  to  recognize  an 
important  "liberty  interest"  in  refusing  antipsychotic  drugs,  upheld  the  state's 
power  to  treat  prisoners  with  such  medications  over  their  objection,  if  medically 
indicated — and  without  regard  to  whether  the  prisoner 's  refusal  was  competent. 
Before  that,  some  cases  in  the  lower  courts  held  precisely  the  opposite: 
competent  objection  was  decisive.^^ 

Once  again,  who  is  missing  what?  Where  is  the  fatal  flaw?  Did  the  Harper 
Court  overvalue  the  expertise  and  interests  to  be  furthered  by  medical  and 
correctional  officials  and  undervalue  autonomy?  Are  those  who  object  to  the 
Harper  result  overvaluing  autonomy,  and  if  so,  what  form  of  autonomy? 

Now,  I  do  not  wish  to  over-defend  Harper.  It  is  very  far  from  a  paragon  of 
right  reason.  One  of  its  principal  flaws  is  its  underestimation  of  the  gravity  of  the 
conflicts  of  interest  involved  in  the  situation:  the  psychiatrists  at  the 
diagnosis/treatment  level  are  reviewed  by  peers  who  are  affiliated  with  the 
institution;  the  review  panel  staff  are  members  of  the  institution  and  have  duties 
to  further  both  institutional  purposes  and  the  interests  of  patients-prisoners. 


expected  of  it  than  it  is  capable  of  delivering. 
Id. 

I  add  here,  as  in  the  text,  Holmes'  qualification  to  his  "limited  relevance  of  analytical  ethics" 
argument:  the  careful  workings  of  bioethical  and  related  legal  analyses  may  settle  a  given  problem 
for  any  given  decisionmaker. 

80.  On  nihilism,  see  Joseph  William  Singer,  The  Player  and  the  Cards:  Nihilism  and  Legal 
Theory,  94  YALE  L.J.  1, 3-5  (1984)  (discussing  several  senses  of  "nihilism,"  including,  nihilism  as 
"anything  goes"  and  as  a  view  that  no  consistent  principles  unify  legal  reasoning). 

81.  494  U.S.  210(1990). 

82.  See,  e.g.,  Keyhea  v.  Rushen,  223  Cal.  Rptr.  746,  754-55  (1986). 


54  INDIANA  LAW  REVIEW  [Vol.  33:17 


Although  the  Court  did  not  cite  the  Hippocratic  Oath  in  direct  response  to  the 
conflict  of  interest  charge,  it  may  have  thought  that  the  Oath  all  but  solved  the 
problem,  thus  grossly  overestimating  the  Oath's  influence  and  even  the  extent  to 
which  it  is  taken  by  physicians.^^  Nevertheless,  the  issues  were  ventilated,  even 
if  judicially  mishandled.  In  any  case,  the  deficiencies  of  formal  education  are 
hardly  unique  to  bioethics. 

In  a  moral  dispute,  as  I  said,  one  side  or  another  is  (not)  seeing  or  (not) 
feeling  something — perhaps  something  big,  perhaps  just  a  sliver.  At  any  stage 
of  argument,  including  the  penultimate  steps,  whatever  drives  one  side  toward 
result  X  and  whatever  drives  the  other  side  toward  not-X,  separate  minds  have 
not  fully  "met."  Perhaps  individual  minds  barely  met  within  themselves.  This 
is  so  with  all  moral  disagreement  and  does  not  establish  terminal  intellectual 
disarray  among  the  warring  parties.  The  "he  doesn't  get  it"  rhetoric  may  thus  be 
inappropriate  in  many  cases. 

Thus,  if  the  objection  concerns  inattention  to  particular  circumstances  that 
may  affect  application  of  the  abstractions,  that  is  one  thing:  such  failures  may 
be  irrational  unless  resource  constraints  require  exclusion  of  further  factual 
inquiry.  Sometimes  the  more  fundamental  objection  is  to  the  use  of  the  wrong 
abstractions — although  in  some  cases,  little  is  gained  and  something  may  be  lost 
by  substituting  one  set  of  abstractions  for  another.  But  neither  of  these  is  an 
objection  to  the  use  of  abstractions.^^ 

What  is  mainly  at  stake  is  identifying  which  abstractions  should  apply  and 
which  particulars  are  morally  and  legally  material  given  these  abstractions.  The 
two  inquiries  are  strongly  linked  in  complex  cyclical  ways  that  are  hard  to 


83.  The  conflicts  of  interest  were  pointedly  described  in  Justice  Stevens'  concurring  and 
dissenting  opinion.  See  Harper,  494  U.S.  at  251-57  (Stevens  J.,  concurring  in  part  and  dissenting 
in  part).  He  noted  that  the  panel  members  "were  regular  staff  of  the  [Special  Offender]  Center,  an 
institution  for  mentally  disordered  convicts."  Id  at  253.  The  Court  mentioned  the  Oath  in 
response  to  the  argument  that  the  treating  physician  might  use  psychotropic  drugs  for  inappropriate 
purposes  (apparently  pure  behavior  control,  without  reference  to  the  presence  or  absence  of 
disorder).  See  id.  at  223  n.8.  Justice  Stevens  rightly  derided  the  claim.  See  id.  at  245  n.U.  For 
a  strong  criticism  of  the  way  in  which  the  Harper  majority  dealt  with  the  conflict  of  interest  issues, 
see  Conflicts  of  Interest,  supra  note  34,  at  66-68. 

84.  But  see  Stanley  Fish,  When  Principles  Get  in  the  Way,  N.Y.  TIMES,  Dec.  26,  1996,  at 
A27.  Fish  criticizes  Herbert  Wechsler  for  analyzing  the  segregation  cases  in  light  of  principles  of 
association,  and  complains  about  asking  whether  affirmative  action  is  fair  or  is  reverse  racism.  The 
right  questions,  he  urges,  are  "whether  the  schools  should  be  shut"  and  asks  of  affirmative  action, 
"[d]oes  it  work  and  are  there  better  ways  of  doing  what  needs  to  be  done?"  Id.  But  how  does  one 
think  about  whether  the  schools  ought  to  be  shut?  What  does  it  mean  to  ask  whether  affirmative 
action  "works"?  What  are  the  criteria  for  "working"?  Isn't  the  "working"  of  affirmative  action 
precisely  what  some  people  complain  of  and  others  endorse?  There  is  no  escape  from  principles 
and  abstractions  generally,  and  probably  no  escape  from  conceptions  of  fairness  and  freedom  of 
association  in  particular.  The  proposed  replacement  of  questions  is  worse  than  useless;  it  muddles 
things  still  more  by  removing  one  set  of  obscure  abstractions  (say,  fairness)  and  installing  an  even 
more  obscure  set  ("Does  it  work?").  This  isn't  progress;  quite  the  reverse. 


1999]  IS  BIOETHICS  BROKE?  55 


specify.  The  hunt  for  material  particulars  entails  reference  to  the  moral  or  legal 
abstractions  by  which  materiality  is  determined.  However,  it  also  requires 
closely  inspecting  the  living  circumstances,  both  to  confirm  what  they  are  and  to 
search  for  new  insights — perhaps  facts  that  vividly  call  attention  to  what  might 
have  been  overlooked  as  material  under  the  reigning  abstractions.  Attention  to 
particular  circumstances  thus  provides  feedback  into  the  system  of  abstractions, 
producing  adjustments  and  even  major  revisions.*^ 

Here  I  make  another  forward  reference,  this  time  to  the  discussion  of 
"overlegalization"  and  the  evils  of  adversary  legal  systems.  Resorting  to  law  and 
legal  disputations  is  a  prime  mechanism  for  searching  out  new  perspectives  and 
frameworks  of  thought  and  to  determine  what  lenses  the  protagonists  are  using 
to  see  and  judge  the  world.  That  is  at  the  core  of  what  lawyers  and  judges  do,^^ 
although  they  often  do  not  do  it  well.  Law  and  its  abstractions,  rightly  viewed 
and  practiced,  do  not  strangle  the  intellect  or  distort  our  affect — ^they  do  precisely 
the  opposite.  This  may  often  be  done  at  an  excessive  price,  and  other  social 
mechanisms  for  communication  and  decisionmaking  may  sometimes  do  it 
better.^^  Moreover,  some  professional  personnel  are  ill-suited  for  the  task. 
(Walk  into  a  few  courtrooms  and  listen  to  the  lawyers  and  judges.)  However, 
given  the  immense  variations  in  our  personal  circumstances,  deliberation  and 
some  degree  of  contention  about  abstractions  and  their  applications  are  essential 
in  determining  how  to  formulate  our  rules. 

c.  Formalism:  More  on  abstractions  and  concretions  .—ThQ  appropriate 
complaint  concerning  abstractions,  as  I  just  argued,  is  about  the  rational  skills 
used  in  selecting  them  and  joining  them  with  "concretions."  Certain  flaws  in 
pursuing  this  process  are  often  faulted  as  "formalist."^^  I  cannot  interpret  that 
concept  at  length  here,  but  something  should  be  said  about  it  because  of 
complaints — perhaps  not  framed  in  terms  of  "formalism" — ^that  bioethics  is 
indeed  burdened  by  its  practice. 

Three  preliminaries:  First,  we  need  to  discard  the  strange  claim  that  we  are 
all  formalists  because  we  insist  that  human  thought  generally,  including  moral 
and  legal  argumentation,  must  satisfy  basic  rules  of  logical  inference.  Everyone 
is  constrained  in  this  way,  even  those  who  go  on  about  logic  being  just  another 
belief  system.  If  P  implies  Q  and  P  is  true,  then  Q  is  true;  if  Q  is  false,  then  P  is 
false.  No  one  is  a  "formalist"  in  some  pejorative  sense  for  acknowledging  these 
claims.  If  that  is  all  it  takes  to  make  one  a  formalist,  everyone  is  a  formalist. 
Insisting  that  a  conclusion  follow  from  its  premises  is  not  the  mark  of  benighted 
bioethical  (or  other)  analysis. 


8  5 .     See  Dan  S  imon,  .4  Psychological  Model  of  Judicial  Decision  Making,  3  0  RUTGERS  L.J. 
1  (1998)  (discussing  cognition  injudicial  problem-solving). 

86.  See  generally  Michael  H.  Shapiro,  Lawyers,  Judges  and  Bioethics,  5  S.  Cal.  Interdisc. 
L.J.  113(1997). 

87.  See  generally  STEPHEN  P.  GOLDBERG  ET  AL.,  DISPUTE  RESOLUTION  1 49-53  ( 1 985). 

88.  See  generally  Frederick  Schauer,  Formalism,  97  YALE  L.J.  509  ( 1 988)  (arguing  that  the 
term  "formalistic"  should  not  be  used  as  a  blanket  condemnation  of  a  decision-making  process). 


56  INDIANA  LAW  REVIEW  [Vol.  33:17 


Second,  although  there  seems  to  be  some  precedent  for  it,^^  "formalism"  is 
not  used  here  to  refer  to  having  a  rule-based  legal  system  at  all  as  opposed  to 
something  else  such  as  lotteries  or  potentates'  whims.  Those  who  use  the  term 
that  way  may  in  fact  have  in  mind  a  rule-based  legal  system  of  a  certain 
sort — one  in  which  the  rules  do  not  sufficiently  address  or  allow  for  a  variety  of 
material  considerations,  or  at  least  are  so  interpreted.  One  might  then  assert  that 
the  law-makers  are  "formalist" — although  "rigid"  or  even  "morally 
impoverished"  might  be  better  descriptions. 

Third,  legal  formalism  has  properties  shared  with  any  mode  of  applying 
rules,  including  the  most  preferred  modes.  To  have  a  rule-governed  system  at  all, 
which  is  a  critical  aspect  of  at  least  most  versions  of  the  rule  of  law,  the  rules 
must  bind  or  channel  independently  of  irrelevant  variables.  Thus,  principles  of 
equality,  however  difficult  to  apply,  require  rules  providing  that  for  given 
purposes  persons  are  to  be  treated  alike  despite  certain  variations  among  them. 
Race,  ethnicity,  and  gender  are  irrelevant  under  the  rules  conferring  the  right  to 
vote.  The  same  equality  principles  also  require  that  for  given  purposes  persons 


89.     Cf.  Aaron  Kirschenbaum,  Equity  in  Jewish  Law:  Halakhic  Perspectives  in 
LAW — Formalism  and  Flexibility  in  Jewish  Civil  Law  3-4  ( 1 991 ).  The  author  states  that 
[T]he  glory  of  the  law — its  sublime  generality — is  its  very  undoing.  For  in  its  passion 
for  uniformity  and  stability,  the  law  enlists  the  aid  of  formalism.   Its  indifference  to 
persons  may  produce  heartlessness;  its  impartiality,  injustice;  its  rigid  consistency, 
absurdity.  How  inadequate  may  the  predictable  rule  appear!  The  primary  meaning  of 
formalism  refers  to  the  theory  of  the  practice  of  rigid  adherence  to  prescribed  external 
forms. 
Id.  The  author  argues  that 

according  to  the  Rabbis,  legal  formalism  has  been  one  of  the  plagues  of  mankind  from 
its  inception.  The  dispute  between  Cain  and  Abel  was  engendered  by  each  one's 
inordinate  insistence  upon  his  legal  rights.  [The  author  then  quotes  the  Bible]:  "One 
took  the  land  and  the  other  the  movables.  The  former  said,  'The  land  you  stand  on  is 
mine,'  while  the  latter  retorted,  'What  you  are  wearing  is  mine.'  One  said  'Strip;'  the 

other  retorted, 'Fly '" 

Mat  2 1-22. 

Both  passages  require  reconstruction.  The  first  is  certainly  on  the  mark  in  noting,  in  effect, 
that  the  governance  of  rules  bears  risks  of  error  in  two  directions:  in  failing  to  follow  the  generality 
of  the  rule,  one  risks  its  very  status  as  a  rule,  or  as  a  rule  of  a  particular  sort;  but  in  failing  to  take 
account  of  material  matters  bearing  on  the  evaluation  of  the  outcome,  one  risks  unfairness  and 
injustice.  However,  this  does  not  mean  having  a  rule  at  all  should  be  dubbed  "formalist."  One  can 
have  good  rules  and  bad  ones,  and  either  sort  can  be  interpreted  in  proper  and  improper  ways.  The 
second  passage  is  about  insisting  on  the  enforcement  or  implementation  of  one's  rights.  This  may 
be  "rigid,"  "inflexible,"  and  "mean-spirited,"  and  perhaps,  speaking  very  loosely,  "formal istic,"  but 
this  usage  does  not  reflect  the  usual  jurisprudential  meanings  of  "formalism."  Both  Cain  and  Abel 
may  have  been  jerks  (who  knows  what  really  happened  between  them?),  but  not  necessarily 
formalists.  To  say  that  in  certain  situations  one  should  not  stand  on  her  rights  is  more  a 
commentary  on  the  status  or  application  of  the  right  or  on  the  right-claimant's  character  than  on  the 
merits  of  different  interpretive  theories. 


1999]  IS  BIOETHICS  BROKE?  57 


are  to  be  treated  differently  because  of  their  variations.  Incompetent  persons 
cannot  execute  valid  wills.  Persons  who  do  not  know  French  ordinarily  should 
not  be  hired  to  teach  it.  The  supposed  "inflexibility"  or  "rigidity"  here  is  not  an 
objection — it  is  virtually  the  whole  point.  Stolid  fixity  is  chosen  to  constrain 
both  government  and  individuals  in  the  rule-specified  ways.  Assuming  the 
substantive  soundness  of  the  rules  at  stake,  equality,  fairness  and  justice  require 
that  irrelevant  particulars  be  ignored.  Discretion  to  take  these  particulars  into 
account  is  precisely  what  is  to  be  avoided.  Some  rule-systems  are  supposed  to 
be  flat-footed  or  hamfisted.  Indeed,  in  such  cases  the  rule  scheme  and  its 
applications  are  unlikely  even  to  be  called  "formalisf  (or  "inflexible"  or  "rigid") 
because  of  the  pejorative  aura  of  these  terms.  If  formalists  are  more  oriented 
toward  abstractions  than  particulars,  this  is  a  predilection  to  be  preferred  in  the 
appropriate  contexts  and  with  appropriate  limitations;  it  takes  all  kinds. 

To  call  a  form,  style,  or  instance  of  legal  reasoning  "formalist"  is  thus  more 
than  a  description;  it  is  at  bottom  a  moral  complaint,  even  if  dressed  as  a  matter 
of  pure  legal  theory.  The  main  substance  of  the  complaint,  at  least  for  our 
purposes,  is  that  formalist  decision  making  rests  on  an  impoverished  set  of 
morally  relevant  factors.  That  is,  the  characterization  and  evaluation  of  conduct, 
conditions,  and  processes  within  a  given  legal  interpretive  system  regularly 
exclude  morally  relevant  matters.  Formalism  can  be  ascribed  to  interpretation 
of  law,  to  law  making,  and  possibly  to  the  particular  law  itself,  although  the 
former  seems  the  best  fit.  (The  two  do  not  necessarily  run  in  parallel.  For 
example,  a  legislator  constructing  a  rule  sensitive  to  many  particulars  may 
nevertheless  be  a  formalist  in  interpretation.)  Similar  remarks  apply  to 
characterizing  moral  reasoning  as  formalistic. 

(i)  Formalism  in  legislative  or  administrative  rule-making. — Consider  a 
legislatively  created  set  of  sentencing  guidelines  (ignoring  constitutional 
limitations).  The  law  provides  for  fixed  sentences — not  a  range  but  a  specific 
penalty,  no  more  and  no  less,  for  all  persons  convicted  of  specified  offenses.  No 
facts  are  material  except  whether  the  elements  of  the  offense  have  been  satisfied 
and  no  defenses  have  been  shown.  There  is,  of  course,  always  wiggle  room — ^the 
prosecutor's  decision  to  prosecute  and  for  what;  what  evidence  to  introduce;  and 
the  wide  and  largely  unreviewable  discretion  lodged  in  juries  and  indeed  in 
judges,  whether  they  are  engaged  in  fact-finding,  law-applying,  or  even  law- 
finding.  However,  in  the  main,  the  fixed  penalties  do  not  take  account  of,  and 
forbid  consideration  of,  any  factors  not  specified  in  the  definition  of  the  offense. 
If  killing  your  spouse  is  capital  murder  because  you  satisfied  the  elements  of  the 
crime  and  no  defenses  have  been  made,  the  fact  that  you  were  continually  and 
severely  battered  by  her  cannot  be  used  to  avoid  the  death  penalty.  Of  course, 
from  a  judge's  standpoint,  her  application  of  the  sentencing  guidelines  is  not 
rightly  called  "formalistic;"  she  is  simply  following  the  rules  laid  down  by  a 
legislature  acting,  from  its  moral  perspective,  to  create  a  "formalist"  system  of 
legal  rules. 

Consider  a  parallel  example:  a  rigid  administrative  rule  that  no  one  over 
sixty-five  can  receive  a  heart  transplant.  (Leave  aside  the  question  of  whether 
this  example  violates  existing  federal  or  state  laws.)  Assume  that  the  average 
five-year  survival  rate  for  those  patients  has  been  shown  to  be  noticeably  lower 


58  INDIANA  LAW  REVIEW  [Vol.  33: 17 


than  for  recipients  under  sixty-five.  Thus,  there  is  greater  organ  "waste."  On  the 
other  hand,  to  individuate  the  conditions  of  heart  patients  over  sixty- five  will  be 
costly  and  may  result  in  less  or  lower  quality  health  care  for  others.  Again,  we 
have  a  formalist  system. 

(ii)  Formalism  in  common  law  rule-making. — Courts  are  the  most  common 
targets  of  formalism  charges.  Their  decisional  law  may  fail  to  take  account  of 
proper  individuating  circumstances — perhaps  even  when  one  might  think  the 
legislature  meant  to  be  rigid,  as  in  the  above  examples.  Think  of  a  judicially 
crafted  informed  consent  rule  based  on  physician  custom:  whatever  it  is  that 
physicians  characteristically  disclose  or  withhold  under  specified  circumstances 
determines  what  any  given  physician  must  or  need  not  disclose  to  a  patient, 
regardless  of  her  particular  needs  or  circumstances.  How  one  describes  the  rule 
may  vary:  the  rule  is  "informed  consent  is  required,"  but  it  is  applied  in 
conformity  with  physician  custom,  not  the  needs  of  the  reasonable  patient.  Or, 
the  mode  of  "application"  can  be  built  into  the  rule:  "informed  consent 
requirements  are  satisfied  only  if  the  physician's  disclosures  conform  to 
physician  custom  under  parallel  circumstances."^^ 

So,  if  physicians  customarily  do  not  volunteer  the  five-year  survival  rate  for 
liver  transplantation  to  their  patients,  it  need  not  be  disclosed,  though,  if  it  is 
specifically  requested,  it  may  have  to  be.  Calling  the  rule  and  its  application 
"formalisf  is  a  clumsy  way  of  expressing  criticism  of  the  prevailing  rule  on  its 
merits.  Suppose,  however,  the  rule  is  defended  on  the  ground  that  the  cost  of 
highly  individuated  predictions  for  each  patient  is  too  great,  and  that  insisting  on 
it  would  raise  prices  for  medical  services  generally  and  thus  make  the  worst  off 
even  worse  off.  Perhaps  the  formalism  is  justified — or  is  "justified  formalism" 
an  oxymoron?  Flat  rules,  one  should  recall,  are  often  appropriate  or  even 
required.  Perhaps  neither  they  nor  the  courts  that  apply  them  should  be  called 
formalist.  Anyone  accused  of  a  sufficiently  serious  crime  has  a  right  to  a  fair 
trial,  no  matter  how  clear  her  guilt  appears  to  be.  Would  you  prefer  a  more 
nuanced  rule  to  save  money  when  everyone  knows  the  wretched  person  is  guilty? 

Formalism  in  adjudication  or  rule-making  thus  embodies  a  moral 
purblindness  and  inflexibility  that  both  reflects  and  leads  to  overconfidence  in 
one's  understanding  of  abstractions.  Formalism  is,  in  at  least  in  part,  defined  by 
a  simplistic  view  of  the  content  of  these  abstractions.  It  embodies  a  heroic  belief 
that  our  categories  can  be  easily  and  comfortably  applied.  There  is  a  lack  of 
situational  focus — a  failure  to  take  account  of  enough  relevant  variables.  Such 
inattention  to  morally  material  factors  distorts  the  proper  uses  of  abstractions  and 
leads  to  wrongheaded  outcomes.  There  is  an  insufficient  degree  of  receptivity 
to  new  normative  insights  in  the  interpretation  of  major  value  concepts  and  an 
willingness  to  consider  revising  or  replacing  existing  rules,  principles  and 
standards.^'  Legal  segregation  of  the  races  in  public  facilities  and  institutions  is 


90.  The  "reasonable  patient  standard"  was  adopted  in  Cobbs  v.  Grant,  8  Cal.  3d  229  ( 1 972). 

91.  It  remains  difficult,  however,  to  state  whether  any  given  interpretive  path  is 
"formalistic."  One  can  mine  the  standard  example  of  the  battery-powered  tricycle  in  a  park 
governed  by  a  rule  forbidding  the  operation  of  motor  vehicles  within  it.   Is  it  formalistic  to  rest 


1999]  IS  BIOETHICS  BROKE?  59 


almost  always  wrong,  but  in  a  prison  race  riot  it  would  be  crazy  not  to  separate 
antagonists  by  race  until  things  cool  down.^^  Penalizing  such  separation  would 
represent  a  clumsy,  dangerous,  and  formalist  application  of  the  general  rule. 

In  general,  then  whether  one  thinks  a  process  is  "distorted"  because  it  is 
formalistic  depends  on  one's  moral  framework,  and  not  merely  on  matters  of 
description.  Whether  "the  situation"  is  sufficiently  individuated  is  ultimately  a 
moral  issue  concerning  what  criteria  should  be  taken  as  material  in  judging  it. 
One  is  not  being  "formalistic"  in  any  pejorative  sense  when  one  insists  that  the 
only  criteria  for  being  a  voter  in  general  elections  in  a  democracy  are  citizenship 
and  adult  status  (specific  disqualifications  and  administrative  requirements 
aside).  Differentiating  certain  particular  situations  is  exactly  what  one  is  not 
supposed  to  do  when  recognizing  who  has  the  perquisites  of  personhood  and  is 
seeking  to  exercise  them  in  various  situations.  Just  when  such  differentiations 
are  called  for  may  be  contested — e.g.,  the  distribution  of  seats  in  an  educational 
program.  But  it  is  often  quite  clear  which  is  which. 

(Hi)  Formalist  interpretive  theories  applied  by  adjudicators. — One  can  also 
think  of  formalism  as  the  selection  or  rejection  of  particular  interpretive  theories. 
While  this  perspective  is  implicit  in  the  preceding  remarks,  it  deserves  separate 
mention.  Indeed,  the  most  common  target  of  a  charge  of  formalism  is  a  court  that 
is  interpreting  either  a  canonical  text  (constitution,  statute,  regulation)  or  the 
semi-canonical  text  of  a  prior  rule  of  decision  accepted  as  precedent. 

Suppose,  for  example,  one  holds  that  the  Eighth  Amendment's  ban  on  cruel 
and  unusual  punishment,  like  other  constitutional  phrases,  must  be  understood 
first  (and  if  possible,  exclusively)  by  reference  to  the  Framers'  intent.  In  turn, 
that  intent  is  to  be  revealed  by  appropriate  historical  research,  which  shows  that 
the  Framers'  paradigms  were  P„  P2,...  Pn — ^where  "n"  is  a  pretty  small 
number — and  that  is  all.  The  only  scope  for  "expansion"  lies  in  a  very  narrow 
criterion  of  "strong  resemblance"  to  any  Pj.  A  judge  then  says,  "I  am  sorry.  I 
must  rule  this  way.  The  practice  of  impressing  prisoners  into  involuntary  service 
in  testing  new  mind-altering  drugs,  even  when  the  prisoner  is  not  disordered,  is 
very  risky  and  an  offense  to  human  dignity.  It  treats  prisoners  like  lower  animals 
or  even  mere  things.  But  that  'dehumanization'  criterion  is  not  written  into  the 
Eighth  Amendment;  I  am  bound  by  the  meaning  of  the  constitutional  text.  I 
cannot  simply  ask,  'What  is  this  list  of  PjS  about?'  'What  is  the  authorizing 
generalization  that  explains  why  the  Framers  hit  on  these?'  If  that  generalization 
is  what  they  meant  to  implement,  they  should  have  said  so.  But  the  text's 
meaning  is  defined  primarily  by  reference  to  its  authors'  intentions,  and  all  I  can 
find  are  specific  instances  that  they  mentioned.  I  am  not  free  to  ask,  'What  is  the 


solely  on  the  separate  denotations  of  "motor"  and  "vehicle" — possibly  leading  to  a  ban  on  the 
tricycle?  Or  to  deal  with  "motor  vehicle"  as  a  combination  term  bearing  a  narrower  sense — likely 
resulting  in  allowing  the  tricycle  to  operate?  Is  it  formalistic  to  downgrade  legislative  history  as 
evidence  of  legislative  purpose?  Or  is  it  the  other  way  around? 

92.  See  Lee  v.  Washington,  390  U.S.  333,  334  (1968)  (upholding  a  lower  court  order 
invalidating  Alabama  laws  requiring  prison  segregation;  the  Court  rejected  the  state's  claim  that  the 
lower  court's  decision  ignored  matters  of  security). 


60  INDIANA  LAW  REVIEW  [Vol.  33:17 


best  most  coherent  theoretical/philosophical  account  of  cruelty  that  would  both 
explain  the  Framers'  examples  and  also  properly  serve  us  in  light  of  present 
views  about  human  suffering  and  its  causes  and  effects.'" 

Is  this  judge  a  formalist  for  having  picked  too  restrictive  a  theory  of 
interpretation,  one  that  locks  us  into  an  earlier  world  of  only  partial  relevance  to 
our  own?  That  too  is  a  moral  decision  of  sorts,  usually  characterized  as  a  matter 
of  legal/political  philosophy.  The  formalist  stance  excluding  new  moral  insights 
also  excludes  from  Eighth  Amendment  scrutiny  new  sanctions  that  were  not  only 
unknown  in  the  Framers'  time,  but  also  cause  unforeseen  kinds  of  impacts 
viewed  now  as  serious  harms.  For  example,  a  technique  of  prolonged  total 
sensory  deprivation  may  be  far  more  damaging  than  standard  solitary 
confinement,  but  might  not  be  cruel  and  unusual  punishment  because  it  isn't  on 
the  Framers'  list  of  forbidden  punishments  and  might  not  even  have  been  thought 
of  by  them  as  a  harm. 

(iv)  Formalism  and  being  stuck  at  lower-level  abstractions. — When 
encountering  principlism  or  casuistry  (see  Part  III.C.2-3),  the  principles,  maxims, 
or  other  decision  making  guides  will  sooner  or  later  run  out.  If  the 
decisionmakers  fail  to  consider  the  deeper  rationales  behind  the  guides,  one 
might  accuse  them  of  formalism  because  they  are  failing  to  consider  all  matters 
material  to  reaching  a  right  or  acceptable  answer.  Formalistic  failures  can  arise 
from  not  attending  either  to  matters  below  or  above  the  level  of  abstraction  in 
use,  although,  ultimately,  the  materiality  of  what  is  "below"  will  be  affected  or 
determined  by  what  is  "above." 

(v)  Formalism  and  bioethics. — Much  the  same  can  be  said  about  the 
interpretation  of  other  key  concepts — e.g.,  equality,  liberty,  due 
process— whether  as  embedded  in  the  Constitution  or  as  freestanding  moral 
concepts  analyzed  independently.  Of  course,  depending  on  one's  interpretive 
theory,  the  latter  may  inform  the  former  in  various  degrees.  These  basic  values 
are  critical  to  bioethics,  even  if  one  uses  a  principlist  heuristic.  All  the  major 
players  in  principlism  (see  Part  IV.C.3.a.i)  know  full  well  that  the  very  choice  of 
principles  is  ultimately  justified,  if  at  all,  by  more  general  theories.^^  They  also 
know  that  the  best  resolution  of  any  number  of  cases  will  remain  hard  to  specify 
under  principlism.  However,  a  given  analyst's  narrow  range  of  application  of  a 
short  list  of  critical  values  suggests  a  rigidity  of  view  owing  more  to  visions  of 
Platonic  Forms  than  to  the  detailed  realities  of  daily  life.  Some  may  still  believe, 
for  example,  that  legal  segregation  of  the  races  does  not  violate  a  principle  of 
equality  where  the  facilities  are  "equal."^'^  This  is  "formalist"  (read  "narrow"  or 


93.  But  cf.  Toon,  supra  note  34,  at  1 7. 

Disenchantment  with  the  results  of  medical  philosophy  arises  largely  because  too  much 
has  been  expected  and  claimed  for  bioethics.  An  example  of  the  result  of  placing  an 
excessive  burden  on  a  concept  unable  to  sustain  it  is  what  Clouser  and  Gert  call 
principlism;  the  notion  that  beneficence,  autonomy,  justice,  and  non-maieficence  could 
solve  ethical  problems  rather  than  be  a  useful  framework  for  clarifying  them. 
Id.  (citation  omitted). 

94.  Plessy  v.  Ferguson,  163  U.S.  537  (1896).  Brown  v.  Board  of  Education,  347  U.S.  483 


1999]  IS  BIOETHICS  BROKE?  61 


"morally  purblind")  because  it  fails  to  understand  and  properly  value  the  harms 
done  to  the  nondom  inant  segregated  group — the  notion  of  harm  is  read  too  th  in  ly . 
Even  if  the  harms  are  rightly  valued,  their  bearing  on  equality  is 
unappreciated — because  the  reigning  notion  of  equality  is  not  rich  enough. 

Consider  next  an  example  from  the  jurisprudence  of  death.  In  the  Ninth 
Circuit's  opinion  in  Compassion  in  Dying  v.  State  of  Washington,^^  the  court 
characterized  earlier  refusal/withhold ing-of-care  decisions  as  being  governed  by 
the  principle  that  one  has  the  right  to  time  one's  death.  From  this,  one  infers  a 
right  against  interference  with  a  physician's  voluntary  decision  to  help  a  patient 
who  wishes  to  die  by  supplying  the  means  for  a  patient  to  self-destruct. 

There  is  certainly  a  "creative,"  perhaps  even  a  "romantic"  aspect  to  this  line 
of  analysis.^^  It  was  innovative  lumping:  we  are  told  that  refusal  of  care  and 
assisted  suicide  both  go  to  timing  of  one's  death.  It  was  also  ham  fisted  lumping: 
we  are  also  told  that  there  is  no  difference  between  refusal  of  care  and  self- 
administration  (or  even  administration  by  another)  of  a  death  blow.  This  is  the 
intellectually  elite,  supposedly  sounder  philosophical  view  of  the  action/omission 
distinction,  but  it  is  very  far  from  being  universally  embraced  by  the  public  or  by 
precedent  or  tradition — and  this  is  a  critical  factor  in  current  forms  of 
constitutional  adjudication.  The  Ninth  Circuit's  leap  has  a  distinctly  formalistic 
aspect:  it  ignores  varying  situations — such  as  the  differences  between  "letting 
die"  from  pathological  processes  clearly  "on  the  job"  and  affirmatively  causing 
death  by  administering  a  death  blow. 

In  the  well-known  classroom  example  of  someone  jumping  off  the  100th 
floor  and  getting  shot  dead  while  passing  the  fiftieth  floor,  there  is  little  doubt 
that  death  was  caused  by  the  affirmative  act  at  the  fiftieth  floor  (compare 
ingesting  the  lethal  prescription  drug),  rather  than  the  process  already  in  place 
that  was  begun  by  the  leap  from  the  100th  floor  (compare  the  pre-existing 
medical  condition).  The  Ninth  Circuit  court  took  the  more  general  concept  of  the 
time  of  one's  death  to  relate  these  different  kinds  of  cases,  after  peremptorily 
dismissing  the  rationality  of  the  distinction.  I  am  not  joining  issue  here  with 
those  who  think  that  the  distinction  collapses  in  matters  of  terminal  illness.  I  am 
commenting  on  constitutional  interpretation  which,  by  tradition,  searches  for 
unmentioned  liberty  interests  by  relying  heavily,  but  not  exclusively,  on  matters 
of  "tradition"  and  "history,"  even  where  tradition  and  history  are  equivocal  or 
indeterminate. 


(1954),  held  otherwise  for  public  education  without  flatly  overruling  Plessy,  which  concerned 
segregation  on  railroad  trains. 

95.  79  F.3d  790  (9th  Cir.  1996),  rev'd,  Washington  v.  Glucksberg,  521  U.S.  702  (1997) 
(holding  that  the  right  to  assistance  in  committing  suicide  is  not  a  fundamental  liberty  interest 
protected  by  the  Due  Process  Clause). 

96.  "Romanticism"  injudicial  style  is  atopic  addressed  by  some  legal  historians.  See,  e.g., 
Mary  Ann  Glendon,  A  Nation  Under  Lawyers:  How  the  Crisis  in  the  Legal  Profession  Is 
Transforming  American  Society  1 52-62  ( 1 994).  Although  Glendon  does  not  suggest  a  formal 
definition,  she  uses  the  term  "romantic"  after  characterizing  several  Justices  noted  for  "their  daring, 
imagination,  sensitivity,  and  zeal  for  fairness  . . . ."  Id.  at  152. 


62  INDIANA  LAW  REVIEW  [Vol.  33:17 


As  we  saw,  flat-footed  rules  may  well  be  justified,  whether  or  not  one 
translates  flat-footedness  into  an  ascription  of  formalism.  Many  states  have  an 
explicit  or  implicit  ban  on  assisted  suicide.^^  No  exceptions  are  made,  even  in 
cases  that  cry  for  the  relief  of  suffering  and  satisfy  the  most  rigorous  criteria  of 
informed  consent  without  the  faintest  whiff  of  undue  influence.  Without 
plunging  deeply  into  the  debate,  it  is  enough  to  say  that  such  a  rule  has  at  least 
a  colorable  justification  based  on  the  risks  of  error  in  individual  cases,  the  costs 
of  individuation,  and  the  learning  effects  from  the  communicative  impacts  of  a 
visible,  explicitly  authorized  death-by-request  practice  sanction. 

Now  consider  an  example  from  transplantation.  At  one  time,  most 
physicians  involved  in  transplantation  would  flatly  refuse  to  allow  donations 
from  strangers  and  would  rarely  proceed  even  if  the  source  was  a  friend  of  the 
patient.^^  What  visions  of  reality  and  what  moral  standards  account  for  this?  Is 
the  idea  that  "only  persons  with  deep  psychological  problems  would  undergo  the 
mutilation  and  loss  of  an  organ  for  anyone  other  than  a  close  relative — one's 
child,  spouse,  siblings,  and  parents.  Autonomy  doesn't  extend  to  crazy  persons." 
This  is  a  very  blunt  rule,  not  calibrated  to  variations  in  circumstances.  It  fixes  on 
a  generality  and  refuses  to  consider  if  the  rule  embodying  it  might  be  missing 
something.  If  Mother  Theresa  had  offered  a  kidney  to  a  nun  she  did  not 
know — or  even  a  total  stranger — would  she  have  been  excluded  under  this 
standard?  Perhaps  not,  because  she  was  perceived  as  relevantly  different  from 
most  persons.  If  she  was  crazy  or  driven,  she  was  crazy  or  driven  in  a  different 
way — one  sanctioned  by  religion  and  generally  approved. 

Consider  next  an  example  from  assisted  reproduction — gestational  surrogacy 
once  again.  Perhaps  we  should  say  there  simply  is  no  "natural  mother"  because 
the  classic  criteria  of  motherhood — genetic  connection  plus  gestation — point  to 
two  women.  A  court  might  then  resolve  the  case  on  the  default  standard  of  the 
best  interests  of  the  child,  leaving  aside  the  (possibly)  autonomy-promoting 
"parenthood-by-intention"  theory  as  a  judicial  excrescence  unsupported  by 
legislation.  The  two  women  might  then  receive  joint  custody,  or  one  might 
receive  primary  custody  with  visitation  by  the  other,  and  so  on.^^  This  position 
may  be  wrong,  but  it  is  not  necessarily  formalist.  Perhaps  the  opposing  view  that 
the  role  of  initial  intentions  as  presumptively  decisive  is  wrong,  but  again,  why 


97.  See,  e.g.,  Cal.  Pen.  CODE  §  401  (West  1999). 

98.  See  generally  the  discussion  of  donation  by  strangers  in  Carl  H.  Fellner,  Organ 
Donation:  For  Whose  Sake?,  79  ANN.  INTERNAL  MED.  589  ( 1 973);  Aaron  Spital,  When  a  Stranger 
Offers  a  Kidney:  Ethical  Issues  in  Living  Organ  Donation,  32  Am.  J.  Kidney  Dis.  676  ( 1 998).  For 
more  recent  developments,  see  George  Hatch,  Astounding  Act:  A  Fisherman  Saves  the  Life  of  His 
New  Friend  by  Donating  a  Kidney,  L.A.  TIMES,  June  30,  1991,  at  B3  ("The  astounding  act  of 
generosity  surprises  both  men  even  now.");  Gina  Kolata,  Unrelated  Kidney  Donors  Win  Growing 
Hospital  Acceptance,  N.Y.  TIMES,  June  30, 1993,  at  CI  4.  On  success  rates  for  such  donations,  see 
Paul  I.  Terasaki  et  al..  High  Survival  Rates  of  Kidney  Transplants  from  Spousal  and  Living 
Unrelated  Donors,  333  NEW  Eng.  J.  MED.  333  (1995). 

99.  This  seems  to  be  Justice  Kennard's  position  in  her  dissent  in  Johnson  v.  Calvert,  851 
P.2d  776,  778  (Cal.  1993). 


1999]  IS  BIOETHICS  BROKE?  63 


is  it  formalist?  It  assumes  that  under  the  governing  state  law  there  must  be 
exactly  one  natural  mother,  and  this  is  far  from  a  purblind  position.  It  seems 
inappropriate  to  saddle  either  standpoint  with  the  dreaded  "formalist"  label. '^° 

The  "formalist"  epithet  may  better  characterize  some  of  the  critics  of 
bioethics  than  those  the  critics  criticize.  Consider  the  lumpish  opposition  to  new 
reproductive  techniques  based  on  the  theory  that  they  "objectify"  or 
"commodity"  persons.  With  some  notable  exceptions,'^'  the  complaints  are 
made  with  little  or  no  accompanying  argument  about  what  these  predicates  mean, 
or  about  the  causal  mechanisms  for  the  processes.  They  ignore  dissimilarities 
and  speak  only  of  parallels  between,  say,  buying  an  appliance  and  pursuing  a 
surrogacy. 

So,  formalism  does  not  consider  enough  morally  relevant  variables,  factors, 
dimensions,  and  perspectives — from  the  framework  of  a  moral  theory  that 
renders  them  relevant.  If  formalism  is  said  to  be  logically  linked  to 
jurisprudential  matters  rather  than  to  moral  disagreements  between  formalists  and 
their  opponents,  then  one  must  ask:  which  jurisprudential  rules  apply? 
What — beyond  basic  rules  of  logic — justifies  those  rules?  It  may  be  a  sort  of 
value  impoverishment  that  allows  formalists  to  think  that  clear  lines  separate 
what  is  subsumed  and  what  is  not  subsumed  within  a  concept.  Or  perhaps  they 
are  simply  less  willing  to  acknowledge  systematic  vagueness  and  open  texture'^^ 
as  inescapable  features  of  major  abstractions  and  of  language  generally.  This 
leads  to  what  others  may  view  as  odd  splittings  (segregation  is  not  a  forbidden 
inequality)  and  inappropriate  lumpings  (the  right  to  refuse  treatment  entails  the 
right  to  suicide  assistance  because  both  involve  the  abstraction  "the  right  to  time 
your  death"). '°^  To  a  nonformalist,  then,  the  range  of  application  of  a 
formalistically  interpreted  abstraction  may  be  too  broad  as  well  as  too  narrow. 

Finally,  there  is  a  link  between  formalism  and  the  next  topic — principlism. 
Formalists  are  faulted  because  their  inappropriate  use  of  abstractions  rests  on 


100.  On  formalism,  see,  e.g.,  Morton  J.  Horwitz,  The  Transformation  of  American 
Law:  1870-1960(1992): 

It  aspired  to  import  into  the  processes  of  legal  reasoning  the  qualities  of  certainty  and 

logical  inexorability.  Deduction  from  general  principles  and  analogies  among  cases  and 

doctrines  were  often  undertaken  with  a  self-confidence  that  later  generations,  long  since 

out  of  touch  with  the  inarticulate  premises  of  the  system,  could  only  mistakenly  regard 

as  willful  and  duplicitous. 

Id.  at  16,    "[Jludges  and  lawyers  of  the  nineteenth  century  clearly  believed  that  there  were 

identifiable  bright-line  boundaries  that  judges  could  apply  to  a  case  without  the  exercise  of  will  or 

discretion  . . . ."  (He  argues  that  this  is  too  easily  caricatured.)  Id.  at  18. 

101.  See,  e.g. ,  Nussbaum,  supra  note  47,  at  262;  Margaret  Jane  Radin,  Market-Inalienability, 
100  Harv.  L.  Rev.  1849  (1987). 

102.  The  phrase  is  linked  to  Dr.  Friedrich  Waismann.  See  Verifiability,  in  LOGIC  and 
Language  [1st  Series]  117,  119  (Antony  Flew  ed.,  1968).  See  generally  Michael  Moore,  The 
Semantics  of  Judging,  54  S.  Cal.  L.  Rev.  151  (1981). 

103.  See  Compassion  in  Dying  v.  State  of  Washington,  79  F.3d  790  (9th  Cir.  1996),  rev  'd, 
Washington  v.  Glucksberg,  521  U.S.  702  (1997). 


64  INDIANA  LAW  REVIEW  [Vol.  33:17 


inadequate  attention  to  particular  variations  from  case  to  case.  Principlism, 
however,  deals  with  mid-level  abstractions,  generally  avoiding  the  more  general 
concepts  that  supposedly  explain  and  justify  them.  If  this  avoidance  is  carried 
out  to  a  fault,  then  the  middle  principles  may  be  incompletely  understood  and 
inadequately  applied.  Formalists,  then,  can  wrongly  fail  to  move,  whether 
"down"  or  "up,"  or  "sideways." 

2.  Principlism}^^— ThQXQ  is  a  particular  analytic  technique  within  bioethics 
(but  applicable  in  various  forms  to  many  disciplines)  called  "principlism."  It 
concentrates  on  four  intermediate  principles — autonomy,  beneficence, 
nonmaleficence,  and  justice.  At  one  end,  it  leaves  deeper  moral  theory  aside  to 
the  extent  possible;  at  the  other,  it  eschews  specific  rules. '^^ 

There  is  nothing  wrong  with  managing  one's  scarce  psychic  and  physical 
resources  by  taking  "shortcuts"  and  using  crystallized  modes  of  thought  to  think 
matters  through.  This  can  be  efficient  in  the  sense  that  it  achieves  a  rational 
balance  between  accuracy  of  judgment  in  a  given  case,  and  the  costs  imposed 
when  seeking  perfection.  These  thinking  tools  are  too  loose  to  be  algorithms,  but 
they  can  be  quite  serviceable  in  advancing  the  decision  making  process.  Their 
use  is  akin  to  "satisficing,"  as  choice  theorists  might  put  it,'°^  and  is  perfectly 


1 04.  Despite  principlism 's  focus  on  a  particular  set  of  concepts,  it  does  not  seem  "formalist'* 
in  the  sense  of  embracing  a  hamfisted,  rigid  interpretive  stance.  Formalism  does  not  mean  "dealing 
with  concepts  and  abstractions" — a  ludicrously  expansive  understanding  that  would  apply  to  all 
reasoning.  Nor  should  it  be  identified  with  the  idea  of  abiding  by  authoritative  rules.  Cf.  Schauer, 
supra  note  88,  at  510  ("Once  we  disentangle  and  exeimine  the  various  strands  of  formalism  and 
recognize  the  way  in  which  formalism,  rules,  and  language  are  conceptually  intertwined,  it  turns 
out  that  there  is  something,  indeed  much,  to  be  said  for  decision  according  to  rule — and  therefore 
for  formalism'')  (emphasis  added).  Perhaps  what  is  meant  here  is  "and  therefore  for  certain  aspects 
of  formalism."  Being  rule-governed  is  simply  a  threshold — a  necessary  condition  for  being 
formalist,  but  not  a  sufficient  one — although  one  might  say  that  some  exercises  of  formalism  are 
so  perverse  that  rule-governance  itself  is  compromised.  Later,  Schauer  concludes: 

It  may  be  that,  in  practice,  to  condemn  an  outlook  as  formalistic  is  to  condemn  neither 
the  rule-based  orientation  of  a  decisional  structure  nor  even  the  inevitable  over-  and 
under-inclusiveness  of  any  rule-based  system.  It  may  be  to  condemn  such  a  system  only 
when  it  is  taken  to  be  absolute  rather  than  presumptive,  when  it  contains  no  escape 
routes  no  matter  how  extreme  the  circumstances.  Such  a  usage  of  "formalism"  is  of 
course  much  narrower  than  is  commonly  seen  these  days. 

Id.  at  548. 

In  any  event,  at  least  some  accounts  of  principlism  have  avoided  heavy-handed  denunciation 

of  the  use  of  higher  abstractions  in  moral  theory.    See  Raymond  Devettere,  The  Principled 

Approach:    Principles,  Rules  and  Actions,  in  Meta  MEDICAL  ETHICS:    THE  PHILOSOPHICAL 

Foundations  of  Bioethics  27,  35-37  (Michael  A.  Grodin  ed.,  1995). 

1 05.  See  ToM  L.  BEAUCHAMP&  JAMES  F.  Childress,  Principles  of  Biomedical  Ethics  37- 
38  (4th  ed.  1 994).  Principlism  is  not  about  the  use  of  principles  generally,  but  about  using  specific 
intermediate  principles  in  particular  contexts  for  certain  purposes. 

106.  For  an  explanation  of  satisficing  and  "bounded  rationality,"  see  Herbert  Simon, 
Administrative  Behavior:  A  Study  of  Decision-making  Processes  in  Administrative 


1999]  IS  BIOETHICS  BROKE?  65 


rational.  Indeed,  it  may  be  morally  mandatory  and  empirically  inevitable.  One 
major  task  of  this  approach  is  overconfidence  that  one  has  selected  the  right 
principles,  applied  them  correctly  to  the  situation,  and  thus  successfully  avoided 
turning  to  basic  moral  theory.  However,  in  morally  difficult  cases — a  prime 
characteristic  of  distinctively  bioethical  problems — ^the  conflicts  within  and 
between  the  principles  cannot  be  settled,  if  settleable  at  all,  without  moving  up 
to  higher  and  perhaps  ultimate  levels  of  abstraction.  If  this  is  understood  and 
acted  upon  by  looking  "upward"  in  such  cases,  then  there  is,  in  principle,  nothing 
wrong  with  principlism.  Using  heuristics  is  a  key  aspect  of  many  decision 
making  processes,  and  every  field  of  thought  probably  has  its  principlist  analogue 
for  various  tasks.  If  the  limitations  of  shortcuts  are  not  understood  and  properly 
managed,  then  they  might  well  be  called  formalist,  not  because  they  fail  to  deal 
with  particulars,  but  because  they  do  not  move  to  the  higher  abstractions  that 
inform  the  middle  principles. 

Thus,  to  the  extent  that  bioethics  is  attacked  for  harboring  a  principlist  line 
of  thought,  the  criticism  is  misplaced.  The  problems  lie  in  understanding  the 
limits  of  limiting  oneself  to  principles  without  reference  to  theory  at  one  end  and 
to  specific  rules  on  the  other.  Although  the  apparent  simplicity  of  the  principlist 
agenda  may  mislead  some,  this  is  not  fatal  to  the  enterprise.  Of  course,  one  has 
to  pick  the  right  principles.  But  if  the  very  choice  of  principles  is  contested,  the 
protagonists  are  back  in  the  more  spacious  (and  time  consuming)  realms  of  moral 
philosophy. 

3.  Casuistry  and  Pragmatism:  Preferred  Modalities? — 

a.  Maxims  and  postulates. — The  bioethics  version  of  principlism  bears 
comparison  with  an  account  of  casuistry  that  addresses  many  issues  in 
bioethics. '^^  This  approach  uses  abstractions  of  even  lesser  generality  than 
"principles."  Instead,  procedural  postulates — "maxims" — requiring  use  of 
"paradigms"  and  "analogies"  are  followed  to  allow  comparisons  between 
particular  cases,  with  close  attention  given  to  "circumstances,"  such  as  who, 
what,  where,  etc.  In  this  sense,  casuistry's  level  of  abstraction  is  notably  lower 
than  that  of  principlism. 

In  theory,  casuistry  has  a  presence  in  several  aspects  of  the  critiques  and 
defenses  of  bioethics.  Has  casuistry  always  been  a  part  of  establishment 
bioethics  (if  not  known  by  that  name)  and  thus  part  of  what  is  being  examined, 
or  is  it  a  weapon  revived  by  the  critics  against  overly  abstract  and  arid  modes  of 
thought  pursued  by  established  institutions?  In  writings  on  clinical  ethics  and 
behavior  at  the  bedside,  one  often  finds  apothegms  or  "formulas,"  such  as  the 
Kantian  injunction  against  mere  use  of  persons  as  means,  and  apothegms.  While 
Kant  is  viewed  as  being  at  the  apex  of  high  moral  theory,  the  no-mere-use-of- 
persons  formula  (i.e.,  the  second  formulation  of  his  Categorical  Imperative) '°^ 


Organizations,  at  xxviii-xxxi  (3d  ed.  1976). 

1 07.  See  JONSEN  &  TOULMIN,  supra  note  7.  For  a  comparison  of  principlism  and  casuistry, 
see  Beauchamp  &  Childress,  supra  note  105,  at  92-100. 

108.  A  common  translation  of  the  Formula  is:   "Act  in  such  a  way  that  you  always  treat 
humanity,  whether  in  your  own  person  or  in  the  person  of  any  other,  never  simply  as  a  means  but 


66  INDIANA  LAW  REVIEW  [Vol.  33:17 


often  seems  to  be  invoked  without  much  analysis  of  the  what  the  formula  means. 
It  is  thus  used  less  as  high  theory  or  a  principlist  principle  and  more  as  a 
casuistical  maxim,  although  it  may  be  a  direct  implication  of  principlism.  Even 
more  frequently  invoked  is  the  so-called  Hippocratic  "do  no  harm"  maxim/^^ 
which  is  far  more  specific  than  the  no-mere-use  formula. 

Still,  there  can  be  no  a  priori  rejection  of  casuistry.  It  too  can  be  a  rational 
part  of  decision  making.  Although  the  issues  at  stake  in  bioethics  are  among  the 
most  serious  and  difficult  matters  one  can  address  in  law  and  ethics,  our 
resources  are  finite  and  we  must  ration  our  time.  The  methodologies  of 
principlism  and  casuistry  are  inevitable,  whether  or  not  so  recognized  and  named, 
and,  if  their  respective  places  and  limitations  are  understood  (a  big  "if), 
unobjectionable. 

b.  Pragmatism. — Pragmatism  has  been  enjoying  a  renaissance,  at  least 
among  legal  scholars.  ^'°  It  strongly  criticizes  concentrating  on  rules,  principles, 
standards,  and  their  embedded  concepts  and  higher  theoretical  underpinnings. 
Perhaps  many  pragmatists  are  ant i foundational ists — analysts  who  are  skeptical 
about  the  existence  of  sound  bases  for  our  systems  of  thought  and 
evaluation — but  this  is  not  entailed  by  their  positions,  which  require  that  we 
ordinarily  not  get  mired  in  matters  of  ultimate  value. 

It  is  true,  as  pragmatists  emphasize,  that  much  everyday  decision  making  is 
done  without  explicit  attention  to  particular  abstractions.  Indeed,  such 
abstractions  may  be  almost  inaccessible  to  our  conscious  minds  and  may  require 
exceptional  acuity  to  discern  through  introspection.  Despite  their  relative 
obscurity,  however,  abstractions  influence  patterns  of  thought  and  behavior  that 
nonconsciously  reflect  these  rules.  If  so,  it  is  no  surprise  that  much  of  our 
conduct  can  be  rationalized  in  the  sense  that  one  can  reconstruct  thought  and 
action  to  reveal  rational  substructures,  despite  the  disorder  and  "gaps"  in  our 
conscious  thinking. 

At  least  when  pressed,  legal  pragmatists  do  not  deny  the  existence  or  effect 
of  abstractions,  and  it  is  hard  to  see  how  they  could." '  It  would  be  incoherent  to 


always  at  the  same  time  as  an  end."  Thomas  E.  Hill,  Jr.,  Dignity  and  Practical  Reason  in 
Kant's  Moral  Theory  38-39  (1992)  (discussing  "the  second  formulation  of  the  Categorical 
Imperative"). 

1 09.  "Above  all  do  no  harm."  See  the  discussion  of  this  phrase  in  Beauchamp  &  Childress, 
supra  note  105,  at  189  (describing  the  formulation  as  a  maxim).  According  to  Veatch,  the 
derivation  of  the  form  and  priority  of  the  phrase  are  not  entirely  clear.  See  Robert  M.  Veatch,  A 
Theory  of  Medical  Ethics  22,  159-62.  (1981)  (discussing  the  Hippocratic  tradition). 

110.  See,  e.g.,  Catharine  Pierce  Wells,  Improving  One's  Situation:  Some  Pragmatic 
Reflections  on  the  Art  of  Judging,  49  WASH.  &  LEE  L.  REV.  323  ( 1 992)  (discussing  pragmatism  and 
formalism  in  adjudication). 

111.  See,  e.g.,  Catharine  Wells,  Situated  Decisionmaking,  in  PRAGMATISM  IN  LAW  AND 
Society  275  (Michael  Brint  &  William  Weaver  eds.,  1991).  Wells  states: 

[A]  belief  in  situated  decisionmaking  does  not  entail  the  abandonment  of  structuring 
methods  such  as  reason,  generalization,  and  abstraction.  Instead,  it  recognizes  that  there 
is  more  to  legal  decisionmaking  than  the  mechanical  application  of  these  techniques 


1999]  IS  BIOETHICS  BROKE?  67 


draw  a  sharp  contrast  between  "rule-bound"  thought  and  "situated"  decision 
making.  Indeed,  the  very  idea  of  situated  decision  making,  understood  as 
involving  only  particulars  and  no  abstractions,  makes  no  sense.  All  rational 
thought  requires,  at  some  stage,  the  conscious  or  unconscious  selection, 
interpretation,  and  use  of  abstractions.  Even  a  quick,  unreflective  decision  about 
whether  to  cross  the  street  involves  application  of  learned  generalities  based  on 
our  prior  knowledge  of  direction,  velocity,  distance,  and  other  variables  bearing 
on  the  relationship  between  oneself,  the  street,  and  vehicular  traffic.  The  maxim 
"look  both  ways  before  you  cross"  does  not  stand  alone  as  a  foundationless 
adjuration. 

So  what  is  the  force  of  the  pragmatist  critique — not  just  against  bioethics,  but 
against  much  legal  and  moral  reasoning  and  decisionmaking?  Its  point  relates 
back  to  the  notion  of  what  is  material  to  moral  and  legal  analysis.  What  is 
material  depends  on  the  generalizations  that  govern  the  matter  at  hand.  But 
whether  material  matters  are  indeed  implicated  in  a  given  matter  requires  close 
attention  to  the  details  of  human  situations.  Which  "details"  we  see  depends  on 
prior  abstract  understandings,  our  frameworks  of  perception,  and  other  variables, 
such  as  salience.  A  prime  virtue  of  pragmatism  is  that  it  mandates  the  avoidance 
of  premature  filtering  and  exclusion  of  particulars — in  direct  contrast  to 
formalism.  Attention  to  particulars  can  result  in  important  insights  that  lead  to 
the  formulation  of  new  abstractions  and  new  domains  of  relevance  and  the 
reformulation  of  rules,  standards,  principles,  maxims,  and  heuristics.  Given 
scarce  resources,  we  cannot  always  undertake  such  reconstruction,  but  it  remains 
something  of  an  ideal:  coming  to  see  that  the  abstractions  already  in  place  are 
incomplete  or  otherwise  misconceived  is  central  to  progress  in  any  scientific  or 
normative  field.  The  pragmatic  push  toward  a  less- filtered  scrutiny  of  what  we 
perceive  spurs,  as  we  saw,  a  continual  cycling  between  the  selection  and  the 
application  of  abstractions.  It  also  helps  us  identify  and  revise  or  partly 
neutralize  internalized  cognitive  frameworks  that  affect  our  very  capacities  for 
perception  and  evaluation. 


and,  for  this  reason,  it  sees  all  legal  reasoning  as  'situated'  in  the  sense  that  it  operates 
within  a  structure  that  is  constructed  by  the  decisionmaker's  own  unique  mode  of 
participation  in  the  ebb  and  flow  of  human  events. 

Id.  at  289.  If  pragmatism  is  simply  anti-formalism,  then  most  reflective  persons  are  pragmatists. 
See  also  Brock,  supra  note  4,  at  226-28,  discussing  "particularism,"  which  holds  that  moral 

reasoning  in  practical  and  policy  contexts  begins  and  remains  with  the  specific  concrete  case  under 

consideration.  See  id.  at  226.  This  seems  similar  to  various  accounts  of  pragmatism.  Brock  later 

states  that 

[t]he  central  and  fatal  problem  for  particularism  ...  is  that  it  is  incompatible  with  the 
very  process  of  having  and  offering  reasons  for  our  moral  judgments,  which  is  the 
principal  feature  distinguishing  morality  from  mere  expressions  of  simple  taste  or 
preference.  Some,  at  least  partial  or  fragmentary,  moral  theorizing  is  an  unavoidable 
part  of  moral  reasoning,  of  making  and  offering  reasons  for  moral  judgments  in  practical 
and  policy  contexts. 

Id  at  228. 


68  INDIANA  LAW  REVIEW  [Vol.  33:17 


Thus,  as  a  matter  of  rational  pursuit  of  real-life  decision  making  and 
adjudication,  asking  "What  happened"  often  seems  an  appropriate  starting  place. 
How  else  would  one  know  where  to  look  in  the  realm  of  categories  and  concepts? 
Still,  asking  what  happened  does  not  divorce  us  from  abstractions — description 
itself  presupposes  general  frameworks.  ^  •^ 

4.  Insufficient  Empirical  Research,  Beyond  Characterization  of  Particular 
Situations. — Is  it  silly  to  complain  that  bioethics  is  insufficiently  empirical,  in  the 
rigorous  methodological  sense  of  investigation  the  nature  of  human  practices  and 
interactions  and  states  of  affairs?  After  all,  if  one  wishes  to  do  behavioral  or 
anthropological  research,  why  pursue  bioethics?  It  is  not  a  science  (behavioral 
or  otherwise). 

But  it's  not  so  silly.  Think,  for  example,  of  problems  of  informed  consent. 
One  might  well  start  with  asking,  "Whose  informed  consent?"  The  patient's? 
The  nuclear  family's?  The  extended  family's?  The  matriarch's?  The  underlying 
question  at  this  stage  is,  "What  is  the  unit  of  autonomy  in  this  transaction?,"  not 
"What  ought  to  be  the  autonomous  unit  on  objective,  cross-cultural  moral 
grounds?"  What  features  of  decision  making  are  altered  if  attitudes  toward 
individuality  and  community  differ  from  culture  to  culture,  assuming  we  can 
even  identify  discrete  "cultures"  (which  in  any  case  may  be  evolving)?  What  has 
happened  when  these  cultural  variations  were  ignored  or  even  overridden  by 
"mainstream"  medical  decision  making  processes?  Have  there  been  attempts  to 
alter  the  viewpoints  of  "outlier"  groups  and  individuals — ^the  "culturally 
displaced"?  If  so,  what  happened? 

These  questions  would  not  have  arisen  unless  troubling  incidents  had 
occurred  or  been  anticipated,  but  we  cannot  know  the  nature  and  extent  of  the 
problems  without  empirical  research.  Wearing  a  bioethicist's  hat  is  not 
incompatible  with  doing  such  research,  although  the  likeliest  path  would  involve 
collaboration  with  trained  investigators.  Furthermore,  whatever  studies  have 
already  been  done  are  likely  to  be  sought  out  by  or  brought  to  the  attention  of 
bioethicists,  lawyers,  lawmakers,  and  judges.  But  bioethics  and  affiliated 
disciplines  have  a  scarce  resource  problem  of  their  own:  how  much  time  and 
effort  to  devote  to  investigating  cultural  variables  and  the  variable  roles  of 
autonomy — or  any  other  area  of  behavioral  research.  One  cannot  evaluate  organ 
and  tissue  transplantation  without  knowing  of  supply  shortfalls  and  demand 
variables,  the  status  of  medical/surgical  technology,  facts  about  queuing  and 
distributional  practices,  and  so  on.  One  cannot  assess  the  issues  of  genetic 
privacy  without  knowing  what  current  and  projected  practices  are,  what  genetic 
testing  and  fact-gathering  turn  up,  and  the  status  of  security /access  technology. 


112.     Cf.  Green,  supra  note  14,  at  1 82.  Green  observes  that  bioethics  is  strongly  attentive  to 

empirical/situational  issues  and  is  heavily  interdisciplinary,  but  that 

while  ethics  and  moral  philosophy  may  sometimes  represent  a  relatively  small  part  of 
the  actual  work  of  bioethics,  they  form  in  a  sense  the  confluence  to  which  all  the  larger 
and  smaller  tributaries  lead,  and,  more  than  any  other  single  approach,  the  methods  of 
ethics  and  philosophy  remain  indispensable  to  this  domain  of  inquiry[.] 

Id. 


1 999]  IS  BIOETHICS  BROKE?  69 


How  easy  is  it  to  hack  into  existing  medical  record  files?  What  sorts  of  questions 
do  employers  and  insurance  companies  request?  How  often  and  in  what  ways  are 
they  answered?  And  what  is  the  business  entity's  response  to  these  answers  with 
respect  to  the  nature  of  employment  or  insurance  offered  or  denied? 

Roaming  the  field  of  bioethics  reveals  many  other  contexts  where  rational 
analysis  would  be  greatly  aided  by  empirical  information.  Shouldn't  we  worry 
about  errors  in  following  or  declining  to  follow  advance  directives  or  requests  for 
PAS?^  '^  What  do  we  really  know  about  how  accurately  people  gauge  their  future 
mental  states?""*  (Of  course,  even  if  the  forecasters  are  inaccurate,  this  does  not 
establish  that  anyone  else  could  make  better  predictions  for  them.) 

Are  bioethicists  remiss  in  not  seeing  the  need  for  research  and  observation 
beyond  the  situation  at  hand,  and  calling  for  or  even  pursuing  such 
investigations?  I  see  no  evidence  of  this.  There  has  been  a  fair  amount  of 
empirical  research  called  for  and/or  pursued  by  persons  who  view  themselves  as 
doing  bioethics. '^^  Moreover,  if  a  given  scholar  is  interested  in  thinking  about, 
say,  the  dimensions  of  decision  making  incompetence,  she  can  make  a  useful 
contribution  by  searching  out  the  structure  of  that  notion  without  doing  a  lick  of 
empirical  research.  Sooner  or  later,  she  may  come  up  with  testable  propositions, 
perhaps  concerning  the  nature  of  the  decisions  taken  by  people  afflicted  with 
mania,  depression,  and  the  delusions  associated  with  florid  schizophrenia  and 
how  they  compare  inter  se.  If  she  does  not,  so  what?  Division  of  labor,  which 
no  doubt  preceded  fire  and  the  wheel,  remains  appropriate  in  moral  and  legal 
analysis,  as  it  is  elsewhere.  If  there  are  some  who  offer  conclusory  views  or 
arguments  that  require  empirical  support  and  none  is  available,  they  can  rightly 
be  upbraided  for  it,  but  this  does  not  taint  the  entire  field.  Nor  is  there  anything 
wrong  with  offering  hypotheses  for  others  to  test.  Still,  to  the  extent  that  any 
area  is  burdened  by  lack  of  information,  it  would  be  a  clear  case  of  "progress"  if 
more  personnel  recognized  the  need  and  spurred  the  search  for  the  relevant  data. 

Are  there  any  instances  in  which  a  writer,  on-the-line  actor,  or  an  entire 
movement  has,  with  great  assurance,  made  a  claim  that  cannot  be  supported 
without  empirical  inquiry  and  failed  to  recognize  or  call  for  such  inquiry, 
mistakenly  believing  that  no  factual  investigation  is  required?  Probably.  One 
possible  current  example  is  the  belief  that  PAS  is  urgently  needed  because  so 


113.  Cf.  Vicki  A.  Michel,  Suicide  by  Persons  with  Disabilities  Disguised  as  the  Refusal  of 
Life-Sustaining  Treatment,  1  HEC  FORUM  122  (1995). 

1 14.  See  generally  Philip  J.  Hilts,  In  Forecasting  Their  Emotions,  Most  People  Flunk  Out, 
N.Y.  Times,  Feb.  16,  1999,  at  F2. 

115.  See,  e.g..  Else  Bjor  et  al.,  Can  the  Written  Information  to  Research  Subjects  Be 
Improved?— An  Empirical  Study,  25  J.  Med.  ETHICS  263  ( 1 999);  Leslie  J.  Blackhall  et  al..  Ethnicity 
and  Attitudes  Toward  Patient  Autonomy,  274  JAMA  820  (1 995)  (some  groups  adhere  to  a  family- 
centered  model  of  decision  making);  Rafael  Dal-R6  et  al..  Performance  of  Research  Ethics 
Committees  in  Spain:  A  Prospective  Study  of  100  Applications  for  Clinical  Trial  Protocols  on 
Medicines,  25  J.  MED.  ETHICS  268  (1999).  See  generally  Tony  Hope,  Empirical  Medical  Ethics, 
25  J.  Med.  Ethics  219  (1999). 


70  INDIANA  LAW  REVIEW  [Vol.  33:17 


many  patients  suffer  intractable  pain  J '^  The  first  several  patients  using  the 
Oregon  PAS  law  apparently  were  far  more  concerned  with  loss  of  autonomy  and 
independence  than  with  physical  pain."^  Not  everything  that  needs  to  be  done 
has  been  done,  a  mere  generation  or  two  into  the  discipline  of  bioethics. 

Finally,  a  simple  insight  understood  by  any  student  of  evidence:  "relevance" 
and  "materiality"  are  functions  of  the  governing  issues  and  their  location  in  the 
conceptual  map  of  rules,  principles,  standards,  maxims,  paradigms,  and  analogies 
governing  the  case.  Rational  selection  of  empirical  issues  for  investigation 
presupposes  conceptual  analysis,  which  is  part  of  the  mission  of  bioethics.  True, 
a  "naked  interest"  in  finding  out  about  some  aspect  of  the  world  may  produce 
findings  that  spur  new  conceptual  analysis.  Even  then,  however,  what  one  or 
finds  ultimately  is  deemed  material  (if  at  all)  only  within  the  abstractions  inspired 
by  thefindings.^'^ 


D.  Insufficient  Focus  on  the  Most  General  Abstractions 

Perhaps  there  is  some  rule  of  Newtonian  symmetry  in  critiquing 
"disciplines":  for  most  complaints  there  is  an  equal  and  opposite  one.  For  every 
soldier  in  the  bioethics  army  gazing  abstractly  at  the  cosmos  to  no  apparent 
effect,  there  is  another  fixedly  studying  her  toes,  to  equal  effect.  The  complaint 
that  abstractions  are  /^sufficiently  addressed  is  frequently  found  in  the 
reproaches  against  principlists  and  casuists."^  If  a  rigid  focus  on  abstractions  is 
formalistic,  perhaps  so  also  is  a  rigid  focus  on  apothegms,  rules  of  thumb,  and 
details.  The  point  of  the  complaint  is  that  however  useful  it  is  at  some  stage  to 
confine  one's  attention  to  "intermediate"  principles,  or  to  rules  or  maxims  or 
particular  situations,  higher-level  theory  is  needed  for  certain  essential  tasks: 
justifying  the  selection  of  principles,  rules,  maxims,  and  facts;  rank-ordering 
them;  interpreting  them;  and  dealing  with  their  internal  incoherences  and 
conflicts  with  each  other.  This  entails  a  continuous  cycling  between  the  higher 
and  lower  conceptual  and  factual  reaches. '^°    The  obvious  but  non-decisive 


116.  See  Arthur  E.  Chin  et  al.,  Legalized  Physician- Assisted  Suicide  in  Oregon — the  First 
Year 's  Experience,  340  NEW  Eng.  J.  MED.  577  (1999). 

117.  See  id  at  5S2. 

118.  See  generally  Brody,  supra  note  20,  at  1 62-65. 

1 19.  See  infra  Parts  II.E.2-3,  Ill.C.S.a.i. 

120.  See  Green,  supra  note  14,  at  189,  190,  195.  The  author  states  that: 

How, . . .  when  principles  are  in  conflict,  is  it  possible  to  make  progress  in  normative 
discussion  unless  one  has  at  hand  some  procedure  for  establishing  priorities  among 
principles,  and  how  is  that  procedure  defended  apart  from  a  more  basic  understanding 
of  the  moral  reasoning  process?  ....  [Mjoral  analysis  cannot  be  confined  to  a  process 
of  identifying  and  applying  moral  principles,  however  sophisticated  this  process  might 
be,  when  the  essential  work  of  deriving  the  basis,  meaning,  and  scope  of  these  principles 
is  left  undone  ....  Until  that  perhaps  Utopian  day  when  theorists  develop  an 
indisputable  correct  method  of  moral  reasoning,  applied  work  must  always  remain  in 
conversation  with  moral  theory  as  [a]  whole.  Bioethics  will  progress  methodologically 


1 999]  IS  BIOETHICS  BROKE?  7 1 


response  by  principlists  and  casuists  is  likely  to  be  that  the  higher  theoretical 
abstractions  may  be  of  little  or  no  assistance  in  doing  any  of  these  tasks  and  in 
given  cases,  this  may  well  be  true. 

E.  Excessive  Focus  on  Autonomy 

This  reproach  to  bioethics  was  mentioned  earlier  and  I  add  only  a  few  points. 
It  is  an  especially  annoying  criticism  of  "establishment"  bioethics.  Whether  the 
focus  on  autonomy  is  overdone  depends  on  the  meanings  of  "autonomy"  and 
their  locations  in  a  value  hierarchy.  To  the  extent  that  autonomy  rests  on 
opportunities  to  pursue  one's  preferences,'^'  deference  to  it  in  given  areas  may 
depend  on  the  intensity  with  which  these  preferences  are  generally  held.  There 
may  be  domains  of  choice  in  which  many  persons  are  more  or  less  indifferent  to 
various  outcomes,  although  they  might  want  to  retain  personal  choice  in  these 
matters.  Moreover,  if  pursuit  of  certain  preferences  raises  risks  to  others  (and 
perhaps  the  actor  also),  strong  deference  to  autonomy  might  be  unjustifiable.  It 
is  not  as  if  autonomy  was  all  of  a  piece  in  every  sphere,  mindlessly  invoked  as 
the  preeminent  or  sole  value  whatever  the  circumstances. 

I  suspect  that  few  persons  in  Western  culture  think  autonomy  is  a  weak  or 
immaterial  consideration  in  moral,  political,  or  legal  analysis.  The  fact  that 
autonomy  "loses"  in  a  particular  case  against  competing  concerns  does  not 
eliminate  its  materiality,  even  in  that  contest. '^^  The  more  common  argument  is 
that  too  many  parties  view  autonomy  in  a  naive  way,  or  rate  it  too  highly  in  some 
area  even  after  reflection,  or  are  simply  obsessed  with  it. 

The  idea  that  love  of  autonomy  may  be  extravagant  is  thus  far  too  general, 
and  its  strands  of  meaning  should  be  separated.  Libertarians  and  communitarians 


if  it  retains  this  insight .... 
Id.  This  necessary  interaction  between  the  various  levels  of  "theory"  and  "application"  is  thus 
somewhat  different  from  that  between  theory  and  application  in  mathematics.  In  practical 
mathematics,  it  is  rarely  necessary  to  test  foundations,  as  observed  in  Loretta  M.  Kopelman,  What 
Is  Applied  About  "Applied"  Philosophy,  15  J.Med.  &Philos.  199,200(1990).  She  also  argues  that 
in  many  cases,  higher  theoretical  concepts  "applied"  in  philosophy  are  changed  by  the  application, 
and  that  therefore  applied  ethics  is  not  "derivative."  Id.  at  200-02.  This  seems  akin  to  arguing  that 
a  rule  of  decision  applied  in  adjudication  is  "changed"  by  all  or  some  of  its  applications.  This  is 
a  tricky  proposition,  but  it  need  not  be  dealt  with  here. 

121.  This  is  of  course  not  the  whole  of  autonomy.  See  generally  Michael  H.  Shapiro,  Is 
Autonomy  Broke?,  12  LAW  &  HUMAN  Behav.  353  (1988)  (reviewing  CHARLES  W.  LiDZ  ET  AL., 
Informed  Consent:  A  Study  of  Decisionmaking  in  Psychiatry  ( 1 994)). 

1 22.  Cf.  Bernard  Williams,  Moral  Luck  73-74  ( 1 98 1 )  (stating  the  "[tjhe  [obligation]  that 
outweighs  has  greater  stringency,  but  the  one  that  is  outweighed  also  possesses  some  stringency  . 
.  .  .");  Bernard  Williams,  Ethical  Consistency,  in  ESSAYS  ON  MORAL  REALISM  41,  49  (Geoffrey 
Sayre-MCord  ed.,  1 988)  ("It  seems  to  me  a  fundamental  criticism  of  many  ethical  theories  that  their 
accounts  of  moral  conflict  and  its  resolution  do  not  do  justice  to  the  facts  of  regret  and  related 
considerations:  basically  because  they  eliminate  from  the  scene  the  'ought'  that  is  not  acted 
upon."). 


72  INDIANA  LAW  REVIEW  [Vol.  33:17 


are  far  apart  in  their  rankings  of  autonomy,  but  this  is  largely  a  matter  of  serious 
moral  disagreement,  not  necessarily  some  blunder  of  thought  or  deficit  in  moral 
sensibility.  A  field  is  not  "weak"  just  because  many  of  its  protagonists  do  not 
share  the  critics'  moral  stances. 

Of  course,  if  the  field  were  exclusively  defined  by  one  polarized  view  or  the 
other,  then  we  could  rightly  complain  about  the  narrow  views  of  its  personnel. 
A  field  dominated  by  rigorous  libertarians  might  seem  to  others  to  reflect  an 
indifference  to  human  suffering  and  an  unduly  narrow  range  of  perspectives.  It 
would  be  more  like  a  special  interest  group  or  political  party  than  a  discipline, 
and  for  that  reason,  its  moral  stature  would  be  impaired.  Much  the  same  holds 
for  uncompromising  communitarians.  "Progress"  here  would  consist  of  coming 
to  see  that  one's  framework  is  too  shallow  to  allow  balanced  insights.  Perhaps 
it  even  makes  sense  to  say  that  re-staffing  such  fields  constitutes  or  facilitates  a 
partial  "catching  up"  of  ethics  and  law  with  technological  change.  In  any  case, 
neither  form  of  rigidity  dominates  bioethics.'^^ 

An  "obsession"  with  autonomy  may  involve  assigning  insufficient  value  to 
certain  countervailing  considerations. '^"^  Talking  without  qualification  about  the 
right  to  speak  freely  disregards  the  harms  from,  say,  false  defamatory  statements 
of  public  officials  and  figures,  fraud  in  advertising,  incitement  to  unlawful  acts, 
and  disturbing  the  peace  of  a  residential  community. 

Are  too  many  of  autonomy 's  countervailing  considerations  ignored  or  ranked 
too  low  in  bioethical  discourse?  I  don't  think  so.  On  the  contrary,  it  is  often  the 
critics  of  the  supposed  autonomy-obsessed  who  make  the  opposite  error  by 
failing  to  deal  with  autonomy  attentively.  In  Matter  of  Baby  M,'^^  for  example, 
the  court  flatly  asserted  that  the  surrogate  mother's  consent  to  the  transaction  was 
irrelevant.  There  was  little  argument,  no  recognition  that  asserting  the 
irrelevance  of  consent  is  in  tension  with  a  fundamental  moral  and  constitutional 
value — ^virtually  nothing.  Moreover,  I  see  no  evidence  that  surrogacy 's  defenders 
consistently  ignore  the  risks  of  coercion,  duress,  undue  influence,  false 
consciousness,  the  incentives  supplied  by  low  income,  risks  of  regret,  harm  to  the 


123.  See  Amitai  Etzioni,  The  New  Golden  Rule:  Community  and  Morality  in  a 
Democratic  Society  (1996)  (offering  his  version  of  communitarianism);  Milton  Friedman, 
Capitalism  and  Freedom  137-160  (1962)  (expressing  a  libertarian  vision);  see  also  Ezekiel  J. 
Emanuel,  The  Ends  of  Human  Life:  Medical  Ethics  in  a  Liberal  Polity  5-6  (1991) 
(commenting  on  such  perspectives).  See  generally  Christopher  Heath  Wellman,  Liberalism, 
Communitarianism,  and  Group  Rights,  18  LAW  &  PHIL.  13  (1999). 

124.  For  our  purposes,  countervailing  considerations  include  "preconditions"  for  sound 
exercise  of  autonomy  as  well  as  opposing  values.  I  am  distinguishing  here  between  competing 
values  arrayed  against  autonomy,  and  the  presuppositions  or  preconditions  for  an  exercise  of 
autonomy  in  its  ideal  forms  (whatever  they  might  be) — e.g.,  competence,  authenticity, 
voluntariness,  and  certain  others.  Perhaps  these  preconditions  for  autonomy  can  also  be  viewed  as 
arrayed  against  it  in  certain  ways:  they  pit  naked  expression  of  preferences  against  the  interests  of 
the  actor  (a  paternalist  perspective)  and  also  against  whatever  risks  to  others  are  posed  by 
incompetent,  coerced,  impulsive,  or  unduly  influenced  choices.  See  also  the  next  subsection. 

125.  537  A.2d  1227,  1249  (N.J.  1988). 


1 999]  IS  BIOETHICS  BROKE?  73 


child,  racial  type-casting,  wide-ranging  objectification,  and  so  on.'^^  Nor  is  there 
any  evidence  that  students  of  organ  transplantation,  physician-assisted  suicide 
and  euthanasia,  and  the  withholding  of  life-prolonging  care  have  been 
consistently  overlooking  similar  material  matters.  The  literature  and  the  case  law 
are  available  for  anyone  to  inspect.  Most  of  the  cases  involving  termination  of 
lifesaving  care,  for  example,  expend  major  resources  not  only  on  investigating 
what  patients  seem  to  want,  but  on  determining  how  far  these  expressions  can  be 
credited,  given  the  tableaux  of  circumstances.'^^  Things  of  course  are  never  seen 
all  at  once  and  we  will  never  be  finished  finding  and  assessing  new  things,  but 
bioethics  is  clearly  on  the  job. 

Let  us  turn  now  to  another  example  of  supposed  excessive  attention  to 
autonomy.  I  expect  many  or  most  critics  of  bioethics  would  view,  say,  Johnson 
V.  Calvert, ^^^  as  reflecting  undue  emphasis  on  autonomy  in  accepting  the 
parenthood-by- intention  theory.  But  what  exactly  is  the  error  here — ^the  wrong 
theory  or  principle,  or  the  theory  or  principle  misapplied,  or  the  false  paradigm 
or  analogy,  or  the  impoverished  moral  sense  that  must  be  enriched  by  the  critics' 
protests?  What  points  were  missed?  What  was  it  that  the  majority  and  its 
supporters  did  not  understand?  How  do  the  critics  know  that  they  themselves  do 
not  understand?  Surely  autonomy  in  planning  reproduction  is  not  immaterial, 
even  if  one  finds  some  plans  inappropriate.  Was  autonomy  rated  too  highly  in 
Johnson?  Or  was  it  applied  without  due  attention  to  risks  of  regret,  undue 
influence,  coercion,  false  consciousness,  race  (Anna  Johnson  was  black — and 
Regina  Crispin  was  Filipino),  harm  to  children,  to  the  particular  parties  involved, 
to  women  generally,  and  to  the  overall  social  fabric,  which  is  weakened  because 
of  the  reinforcement  of  the  attitude  that  persons  are  things  to  be  used?  Some 
decision  makers  value  autonomy  enough  to  accept  risks  of  regret  and  other 
harms,  but  this  does  not  make  them  morally  benighted  or  guilty  of  clear  error. 


1 26.  See  generally  PAUL  Lauritzen,  PURSUING  PARENTHOOD:  ETHICAL  Issues  in  Assisted 
Reproduction,  at  ix-xxi,  3-67  (1993)  (discussing  "basic  opposition  to  reproductive  technology." 
The  author  states  that  in  considering  in  vitro  fertilization,  "[beyond]  the  simplest  case  . . .  within 
a  marriage  where  care  is  taken  to  avoid  destroying  or  risking  embryos  ...  we  discover  that  the 
worries  about  the  commoditlcation  and  mechanization  of  reproduction  [discussed  earlier  by  the 
author]  become  increasingly  grave."  Id.  at  xix.  Nevertheless,  Lauritzen  concludes  that  "the  basic 
opposition  to  reproductive  technology  is  misplaced."  Id.  (discussing  IVF  and  artificial  insemination 
using  sperm  from  one's  husband)). 

127.  See,  e.g.,  Cruzan  v.  Missouri  Dept.  of  Health,  497  U.S.  261  (1990);  In  Matter  of 
Quinlan,  355  A.2d.  647  (N.J.),  cert,  denied,  429  U.S.  922  (1976);  see  also  Matter  of  Farrell,  529 
A.2d  404  (N.J.  1987)  (careful  evaluation  of  the  preferences  and  condition  of  woman  with 
amyotrophic  lateral  sclerosis  who  wished  to  withdraw  care). 

128.  851  P.2d  776,  851  (Cal.  1993).  See  generally  "Note,  Maternity  Blues:  What  About  the 
Best  Interests  of  the  Child  in  Johnson  v.  Calvert,  24  Sw.  U.  L.  Rev.  1277  (1995)  (criticizing  what 
the  author  calls  "the  'intended  procreator'"  test).  The  case  involved  a  dispute  between  the  genetic 
parents  of  a  child  and  the  gestator.  The  court  ruled  that  under  California's  Uniform  Parentage  Act, 
the  "natural  mother"  was  the  genetic  mother  in  this  case  because  of  the  original  expressed  intentions 
of  the  parties  initiating  the  procreational  process. 


74  INDIANA  LAW  REVIEW  [Vol.  33:17 


To  be  sure,  the  critics  of  surrogacy  are  not  so  beniglited  unless,  at  the 
threshold,  they  simply  dismiss  autonomy  considerations  under  the  prevailing 
circumstances.  Some  seem  to  do  so  (once  again,  see  the  Baby  M  opinion), 
although  in  some  spheres  of  conduct  there  is  no  starting  presumption  of 
autonomy,  or  only  a  weak  one.  Your  decision  to  keep  custody  of  your  newborn 
rather  than  abandon  her  is  not  simply  one  of  your  options.  Perhaps  the  more 
serious  risk  is  not  that  of  overstressing  autonomy,  but  of  letting  it  slide.  Jay  Katz, 
for  one,  has  suggested  that  "[t]oday  the  idea  of  patient  autonomy  is  once  again 
in  retreat.'"^^ 

I  doubt,  then,  that  discussions  of  autonomy  have  been  morally  or 
intellectually  flawed,  one  side  or  the  other  (or  both)  not  getting  the  point  of 
discussion.  A  somewhat  more  plausible  critique  is  that  not  enough  persons 
holding  different  value  rankings  are  writing  and  doing  bioethics.  This  may  not 
be  correct,  but  in  any  event  no  discriminatory  barriers  to  entry  into  this  field 
exist.  One  should  thus  remain  skeptical  of  the  view  that  paradigms  must  be 
shifted  or  displaced,  rather  than  progressively  made  more  sophisticated  (a  hard 
line  to  draw,  but  there  is  a  difference). 

On  the  other  hand,  I  do  not  think  that  the  field  of  bioethics  is  flawed  from 
within  simply  because  it  has  its  share  of  contributors  who  (in  some  eyes) 
undervalue  autonomy.  What  might  impair  the  field,  if  anything,  is  that  the 
protagonists'  understanding  of  autonomy  and  its  countervailing  values  may  be 
too  blunt  to  be  properly  illuminating.  If  this  is  true  of  some  writers,  judges  or 
legislators,  however,  it  is  not  true  of  others. 

7.  Ignoring  the  Preconditions  for  the  Exercise  of  Autonomy.— \  make  only 
two  points  here.  First,  it  is  hard  to  find  evidence  that  either  ethical  or  legal 
analysis  in  bioethics  is  tainted  by  a  near-total  failure  to  consider  what  I  referred 
to  earlier  as  autonomy's  presuppositions:  competence;  voluntariness  (entailing 
absence  of  coercion  and  undue  influence);  authenticity;  perhaps  consistency  of 
preferences  and  richness  of  perspectives  (no  false  consciousness);  and,  where 
appropriate,  deliberation.  However,  a  more  precise  attack  is  worth  mentioning: 
the  claim  that  these  preconditions  have  been  too  narrowly  interpreted.  Thus, 
authenticity — ^the  idea  that  one's  conduct  reflects  "one's  own  actions,  character, 
beliefs,  and  motivation"'^*^ — may  be  too  easily  assumed  in  a  society  where  (say) 
patriarchy  can  inflict  inappropriate  attitudes,  beliefs,  and  perspectival  limitations 
on  women. '^^    Perhaps  the  idea  of  coercion  is,  as  some  argue,  too  narrowly 


1 29.  Jay  Katz,  The  Nuremberg  Code  and  the  Nuremberg  Trial:  A  Reappraisal,  116  JAMA 
1662,  1665  (1996).  Katz,  however,  was  discussing  experimentation  with  human  subjects. 

1 30.  Ruth  R.  Faden&TomL.  Beauchamp,  A  History  and  Theory  of  Informed  Consent 
238  (1986)  (emphasis  added). 

131.  The  extent  to  which  patriarchy  continues  to  prevail  in  the  West  is  contested,  although 
few  doubt  its  massive  influence.  Cf.  Paula  Span,  Did  Feminists  Forget  The  Most  Crucial  Issues?: 
Wanting  a  Man  and  Children  Does  Not  Make  You  a  Non-Feminist,  Anne  Roiphe  Contends,  L.A. 
Times,  Nov.  28, 1 996,  at  E8  (noting  that  in  her  book.  Fruitful:  A  Real  Mother  in  the  Modern 
World  (1996),  Anne  Roiphe  complains  of  feminist  writings  promoting  "the  view  of  the  world  as 
a  giant  evil  patriarchal  system"). 


1999]  IS  BIOETHICS  BROKE?  75 


construed  to  ignore  the  effects  of  low  income,  class,  gender,  and  race.    This 
accounts  in  part  for  the  ascent  of  concepts  such  as  "false  consciousness." 

Second,  there  may  be  a  legitimate  moral  dispute  about  the  proper 
understanding  of  autonomy 's  presuppositions.  Authenticity,  for  example,  can  be 
viewed  as  something  of  a  paradoxical  notion.  We  can  understand,  in  a  pre- 
theoretical  sense,  that  the  preferences  of  someone  who  has  been  "programmed" 
through  rigorous  behavioral  conditioning  are  not  entirely  his  own.  We  can  also 
understand  that  general  socio-cultural  conditions  can  systematically  warp 
someone's  development — as  when  women  are  trained  from  birth  to  obey  men 
and  confine  themselves  to  childrearing  and  household  chores.  The  result  is  a 
false  consciousness  in  which  many  women  do  not  understand  that  they  have,  or 
should  have,  a  larger  range  of  options. 

Of  course,  arguments  resting  on  the  fact  that  some  persons  are  burdened  by 
narrow  perspectives  about  themselves,  their  choices,  and  the  demands  of 
community  are  double-edged.  Can  we  simply  dismiss  the  wants  and  interests  of 
all  persons  raised  in  such  non-ideal  conditions?  De-conditioning  the 
"brainwashed"  is  one  thing  (though  not  free  of  controversy);  excluding  several 
generations  of  falsely  conscious  women  from  full  participation  in  a  society  is 
another.  Few  individuals  or  groups  are  uniformly  non-autonomous.  It  is  a  wedge 
into  totalitarianism  to  say  that  the  preferences  of  millions  of  persons  are  to  be 
ignored  because  they  were  improperly  raised  or  educated,  rendering  many  of 
their  inclinations  "false"  because  they  stemmed  from  a  politically  skewed  culture 
that  systematically  messed  with  their  heads.  All  persons  are  heavily  influenced 
by  their  surroundings.  It  is  all  too  easy  to  impair  autonomy  by  claiming  to  further 
it  through  such  exclusions. '^^ 

As  for  coercion  and  undue  influence,  I  suggest  that  it  is  inappropriate  to 
claim  that  one  is  necessarily  coerced  when  one's  circumstances  are  straitened. 
"Your  money  or  your  life"  is  one  thing.  "Would  you  like  to  make  some  money 
having  a  child  for  me?"  is  something  else.  Concerns  about  the  social,  economic 
and  environmental  conditions  that  limit  choice  and  move  people  to  do  things  that 
they  would  not  do  if  they  were  better  off  do  not  justify  disregarding  their  choices 
within  that  prevailing  adverse  situation.  Impoverished  persons  are  not 
necessarily  made  better  off  by  restricting  their  options.  One  might  argue  that 
permitting  certain  choices  within  adverse  situations  improperly  ratifies  those 
conditions  and  thus  encourages  their  continuance.  But  this  is  more  an  argument 
about  strategies  to  bring  about  social  change  than  an  argument  about  autonomy. 
The  notion  that  the  output  of  bioethics  maintains  improper  incentives  to  avoid 
social  improvement  is  a  reason  for  repopulating  it  with  opposing  troops,  not  for 
radical  substitution  of  paradigms. 

It  may  also  be  that  claims  of  coercion  and  undue  influence  are  proxies  for 
worries  about  exploitation.  But  this  takes  us  far  afield,  and,  in  any  event,  is 
closely  related  to  issues  of  objectification,  reduction,  and  mere  use.'" 


1 32.  For  a  more  extended  discussion  of  the  possibilities  of  damaging  autonomy  by  addressing 
some  of  its  aspects  and  not  others,  see  Shapiro,  supra  note  121,  at  353-401. 

133.  These  ideas  are  discussed  more  extensively  in  Shapiro,  supra  note  47. 


76  INDIANA  LA W  REVIEW  [Vol.  33:17 


2.  Inattention  to  Ideas  of  Community  and  Responsibility.— \t  is  rare  that 
analysis  in  any  branch  of  bioethics  fails  utterly  to  attend  to  matters  of  community 
and  responsibility;  the  field  is  not  dominated  by  minimal-state  libertarians 
constantly  quoting  Robert  Nozick.'^"*  Discussion  of  "biological"  treatments  for 
mental  disorder  or  for  neutralizing  dangerous  persons  inevitably  pits  matters  of 
autonomy  against  community  protection  (to  identify  just  one  of  the  conflicts 
involved),  and  neither  gets  short  shrift  in  either  case  law  or  the  bioethics 
literature. 

Illustrations  are  not  hard  to  find.  In  Washington  v.  Harper^^^  for  example, 
the  interests  of  the  prison  community  and  the  community-at- large  overcame  the 
prisoner's  interest  in  avoiding  forced  treatment  that  intruded  on  his  immediate 
and  short-run  autonomy.  Of  course,  the  distinction  between 
institutional/communitarian  interests  and  personal  interests  is  not  a  sharp  one; 
indeed,  the  Court  thought  that  compelled  therapy  would  promote  the  prisoner's 
"medical  interests,"  despite  the  arguable  intrusion  on  autonomy.  ^^^  The  Court 
here  was  again  somewhat  simplistic,  but  it  at  least  saw  the  point. 

Discussion  of  innovative  methods  of  reproduction  is  another  example.  The 
literature  has,  from  the  start,  dealt  heavily  with  threats  to  women  and  to  feminist 
values,  risks  to  children,  and  impacts  on  community  beliefs  and  values.  Debates 
about  the  non-use  of  lifesaving  medical  and  nonmedical  care  and  about  assisted 
suicide  and  euthanasia  have  also,  from  the  start,  addressed  risks  to  normative 
structures  concerning  community  attitudes  favoring  strong  protection  of  life;  they 
have  not  just  confined  themselves  to  autonomy  and  relief  of  suffering.  The  oft- 
invoked  "slippery-slope"  analysis,  when  used  correctly,  must  include  the 
"learning  effects"  of  various  practices  and  institutions,  including  legal  regimes 
and  their  implementation,  on  the  community. '^^ 

Much  the  same  can  be  said  about  the  fields  of  genetic  control,  organ 
transplants,  and  virtually  anything  else  identified  as  "bioethical."  Scrutiny  of  the 
literature  does  not  support  the  claim  of  inattention  to  matters  beyond  self- 
regarding  fixations  on  autonomy  and  rights.  Genetic  technology's  threats  to 
employment  opportunities,  health  care,  social  status,  and  so  on  bear  on  both 
individualistic  and  community-oriented  values.  Despite  the  restrictions  on 
personal  autonomy  imposed  by  prohibiting  commercial  markets  in  organs  for 


1 34.  See  generally  ROBERT  NOZICK,  ANARCHY,  STATE,  AND  UTOPIA  ( 1 974). 

135.  494  U.S.  210(1990). 

136.  See  id.  at  222-23,  23 1  (referring  to  the  prisoner's  "medical  interests"  and  non-medical 
"interests"). 

137.  See  generally  Michael  H.  Shapiro,  Regulation  as  Language:  Communicating  Values 
by  Altering  the  Contingencies  of  Choice,  55  U.  PiTT.  L.  REV.  681,  713-30  (1994).  "Learning 
effects"  refers,  loosely  put,  to  changes  in  attitudes,  values  and  beliefs  arising  from  awareness  and 
observation  of  or  participation  in  social  institutions,  and  from  observed  behavior  generally.  "The 
idea  is  that  some  regulation  reflects,  implements,  reinforces  or  'expresses' — and  thus 
teaches — certain  values,  attitudes  and  beliefs.  It  does  so  by  repeatedly  being  perceived  through 
certain  frameworks,  in  much  the  same  way  that  any  human  conduct  is  perceived  and,  possibly, 
learned  from  over  time."  Id.  at  713  (footnote  omitted). 


1999]  IS  BIOETHICS  BROKE?  77 


transplantation,  these  markets  are  nevertheless  prohibited  because  of  concern  for 
the  preconditions  of  autonomy  (e.g.,  undue  influence,  "coercive"  financial 
circumstances,  authenticity);  and  the  risks  of  objectification,  erosion  of  socially 
preferred  attitudes,  and  racial/ethnic  caste-formation. ^^^ 

An  analytical  sidebar  is  called  for  here.  The  contrast  between  personal 
autonomy  and  community  constraints  is  easy  to  overstate.  There  is  a  clear 
overlap  between  them.  Simplistic  denunciations  of  a  literature  or  discipline  as 
favoring  one  to  the  exclusion  of  the  other  are  hard  to  defend.  Indeed,  a  purported 
attack  on  autonomy  by  communitarians  may  in  fact  count  as  a  partial  defense  of 
it.  For  example,  the  community's  worries  over  the  objectification  of  low-income 
groups  within  a  legal  market  for  organs  clearly  bear  on  the  autonomy  of  each 
potential  seller.  With  a  legal  market  for  organ  sales,  the  group's  overall  social 
and  economic  status  may  decline  further,  thus  decreasing  their  members' 
autonomy  by  reducing  their  opportunities.  In  turn,  each  individual  exercise  of 
autonomy  in  choosing  to  sell  an  organ  contributes  to  the  learning  effects  upon  the 
community  and  thus  creates  long-term  autonomy  risks  to  the  individuals  within 
it.  What  these  learning  effects  might  be,  however,  depends  on  many  variables. 
Our  practices  and  institutions  have  multiple  learning  effects  that  impair 
autonomy  in  some  senses  and  promote  it  in  others.  I  do  not  say  that  this  mixture 
of  conflict  and  confluence  of  values  is  always  clearly  discerned  by  participants 
and  auditors,  but  the  mixture  exists,  and  the  discipline's  words  and  actions  reflect 
this. 

Debates  about  genetic  control  reflect  the  same  implicit  or  explicit  attention 
to  these  conflict-  and  conflation-  ridden  values.  A  quick  look  at  the  growing 
literature  on  human  cloning  reveals  a  strong  focus  on  the  supposed  negative 
impacts  on  both  communitarian  and  individual  concerns. '^^  Although  I  view  the 
quality  of  analysis  as  weak,  it  contains  no  systematic,  delusional  exclusion  of 
relevant  categories  of  thought.  My  dim  view  of  the  merits  of  this  sub- literature 
does  not  lead  me  to  denounce  the  discipline  generally  nor  even  to  think  that  this 
literature  is  demented. 

3.  Inattention  to  Matters  of  Culture,  Ethnicity,  Race,  and  Gender. — If  this 
claim  of  inattention  is  plausible,  it  is  no  more  so  here  than  in  most  other  realms 
of  discourse  and  action.  Dominant  groups  in  any  society — and  the  dominated 


138.  See  id. 

139.  See.  e.g.,  GregoryE.  Pence,  WHO'S  Afraid  OF  Human  Cloning?  138, 141-46(1998) 
(discussing  the  possibility  of  adverse  changes  in  social  attitudes);  id.  at  100-101  (discussing 
personal  liberty);  Dan  W.  Brock,  An  Assessment  of  the  Ethical  Issues  Pro  and  Con,  in  CLONES  AND 
Clones:  Facts  and  Fantasies  About  Human  Cloning  141  (Martha  C.  Nussbaum  &  Cass  R. 
Sunstein  eds,,  1998)  (discussing  possible  individual  and  social  benefits  and  harms).  On  cloning, 
see  generally  Lori  B.  Andrews,  Is  There  a  Right  to  Clone?  Constitutional  Challenges  to  Bans  on 
Human  Cloning,  1 1  Harv.  J.L.  &  TECH.  643  (1998);  CLONING  HUMAN  BEINGS:  REPORT  AND 
Recommendations  of  the  National  Bioethics  Advisory  Commission  (1997);  Brock,  supra. 
For  an  earlier  but  still  important  work,  see  generally  Francis  C.  Pizzulli,  Asexual  Reproduction  and 
Genetic  Engineering:  A  Constitutional  Assessment  of  the  Technology  of  Cloning,  47  S.  Cal.  L. 
Rev.  476(1974). 


78  INDIANA  LAW  REVIEW  [Vol.  33:17 


themselves — often  fail  to  attend  to  the  importance  of  and  differences  among 
various  cultures,  races,  genders,  and  other  groupings.  Yet  the  very  birth  of 
bioethics  as  a  field  was  marked  in  part  by  uncovering  the  Tuskegee  syphilis 
research  on  uninformed  and  untreated  black  men,  as  well  as  identifying  other, 
non-racially  restricted  experimentation  on  human  subjects.  "*°  It  was  also  spurred 
by  recognition  of  the  need  to  sort  individuals  as  recipients  of  lifesaving  dialysis 
treatments  or  organ  transplants.'"^'  Bioethics  was  race,  gender  and  culture- 
sensitive  from  the  start  and  has  remained  so.  Moreover,  for  the  past  several 
years,  a  great  deal  of  scholarship  has  been  devoted  to  the  impact  of  race,  sex,  and 
culture  on  the  physician-patient  relationship,  the  process  of  informed  consent,  the 
delivery  of  health  care,  attention  to  the  needs  of  future  generations,  and  so  on.'"*^ 
It  remains  unclear  what,  as  a  matter  of  moral  and  legal  policy,  we  ought  to  do  in 
any  given  case:  should  we  defer  to  ideas  that  the  autonomous  unit  is  an  extended 
family  headed  by  a  matriarch  or  patriarch,  or  should  we  focus  largely  on  the 
individual  patient?  Should  we  evangelize  for  personal  autonomy  and  insist  that 
the  patient  herself  make  the  critical  choices?  As  I  said,  the  issues  have  long  been 
vetted  and  are  attended  to  in  increasingly  sophisticated  ways.  Compared  to  the 
similar  lack  of  success  outside  the  field,  the  failure  of  bioethics  to  resolve  fully 
the  issues  attending  multiculturalism  is  hardly  a  major  flaw. 

4.  Inattention  to  the  Risks  of  Reifying  Autonomy,  on  the  One  Hand,  and 
Compounding  Professional  Hegemony,  on  the  Other. — It  may  seem  ironic  that 
some  critics  who  complain  of  excessive  attention  to  autonomy  also  complain  of 
health  care  providers  and  institutions  exercising  inappropriate  control  over  one's 
life.  Of  course,  there  is  no  necessary  contradiction  here.  One  can  believe 
autonomy  is  overvalued  in  some  contexts  and  also  believe  that  its  proper  value 
is  threatened  in  other  contexts.  In  any  event,  the  clear  and  open  recognition  of 


1 40.  See  generally  JAMES  H.  JONES,  BAD  Blood:  The  Tuskegee  SYPHILIS  EXPERIMENT  4-6 
(expanded  ed.  1993);  Rothman,  supra  note  6,  at  70-84,  183. 

141 .  See  generallyDdi\/'\(\  Sanders  &  Jesse  Dukeminier,  Jr.,  Medical  Advance  and  Legal  Lag: 
Hemodialysis  and  Kidney  Transplantation,  15  UCLA.  L.  REV.  357  (1968). 

1 42.  See  Transcultural  Dimensions  in  Medical  Ethics  (Edmund  Pellegrino  et  al.  eds., 
1992);  Margaret  Olivia  Little,  Why  a  Feminist  Approach  to  Bioethics?,  6  KENNEDY  iNST.  ETHICS 
J.  1  (1996)  (part  of  Special  Issue:  Feminist  Perspectives  on  Bioethics);  Edmund  D.  Pellegrino,  Is 
Truth  Telling  to  the  Patient  a  Cultural  Artifact? ,  268  JAMA  1734  (1992);  Maura  A.  Ryan,  The 
Argument  for  Unlimited  Procreative  Liberty:  A  Feminist  Critique,  HASTINGS  CENTER  Rep., 
July/Aug.  1990,  at  6,  8,  9;  see  also  NORMAN  DANIELS,  JuST  HEALTH  CARE  (1985);  Leslie  J. 
Blackhall  et  al.,  Ethnicity  and  Attitudes  Toward  Patient  Autonomy,  274  JAMA  820  (1995)  (some 
groups  adhere  to  a  family-centered  decision  making  model);  Darryl  R.J.  Macer  et  al.,  International 
Perceptions  and  Approval  of  Gene  TTzem/Ty,  6  HUMAN  GENE  Ther.  791  (1995);  Mei-che  Samantha 
Pang,  Protective  Truthfulness:  The  Chinese  Way  of  Safeguarding  Patients  in  Informed  Treatment 
Decisions,  25  J.  Med.  ETHICS  247  (1999).  Cf  Peter  T.  Kilbom,  Filling  Special  Needs  of  Minority 
Patients,  N.Y.  TIMES,  Feb.  14,  1999,  at  16  (referring  to  the  views  of  Dr.  Louis  Sullivan,  former 
Secretary  of  Health  and  Human  Services  during  the  Bush  administration:  "'A  white  physician  can 
be  just  as  effective.'  But  Dr.  Sullivan  said  familiarity  with  patients'  race  and  heritage  led  to  better 
care."). 


1 999]  IS  BIOETHICS  BROKE?  79 


autonomy  can  discourage  the  consolidation  of  excessive  power  in  the  hands  of 
health  care  professionals.  A  concurrent  qualification  is  that  if  autonomy  is  not 
handled  with  adequate  sensitivity  to  its  preconditions  and  countervailing 
considerations,  we  may  make  things  worse  in  many  ways.  Autonomy,  rightly 
understood,  is  not  promoted  when  incompetent,  coerced,  or  unduly  influenced 
persons  are  left  to  their  unfettered  choices. 

Happily,  there  is  a  three-in-one  example  of  a  lament  about  autonomy  and 
bioethics,  combining  complaints  about  rational  autonomy,  promotion  of  the 
medical  establishment's  hegemony,  and  the  very  ideal  of  rational  thought. 

In  recent  years  there  has  been  an  increasing  critique  of  that 
philosophically  based,  predominantly  abstract,  rationalistic,  mode  of 
reasoning  in  bioethics,  known  as  principlism.  Unfortunately,  however, 
the  response  to  this  debate  through  postmodern  scholarship  has,  as  Wolf 
observes,  "scarcely  been  found  in  bioethics  to  date." ...  I  will  argue  that 
the  process  of  reifying  and  applying  autonomy  as  an  abstract  principle 
avoids  or  suppresses  an  understanding  of  the  evidence  which  points  to 
power  and  control  being  an  important  characteristic  of  bio-medical 
discourse.  The  danger  is  that  the  naive  rational  application  of  the 
principle  of  autonomy  within  the  substantive  rationality  of  the  powerful 
discourse  of  bio-medicine  will  only  have  a  legitimizing  effect  which 
would  affirm  rather  than  challenge  the  status  quo.  The  risk  is  that 
bioethical  "talk"  about  autonomy  may  only  create  the  illusion  of 
providing  the  self-determining  protection  supposedly  afforded  to  the 
individual  by  the  application  of  this  principle.  By  engaging  in  such 
rhetoric,  bioethicists  are  unwittingly  undermining  the  very  value  they 
profess  to  support.  [There  is  then  a  quotation  referring  to  "the 
oppressive  status  quo".]'"*^ 

We  are  lucky  to  find  so  many  questionable  notions  all  in  one  place,  and,  as 
an  added  fillip,  in  a  text  replicating  a  "postmodern"  literary  style.  This  critique 
surely  merits  its  own  critique. 

First,  the  opening  account  of  principlism  uses  the  phrase  "reifying  and 
applying  autonomy  as  an  abstract  principle."  Principlism  tries  to  avoid 
"reification"  of  autonomy  as  an  "abstract[ion]"  by  viewing  it  as  a  mid-level 
principle  that  contends  with  other  mid-level  principles — beneficence, 
nonmaleficence,  and  justice.  Has  principlism  been  conflated  here  with  abstract 
philosophical  thought  generally? ''*'* 

We  are  also  told  in  the  quoted  passage  that  "response  to  this  debate  [about 
reifying  autonomy]  through  postmodern  scholarship  has  .  .  .  'scarcely  been 
found'"  in  bioethics.'"*^  It  is  not  said  just  what  is  absent.  It  is  very  clear  that  there 


143.  Pam  McGrath,  Autonomy,  Discourse,  and  Power:     A  Postmodern  Reflection  on 
Principlism  and  Bioethics.  23  Med.  &  PHIL.  516-17  (1998)  (citations  omitted). 

144.  See   Beauchamp  &  CHILDRESS,   supra  note    105,   at    15   (describing   levels   of 
generality — ethical  theory,  principles,  rules,  and  particular  judgments). 

145.  Mat  516. 


80  INDIANA  LAW  REVIEW  [Vol.  33:17 


is  no  deficit  of  critical  analysis  of  the  limitations  and  risks  of  using  the  term 
"autonomy"  loosely,  and,  to  turn  matters  around,  it  is  "naive"  to  think  otherwise. 
Perhaps  the  author  thinks  that  anyone  who  offers  a  critique  of  autonomy  is  not 
in  the  field  of  bioethics,  so  the  field  stands  infirm  for  lack  of  appropriate  internal 
critiques. 

As  for  affirming  the  status  quo,  the  postmodern  ideological  position  is 
apparently  that  the  prevailing  conditions  embrace  too  much  medicalization  and 
physician  control  and  implement  a  biomedical  technological  imperative  oblivious 
to  variant  circumstances.  But  whether  the  status  quo  is  truly  "oppressive" 
depends  on  a  set  of  value  judgments  that  require  far  more  attention  to  context 
than  is  provided.  There  is  no  automatic  benefit  from  challenging  the  status  quo. 
If  conditions  are  morally  wanting — as  when  the  status  quo  is  patriarchal  and  a 
given  practice  consolidates  this  situation  without  compensating  benefits — ^they 
should  be  challenged.  If  they  aren't  wanting  in  some  respect,  however,  one 
might  rock  the  boat  a  bit  to  encourage  review  and  rethinking,  but  trying  to 
dislodge  the  status  quo  would  be  an  unsupportable  maneuver. 

Apparently  it  is  not  all  applications  of  autonomy  but  only  its  "rational 
application"  that  is  risky.  What  is  the  idea  here?  Is  "rational"  a  synonym  for 
"formalistic"  (something  of  a  swear  word,  as  already  mentioned)?  What  is  the 
foundation  for  the  complaint  about  medical  hegemony?  That  there  is  no  such 
thing  as  medical  expertise  to  which  anyone  need  defer?  That  too  many 
physicians  are  Republicans? 

The  author  believes  that  autonomy  talk  can  delude  us  into  thinking  we  are 
being  protected  by  the  rational  principle  of  autonomy.  This  is  true:  such 
delusions  are  possible.  This  is  also  old  news.  Dithering  on  about  peace, 
freedom,  equality,  and  whatever,  can  inspire  a  false  sense  of  confidence.  But 
why  would  one  think  that  autonomy  talk  within  bioethics  is  lulling  anyone  into 
a  comfortable  but  false  belief  that  things  are  more  or  less  OK? 

Perhaps  the  problem  lies  partly  with  autonomy's  internal  tensions,  which 
have  long  been  mined  by  opposing  sides,  all  claiming  to  be  vindicating 
autonomy.  Some  see  forced  treatment  of  the  competent  but  mentally  disordered 
as  constitutive  of  oppression.  Some  even  see  such  treatment  of  incompetent 
patients  as  oppressive.  The  problem  is  that  there  are  autonomy  "vectors"  pulling 
different  ways.  Forced  treatment  of  mental  disorders  may  promote  long-run 
autonomy  by  enhancing  a  patient's  opportunities.  It  is  doubtful  that  this  is 
oppression  where  the  patient  is  incompetent.  Whether  it  is  oppression  where  the 
person  is  competent  but  diminished  by  ameliorable  illness  is  far  less  clear.  Can 
this  idea  of  long-run  autonomy  be  abused?  Think  of  casually  invoking  it  to  shut 
patients  up  whether  they  are  competent  or  not,  and  even  when  they  are  not  that 
ill?  Absolutely.  "Autonomy"  and  "incompetenf  are  dangerous  terms,  especially 
when  paired  in  an  effort  to  treat  objecting  patients  by  invoking  the  vision  of  a 
more  autonomous  and  presumably  more  satisfying  future.  Perhaps  the  medical 
establishment  malevolently  installed  these  concepts  in  their  treatment  protocols 
to  fortify  their  powers. 

But  critics  of  autonomy  and  of  the  medical  establishment  can  also  threaten 
autonomy.  Suppose  a  competent  patient  delegates  some  important  medical 
decisions  to  her  provider  (although  we  would  say  that  a  reasonably  autonomous 


1 999]  IS  BIOETHICS  BROKE?  8 1 


person  would  not  do  so  because  it  compromises  the  self-directional  aspect  of 
autonomy).  We  point  this  out  to  her,  and  she  responds  that  as  far  as  she  is 
concerned,  the  pursuing-my-preferences  element  of  autonomy  trumps  the  self- 
direction  aspect.  She  prefers  to  delegate.  Insisting  that  she  decide  interferes  with 
her  autonomy-as-freedom-to-implement-ones-own-wishes.  Perhaps  she  argues 
that  she  self-directedly  decided  to  give  up  some  self-direction.  One  can  do  this 
in  health  care  as  well  as  in  home  construction,  although  the  respective  risks  to 
autonomy  may  be  quite  different.  There  are  no  important  values  that  cannot  be 
turned  against  themselves.  If  the  particular  sense  of  the  value  is  not  specified,  it 
may  be  wrong  to  say  that  invoking  the  value  misleads  us  into  thinking  it  is  being 
promoted.  Talking  about  equality  without  specifying  whether  it  refers  to  some 
form  of  equality  of  opportunity  or  some  form  of  equality  of  outcome  may  make 
all  the  difference  in  the  world.  If  one  is  fixed  on  equality  of  outcome,  then  when 
others  extol  the  promotion  of  equality— for  them,  equality  of  opportunity — the 
two  sides  are  at  cross-purposes.  Talking  blandly  about  how  our  society  promotes 
equality,  freedom,  or  justice  thus  does  not  tell  us  what  is  going  on  or  who  is 
being  misled  in  what  way  by  existing  work  in  bioethics.  Assuming  we  do  not 
abandon  autonomy — after  all,  it  is  only  its  "rational  application"  that  is 
condemned — ^what  are  the  alternative  forms  of  action  and  rhetoric?  (I  return  to 
this  point  shortly,  when  inquiring  into  the  author's  preferred  modes  of  operation.) 

Consider  next  the  author's  complaint  about  "the  modernist  notion  of  revering 
principle  over  context  .  .  .."''*^  But  "contexf  cannot  be  identified,  parsed, 
understood,  identified  as  relevant,  and  relied  upon  without  reference  to 
"principle."  We  wouldn't  know  what  to  look  for  as  "context."  If  we  look  for 
sick,  suffering  patients,  we  do  so  partly  because  we  are  wired  up  that  way,  but 
also  because  of  principles  embodying  duties  to  relieve  the  suffering.  Otherwise, 
the  asserted  context  is  just  a  mass  of  incoherent  sensations.  Of  course,  principle 
cannot  lead  us  to  a  decision  without  premises  about  particulars.  That  there  are 
formalists  who  need  to  attend  more  to  situational  circumstances  is  already 
known.  Is  that  what  this  claim  is  about?  To  say  that  "autonomy  must  be 
contextual ized"^"*^  states  either  the  elementary  idea  that  abstractions  do  not 
provide  conclusions  without  concretions  (the  context,  circumstances,  particulars 
of  the  situation,  etc.),  or  makes  the  factual  claim  that  autonomy  is  regularly 
applied  flatfooted  and  abusively  because  providers  fail  to  consider  individualized 
patient  needs.  This  is  not  supported,  except  by  unpersuasive  anecdotes 
concerning  the  burdens  of  wearing  hospital  gowns  (a  universal  complaint)  and 
having  blood  drawn  more  than  one  wishes.*"*^  The  fact  that  power  is  abused  is  an 
unfortunate  fact  of  life,  but  there  is  little  evidence  that  the  prevailing  bioethics 
rhetoric  compounds  rather  than  reduces  the  abuse,  or  that  postmodern  rhetoric 
would  reduce  it  better. 

Of  course,  much — perhaps  everything — rests  on  what  constitutes  abuse  or 
other  improper  treatment  of  patients.    Drawing  blood  whenever  it  is  needed, 


1 46.  McGrath,  supra  note  1 43 ,  at  5 1 8. 

147.  /^.  at  522. 

148.  Seeid.2X51\'22. 


82  INDIANA  LAW  REVIEW  [Vol.  33:17 


which  McGrath  laments,''*^  is  not  a  persuasive  example.  If  it  is  done  without 
permission  or  done  impolitely,  there  is  no  serious  issue:  the  medical  staff  is  not 
supposed  to  do  that.  However,  formal  informed  consent  rituals  are  not  ordinarily 
invoked  here  because  most  persons  know  that  blood  draws  may  be  imperative  for 
diagnosis,  monitoring,  and  successful  treatment.  And  it  is  "rational  autonomy," 
that  insufferably  dangerous  notion,  that  is  responsible  for  establishing  the 
requirement  of  permission,  if  not  civility,  in  the  first  place.  The  very  complaints 
about  blood  draws  and  drafty  hospital  gowns  rest  rather  heavily,  if  not 
exclusively,  on  autonomy  to  pursue  our  preferences  to  be  pain  free  and  retain  our 
dignity  by  being  clothed  on  all  four  of  our  sides. 

Oddly,  McGrath  refers  favorably  to  the  crystallization  of  the  right  to  refuse 
treatment,  a  major  right  deriving  partly  from  autonomy  considerations  and  seems 
assign  some  credit  for  this  the  workings  of  bioethics  over  an  extended  period. '^° 
So  what's  the  beef  here?  If  the  author  favors  a  presumption  against  the  use  of 
"reductionist,"  "medicocentric"'^'  biomedical  technology,  there  is  next  to  nothing 
offered  to  support  this.  It  appears  simply  as  an  outgrowth  of  an  ideological 
indisposition  toward  medical  technology,  which  not  everyone  shares  and  which 
must  be  defended.  It  is  simply  not  enough  to  point  out,  as  nearly  everyone  now 
knows,  that  medical  technology  as  applied  to  the  dying  may  or  may  not  be 
beneficial  or  desired.  Nor  can  one  rest  on  the  well-known  inclination  of  some 
medical  personnel  to  use  medical  means  even  when  not  called  for.  What,  then, 
is  the  preferred  alternative  to  "reductionist"  and  "medicocentric"  medicine?  No 
technology  is  risk-free — but  not  using  technology  is  also  not  risk-free. 

The  closest  approach  by  the  author  to  a  recommendation  of  what  to  do  is 
hard  to  follow.  McGrath  describes  the  operation  of  a  particular  hospice,  stating: 

In  the  discourse  of  [the  hospice]  the  idea  of  autonomy  is  not  a  bioethical 
principle  to  be  applied  to  difficult  situations,  but  a  "way"  of 
continuously  responding  to  the  needs  of  the  client  and  his  family.  .  .  . 
"Basically  what  I  see  Karuna  [the  hospice]  as  doing  is  offering  people 
a  choice."  [quoting  a  "participant"  (patient)  in  the  hospice]  This 
commitment  to  a  broader  notion  of  choice  does  not  mean  that  members 
of  this  organization  are  not  respectful  of  the  more  limited  perspective  of 
information  giving  and  nonjudgmental  support . .  .  .'^^ 

But  this  alternative  vision  is  not  "alternative"!  As  far  as  I  can  understand  the 
quoted  remarks  of  the  hospice  participant,  they  are  exactly  what  our  vilified 
principle  of  autonomy  calls  for  in  that  context.  The  passage  is  difficult  to  follow, 
however.  What  is  meant  by  saying  autonomy  is  "not  a  bioethical  principle"  but 
a  "way"?  What  "broader  notion  of  choice"  is  at  work? 


149.  Id.   at  521    (quoting  a  patient  statement  from  THROUGH  THE  PATIENT'S  EYES: 
Understanding  and  Promoting  Patient-Centered  Care  (Margaret  Gertis  et  al.  eds.,  1993)). 

150.  See  id.  dX  523. 

151.  Mat  518. 

152.  Id.  at  525-26.  The  author  quotes  remarks  such  as  "[o]ffer  them  the  best  options,  best 
information,  what  the  likely  outcome  of  those  options  . . .  they  can  make  whatever  choice."  Id. 


1999]  IS  BIOETHICS  BROKE?  83 


Puzzlingly,  the  author  then  complains  about  "just  giving  information  and 
asking  for  signatures  on  a  consent  form,"  and  extols  "choice  by  doing."'^^ 
Perhaps  she  has  reduced  autonomy  solely  to  information-giving.  It  is  more  than 
that.  Moreover,  one  can  autonomously  decline  to  receive  certain  information.'^"* 
Although  there  may  be  limits  to  our  rights  to  refuse  information,  no  serious 
autonomy  scholars  say  simply  that  autonomy  requires  that  you  receive  relevant 
information  whether  you  like  it  or  not. 

And  what  is  "choice  by  doing"?  It  seems  to  be  twenty- four  hour  "holistic" 
care  with  counseling  and  psycho-social  support. '^^  Where  is  the  choice  by  doing 
here?  Who  is  doing/choosing  what?  The  patient  isn't  doing  anything — everyone 
else  seems  to  be  hovering  around  her  all  the  time.  Can  she  refuse  this 
omnipresent  caring,  or  does  entering  the  hospice — an  establishment  of  its 
own — require  her  to  buy  into  what  it  does?  If  so,  is  this  a  vindication  of 
autonomy? 

One  concludes,  not  that  the  principle  of  rational  autonomy  is  infirm,  but  that 
people  do  not  regularly  practice  what  they  preach:  physicians  abuse  their  power 
and  patients  misuse  the  system.  That  is  hardly  the  fault  of  bioethics — ^though  it 
must  attend  to  how  real-world  health  care  systems  (like  all  systems)  may  fail,  and 
to  consider  what  fail-safe  mechanisms  to  install.  The  hospice  in  question  may 
provide  more  "holistic"  and  "spiritual"  care  (this  would  seem  to  involve 
beneficence  at  least  as  much  as  autonomy),  but  this  is  largely  a  matter  of  highly 
variable  personal  preference  or  taste.  In  any  event,  the  "richer  notion  of 
autonomy"'^^  the  author  endorses  is  not  only  not  unknown  to  bioethics,  it  is,  from 
what  I  understand  of  her  account,  the  dominant  notion.  Its  contrast  with  the 
supposedly  objectionable  "'clear  and  distinct  idea'  .  .  .  articulated  [in  a] 
principle"'^^  is  not  made  clear.  Is  she  asserting  that  her  idea  is  not  "clear  and 
distinct" — or  simply  that  it  is  not  embedded  in  a  principle — merely  in  a  "way"? 

F.  Excessive  Attention  to  Rights 

While  the  critique  of  rights  parallels  the  complaints  about  making  too  much 
of  autonomy,  it  goes  beyond  it.  This  is  no  surprise  because  the  actual  vindication 
of  autonomy  and  other  values  is  often  accomplished  through  recognition  of  legal 
rights  enforced  by  the  coercive  power  of  the  state.  Indeed,  talk  of  rights  in  any 
field  using  any  moral  characterization  (e.g.,  "natural  rights")  is  likely  to  devolve 
(not  "reduce")  to  matters  of  law.  If  rights  analysis  is  taken  seriously,  legal 
recognition  and  enforcement  are  inevitably  considered,  if  not  always 
implemented. 

Criticism  of  rights-based  systems  may  rest  on  a  mistaken  notion  of  how  the 
term  "rights"  is  being  used.  It  may  describe  a  bottom  line  conclusion  that  has 


153.  Mat  526. 

1 54.  See  Shapiro,  supra  note  1 2 1 ,  at  3  82-83 . 

155.  See  McGrath,  supra  note  143,  at  526. 

156.  See  id.  2X52%. 

1 57.  Id.  (quoting  Albert  R.  Jonsen,  The  New  Medicine  and  the  Old  Ethics  ( 1 990)). 


84  INDIANA  LAW  REVIEW  [Vol.  33:17 


already  taken  account  of  claims  of  presumptive  right  and  countervailing 
considerations  in  a  particular  category  of  case;  or  it  can  refer  to  the  starting 
presumption  before  countervailing  matters  are  dealt  with;  or  it  may  be  used  to 
describe  a  "trump"  or  absolute  of  sorts  that  rigorously  excludes  countervailing 
considerations.  Other  rights  may  be  absolutes.  Think  of  the  constitutional  bans 
on  bills  of  attainder, '^^  or  the  Thirteenth  Amendment's  ban  on  slavery.'^^  (Of 
course,  the  meanings  of  "bill  of  attainder"  and  "slavery"  may  be  sufficiently 
doubtful  that  one  is  not  sure  what  is  "absolutely"  forbidden.)  To  the  extent  that 
the  rights  recognized  are  viewed  as  absolutes  rather  than  presumptions,  the 
countervailing  considerations,  such  as  they  are,  are  built  into  the  articulation  of 
the  right. '^°  In  the  United  States,  the  "logic"  of  rights  can  take  any  of  these 
forms,  although  it  may  be  hard  to  tell  from  the  text.  In  matters  of  constitutional 
law,  the  initial  invocation  of  a  right  is,  far  more  often  than  not,  best  understood 
as  a  presumptive  or  prima  facie  claim. 

One  can  of  course  claim  rights  for  all  sorts  of  things — e.g.,  non-interference 
with  and  even  affirmative  access  to  physician-assisted  suicide,  abortion,  food, 
employment,  health  care,  insurance,  shelter,  and  so  on.  One  can  also  focus  on 
such  rights  while  failing  to  consider  matters  of  duty  or  responsibility,  injuries  to 
others,  injuries  to  communities,  and  injury  to  the  rights-claimants  themselves. 
As  one  might  expect,  sharp  contrasts  between  rights-talk  and  responsibility/duty- 
talk  are  dangerous.  Sometimes  duties  and  responsibilities  are  the  correlatives  of 
rights  held  by  others.  And  sometimes  they  may  track  "interests"  of  others  that 
do  not  rise  to  matters  of  right.  In  any  case,  depending  on  what  philosophical  or 


158.  U.S.  CONST,  art.  I,  §  9  cl.  3,  10  cl.  1. 

159.  /d  amend.  XIII. 

1 60.  The  parallels  to  the  categorization  vs.  balancing  issue  in  constitutional  law  are  obvious. 
See  generally  Kathleen  M.  Sullivan,  Post-Liberal  Judging:  The  Roles  of  Categorization  and 
Balancing,  63  U.  COLO.  L.  Rev.  293  (1992).  But  cf.  John  Ladd,  Legalism  and  Medical  Ethics,  in 
Contemporary  Issues  IN  Biomedical  Ethics  1  (John  W.Davis  etal.eds.,  1978).  Ladd  discusses 
rights-talk  as  against  "responsibility"  talk: 

[A]  responsible  decision  [in  bioethics]  may  require  consideration  of  such  different 

things  as  risks  and  benefits,  other  relationships,  concerns,  needs  and  abilities  of  persons 

affected  by  and  affecting  the  decision.  In  addition, ...  it  is  usually  necessary  to  "weigh" 

a  number  of  factors  against  each  other;  the  final  decision  often  requires  what  we 

generally  call  "judgment".  .  .  .  Decisions  based  on  rights,  on  the  other  hand,  are  quite 

different.  They  do  not  permit  taking  into  account  most  of  the  considerations  mentioned, 

and  they  do  not  involve  the  same  kind  of  weighing,  deliberation,  judgment,  etc.,  that  is 

called  for  in  cases  of  responsibility. 

Id.  at  27-28.   As  an  across-the-board  matter  within  legal  discourse,  this  is  not  the  best  way  to 

describe  matters.    Much  depends  on  what  is  meant  by  "the  same  kind  of  weighing  .  .  .  ." 

Adjudication   of  fundamental    liberty   interests   may   downgrade   various   state   interests   as 

uncompelling  or  unimportant,  at  least  in  the  case  at  hand,  but  at  the  threshold  of  argument,  the 

ultimately  outweighed  interests  are  material — and  remain  so  for  future  cases.  The  nature  of  the 

connection  between  the  government's  action  and  its  asserted  or  supposed  goals  is  also  evaluated 

within  the  standard  of  review  being  applied. 


1999]  IS  BIOETHICS  BROKE?  85 


even  religious  system  of  thought  we  invoke,  the  two  different  forms  of  talk  have 
major  links. 

There  are  two  complaints  about  rights-based  implementation  of  interests  that 
are  particularly  relevant  here.  One  is  that  the  claim  of  right,  whether  against  the 
state  or  private  parties,  concerns  something  that  the  claimant — or  possibly 
anyone — should  not  receive  or  be  able  to  avoid,  simply  upon  making  the  claim. 
The  second  complaint  is  that  although  a  given  interest  ought  to  be  promoted,  it 
is  generally  better  pursued  by  means  other  than  claiming  legal  or  perhaps  even 
moral  rights,  whether  viewed  as  presumptive,  bottom-line,  or  absolute. 

As  to  the  first  complaint,  whether  what  is  claimed  as  a  right  (to  receive  or 
avoid)  is  a  fit  one  for  rights  recognition  depends  upon  the  political  theories  and 
philosophies  dominating  the  scene.  A  fair  example  might  contrast  a  right  against 
interference  by  the  government  publishing  with  one's  writings,  with  a  right  to  a 
minimum  income,  adequate  housing  or  abortion.  The  first  is  essential  to  a 
democratic  republic.  The  rest  are  contested.  Such  rights  are  written  into  some 
constitutions,  but,  in  the  view  of  most,  not  our  own. 

As  to  the  second  complaint,  it  would  be  coherent  to  argue  that  we  should  be 
able  to  receive  affirmative  assistance  in  dying,  but  that  openly  formalizing  this 
by  recognizing  and  enforcing  a  constitutional  right  to  such  assistance  is  too 
perilous  (not  to  mention  unjustified  by  a  right  reading  of  the  constitution).  It 
would  encourage  a  weakening  of  pro-life  values,  have  an  excessive  error  rate, 
lead  step  by  step  to  non-voluntary  euthanasia,  devalue  not  only  persons  who  are 
terminally  ill  but  non-terminal  disabled  persons  as  well,  and  ultimately  expand 
to  suicide-on-demand  for  everyone.'^'  Whether  this  argument  is  sound  is  not  the 
point:  I  am  merely  giving  an  illustration  of  an  argument  against  vindicating  as 
a  matter  of  right  what  everyone  concedes  is  an  interest — ^the  avoidance  of 


161.  See  generally  Sam  Howe  Verhovek,  Oregon  Reporting  15  Deaths  in  1998  Under 
Suicide  Law,  N.Y.  TIMES,  Feb.  1 8,  1999,  at  Al .  This  article  suggest  that  in  these  first  1 5  cases,  that 
most  of  the  decisions  to  seek  and  use  physician-assisted  suicide  were  based  on  feared  losses  of 
control  and  autonomy  generally,  not  on  severe  physical  pain  or  discomfort.  See  id;  see  also  Chin 
et  a!.,  supra  note  1 1 6,  at  577  ("[T]he  decision  to  request  and  use  a  prescription  for  lethal  medication 
was  associated  with  concern  about  loss  of  autonomy  or  control  of  bodily  functions,  not  with  fear 
of  intractable  pain  or  concern  about  financial  loss.");  Wesley  J.  Smith,  Dependency  or  Death? 
Oregonians  Make  A  Chilling  Choice,  WALL  ST.  J.,  Feb.  25,  1999,  at  Al 8  (1999  WL-WSJ 
5442052).  Smith  states  that  none  of  the  first  1 5  persons  who  died  as  a  result  of  Physician-Assisted 
Suicide  ("PAS")  was  pushed  into  this  by  intractable  pain  or  suffering.  The  patients  evidently  had 
strong  beliefs  in  autonomy  and  suicide  was  chosen  because  of  fears  of  future  dependence.  The 
author  states  that  this  was  not  the  expected  result — ^that  choosing  PAS  would  be  a  last  resort  against 
unrelenting  and  intolerable  suffering.  See  id.  He  indicates  that  pain  was  not  a  factor  in  a  single 
case  of  PAS  among  this  group.  See  id.  He  also  suggests  that  "legalization  in  Oregon  has  actually 
widened  the  category  of  conditions  for  which  for  which  [PAS]  is  seen  as  legitimate."  Id.  In  his 
discussion  of  disabled  and  elderly  persons,  he  concludes  the  "dehumanizing  message  is  that  society 
regards  such  lives  as  undignified  and  not  worth  living."  Id.  The  author  notes  that  the  information 
about  PAS  came  from  physicians  who  did  the  prescribing,  not  from  those  who  did  not  assist  their 
patients  in  dying.  See  id. 


86  INDIANA  LAW  REVIEW  [Vol.  33:17 


suffering,  particularly  severe  suffering  at  the  end  of  life. 

The  critique  of  rights  recognition — especially  legal  rights — might  benefit 
from  addressing  the  idea  that  a  legal  right  is  linked  to  the  possibilities  of 
enforcement  (whether  or  not  one  thinks  there  are  "rights  without  remedies"). 
This  of  course  involves  matters  of  legal  process  and  legal  coercion.  Some 
matters  should  not  be  embraced  by  such  processes.  No  one  has  a  right  that 
another  person  fall  in  love  with  her/him.  How  would  it  be  enforced?  On  the 
other  hand,  a  child  has  a  right,  if  not  to  the  love  of  her  parents,  then  to  adequate 
nurture  and  support  which  may  indeed  include  presenting  an  appearance  of 
loving  the  child.  This  can  be  enforced,  if  clumsily. 

There  is  thus  something  to  the  claim  that  vindicating  certain  interests  should 
not  take  the  form  of  recognizing  enforceable  rights  against  specified  parties.  The 
dispute  is  about  what  sorts  of  interests  ought  to  be  the  subject  of  legal  rights  and 
what  sorts  should  not,  whether  they  have  a  role  as  moral  rights.  Have  claims  of 
right,  as  extolled  in  the  bioethics  literature  and  as  vindicated  in  laws  or 
regulations  or  judicial  decisions,  been  overdone  and  oversold?  If  so,  which 
rights,  and  in  what  ways  overdone?  It  is  not  obvious  that  bioethics  is  guilty  of 
this,  but  it  is  inappropriate  to  single  out  bioethics  as  the  sole  or  main  culprit. 
Legislatures,  courts,  and  government  agencies  may  be  equally  responsible,  quite 
independently  of  bioethics  commentaries.  The  argument  against  rights  covers  a 
far  broader  segment  of  law  and  commentary  than  that  housed  in  bioethics.  This, 
of  course,  does  not  let  bioethics  off  the  hook.  Perhaps  it  should  have  leapt  off  the 
rights  bandwagon.  Yet  it  remains  unclear  what  rights  should  not  have  been 
recognized  or  what  the  fallout  from  such  recognition  has  been. 

There  is  another  interpretation  of  the  rights  critique  that  deals  less  with  legal 
rights  and  more  with  bedside  conversations  and  patient-physician  and  patient- 
institution  relations.  Suppose  a  patient,  before  an  examination,  announces  to  the 
physician  that  she  has  a  legal  right  to  be  examined  with  due  care  as  defined  by 
prevailing  medical  custom,  to  be  given  the  information  a  reasonable  patient 
would  want  to  know  under  the  circumstances,  and  to  be  treated  with  dignity.  All 
true.  But  why  say  it?  Is  it  to  put  the  Fear  into  a  physician  of  a  patriarchal  bent? 

But  this  view  of  the  rights  critique  does  not  show  it  in  a  better  light.  Few 
question  the  point  that  as  a  matter  of  civilized  human  interaction,  it  is  usually 
unnecessary  and  often  counterproductive  to  start  out  with  what  is  in  effect  a 
demand,  although  this  may  well  happen. 

It  seems  intuitively  clear  that  there  is  a  connection  between  protests  about 
rights  claims  and  about  "overlegalization."'^^  The  latter  occurs  (in  part)  when 
matters  that  should  not  be  the  subject  of  legal  rights  (or  powers  or  privileges  or 
other  legal  relations)  and  procedures  are  nevertheless  implanted  in  that  domain. 
So,  a  few  remarks  on  overlegalization  are  in  order. 


162.  See  Alexander  Morgan  Capron  &  Vicki  Michel,  Law  and  Bioethics,  27  LOY.  L.A.  L. 
Rev.  25, 35-36  (1993)  (The  authors  briefly  review  multiple  aspects  of  "bioethics"  and  its  historical 
origins;  note  the  critique  of  "rights  talk"  but  indicate  that  many  legal  commentators  "resist  over- 
legalizing  the  field";  the  authors  also  urge  that  a  central  concern  of  law  and  bioethics  "is  to  discern 
the  limits  of  law  as  a  mechanism  to  structure  concepts  and  relationships  in  health  care"). 


1999]  IS  BIOETHICS  BROKE?  87 


G.  Overlegalization 

L  What  Is  It? — "Overlegalization"  may  refer  to  several  processes  and 
outcomes:  the  use  of  formal  procedures;  the  substantive  nature  and  scope  of 
regulatory  fields  or  of  particular  legal  rules;  the  application  of  certain  legal 
relations — rights,  powers,  privileges,  immunities — ^to  certain  situations;  the 
specific  legal/analytic  techniques  involved  in  a  dispute;  the  idea  of  invasion  of 
individual  or  familial  privacy  and  autonomy  through  legally  authorized  or 
immunized  intervention  by  "outsiders" — a  breach  of  the  "public/private"  border; 
the  asserted  improper  transformation  of  "moral"  issues  into  legal  issues;  or  the 
announcement  and  implementation  of  any  principles,  standards  and  rules  that  cut 
against  firm  community  norms. 

One  can  thus  see  some  obvious  and  towering  ambiguities  in  complaints  of 
overlegalization.  "This  isn't  fit  for  legal  regulation"  is  quite  different  from  "You 
set  up  the  substantive  and  procedural  rules  improperly."  The  latter  is  not  best 
described  as  "overlegalization"  and  I  will  not  so  consider  it  here.  The  term 
generally  suggests  that  the  state  has  gone  beyond  the  proper  limits  of  law- 
governance,  rather  than  simply  making  a  mistake  in  constructing  the  law  in  a 
particular  way.  The  fact  remains,  however,  that  a  claim  of  overlegalization  may 
inappropriately  be  applied  to  matters  dealt  with  nonoptimally  by  formal  legal 
mechanisms  that  are  otherwise  rightly  in  place. '^^ 

But  what  does  it  means  to  suggest  that  some  province  of  human  action  should 
be  beyond  legal  intervention,  perhaps  even  of  an  "informal"  or  "alternative"  sort? 
It  does  not  seem  to  be  a  call  for  anarchy.  It  does  not  even  seem  to  be  a  claim  that 
there  are  areas  utterly  beyond  "the  rule  of  law."  Although  it  may  seem 
paradoxical  to  say  so,  complaints  about  overlegalization  are  in  a  sense  complaints 
that  the  rule  of  law  itself  is  impaired  or  has  failed  because  it  has  subjected 
autonomous  persons  to  inappropriate  regulation,  in  violation  of  some  basic 
principle. 

It  is  also  difficult  to  know  what  to  make  of  private  ordering  "outside"  law 


1 63 .  See  Daniel  Callahan,  Escaping  from  Legalism:  Is  It  Possible?,  HASTINGS  CENTER  REP. 
Nov.-Dec.  1996,  at  34.  "Legalism,  may,  then,  be  defined  as  the  translation  of  moral  problems  into 
legal  problems;  the  inhibition  of  moral  debate  for  fear  that  it  will  be  so  translated;  and  the  elevation 
of  the  moral  judgments  of  courts  as  the  moral  standards  of  the  land."  Id  Callahan  attributes  this, 
at  least  in  part,  to  an  "enormous  moral  vacuum  in  this  country,  which  for  lack  of  better  institutional 
candidates  has  been  left  to  the  law  to  fill."  Id  at  34-35.  This  may  roughly  describe 
"overlegalization,"  but  I  do  not  think  that  "legalism,"  whether  excessive  or  not,  encompasses  all 
"translation  of  moral  problems  into  legal  problems."  For  one  thing,  there  are  no  true  "translations" 
of  this  sort.  For  another,  "doing  law"  entails  the  entry,  in  one  form  or  another,  of  moral  norms, 
either  in  enacting  or  interpreting  and  applying  laws.  The  announcement  of  legal  norms  may  also 
reinforce  the  moral  status  of  important  values.  See  also  George  J.  Annas,  Facilitating  Choice: 
Judging  the  Physician's  Role  in  Abortion  and  Suicide,  1  QUINNIPIAC  HEALTH  L.  J.  93  (1996) 
(complaining  about  too  much  law  in  bioethics,  and  characterizing  bioethics  as,  at  least  in  part, 
dealing  heavily  with  analysis  of  the  physician-patient  relationship). 


88  INDIANA  LAW  REVIEW  [Vol.  33:17 


and  courts,  without  the  direct  influence  of  particular  rules,  but  nevertheless 
"within"  classic  domains  of  law  and  probably  operating  under  its  influence 
("within  its  shadow").  One  thinks  of  Ellickson's  description  of  "informal  norms 
of  neighborliness"  that  may  differ  in  content  and  impact  from  legal  rules. '^"^ 
Some  "informal"  norms  are  nevertheless  part  of  a  "customary"  legal  system. 
"Law,"  even  as  we  use  it  in  "developed"  contemporary  culture,  is  not  confined 
to  courts  or  legislatures  or  law  enforcement  officers  in  action.  But  here  we  are 
skirting  the  edges  of  the  dreaded  question-what  is  law?  All  I  do  here  is  mention, 
not  the  well  known  jurisprudential  literature,  but  the  less  well  known  work  of 
legal  anthropologists.  They  do  not  settle  the  conceptual  issue  about  the  range  of 
"law,"  but  their  work  illustrates  the  possible  varieties  of  what  might  rightly  be 
called  "law.""'^ 

The  idea  that  overlegalization  is  best  viewed  as  the  wrongheaded  assimilation 
of  moral  issues  into  the  law  contains  a  kernel  of  sense  but  is  nevertheless  not  apt. 
A  simple  example  of  inappropriate  moral-to-legal  assimilation  would  be  to 
legally  enforce  all  promises — not  just  the  usual  sort  of  contractual  "promises," 
but  even  promises  to  pick  up  one's  socks  or  meet  someone  for  dinner. 

Still,  the  stronger  the  moral  right  or  duty,  the  more  we  must  consider  the 
possibility  of  making  these  moral  relations  matters  of  law,  in  the  sense  that  they 
are  part  of  formal  community  "ordering."'^^  Among  the  most  important  legal 
principles  and  rules  are  those  whose  moral  status  is  so  elevated  that  they  seem  to 
require  legal  ratification,  in  certain  contexts  whether  by  constitutional  command, 
legislative  or  regulatory  action,  or  formal  adjudication:  procedural  fairness 
(notice,  opportunity  to  be  heard,  and  so  on);  freedom  of  speech  and  religion; 
varieties  of  autonomy  and  privacy,  equality,  justice,  fairness  .... 

The  moral/legal  barrier  is  also  breached  by  the  necessities  of  rightly 
interpreting  legal  texts.  We  take  interests  we  value  highly  (on  whatever  grounds) 
and  make  them  legal  rights  of  various  sorts.  We  may  select  a  canonical 
description  embodying  the  moral  right  and  implant  it  in  a  constitution  or  other 
law;  or  a  common  law  court  may  select  any  of  several  alternative  formulations 


1 64.  Robert  C.  Ellickson,  Order  Without  Law:  How  Neighbors  Settle  Disputes  at 
viii(1991). 

1 65 .  See  Sally  Falk  Moore,  Epilogue  to  Symbol  and  Politics  in  Communal  Ideology  2 1 0 
(Sally  Falk  Moore  &  Barbara  Myerhoff  eds.,  1975).  The  authors  state  that  rituals,  laws,  customs, 
etc.,  are  used  "to  fix  social  life,  to  keep  it  from  slipping  into  the  sea  of  indeterminacy."  Id.  at  221- 
22.  This  passage  of  course  contrasts  "laws"  with  these  "other"  things,  but  at  the  same  time  suggests 
their  strong  parallels.  On  distinguishing  law  from  custom,  see  generally  E.  Adamson  Hoebel,  The 
Law  OF  Primitive  Man  18-28  (1954). 

1 66.  See  COUNCIL  ON  THE  ROLE  OF  COURTS,  THE  ROLE  OF  COURTS  IN  AMERICAN  SOCIETY  85 

(Jethro  K.  Lieberman  ed.,  1 984)  (referring  to  "[djisputes  that  should  not  be  settled  privately  because 
society  has  an  important  stake  in  governing  them  by  authoritatively  imposing  public  standards  . . 
.  .");  see  also  Owen  M.  Fiss,  Against  Settlement,  93  YALE  L.J.  1073,  1085  (1984)  (arguing  that  a 
major  function  of  formal  adjudication  is  "to  explicate  and  give  force  to  the  values  embodied  in 
authoritative  texts  such  as  the  Constitution  and  statutes:  to  interpret  those  values  and  to  bring 
reality  into  accord  with  them."). 


1999]  IS  BIOETHICS  BROKE?  89 


to  recognize  and  enforce  it.  In  whatever  verbal  form  the  "phase-change"  from 
morals  to  law  is  accomplished,  interpretation  will  be  required  and  interpretation 
is  influenced  (admittedly  a  "weasel  word")  by  prevailing  moral  dispositions. 

We  should  now  run  through  several  of  these  distinct  but  overlapping 
meanings  of  "overlegalization."  Some  meanings  have  a  complex  empirical  core. 
For  example,  some  overlegalization  claims  require  us  to  ask  whether  certain 
behavior  been  subjected  to  legal  ordering  in  a  way  inconsistent  with  the  culture's 
own  norms. 

This  is  a  good  point  at  which  to  mention  what  might  initially  appear  to  be  a 
paradox.  What  is  the  "remedy"  for  overlegalization?  Telling  the  legislature  or 
agency  to  undo  what  it  has  done  is  one  maneuver.  Another  remedy  is  to  state,  as 
a  legal/constitutional  matter,  that  some  arena  of  behavior  has  been  overlegalized. 
If  the  state  insists  that  no  one  may  use  contraceptive  devices  to  prevent 
pregnancy,  it  has  violated  a  fundamental  liberty  interest. '^^  The  state  has 
intruded  where  it  doesn't  belong,  and  this  is  a  matter  of  constitutional  dimension. 
The  inquiry  into  norms  often  takes  place  within  the  investigation  of  "tradition" 
as  a  technique  for  discerning  unmentioned  fundamental  liberty  interests  in 
constitutional  law.*^^ 

Is  governmental  action  that  is  inconsistent  with  certain  important  traditions 
really  a  case  of  overlegalization  to  be  vindicated  by  resorting  to  the 
legal/constitutional  notion  of  a  fundamental  liberty  interest?  The  term  is 
probably  not  precise  enough  to  allow  a  definitive  answer.  Whatever  the 
description,  there  is  some  sense  of  overlegalization  that  refers,  roughly,  to  the  law 
going  where  no  law  ought  to  go,  at  least  in  our  culture.  Obviously, 
overlegalization  in  this  sense,  and  probably  all  its  senses,  will  bump  into  difficult 
evaluative  matters.  It  may  be  unverifiable  whether  legal  ordering  has  exceeded 
traditional  limits  to  legal  ordering.  This  is  especially  so  when  cultural  values 
and  beliefs  vary  sharply  within  the  social  system.  The  issue  is  thus  far  from 
purely  empirical.  The  degree  and  gravity  of  the  government  intrusion  cannot  be 
fixed  by  some  objective  measurement.  Whether  limits  are  exceeded — and  indeed 
what  the  limits  are — ultimately  rests  on  value  analysis.  To  make  matters  still 
more  complex,  any  discussion  of  the  meanings  of  "overlegalization"  must  take 
account  of  law  as  both  reflecting  and  shaping  cultural  practices.  If 
overlegalization  has  endured,  community  sentiments  may  have  been  altered.  If 
so,  are  the  relevant  matters  no  longer  overlegalized? 

Before  reviewing  some  varieties  of  overlegalization,  two  points:  First, 
overlegalization  charges  are  sometimes  misleading  proxies  for  what  is  really 
meant:  "the  wrong  legal  decision  was  made  for  this  class  of  cases."  Second, 
overlegalization  may  and  sometimes  should  be  recognized  and  vindicated  legally. 

a.  Having  legal  rules  (whether  legislative,  administrative,  or  common  law) 
dealing  with  personal  matters  that  should  he  left  to  private  ordering. — "Private" 


167.  See  Carey  v.  Population  Servs.  Int'l,  431  U.S.  678,  687-88  (1977). 

168.  See  Laurence  H.  Tribe  &  Michael  C.  Dorff,  Levels  of  Generality  in  the  Definition  of 
Rights,  57  U.  Chi.  L.  Rev.  1057  (1990)  (examining  the  idea  of  tradition  and  its  vagueness  and 
ambiguity). 


90  INDIANA  LAW  REVIEW  [Vol.  33:17 


may  refer  to  individual  persons,  families,  groups,  even  communities,  and  perhaps 
to  businesses  and  institutions  of  certain  sorts. '^^  Whether  legal  ordering  has 
wrongly  intruded  into  the  private  realm  is  obviously  a  partial  function  of 
governing  moral  theories,  customs,  and  traditions.  In  any  liberal  polity,  for 
example,  the  supposedly  overlegalized  fields  can  be  defined  very 
broadly — reproduction,  sex,  medical  care,  death  decisions,  control  of  mind  and 
body,  choice  of  life  work,  and  so  on. 

There  is  an  oddity  about  this:  how  can  truly  private  matters  lose  their 
characterization  as  such  by  societal  practices  pointing  in  other  directions?  If 
overlegalization  simply  depends  on  practice — how  one's  neighbors  think  and 
act — it  doesn't  establish  much  of  a  limit.  If  things  aren't  overlegalized,  they're 
"overcustomized,"  at  least  from  the  point  of  the  view  of  the  outlier  who  wants  to 
be  left  alone.  But  oddity  isn't  fatal.  We  are  not  in  a  state  of  nature;  we  live,  as 
individuals,  in  societies.  What  we  leave  for  autonomous  self-rule  and  what  we 
do  not  is  ultimately  decided  not  by  a  solitary  self,  but  by  the  assemblage  of  selves 
that  becomes  a  community.  Relying  on  natural  law  or  moral  reality  does  not  alter 
the  situation,  for  their  contents  again  will  not  be  determined  solely  by  the 
individual  claimant.  Whether  some  form  of  regulation  represents 
"overlegalization"  is  thus  in  part  a  matter  of  law  and  custom. 

There  is  yet  another  layer  of  difficulty  in  addressing  overlegalization.  Most 
of  our  decisions,  serious  or  otherwise,  bear  on  both  the  public  and  private 
domains.  At  first  glance,  how  one  disposes  of  personal  and  household  waste 
materials  is  a  private  concern.  But  final  disposition  is  usually  presumptively 
lodged  in  local  government.  Of  course,  what  is  thought  to  bear  on  the  "public 
domain"  varies  sharply  across  societies.  Some  groups  seem  to  regulate  in  certain 
domains  of  choice  to  a  noticeably  greater  degree  than  does  the  United  States  (e.g, 
specifying  permissible  and  impermissible  names  for  children). '^^ 

More  relevant  to  our  concerns  are  two  examples  from  bioethics.  First, 
transplantation  of  organs  or  tissue  from  one  family  member  to  another  may  be 
viewed  as  intensely  private  and  presumptively  insulated  from  outside  scrutiny. 
Yet  the  risks  of  intrafamilial  exploitation,  undue  influence,  or  conflicts  of  interest 
are  such  that  external  scrutiny  was  exercised  by  courts  from  the  start.  The  role 
of  judicial  oversight  may  have  declined  here,  as  it  has  in  control  of  death  and 
dying.  This  was  to  be  expected.  Initial  rulings  provided  some  degree  of  clarity 
and  predictability,  especially  concerning  whether  transplants  from  live  donors 
could  even  take  place  without  risk  of  prosecution  for  mayhem  or  child  abuse. 
Here  again  our  nonparadoxical  paradox  appears,  this  time  concerning  the  decline 
in  judicial  oversight:  to  preserve  a  domain  from  legal  ordering  may  require  an 
exercise  in  legal  ordering  stating  that  further  legal  ordering  would  be  out  of 
place. 


169.  For  more  extensive  analysis,  see  Ruth  Gavison,  Feminism  and  the  Public/Private 
Distinction,  45  STAN.  L.  REV.  1,  5  (1992). 

170.  See.  e.g.,  Tyler  Marshall,  Germans '  Wish  Is  a  Command,  L.A.  TIMES,  Dec.  28,  1992, 
at  Al  (discussing  Germany's  establishment  of  "quiet  times"  between  1:00  p.m.  and  3:00  p.m.; 
regulation  of  children's  names;  restrictions  on  hours  of  business  operation). 


1 999]  IS  BIOETHICS  BROKE?  9 1 


Second,  if  someone  learns  she  has  a  genetic  predisposition  for  developing  a 
serious  disorder,  whose  business  is  it  beyond  her  own?  In  a  liberal  regime,  this 
is  a  matter  of  private  self-knowledge;  its  contents  presumptively  need  not  be 
disclosed  to  anyone.  But  that  presumption  may  be  overcome  by  the  interests  of 
family  members  who  may  benefit  from  knowing  of  possible  genetic  risks  to  them 
and  their  nuclear  families;  by  prospective  employers  who  are  not  anxious  to 
invest  in  the  training  of  an  employee  doomed  to  an  early  death  or  extended 
debilitation;  or  by  insurers  wanting  to — and  perhaps  being  legally  obliged 
to — reduce  their  costs  by  not  issuing  health  or  life  polices  to  persons  at  far 
greater  than  average  risk  for  impairment  or  death.  Overlegalization  charges  are 
no  slam  dunk  here  either. 

b.  Vindicating  certain  interests  through  the  mechanism  of  formal  legal 
rights,  powers,  etc. — The  complaint  here  is  about  several  matters:  the  heavy- 
handedness  of  the  mechanism  for  pursuing  the  interest;  the  adverse  effect  on 
other  interests  arising  from  the  (excessive?)  focus  on  rights,  privileges, 
immunities,  and  powers;  the  decline  in  the  role  of  private  voluntary  interaction 
in  addressing  disputes;  and  the  expression  of  a  "message"  that  the  interest 
protected  by  the  claim  of  right  is  more  important  than  it  really  is — indeed,  it  may 
be  thought  by  some  to  be  too  lowly  to  merit  legal  protection  at  all. 

Both  of  these  aspects  of  legalization— having  legal  rules  apply  at  all  and 
formally  vindicating  certain  legal  interests  created  by  these  rules — require  public 
or  semipublic  procedures.'^' 

c.  Subjecting  matters  of  choice  that  should  be  resolved  intuitively  and 
according  to  the  situation  at  hand,  instead  of  by  rules  and  rule-governed 
resolution  mechanisms. — This  third  aspect  of  overlegalization  was  mentioned 
earlier  in  referring  to  pragmatist  critiques  of  bioethics.  It  is  bad  enough,  it  is 
argued,  to  resort  to  rigorous  deliberation  using  dominating  abstractions.  Using 
legal  rules  on  top  of  that  makes  things  still  worse. 

The  nature  of  this  branch  of  overlegalization  is  suggested  by  Carl  Schneider, 
who  writes  that  "the  idioms  of  the  law  are  often  less  apt  than  they  might  appear. 
They  have  arisen  in  response  to  needs  for  social  regulation,  but  the  systemic 
imperatives  that  shape  the  law  are  sometimes  a  poor  pattern  for  bioethical 
discourse."'^^ 

All  true,  as  a  single  day  in  law  school  can  convincingly  show.  But  "less  apt 
than  they  might  appear"  and  "poor  pattern  for  bioethical  discourse"  compared  to 
what?  If  legal  language  is  clumsy  in  some  cases,  normative  discourse  may  be  no 
better  equipped  to  deal  with  the  detachment  of  parts  of  life  processes  and  their 
recombination  into  new  forms — ^the  basic  stuff  of  bioethics.  Having  two  natural 
mothers  (gestational  surrogacy)  or  no  natural  parents  at  all  (cloning?);  justifying 
the  removal  of  an  organ  from  a  healthy  child  to  give  to  her  dying  sibling,  or 


171.  As  a  possible  example  of  overlegalization  in  several  senses,  note  the  controversy 
concerning  formal  discipline  for  supposed  misconduct  by  small  children.  See,  e.g. ,  Paul  Dean,  The 
Death  of  Common  Sense?,  L.A.  TIMES,  Nov.  8,  1996,  at  El. 

1 72.  Carl  E.  Schneider,  Bioethics  in  the  Language  of  the  Law,  HASTINGS  CENTER  REP.,  July- 
Aug.  1994,  at  16,  18. 


92  INDIANA  LAW  REVIEW  [Vol.  33:17 


determining  whether  we  should  permit  or  encourage  assisted  suicide  and 
voluntary  euthanasia;  expanding  the  notion  of  death  to  apply  to  human  organisms 
whose  bodies  function  spontaneously  but  in  total  separation  from  their 
permanently  lost  identities — ^these  are  as  awkward  for  moral  as  for  legal  analysis. 

To  be  sure,  the  very  process  of  implanting  an  acute  moral/conceptual 
problem  into  a  legal  framework  is  problematic — is  there  a  constitutional 
fundamental  liberty  interest  in  assisted  suicide?  Does  a  disabled  prisoner  have 
a  right  to  refuse  nutrition  and  hydration. '^^  These  inquiries  illuminate  the  moral 
issues  and  enrich  philosophical  analysis.  Heuristic  illumination  is  not  the  final 
point,  however.  The  point,  again,  is  that  one  may  need  formal  legal  ordering  at 
the  threshold  in  order  to  attenuate  its  intrusive  grip  later  on:  The  law  may  and 
sometimes  must  formally  vindicate  the  charge  of  overlegalization,  and  then 
withdraw  until  needed  once  more. 

d  Varying  from  traditional  patterns  of  human  interaction — including  the 
formation  of  personal  relationships  based  on  kinship,  friendship,  and 
mating — and  making  them  matters  of  formal  agreement  by  contract  or  other 
legal/commercial  devices. — The  charge  that  new  reproductive  techniques 
"commodity"  women,  children,  mating,  sex,  and  society  generally  is  closely 
linked  to  the  use  of  legal  and  commercial  mechanisms  in  certain  interpersonal 
transactions.  Thus,  legal  enforcement  of  commercial  surrogacy  is  compared  to 
prostitution  as  an  agreement  that  "monetizes"  sex;  it  is  also  compared  to  the  sale 
of  children  or  other  persons,  whether  as  part  of  family  formation  or  of  slavery. 

The  connection  between  overlegalization  and  commodification,  then,  is  that 
the  former  may  be  a  causal  factor  in  producing  the  latter.  The  imposition  of  legal 
ordering  of  the  sort  linked  to  mercantile  deal-making  does  not,  on  this  view, 
vindicate  personal  autonomy  and  privacy  in  reproduction;  it  instead  diminishes 
persons  and  converts  the  exchange  of  services  from  a  matter  of  friendship  or 
kinship  to  one  of  "greed"— for  money  or  children.  (The  epithet  "greed,"  of 
course,  reflects  a  prior  determination  that  legal  enforcement  of  a  transaction 
involving  commercial  exchange  is  inappropriate.) 

e.  Finally,  the  idea  that,  within  the  legal  field,  the  wrong  legal  neighborhood 
has  been  chosen,  e.g.,  opting  for  criminal  sanctions  when  civil  or  administrative 
sanctions  would  do  as  well  or  better;  and  opting  for  formal  adjudication  rather 
than  informal  dispute  resolution. — Barber  v.  Superior  Court^^^  might  be  offered 
as  an  example.  In  Barber,  two  physicians  were  prosecuted  for  murder.  They  had 
withdrawn  medical  treatment,  including  artificial  nutrition  and  hydration,  from 
a  permanently  unconscious  patient. '^^  More  spectacular  examples  are 
Prohibition'^^  and  present-day  drug  bans,  although  the  view  that  the  wrong  legal 


1 73.  One  has  such  a  right  in  California.  See  Thor  v.  Superior  Court,  855  P.2d  375  (Cal.  1 993) 
(recognizing  a  fundamental  common  law  and  possibly  a  state  constitutional  right  to  refuse 
treatment,  and  explicitly  embedding  philosophical  accounts  of  the  status  of  autonomy  into  its  legal 
argument  structure). 

174.  Barber  v.  Superior  Court,  195  Cal.  Rptr.  484  (Cal.  Ct.  App.  1983). 

175.  SeeiddX^U. 

176.  U.S.  Const,  amend.  XVIII,  repealed  by  U.S.  CONST,  amend.  XXI. 


1999]  IS  BIOETHICS  BROKE?  93 


neighborhood  has  been  selected  for  recreational  drugs  remains  controversial. 
One  thinks  also  of  the  close  monitoring  of  physicians  who  prescribe  certain 
medicines  thought  likely  to  be  abused — e.g.,  analgesics,  and  stimulants  for 
attention  deficit  disorder.  Those  who  do  not  view  these  measures  as 
overlegalization  are  likely  to  regard  failure  to  enact  and  rigorously  enforce  them 
as  underlegalization.  For  present  purposes,  it  is  immaterial  which 
characterization  is  the  better  one;  the  point  is  that  whether  something  is  over-  or 
underlegalized  is  a  function,  first,  of  moral  evaluation  of  the  conduct  in  question, 
and  second,  of  the  parallel  evaluation  of  promulgation  and  enforcement  of  rules. 

2.  Further  Applications  to  Bioethics:  Law  and  Courts. — 

a.  Private  ordering. — The  idea  of  overlegalization  is  a  legitimate  tool  of 
moral,  policy  and  legal  analysis.  Mistakes  have  of  course  been  made  by  all 
groups,  even  from  their  own  internal  viewpoints,  not  just  in  selecting  the  contents 
of  legal  rules,  but  in  imposing  legal  rules  on  some  fields  of  conduct  at  all.  The 
power  of  private  ordering  is  sometimes  underestimated,  and  it  can  work  its  ways 
while  dislodging  (without  contravening)  legal  rules.  As  Ellickson  has  suggested, 
informal  mechanisms  are  often  used  among  landowners  and  merchants  to  adjust 
their  relationships,  often  in  ways  quite  different  from  what  would  be  an  expected 
result  of  litigation.  ^^^  Nevertheless,  even  if  "private  ordering"  in  some  form  is 
acceptable  or  even  preferable  in  some  area,  it  would  be  a  mistake  to  assume  that 
all  forms  of  legal  ordering  in  the  field  are  inappropriate.  Although  it  may  be 
unfortunate  in  some  cases  that  a  heavy-handed  legal  regime  displaces  private 
ordering  to  some  degree,  a  legal  backdrop  in  some  form  may  be  necessary  or 
useful  to  the  (now  semi-)  private  ordering. 

How  do  these  observations  bear  on  bioethics  and,  more  generally,  on  how  we 
are  to  deal  with  millennial  technologies? 

It  is  hard  to  credit  the  broad  claim  that  bioethical  analysis  has  been 
systematically  mistaken  in  opting  for  the  use  of  legal  regimes  in  displacement  of 
whatever  would  otherwise  arise  in  private  ordering.  If  it  has  indeed  been 
mistaken  in  that  way,  it  is  no  more  at  fault  than  other  Western  disciplines  in 
looking  so  frequently  to  The  Law.  Subjecting  identifiable  areas  of  behavior  and 
conflict  to  law  raises  most  of  the  fundamental  moral/philosophical  issues  that 
were  raised  during  the  preceding  millennia.  No  sweeping  complaint  of 
overlegalization  is  likely  to  be  borne  out:  the  only  rational  way  to  proceed  is 
with  an  area-by-area  search. 

The  most  prominent  current  examples  of  complaints  about  overlegalization 
concern  death  and  dying,  ^^^  and  possibly  the  use  of  socially  and  technologically 


177.  See  ELLICKSON,  supra,  note  164,  at  viii  (observing  that  "after  only  a  few  interviews  I 
could  see  that  rural  residents  in  Shasta  County  were  frequently  applying  informal  norms  of 
neighborliness  to  resolve  disputes  even  when  they  knew  that  their  norms  were  inconsistent  with  the 
law.").  The  study  focuses  in  part  on  the  cattle  industry.  Of  course,  "inconsistent  with  the 
law" — ^with  the  substantive  outcome  had  formal  law  been  invoked — does  not  here  mean  "against 
the  law." 

1 78.  See  PRESIDENT' s  Commission  for  the  Study  of  Ethical  Problems  in  Medicine  and 
Biomedical  Behavioral  Research,  Deciding  to  Forego  Life-Sustaining  Treatment  247 


94  INDIANA  LAW  REVIEW  [Vol.  33:17 


innovative  reproductive  methods.  Similar  charges  were  lodged  early  on  against 
certain  emerging  organ  transplantation  practices.  Joseph  Goldstein,  for  example, 
complained  strongly  that  the  family  in  Hart  v.  Brown^^^  had  been  required  to 
submit  its  planned  inter-sibling  transplantation  for  judicial  vetting. '^°  He 
believed  that  this  invaded  familial  privacy.'^'  Perhaps  he  was  right.  Or  perhaps 
he  underestimated  the  risk  of  parental  favoritism  among  siblings  and  the 
possibility  of  parental  lack  of  good  faith.  Then  again,  perhaps  those  risks  are 
outweighed  by  the  cascading  risks  of  outside  intrusion. '^^  In  any  case,  it  seems 
reasonable  to  ask  why  parents  should  have  to  seek  state  permission  to  preserve 
the  integrity  of  their  family  by  arranging  for  one  sibling  to  save  the  other 
sibling's  life,  when  the  "donor"  sibling  is  likely  to  undergo  arguably  only  modest 
risk  and  temporary,  if  serious,  discomfort.  The  question,  however,  is  hard  to 
answer:  Hart  v.  Brown  is  not  an  univocal  example  of  too  much  law. 

Much  the  same  protest  was  made  against  formalizing  the  decision  process  in 
medical  nontreatment  cases,  and  is  now  implicitly  made  in  proposals  for 
physician-assisted  suicide,  who  is  now  permitted  in  Oregon. ^^^  Few  proponents 
of  physician-assisted  suicide  favor  requirements  of  judicial  authorization  or 
mandatory  psychological  screening.  But  as  already  suggested,  formal  resolution 
of  disputes  arising  at  the  beginning  of  an  innovative  practice  may  serve  to 
establish  patterns  and  to  reinforce  autonomy  and  privacy  values  so  that  recourse 
to  legal  processes  will  occur  less  often  and  less  intrusively. 

An  obvious  illustration  of  the  need  to  compare  overlegalization  with 
underlegalization  is  assisted  reproduction.  Enforcement  of  surrogacy  contracts 
is  viewed  by  critics  of  surrogacy  as  overlegalization,  which  exacerbates  whatever 
"commodifying"  effects  the  transactions  have.  But  this  is  strongly,  though  not 
inevitably,  correlated  with  calls  for  legislation  prohibiting,  restricting  or 
regulating  the  practice.   Here,  the  critics  of  bioethics,  most  of  whom  oppose 


(1983)  [hereinafter  President's  Commission]  (stating  that  "[a]s  made  clear  throughout  this 
Report,  the  Commission  believes  that  decisionmaking  about  life-sustaining  care  is  rarely  improved 
by  resort  to  courts.").  Cf.  Barber,  1 95  Cal.  Rptr.  at  486  (holding  that  there  is  no  legal  requirement 
for  judicial  approval  before  life-sustaining  treatment  is  withdrawn.  "[In  another  case,]  Justice 
Fleming  observed  that  'prosecution  of  a  lawsuit  is  a  poor  way  to  design  a  motor  vehicle.'  By 
analogy  it  appears  to  us  that  a  murder  prosecution  is  a  poor  way  to  design  an  ethical  and  moral  code 
for  doctors  who  are  faced  with  decisions  concerning  the  use  of  costly  and  extraordinary  'life 
support'  equipment."),  (quoting  Self  v.  General  Motors  Corp.,  1 16  Cal.  Rptr.  575,  579  (Cal  Ct. 
App.  1974)).  As  I  argue  in  the  text,  however,  some  formal  adjudications  represent  a  plausible  way 
to  announce  and  reinforce  behavioral  norms  and  ideals.  See  infra  Part  III.G.2.b. 

179.  289  A.2d  386  (Conn.  Super.  Ct.  1972). 

180.  See  Joseph  Goldstein,  Medical  Care  for  the  Child  at  Risk:  On  State  Supervention  of 
Parental  Autonomy,  86  YALE  L.J.  645  (1977). 

181.  See  id.  2X669. 

182.  See  generally  Gavison,  supra  note  169,  at  1,  12,  37  (noting  the  objections  to  familial 
privacy  arguments  when  the  context  is  intrafamilial  abuse). 

183.  See  Death  With  Dignity  Act,  OR.  Rev.  Stat.  §§  127.800-127.897  (1998)  {amended by 
1999  Or.  Laws  423). 


1999]  IS  BIOETHICS  BROKE?  95 


surrogacy,  do  not  complain  of  overlegalization  in  the  form  of  prohibition;  they 
complain  of  overlegalization  as  the  enforcement  of  surrogacy  contracts,  and  of 
nonprohibition  as  ww<3fer legalization.  Once  again,  the  underlying  complaint  is 
that  the  legal  regime  protected  or  banned  the  wrong  thing,  not  that  it  acted  in 
some  way  at  all. 

b.  Overlegalization  and  "catching  up  ". — We  now  need  to  relate  matters  of 
over-  and  underlegalization  to  the  symposium's  animating  idea  that  law  and 
ethics  must  "catch  up"  to  science  and  technology.  Some  cases  seem  pretty  easy. 
Enterprises  that  cause  negative  externalities  beyond  a  certain  baseline  have  to 
pay  for  harms  they  cause.  If  you  run  a  research  laboratory  investigating 
infectious  agents,  you  have  to  implement  serious  containment  and  other  safety 
measures.  When  dangerous  new  enterprises  are  begun  and  they  seem  to  escape 
existing  legal  means  of  public  protection,  the  law  "catches  up"  with  technology, 
in  a  simple  sense,  by  acting  to  reduce  the  danger.  Whether  this  is  better 
accomplished  by  civil  litigation,  criminal  prosecution,  regulation,  institutional 
oversight,  or  some  combination  of  these  routes  also  raises  over-  and 
underlegalization  issues,  but  there  is  no  reason  to  examine  this  here. 

In  other  cases  it  is  not  so  clear  how  law  might  catch  up  with  technology.  One 
possibility  is  affirmatively  ordering  a  field  in  a  reasonably  coherent  way — or  so 
it  may  seem  to  supporters.  Once  again,  Oregon's  physician-assisted  suicide  law 
is,  to  such  supporters,  a  legal  response  that  seizes  the  day  and  offers  a  clear 
example  of  gaining  ground  on  technology.  On  some  views,  much  the  same 
would  apply  to  bans  on  surrogacy,  human  cloning,  animal  gestation  of  human 
embryos  and  fetuses,  and  the  construction  of  transgenic  sentient  beings.  In  other 
cases,  law's  gains  on  technology  may  be  via  removing  itself  or  declining  to  enter 
a  given  area:  a  community's  choice  to  keep  law  and  legal  process  as  far  away  as 
possible  from  a  given  field  might  well  be  considered  a  form  of  catching  up. 
Repealing  laws  banning  surrogacy  or  cloning  would  so  count  in  my  book.  What 
is  over-  or  under- legalization  thus  depends  on  the  nature  of  the  conduct  in 
question,  its  moral  assessment,  the  content  of  the  substantive  legal  rules  in  place, 
and  what  procedural  and  remedial  devices  are  used.  For  example,  damages  for 
breaching  a  surrogacy  contract's  provision  prohibiting  abortion  might  well 
violate  Casey  v.  Planned  Parenthood, ^^^  but  either  way  it  is  a  far  cry  from 
specific  performance,  which  would,  by  comparison,  constitute  immense 
overlegalization. 

In  any  region  of  bioethics,  the  over/underlegalization  claim  can  be  defended 
only  if  the  countervailing  considerations  are  carefully  inspected.  In  some  cases, 
legalization,  including  formal  adjudication,  may  promote  a  sound  adjustment  to 
novel  problems  that  our  biotechnological  capacities  bring  us.  Indeed,  as 
suggested,  the  very  imposition  of  legal  ordering  in  some  rational  form  is  often 
rightly  viewed  as  constituting  moral  and  legal  progress. 

To  our  eyes,  the  "rule  of  law"^^^  is  essential  in  both  directing  human  behavior 


184.  505  U.S.  833(1992). 

1 85.  For  analysis  of  the  idea  of  rule  of  law,  see  generally  Gregory  C.  Keating,  Fidelity  to  Pre- 
Existing  Law  and  the  Legitimacy  of  Legal  Decision,  69  NOTRE  DAME  L.  REV.  1  (1993). 


96  INDIANA  LAW  REVIEW  [Vol.  33:17 


and  doing  the  exact  opposite — ^to  leave  behavior  alone.  Complaining  of 
overlegalization  is  ordinarily  not  about  rejecting  the  rule  of  law,  but  about  the 
operational  consequences  of  particular  ways  of  implementing  the  rule  of  law.  If 
certain  forms  of  autonomy  and  privacy  are  constitutionally  guaranteed,  the  rule 
of  law  requires  avoidance  of  heavy  legal  regulation  of  personal  choice.  On  the 
other  hand,  the  rule  of  law  also  requires  that,  in  the  first  instance,  law 
enforcement  officers  firmly  protect  exercises  of  free  speech  rights  against 
threatening  protesters.^*^ 

We  need  law  to  allow  people  to  be  left  alone.  We  now  need  to  examine 
cases  in  which  it  is  not  obvious  that  classic  legal  mechanisms — -judicial  process, 
legislation — are  necessary  for  a  minimally  adequate  society.  It  is  not  clear,  for 
example,  whether  "judicial  supervention"  is  called  for  in  certain  matters  of 
intrafamilial  decision  making,  such  as  organ  transplantation  and  death  and  dying. 
The  issues  merit  some  additional  comments  that  bear  both  on  these  particular 
contexts  and  on  the  very  nature  of  the  rule  of  law. 

c.  Rule  of  law  via  rule  of  courts:  When  legal  *' progress'*  may  consist  of 
public  ordering  by  formal  adjudication  rather  than  either  private  ordering,  on 
the  one  hand,  legislation  or  administrative  rule-making,  on  the 
other}^^ — Government  regulation  in  various  forms — ^particularly  formal 
adjudication — may  suggest  without  establishing  the  influence  of  rational 
principle,  whatever  the  subject  matter.  It  may  dispel  or  mask  an  aura  of 
arbitrariness  or  anarchy  and,  depending  on  the  circumstances,  this  may  be  a 
significant  gain.  This  seems  especially  true  of  judicial  decision  making  which 
can  reinforce  rationality  ideals  by  calling  upon  the  domain  of  principle  to  attack 
and  manage  various  forms  of  contingency  and  indeterminacy.  It  may  have  other 
effects  too — ^for  example,  offering  comfort  and  reassurance  to  certain  parties, 
relieving  them  of  a  sense  of  oppression  and  responsibility  deriving  from  an 


186.  Compare  Feiner  v.  New  York,  340  U.S.  315  (1951)  (upholding  the  disorderly  conduct 
conviction  of  a  speaker  who  was  threatened  by  a  member  of  the  audience),  with  Cox  v.  Louisiana, 
379  U.S.  536  (1965)  (reversing  the  breach  of  peace  conviction  of  demonstrators  who  had  drawn 
a  hostile  audience). 

1 87.  But  cf.  Roger  B.  Dworkin,  Limits:  The  Role  of  the  Law  in  Bioethical  Decision 
Making  (1996).  Prof.  Dworkin  critiques  the  law's  role  in  bioethics,  stating  that  "our  [legal 
institutional]  tools  for  dealing  with  social  problems  posed  by  rapid  change  in  biology  and  medicine 
are  limited  at  best."  Id.  at  1 8.  But  he  also  argues  that  "[t]o  suggest  that  the  law  has  no  role  to  play 
in  the  area  of  biomedical  advance  would  be  both  stupid  and  unrealistic."  Id.  at  2.  What  I  say  here 
is  not  necessarily  inconsistent  with  his  views:  He  may  be  stressing  what  is  absent  from  the  glass, 
while  I  am  addressing  what's  in  it. 

See  generally  Schneider,  supra  note  1 72,  at  1 8  ("The  idioms  of  the  law  are  often  less  apt  than 
they  might  appear.  They  have  arisen  in  response  to  needs  for  social  regulation,  but  the  systemic 
imperatives  that  shape  the  law  are  sometimes  a  poor  pattern  for  bioethical  discourse.").  But  the 
division  and  rearrangement  of  life  processes  that  I  stressed  earlier  makes  matters  difficult  not  only 
for  law,  but  for  ethical  analysis.  The  least-worst  course,  in  some  cases,  may  be  to  remit  the  matter 
to  formal  adjudication  in  order  to  achieve  some  degree  of  closure,  even  if  imperfect  and  possibly 
transient. 


1999]  IS  BIOETHICS  BROKE?  97 


"excess"  of  options,  and  so  on. 

There  are,  of  course,  opposing  considerations.  Intrafamilial  lifesaving 
decisions  pose  serious  value  problems.  But  critics  of  formal  adjudication  address 
a  particular  subclass  of  personal  value  problems — ones  in  which  they  believe  the 
issues  are  so  serious  and  involve  matters  of  such  intensely  personal  concern  that 
resolving  them  is  a  matter  belonging  exclusively  to  autonomous  persons  (or,  if 
incompetent,  their  proxies)  who  should  be  able  to  act  with  their  physicians 
without  judicial  interference,  guided  only  by  existing  penal  laws  and  rules  of 
professional  conduct.  On  this  view,  then,  a  life-and-death  issue,  whether  in 
transplantation  or  the  use  of  life-prolonging  medical  care,  is  a  major  aspect  of 
deciding  on  personal  medical  care,  which  is  presumptively  an  individual  or 
family  decision. 

As  we  saw,  however,  protecting  these  choices  may  require  the  community's 
agreement  that  the  decisional  sphere  is  one  for  the  individual  and/or  family  and 
not  the  community.  Indeed,  the  community  is  obliged  to  keep  the  zone  of  choice 
clear  of  legal  interference.  The  private  choices  do  not  stand  solitary,  however. 
Their  cumulative  effects  may  threaten  the  very  regime  of  private  choice  if  they 
appear  to  reflect  an  unacceptable  incidence  of  undue  influence,  coercion,  or 
fraud.  A  rational  community  would  monitor  the  preconditions  for  choice, 
accepting  some  risk  of  intrusions  on  autonomy  and  privacy:  there  are  no  costless 
ways  of  proceeding  here.  The  community  would  also  try  to  assure  that  the 
countervailing  issues  are  not  only  not  forgotten,  but  are  acted  upon  in  suitable 
cases.  Important  private  choices  thus  inevitably  abut  the  legal  system. 

[SJociety  has  a  significant  interest  in  protecting  and  promoting  the  high 
value  of  human  life.  Although  continued  life  may  be  of  little  value  to  the 
permanently  unconscious  patient,  the  provision  of  care  is  one  way  of 
symbolizing  and  reinforcing  the  value  of  human  life  so  long  as  any 
chance  of  recovery  remains.  Moreover,  the  public  may  want 
permanently  unconscious  patients  to  receive  treatment  lest  reduced 
levels  of  care  have  deleterious  effects  on  the  vigor  with  which  other,  less 
seriously  compromised  patients  are  treated.'^* 


Even  for  patients  who  do  not  favor  such  [life-prolonging]  treatment  for 
themselves,  encountering  some  degree  of  resistance  to  their  wishes  is  a 
reminder  that  their  lives  are  important  to  others.'*^ 


1 88.  President's  Commission,  supra  note  1 78,  at  1 84-85  (footnotes  omitted). 

189.  Id.  at  108;  see  also  Rasmussen  ex  rel.  Mitchell  v.  Fleming,  741  P.2d  674  (Ariz.  1987). 
The  question  of  whether  to  refuse  or  discontinue  treatment  is  not  simply  a  medical  issue 

to  be  left  to  the  doctors;  although  the  medical  evidence  is  in  many  ways  determinative, 
the  final  decision  incorporates  a  range  of  ethical,  moral,  and  societal  values  which 
should  not  be  left  solely  to  doctors,  family  members,  or  representatives  of  the  court . . 
. .  Such  decision  making  requires  the  final  validation — not  necessarily  by  adversarial 
hearing — and  the  detached  and  neutral  inspection  of  a  judicial  officer,  accountable  to 


98  INDIANA  LAW  REVIEW  [Vol.  33:17 


Probing  the  nature  of  the  value  reinforcement  (or  attenuation)  worked  by 
judicial  intervention  may  help  explain  both  why  we  resort  to  courts  crwc/ complain 
about  doing  so  and  will  probably  continue  to  do  both. 

We  learn  from  what  we  see,  and  what  we  see  embraces  the  operation  of 
institutions  and  practices.  Empirically  confirming  this  is  difficult  and  often 
impossible,  but  the  claim  is  nonetheless  plausible  because  it  is  founded  on 
elementary  aspects  of  human  learning.  We  are  entitled  to  rely  on  these  basics, 
despite  the  mass  of  variables  that  hinder  study.  ^^° 

This  inquiry  into  learning  effects  concerns,  at  the  start,  legal  ordering  as  legal 
ordering,  without  particular  reference  to  its  substantive  content.  In  particular,  to 
take  a  somewhat  anthropological  view,  it  is  about  the  role  of  formal  adjudication 
as  a  visible  mechanism  for  overtly  principled  decision  making. 

This  is  not  meant  to  be  an  opaque,  empty  procedural  orientation.  I  am  not 
suggesting  that  "just  letting  the  courts  figure  it  out,  however  they  do  if  can 
regularly  provide  a  satisfactory  justification  of  various  forms  of  legalization. 
Order  for  order's  sake  is  not  the  point.  But  rule-governedness  via  formal 
adjudication  transcends  matters  of  particular  substantive  content,  and  I  proceed 
on  that  understanding. 

One  might  think,  however,  that  the  rule  of  law,  via  courts  or  otherwise,  is  ill 
adapted  for  use  in  conceptual  regions  dominated  by  heavy  indeterminacy. 
Perhaps  talk  about  courts  invoking  the  realm  of  principle  makes  little  sense 
where  matters  are  so  chaotic  and  uncertain  that  no  principles  are,  or  could  be, 
available.  To  say  otherwise  would  be  dishonest,  or  so  one  might  argue.  The 
life/death  choices  involved  in  transplantation  and  non-use  of  life-prolonging 
medical  care  are  well  known  for  resisting  clear  resolution. 

Yet  however  paradoxical  it  sounds,  resort  to  a  formal  body  bound  to  deal 
with  principle  as  best  it  can  may  be  useful  precisely  because  the  principles  at 
stake,  as  applied  to  major  value  issues,  appear  to  resist  consistent,  determinate 
application,  and  perhaps  even  identification.  Law  as  the  reign  of  principle  (not 
just  naked  process)  whose  nature  is  intuited  by  special  parties  may  be  of  central 
importance  where  there  is  general  normative  confusion  about  basic  values.'^'  An 


the  law,  and  therefore  to  the  public. 
Id.  at  692  (Feldman,  V.C.J.,  concurring).  The  court  upheld  a  trial  court's  conclusion  that  the 
patient's  best  interests  were  promoted  by  do-not-resuscitate  and  do-not-hospitalize  orders  entered 
on  the  medical  chart.  Compare  In  re  Quinlan,  355  A.2d  647  (N.J.),  cert,  denied,  429  U.S.  922 
(1976)  (suggesting  circum.stances  where  judicial  review  is  unnecessary),  with  Superintendent  of 
Belchertown  State  Sch.  v.  Saikewicz,  370  N.E.2d  417  (Mass.  1977)  (disagreeing  with  the  Quinlan 
court). 

1 90.  Cf.  Cass  R.  Sunstein,  Incommensurability  and  Valuation  in  Law,  92  MiCH.  L.  REV.  779, 
820-21,  824  (1994)  (stating  that  "[i]f  the  law  wrongly  treats  something — say,  reproductive 
capacities — as  a  commodity,  the  social  kind  of  valuation  may  be  adversely  affected.  ...  It  is 

appropriate  to  evaluate  the  law  on  this  ground I  do  suggest  that  the  expressive  function  [of  law] 

is  part  of  political  and  legal  debate."). 

191.  Despite  indeterminacy,  there  may  be  no  general  perception  of  confusion.  This  may  be 


1999]  IS  BIOETHICS  BROKE?  99 


arena  apparently  resistant  to  law  because  of  interminable,  insoluble  value 
collisions  and  murky  facts  may  be  a  prime  candidate  for  the  rule  of  law  precisely 
because  of  these  conditions. 

Conflict,  indeterminacy,  paradox,  and  contradiction  involving  major  values 
thus  seem  both  to  call  for  and  resist  the  rule  of  law  as  implemented  by  courts. 
The  parties  at  the  bedside,  some  of  whom  may  be  affected  by  fear  of  liability  as 
well  as  by  moral  puzzlement,  may  invite  the  judicial  rule  of  law  even  though  this 
impinges  on  intensely  personal  matters.  The  resistance  of  the  problem  to  their 
reasoned  analysis  does  not,  for  them,  exclude  courts;  it  calls  for  courts  to 
penetrate  the  mystery,  not  just  to  apply  an  (imaginary)  algorithmic  science  of 
law.  Perhaps  this  view  of  courts  is  excessively  romantic,  but  it  is  hard  to  deny 
some  degree  of  "charismatic  authority"  based  on  a  belief  in  their  mastery  of 
matters  too  deep  for  the  untrained.  This  is  not,  however,  an  "oracular"  view  of 
courts,  at  least  on  the  primary  meaning  of  the  term.  Courts  are  not  primarily 
viewed  as  transmitters  of  messages  from  another  realm. '^^ 

Still,  the  vision  of  law  as  replacing  chaos  with  principle  fits  uneasily  with  the 
view  that  principled  reasoning  is  often  at  least  partly  indeterminate,  and  the  fit 
is  even  worse  when  we  address  the  more  numbing  forms  of  indeterminacy.  The 
apparent  paradox  here  is  that  rational  principle  may  fail  us  when  we  need  it  most. 
Easy  cases  need  the  courts  less  than  hard  cases  do,  but  if  hard  cases  involve 
intractable  indeterminacies,  rational  principle  alone  may  not  yield  an  acceptable 
result,  thus  leading  some  to  conclude  that  the  use  of  courts  is  irrational.  On  this 
view,  courts  are  especially  inappropriate  when  their  services  are  especially 
important. 

Yet,  they  are  not  inappropriate,  because  we  (or  some  of  us)  see  courts  as 
having  special  insight  into  principle — an  insight  demanded  when  the  principles 
defiantly  resist  the  tasks  laid  on  them,  and  when  the  issues  seem  to  test  major 
values  unwilling  to  provide  answers.  Exactly  how  is  it  that  X  is/isn't  a  Y  for 
purposes  of  Z?  How  is  it  that  inaction  is/is  not  killing,  that  affirmative  action 
violates/promotes  "the"  ideal  of  equality,  that  forced  medication  of  the  mentally 
disordered  does/does  not  promote  their  autonomy?  Courts  know,  so  it  is  said. 
They  have  access  to  "the  normative  patterns  or  order  revealed  or  ordained  [by 
them],"  as  Weber  put  it.'^^     But  if  they  do  know,  they  know  something 


due  in  part  to  institutions  such  as  courts.  For  an  account  of  why  lawyers  and  judges  might  be  useful 
in  contexts  when  important  classificatory  schemes  are  under  assault,  see  Michael  H.  Shapiro, 
Lawyers,  Judges  and  Bioethics,  5  S.  Cal.  Interdisc.  L.J.  1 13  (1997). 

192.  Perhaps  the  appropriate  "location"  of  courts  is  somewhere  between  mastery  of 
automobile  repair  (most  people  can  learn  at  least  some  of  the  rules  with  appropriate  training)  and 
mastery  of  theoretical  physics  (most  people  cannot  get  beyond  whatever  serves  as  first  base).  If  one 
believes  in  objective  moral  reality,  one  may  also  believe  that  it  takes  special  ability  and  training  to 
divine  what  it  is,  and  that  not  everyone  can  learn  to  do  it. 

193.  Max  Weber,  The  Theory  of  Social  and  Economic  Organization  328  (A.M. 
Henderson  &  Talcott  Parsons  trans.,  1964).  The  full  description  reads:  "Charismatic 
grounds — resting  on  devotion  to  the  specific  and  exceptional  sanctity,  heroism  or  exemplary 
character  of  an  individual  person,  and  of  the  normative  patterns  or  order  revealed  or  ordained  by 


100  INDIANA  LAW  REVIEW  [Vol.  33:17 


mysterious.'^'*  After  all,  does  anyone  really  have  a  nifty  decision  procedure  that 
always  fills  in  the  non  sequitur  between  the  statement  of  the  general  rules  and  the 
conclusion  by  identifying  the  true  and  correct  premises?  Pursuing  "reflective 
equilibrium"  or  "coherence  theory"  or  "dialogue"'^^  is  fine  for  awhile,  but  these 
processes  do  not  take  you  all  the  way  to  closure  and  are  easily  tossed  around  as 
academic  buzzwords.  If  it  were  otherwise,  we  would  often  have  the  resolution 
we  sought  in  the  first  place,  instead  of  being  caught  in  a  process-substance 
cycling  or  some  other  limbo. '^^  There  is  a  normative  leap  to  be  made.  Trying  to 
find  it  as  a  deductive  consequence  of  other  propositions  leads  to  infinite  regress 
or  a  search  for  stopping  points.  But  those  stopping  points  are  themselves 
mysterious,  and  not  clearly  identified  through  moral  intuition  or  revelation  (at 
least  in  "hard"  cases).  Reason  itself  is  laced  with  mystery.  Some  mechanism  is 
needed  to  find  an  end  point. 

High  indeterminacy,  then,  does  not  necessarily  make  the  matter  unfit  for 
courts. '^^  It  may  indeed  make  courts  the  only  possible  decisionmaker,  for  they 
enclose  the  mystery  of  the  normative  leap  within  the  forms  of  reason,  thus 
transforming  the  contingent  into  the  unquestionable.'^^  Law  as  formal 
adjudication  cannot  be  limited  to  some  supposed  domain  of  consistent  principles; 


him  (charismatic  authority)."  Id.  at  328.  See  also  id.  at  358-63  (discussing  charismatic  and  other 
authority);  Max  Weber,  2  Economy  and  Society:  An  Outline  of  Interpretive  Sociology  760 
(1978)  (stating  that  "...  innovation  in  the  body  of  legal  rules  may  also  occur  through  their 
deliberate  imposition yro/w  above."")  (emphasis  in  original;  footnote  omitted). 

1 94.  There  are  objections  to  this  use  of  "mysterious."  It  connects  reason  with  magic,  which 
is  precisely  one  of  the  things  with  which  it  is  to  be  contrasted.  But  if  we  do  not  know  how  to  fill 
in  all  the  premises,  the  appearance  of  someone  else  doing  so  seems  to  suggest  "mystery." 

195.  John  Rawls,  A  Theory  OF  Justice  48-51  (1971)  (explaining  reflective  equilibrium); 
Richard  H.  Fallon,  Jr.,  A  Constructivist  Coherence  Theory  of  Constitutional  Interpretation,  100 
Harv.  L.  Rev.  11 89, 1240-43  (1987)  (coherence  theory);  Bruce  A.  Ackerman,  Social  Justice 
IN  THE  Liberal  State  43  (1980)  (dialogue). 

196.  Here  is  what  I  mean  by  "process-substance  cycling":  An  absence  or  failure  of 
substantive  criteria  for  decision  making  suggests  reliance  on  processes  for  identifying  decision 
makers  in  a  procedurally  appropriate  manner.  They  can  then  decide  how  to  deal  with  the  problems 
at  hand.  It  is  therefore  tempting  to  finesse  substantive  problems  by  relying  on  procedure,  but  this 
is  itself  an  unreliable  process.  The  ultimate  decisionmakers  must  ask  themselves  how  to  decide,  and 
are  likely  to  notice  the  lack  of  guiding  standards  and  seek  outside  assistance  from  their  creators  and 
others.  If  their  creators  are  consulted,  they  will  still  have  no  criteria,  and  this  is  at  least  partly  why 
they  delegated  the  decision  making  in  the  first  place.  The  matter  is  thus  sent  back  down.  Thus  the 
phrase  "process-substance  cycling."  Moreover,  the  very  criteria  for  selecting  the  decisionmakers 
are  likely  themselves  to  be  contested,  in  part  because  of  the  difficulty  of  selecting  and  linking  their 
respective  characteristics  to  the  nature  of  the  problems  defying  reasoned  resolution.  This  can 
torpedo  the  very  effort  to  rely  on  "process." 

1 97.  One  might  think  otherwise,  given  doctrines  of  nonjusticiability  in  federal  constitutional 
law  and  elsewhere,  but  the  issue  is  not  to  the  point  here. 

198.  See  Sally  F.  Moore  &  Barbara  G.  Myerhoff,  Introduction:  Secular  Ritual:  Forms  and 
Meanings,  in  SECULAR  RITUAL  3,  22  (Sally  F.  Moore  &  Barbara  G.  Myerhoff  eds.,  1977). 


1 999]  IS  BIOETHICS  BROKE?  1 0 1 


its  function  is  also  to  deal  with  the  "unprincipled,"  in  a  way  that  makes  it  seem 
principled.  Courts  offer  the  contribution  of  open,  principled  adjudication  to 
value  reinforcement.  Judicial  resolution  may  attack  several  sources  of 
contingency'^^  in  lifesaving  and  help  dispel  any  aura  of  conflict  of  interest — say, 
parental  favoritism  among  siblings  that  leads  to  imposing  unjustifiable  risks  or 
burdens  of  care  on  some  to  benefit  others. 

If  life-affirming  values  are  sufficiently  important,  then  resolving  the  meaning 
of  "life-affirming"  and  testing  pro-life  values  against  other  values  in  particular 
cases  requires  reasoning,  not  arbitrary  or  random  action.  This  is  one  reason  for 
going  public  with  disputes  that  many  prefer  to  keep  private.  To  render  lifesaving 
noncontingent,  the  decision  favoring  it  must  be  seen  as  the  product  of  right 
reason.  Reducing  the  appearance  of  arbitrary  contingency  in  lifesaving  by  the 
use  of  reason  thus  can  preserve  favored  values  under  siege:  individual  and 
familial  autonomy  and  privacy.  Though  other  techniques  dispose  of  disputes, 
they  may  reduce  contingency  less  if  they  appear  ad  hoc  or  arbitrary;  they  produce 
no  basis  for  future  understanding,  nor  do  they  inspire  confidence  that,  say, 
lifesaving  is  preeminently  valuable.  Thus,  to  fail  to  apply  reason  is  to  say  the 
issue  is  unimportant. 

This  does  not  fully  answer  the  charge  that  applying  reason  through  judicial 
oversight  intrudes  on  what  seems  to  be  an  intensely  private  matter.  Moreover, 
the  outcome  may  seem  all  the  worse  to  the  losers  because  they  lose  on  the  merits. 
It  is  a  striking  feature  of  death  and  transplantation  decisions  that  they  seem  at 
once  to  call  for  both  private  decision  and  public  scrutiny.  The  very  reason  for  the 
personal  importance  of  the  decision  is  a  prime  source  of  the  community 's  interest 
in  it- — ^the  continued  existence  of  one  of  its  members  and,  by  implication,  all  of 
its  members,  present  and  future. 

Despite  the  strong  claims  for  noninterference,  the  calls  for  judfcial 
application  of  principle  remain.  Principle  tells  us  where  to  find  the  edge  we 
teeter  on  when  reason  seems  to  run  out.  Not  just  any  edge  will  do.  When  we 
reach  the  edge,  we  have  judges  with  us — masters  of  the  normative  leap,  a  leap 
the  untrained  or  uninsightful  cannot  make.  In  many  cases,  as  we  saw, 
indeterminacy,  autonomy,  and  privacy  do  not  necessarily  make  a  matter  unfit  for 
courts.  On  the  contrary,  they  make  courts,  or  some  other  entity  openly  using 
reason,  the  least  worst  decisionmaker  because  the  indeterminacy  must  be 
attacked  in  a  principled  way  in  order  to  maintain  a  value  structure. 

Of  course,  the  whole  project  may  backfire,  making  things  seem  even  more 
arbitrary  and  confused.  Rulings  widely  perceived  as  unjust  or  lunatic  damage  the 
integrity  of  the  adjudicative  institution  and  its  mission.  If  this  risk  inspires  us  to 
move  private  choice  underground,  we  return  to  the  specter  of  contingency— a 
world  in  which  life  is  so  little  valued  that  we  trust  it  to  a  set  of  unconnected 
private  battles  that  may  or  may  not  form  a  coherent  pattern  of  life  or  death 
decisions.  With  invisible  decision  processes  having  visible  outcomes  (say,  secret 
meetings  by  shamans  in  smoke-filled  rooms),  we  do  not  know  if  life  and  pro-life 


199.     For  explanations  of  the  meanings  of  "contingent,"  see  Shapiro,  supra  note  137,  at  738- 
39. 


102  INDIANA  LAW  REVIEW  [Vol.  33:17 


values  have  been  compromised  by  improper  wishes  for  private  gain,  by  a  darts 
game,  or  by  witchcraft,  rather  than  by  slogging  through  the  claims  of 
beneficence,  autonomy,  and  so  on,  in  promoting  life  and  family.  How  important 
can  life  and  life's  sanctity  be?  Isn't  life  something  important  enough,  and  easily 
enough  eroded,  to  merit  noncontingent  support  through  the  consistent  effort  to 
apply  principle? 

And  what,  finally,  of  autonomy  and  privacy?  Legal  nonintervention 
generally  and  judicial  nonintervention  in  particular  seem  to  affirm  privacy  and 
autonomy.  When  regulators  choose  not  to  regulate,  the  ideal  of  personal  choice 
is  reinforced.  The  indeterminacy  created  by  nonregulation  is  just  what  is  needed 
to  promote  autonomy,  or  so  one  might  argue. ^°° 

But  suppose  judicial  pronouncements  favor  autonomy  and  privacy,  as  many 
now  do  in  both  the  transplantation  and  the  death  and  dying  fields.^^'  (There  are 
of  course  cases  in  which  it  is  not  clear  how  far  autonomy  is  favored  or 
disfavored.  Cruzan  v.  Director  is  one  of  these.)^^^  Do  such  formal  statements 
promote  these  values  more  than  judicial  nonintervention — no  courts  saying 
anything?  (Recall  that  nonintervention  here  refers  not  to  a  negative  judicial 
decision,  but  to  no  judicial  participation  at  all.)  A  reasoned  view  that  autonomy 
somehow  prevails  in  a  conflict  with  other  values  may  reinforce  it  to  a  greater 
degree  precisely  because  the  decision  is  a  product  of  special  insight  applied  by 
public,  authoritative  deciders,  sensitive  to  their  own  limitations.  Yet  leaving  the 
matter  to  a  court  that  might  have  decided  against  autonomy  cuts  the  opposite 
way. 

Legalization  can  obviously  not  only  promote  ideals  of  reason,  autonomy  and 
privacy,  but  communitarian  interests  as  well.^°^  A  court  is  after  all,  a  community 
product.  This  in  turn  may  promote  a  rationality  ideal  because  the  image  of  a 


200.  If  the  sort  of  autonomy  endorsed  is  "familial  autonomy"  or  "parental  autonomy,"  it  is 
hard  to  say  just  what  values  are  being  vindicated,  particularly  when  there  are  intra-family  clashes. 
There  is,  in  effect,  a  problem  of  specifying  the  "unit  of  autonomy."  Cf.  Parham  v.  J.  R.,  442  U.S. 
584  (1979)  (upholding  parental  decision  to  place  child  in  mental  health  facility  after  psychiatric 
review). 

20 1 .  See  generally  Curran  v.  Bosze,  566  N.E.2d  1 3 1 9  (111.  1 990)  (denying  a  request  for  bone 
marrow  testing  of  children  to  determine  if  they  were  compatible  with  their  half  brother);  ALAN 
Meisel,  The  Right  to  Die  83-84,  262-63  (2d  ed.  1995). 

202.  See  Cruzan  v.  Director,  Missouri  Department  of  Health,  497  U.S.  261  (1990).  Although 
there  is  some  confusion  about  this,  the  Supreme  Court  did  recognize  or  concede  (however 
grudgingly)  a  liberty  interest  in  competently  refusing  medical  treatment.  This  was  not  assumed 
arguendo.  The  problems  for  the  Court  arise  when  the  patient  is  incompetent  and  where  artificial 
nutrition  and  hydration — which  some  believe  are  not  "medical  treatment"  but  forms  of  basic 
sustenance — are  involved.  Missouri  had  required  that  the  evidence  be  clear  and  convincing  that 
withdrawal  of  care  would  be  consistent  with  Ms.  Cruzan's  wishes  while  she  was  competent.  See 
id.  at  265.  The  Missouri  Supreme  Court  thought  the  evidence  inadequate,  and  the  resulting 
judgment  was  upheld  by  the  U.S.  Supreme  Court.  See  id. 

203.  Again,  no  sharp  divisions  here;  the  community's  interests  include  promoting  the 
autonomy  and  privacy  of  its  members. 


1 999]  IS  BIOETHICS  BROKE?  1 03 


central  decider — ^the  community — may  suggest  the  idea  of  coherence, 
consistency,  and  caring.  This  communitarian  aspect  of  judicial  intervention  is 
easily  understood:  "by  assembling,  and  ultimately  by  sharing  responsibility  for 
the  decision,  they  [the  community  members]  once  again  bind  themselves  to  one 
another."'^' 

But  here  too,  the  messages  are  mixed.  Consider  medical  nontreatment.  It 
may  well  be  that  resorting  to  courts  affirms  the  community  by  assigning  it 
important  decisions,  and  also  affirms  certain  specific  values  by  having  the 
community,  via  the  courts,  endorse  them.  But  a  decision  favoring  nontreatment 
can  be  taken  to  exclude  the  patient  from  the  community,  and  so  seems  to 
impoverish  it:  the  patient  is  "thrown  away."  And  where  messages  are  mixed, 
many  of  them  will  get  lost.  Further,  the  perceived  connection  between  courts  and 
community  (or  certain  communities)  may  be  weak.  Courts  may  be  viewed  as 
intruders,  alien  to  one's  prime  community. 

It  is  thus  unsurprising  that  we  resort  to  courts  to  make  death-and-dying  and 
other  decisions  and  regret  the  need  to  do  so.  There  is  no  inconsistency  here. 
Using  courts  and  grumbling  about  it  reflects  the  underlying  value  conflicts,  the 
fear  of  indeterminacy  and  of  exposing  it  rather  than  resolving  it,  and  perhaps  our 
dim  awareness  of  the  varying  communicative  impacts  of  using  or  not  using 
courts.  Doing  X  may  affirm  some  values,  and  complaining  about  doing  X  may 
affirm  some  conflicting  "oughts."  Perhaps  sometimes  we  ought  to  do  both,  and 
indeed  we  do.^°^ 

H.  Bioethics  as  We  Know  It  Ratifies  Establishment  Practices  and  Values 
and  Fails  to  Question  Foundations  to  a  Sufficient  Degree 

Seedhouse,  writing  about  health  care  rationing,  says  that  "bioethics  accepts 
uncritically  the  context  which  generates  the  problems  it  tries  to  deal  with."^^^ 
This  is  not  so.  The  bioethicists  I  know  and/or  whose  works  I  read  are  largely  a 
self-selected  group  with  an  orientation  toward  "out-of-the-box"  thinking. 
Perhaps  Dr.  Seedhouse  has  encountered  a  sample  with  sharply  different 
characteristics.  I  do  not  plan  to  do  any  empirical  research  on  this.  I  assume  that 
"accept[ing]  uncritically  the  context ..."  is  a  species  of  automatically  supporting 
establishment  values.  Now,  if  a  discipline  expresses  near  universal  preference 
for  every  significant  aspect  of  the  status  quo,  what  is  the  problem?  If  the 
discipline's  approval  was  automatic,  their  decision  making  process  was 
unreasonable  and  possibly  dishonest.  If  it  was  not  automatic  and  its  outcomes 
remain  widely  disputed  within  the  field,  then  the  complaint  about  "secular 


204.  Sally  Falk  Moore,  Selection  for  Failure  in  a  Small  Social  Field:  Ritual  Concord  and 
Fraternal  Strife  Among  the  Chagga,  Kilimanjaro,  1968-69,  in  SYMBOL  AND  POLITICS  IN 
Communal  Ideology  109,  121  (Sally  Falk  Moore  &  Barbara  G.  Myerhoff  eds.,  1975). 

205.  See  Michael  H.  Shapiro,  Introduction:  Judicial  Selection  and  the  Design  of  Clumsy 
Institutions,  61  S.  Cal.  L.  Rev.  1555  (1988). 

206.  David  Seedhouse,  Why  Bioethicists  Have  Nothing  Useful  to  Say  About  Health  Care 
Rationing,  21  J.  MED.  ETHICS  288,  291  (1995). 


1 04  INDIANA  LAW  REVIEW  [Vol.  33:17 


establishmentarianism"  is  better  understood  as  the  critic's  adverse  judgment 
about  the  existing  value  system,  or  about  a  particular  outcome,  or  perhaps  as  a 
complaint  that  the  establishment  is  pathologically  risk  averse  in  its  resistance  to 
change. 

Still,  the  claim  of  uncritical  acceptance  of  "context"  is  not  utterly  vacuous. 
Some  of  the  criticisms  of  technologically  and  socially  assisted  reproduction 
("TSAR")  suggest  that  it  is  an  establishment  plot  to  promote  existing  conditions, 
such  as  patriarchy,  the  objectification  of  women  and  children,  and  the 
technological  imperative  generally.  Assuming  arguendo  that  these  are  indeed 
dominant  establishment  institutions,  then  anyone  who  endorses  or  fails  to  oppose 
TSAR  is  ratifying  the  status  quo.^^^ 

There  are  several  facets  to  this  criticism  of  support  and  ratification  of 
prevailing  establishment  sentiments.  One  is  that  bioethicists  ought  to  view 
themselves  as  part  of  the  "loyal  opposition"  and  should  regularly  question  the 
status  quo — its  bottom-line  answers,  its  rules  of  justification,  its  processes,  and 
so  on — and  they  do  not  do  this  enough.  This  is  the  least  cutting  objection.  The 
loyal  opposition  idea  seems  plausible,  but  I  think  a  loyal  opposition  already 
resides  in  the  discipline.  I  see  no  evidence  that  the  discipline  regularly  defers  to 
"What  Is"  via  some  conservative  reflex.  Moreover,  in  any  deliberative  literature, 
many,  if  not  most  writers  will  assume  a  Devil's  advocacy  of  sorts  to  test  their 
own  claims,  some  of  which  may  or  may  not  concur  with  then-current  legal  and 
ethical  terrain. 

Still,  such  questioning  and  advocacy  may  not  go  far  enough  for  the  critics 
because  the  questioners  and  advocates  may  really  accept  the  rules,  principles  or 
outcomes  in  question.  How  far  up  the  crooked,  ^-dimensional  ladder  of 
abstraction  must  one  go  in  questioning  the  status  quo  in  order  to  escape  the 
charge  of  knee-jerk  establishmentarianism? 

A  stronger  claim  may  be  that  establishment  institutions,  or  some  major  parts 
of  them,  are  badly  flawed^ — ^that  too  many  bioethicists  buy  into  them — and  that 
the  right  moral,  conceptual  and  legal  infrastruture  should  be  imported  into  a  new 
establishment.  How  many  is  too  many?  This  is  just  another  way  of  "critiquing" 
bioethics  without  expressly  noting  one's  bottom-line  disagreement  with  many  of 
its  practitioners— whether  it  is  a  disagreement  over  procedures,  standards,  or 
whatever.  I  have  already  dealt  with  this,  saying  that  such  a  critique  is  wide  of  the 
mark  unless  some  infirmities  can  be  shown  to  characterize  the  literature,  the 
judicial  decisions,  the  legislation,  and  whatever  else  we  include  in  the 
"discipline."  The  establishment  in  fact  is  far  from  monolithic  and  is  continually 
under  amendment. 


207.  See  the  description  of  similar  and  related  views  in  Barry  R.  Furrow  et  al..  Health 
Law  834  (1995)  (describing  the  anti-surrogacy  arguments  made  by  others  who  claim  that  "such  a 
change  in  the  nature  of  the  reproductive  processes  dehumanizes  the  surrogate  mother  and  harms  the 
relationship  between  the  child  and  the  mother.  This  leads  to  the  commodification  of  babies,  who 
are  treated  as  a  mcirket  commodity  not  substantially  different  from  sofas,  pork  bellies,  or  anything 
else  that  can  be  traded  for  money.").  As  I  argue  here  and  elsewhere,  this  extravagant  idea  has  no 
serious  empirical  or  conceptual  support. 


1999]  IS  BIOETHICS  BROKE?  105 


Another  element  of  the  complaint  about  pro-establishmentarianism  may  be 
that,  whatever  outcomes  are  sanctioned  or  TQCommendQd,  foundational  values  are 
not  called  into  question  in  reaching  these  outcomes.  But  this  position  is  quite 
unclear.  First,  what  are  the  foundational  values?  Unless  there  is  some  realm  of 
dark  ethical  theory  that  we  have  yet  to  discern,  these  values  are  captured  by  high- 
order  abstractions  that  are  familiar  to  us  all.  I  am  not  sure  that  any  given  list  is 
exhaustive,  and  I  am  also  not  sure  that  the  membership  listings  all  reflect  the 
same  level  of  abstraction  so  that  comparisons  are  coherent.  But  the  usual 
suspects  are  utility,  justice,  fairness,  equality,  autonomy  or  its  cousins,  liberty 
and  freedom,  and  possibly,  duty,  responsibility,  and  virtue. 

What  does  testing  foundations  consist  of  in  this  context?  Should  we  question 
the  ultimate  normative  importance  of  the  values?  By  hypothesis,  these  values  are 
basic.  They  are  the  criteria  for  normative  judgment,  and  there  is  nothing  beyond 
that  which  normatively  validates  them.  Sooner  or  later,  one  stops  where  the 
crooked  ladder  seems  to  end;  there  is  no  infinite  ascent  or  regress.  Some  values 
are  viewed  as  so  basic  that  all  or  most  of  the  others  are  considered  derivative. 
There  are  utilitarians  who,  in  a  sense,  reduce  all  other  value  candidates  to 
utilitarian  foundations.  Justice  is  promoted  because  it  serves  utility,  not  justice. 
Vindicating  justice  claims  is  simply  a  method  of  promoting  utility.  Is  this  the 
problem — ^that  most  bioethicists  are  utilitarians?  It  doesn't  seem  so.  Even  if 
most  bioethicists  are  utilitarians,  bioethics  would  still  not  be  infirm  unless  the 
utilitarians  never  even  addressed  competing  moral  theories  and  dealt  with  all 
issues  in  a  purblind  way.  Where  is  this  occurring  as  a  consistent  practice?  In 
academics,  at  any  rate,  while  there  are  a  fair  number  of  utilitarians,  there  are  not 
a  lot  of  dumb  ones — driven  maybe,  dumb,  no. 

As  for  affirmatively  ratifying  establishment  values  such  as  autonomy,  several 
questions  arise:  Do  too  many  persons  defer  too  strongly  to  autonomy?  What 
forms  of  autonomy?  In  what  areas  of  medical  technology  should  autonomy  be 
less  respected?  In  what  spheres  does  it  have  more  than  equal  time?  There  may 
indeed  be  some  who  have  over-emphasized  patients'  short-term  autonomy  to 
resist  treatment  as  opposed  to  their  long-term  autonomy  in  the  form  of  eventual 
greater  functionality,  and  so  resolved  doubts  against  required  treatment  for 
mental  disorders.  On  the  other  hand,  there  is  no  doubt  that  resolving  doubts  the 
other  way  poses  serious  risks  of  abuse  and  of  expansion  of  involuntary  treatment. 
There  are  those  who  perhaps  too  easily  take  widespread  patient  concurrence  in 
treatment  as  undue  influence  and  thus  as  impaired  consent.  But  I  see  no 
objectionable  dominance  of  the  one  group  over  the  other. 

I  suggest,  then,  that  there  is  no  overriding  "autonomy  is  everything"  principle 
dominating  the  field.  Even  if  there  were,  there  might  be  wide  variation  over 
specifics  because  of  the  competing  internal  strands  of  autonomy:  opportunity  to 
pursue  preferences;  self-direction;  and  its  underlying  presuppositions,  including 
competence,  authenticity,  and  voluntariness. 

Take,  for  example,  a  complaint  that  because  autonomy  as  a  value  is  e 
pluribus  unum,  it  should  not  get  more  than  its  fair  share  of  attention.  Perhaps 
there  was  an  initial  failure  to  adequately  draw  out  countervailing  considerations 
and  preconditions.  If  this  indeed  occurred,  it  was  quite  a  while  ago,  and, 
according  to  careful  historical  analysis,  not  everything  can  be  done  in  a  day.  But 


106  INDIANA  LAW  REVIEW  [Vol.  33:17 


whether  or  not  any  value  gets  more  than  its  fair  share  of  attention  or  is  short 
shrifted  is  certainly  not  a  purely  empirical  question.  The  central  question 
concerns  moral  analysis  of  the  status  of  autonomy  (or  of  any  other  value  under 
review).  The  significant  attention  that  it  continues  to  draw  might  indeed  be  the 
attention  it  deserves,  all  things  considered. 

So,  does  bioethics,  in  fact,  inappropriately  ratify  the  status  quo  because  "it" 
thinks  autonomy  outweighs  equality  or  some  other  value  in  more  circumstances 
than  critics  do?  Perhaps  autonomy- lovers  have  misread  the  official  metric  (the 
standard  autonomy  unit  is  in  a  sealed  container  in  the  Smithsonian).  This  reflects 
a  fundamental  moral  dispute,  however,  and  it  is  not  best  described  by  saying  that 
any  of  the  protagonists  holds  an  inherently  flawed  position.  Autonomy  mavens 
do  not  have  a  monopoly  on  bioethics,  nor  do  egalitarians,  partisans  of  justice  and 
fairness,  utilitarians,  Kantians,  positivists,  pragmatists,  and  so  on,  at  any  level  of 
generality. 

Finally,  this  "establishment"  argument  may  be  couched  in  a  call  for  a  change 
in  paradigms.  The  critique  may  be  founded  only  in  part  on  disagreement  with 
outcomes.  It  may  be  an  attack  on  reasoning  paths  thought  to  appeal  to  the  wrong 
exemplars  and  analogies.  Different  routes  may  lead  to  the  same  final  destination, 
but  if  routes  are  good  for  more  than  one  trip,  they  must  be  sound  independently 
of  any  particular  result.^®*  This  requires  no  separate  discussion,  however.  It  is 
included  in  the  earlier  account  of  general  discussion  about  the  nature  and  content 
of  the  dreaded  secular  establishmentarianism. 

I  mention  only  briefly  the  position  that  the  phrase  "buying  into  the 
establishment"  suggests  conflict  of  interest  or  rigid  partisan  agendas.  The  point 
bears  mentioning  from  time  to  time,  but  it  is  of  minor  consequence  here.  Clinical 
researchers  must  disclose  whether  they  are  on  the  payroll  of  a  manufacturer  of 
the  drug,  biologic,  or  device  being  investigated.  Bioethicists  may  sometimes 
encounter  conflict  of  interest  problems,  but  the  scale  is  quite  different.  They 
must  disclose  who  has  retained  them,  if  anyone,  and  the  fact  that  they  are  being 
paid,  and  possibly  how  much.  If  they  are  designated  spokespersons  for  some 
institution,  this  must  also  be  disclosed.  Being  devoted  to  a  theoretical  or 
ideological  stance,  however,  is  different.  People  who  are  loyal  Kantians  do  not 
presumptively  have  to  disclose  this,  and  in  any  case,  their  condition  will  soon 
become  apparent.  Not  that  there  is  anything  wrong  with  being  devoted  to  Kant; 
I  used  to  set  my  watch  by  his  daily  walks. 


208.  See  generally  P.  Lance  Temasky,  Salvaging  Moral  Progress,  49  PHIL.  Educ.  1 26,  1 28 
(1993)  ("For  those  arguing  for  [moral]  progress,  it  comes  as  no  surprise  that  the  dominant  ethical 
theories  often  disagree  dramatically  in  principle  but  converge  when  making  application  to  actual 
cases."). 


1 999]  IS  BIOETHICS  BROKE?  1 07 


/.  Bioethics  Bears  the  Smell  of  the  Lamp     and  Offers  No  Practical  Guides 

The  claim  that  bioethics  offers  no  practical  guides  is  extremely  weak.  For 
one  thing,  the  discipline — and  any  branch  of  thought — must  deal  with 
abstractions.  Here,  they  are  in  the  form  of  rules,  standards,  principles,  maxims, 
bromides,  and  conceptual  constructs  such  as  hypotheses,  theories,  conjectures, 
thought  experiments,  analogies,  paradigms,  and  so  on.  A  given  professional 
contribution  may  be  too  abstract  to  provide  practical  guidance  down  to  the  final 
decision  level,  but  a  discipline  without  such  contributions  is  likely  to  bear 
foundational  deficiencies  beyond  what  one  would  normally  expect.  To  the  extent 
that  the  critical  claim  is  a  complaint  that  bioethics  engages  in  unnecessarily 
extended  reflection  and  deliberation,  it  should  with  due  reflection  and 
deliberation  be  dismissed. 

Second,  the  complaint  about  the  lack  of  practical  applicability  is  closely 
related  to  the  complaint  that  few  or  no  answers  are  forthcoming,  a  matter  to 
which  I  earlier  referred.  In  many  cases,  it  is,  in  principle,  impossible  to  arrive  at 
a  unique  right  answer  to  which  all  contending  parties  are  likely  to  assent;  this  is 
the  nature  of  the  abstractions  under  siege. 

Finally,  the  literature  contains  many  contributions  by  persons  who  address 
themselves  to  the  clinical  or  technological  setting  and  suggest  particularized 
factors  and  variables  that  the  principles  may  or  must  consider.^^°  This  may  even 
offer  bottom-line  answers  in  various  cases.  Complaining  that  there  remains  a 
dearth  of  clear  and  convincing  answers,  however,  is  likely  to  reflect  a  deep 
misunderstanding  of  what  ethical,  legal,  and  policy  analysis  is. 

J.  There  Is  No  Unified  Theory  Underlying  Bioethical  Analysis 

and  Problem  Solving^^^ 

If  a  commentator  offers  a  theoretical  contribution  that  purports  to  be  sound, 
coherent,  and  useful,  but  whose  theoretical  underpinnings  are  substantially  in 
conflict  inter  se  and  no  discussion  of  their  possible  reconciliation  is  offered,  then 
one  may  rightly  complain  of  a  certain  intellectual  disarray,  if  not  of  fatal  errors. 
This  is  one  frequent  criticism  of  principlism.^^^   However,  the  lack  of  a  truly 


209.  Cf.  id  at  126  (describing  a  world  of  incommensurability  that  results  in  contradictory 
ethnocentric  systems  and  stating  that  "if  this  is  the  most  we  can  expect,  then  the  interminable 
debates  between  divergent  theoretical  camps  may  be  principally  viewed  as  entertainment  for 
academics."). 

210.  See  generally  ALBERT  R.  JONSENET  AL.,  CLINICAL  ETHICS:  A  PRACTICAL  APPROACH  TO 

Ethical  Decisions  in  Clinical  Medicine  (4th  ed.  1998). 

211.  See  generally  Clouser  &  Kopelman,  supra  note  42,  at  124  (discussing  the  lack  of  a 
unified  view  of  bioethics). 

212.  Id.  See  also  K.  Danner  Clouser  &  Bernard  Gert,  A  Critique  ofPrinciplism,  1 5  J.  MED. 
&  Phil.  219  (1990).  The  authors  state  that  no  argument  "exists  to  support  the  role  of  principles  in 
the  hierarchy  they  [Beauchamp  and  Childress]  propose,"  id.  at  231,  and  that  "with  principlism, 
disagreements  are  often  not  only  unresolvable,  but  one  often  does  not  even  know  what  the  basis  of 
the  disagreement  is  or  what  changes  in  facts  would  produce  agreement."  Id.  at  234.  Clouser  and 


108  INDIANA  LAW  REVIEW  [Vol.  33:17 


unified  theory  that  provides  clear  answers  in  every  area  is  not  a  fatal  error  in 
bioethics  any  more  than  in  other  fields.  The  error,  quite  the  contrary,  would  be 
to  think  that  such  a  theory  is  possible. 

K.  So  Is  Bioethics  Broke  or  Not? 

I  do  not  see  that  bioethics  needs,  or  is  undergoing,  paradigm  shifts.  This  is 
not  a  claim  that  everything  in  the  field  is  to  remain  the  same  for  eternity.  Nor  is 
it  a  claim  that  there  can  be  no  "progress"  or  useful  new  paradigms  or  lines  of 
thought.  But  to  say  that  we  should  attend  more  to  responsibility  and  duty  than 
to  rights,  or  to  think  of  community  needs  and  not  just  autonomy  needs,  or  that 
law  is  over-  or  under-present,  is  not  necessarily  an  attack  on  foundations  or 
existing  paradigms.  It  may  be  a  shift  in  emphasis  in  recognition  of  considerations 
that,  in  any  field,  may  be  underdeveloped  for  a  time.  Conceptual  systems  do  not 
spring  complete  from  any  individual's  or  discipline's  heads.  There  is  also  the 
usual  reservation  that  whether  prior  analytics  are  overdone  or  underdone  may  rest 
less  on  comparative  time  sheets  than  on  moral  and  policy  differences. 

Let  us  draw  out  this  idea  of  assigning  differential  "weights"  to  liberty  claims 
as  against  community  claims.  The  very  idea  of  assigning  weights  to  competing 
considerations  and  then  "balancing"  them  itselfreflQcts  a  dominating  paradigm, 
not  only  in  constitutional  law,  but  in  other  fields  of  law  and  in  moral  reflection. 
In  many  arenas,  balancing  is  not  simply  a  useful  paradigm,  //  is  a  core  of 
rationality.  It  is  an  effort  to  judge  the  worth  of  a  course  of  conduct  by 
considering  its  good  and  bad  aspects  and  impacts — whether  we  speak  of  them  as 
intrinsic  or  instrumental,  or  refer  to  consequences,  or  to  value  or  duty 
impairments,  which  are  also  consequences  of  a  sort.^'^ 

It  is  too  loose  a  use  of  the  word  "paradigm"  to  say  there  is  a  paradigm  shift 
in  withdrawing  weight  from,  say,  a  liberty  claim,  or  adding  weight  to  a 
community  claim.  Indeed,  such  "interior"  shifts  within  a  conceptual  argument 
structure  are  often  contrasted  with  paradigm  shifts,  although,  as  ever,  the 


Gert  add  that  "[w]e  believe,  in  the  sense  given  to  'principle'  by  [William  Frankena]  and  by 
Beauchamp  and  Childress,  that  for  all  practical  and  theoretical  purposes  there  are  no  moral 
principles."  Id.  at  235.  They  also  urge,  more  generally,  that  "it  is  a  moral  theory  that  is  needed  to 
unify  all  the  'considerations'  raised  by  the  'principles'  and  thus  to  help  us  determine  what  is 
appropriate."  Id.  at  228. 

213.  This  general  formulation  belongs  both  to  consequentialist  and  nonconsequentialist 
theories.  Rational  moral  reflection  is  not  confined  to  balancing  "utiles";  one  "balances"  in  deciding 
whether  to  break  a  promise  to  one  person  or  satisfy  a  conflicting  obligation,  despite  the  perils  of 
incommensurability.  Thus,  comparing  value  gains  with  value  losses  is  not  characteristic  solely  of 
consequentialism.  Conflicting  duties  can  be  compared  and  balanced — so  also  with  conflicting 
rights  and  conflicts  between  duties  and  rights.  Cf.  NoziCK,  supra  note  134,  at  28-29  (discussing 
"the  utilitarianism  of  rights"). 

On  incommensurability,  see  generally  Richard  Warner,  Topic  in  Jurisprudence: 
Incommensurability  as  a  Jurisprudential  Puzzle,  68  Chi.-KentL.  Rev.  147  (1 992);  Sunstein,  supra 
note  190. 


1999]  IS  BIOETHICS  BROKE?  109 


distinction  is  blurry  edges.  Nevertheless,  the  call  for  reassignment  of  weights 
reflects  moral  disagreement  at  an  important  if  non-cosmic  level.  Tricking  a 
clinically  depressed  but  technically  competent  person  into  taking  antidepressants 
may,  for  one  evaluator,  vindicate  "true"  autonomy  because  it  maximizes  long  run 
opportunities  for  self-directed  rational  pursuit  of  one's  settled,  authentic 
preferences.  For  another,  it  is  an  exercise  in  private  or  public  paternalism  and  is 
never  justified.  This  is  a  substantial  dispute,^'"*  but  if  one  switches  from  the  one 
view  to  the  other,  this  is  likelier  to  result  from  re-valuing  the  competing  aspects 
of  autonomy,  not  from  an  earth-shattering  change  in  moral  perspective.  A  field 
is  not  necessarily  reinvented  by  switching  sides — although  one  could  speak  of 
"sub-paradigm"  switches:  from  long  run  to  short  run,  "future  self  to  present 
self,  more  paternalism  to  less  paternalism.  Whatever  these  switches  are  called, 
however,  establishing  a  need  for  them  does  not  establish  that  the  discipline  is 
broken.  The  same  holds  true  even  if  it  is  shown  that  the  field  has  too  many  hard- 
nosed  libertarians,  or  too  many  equally  hard-nosed  paternal ists. 

Reassignment  of  weights  generally  reflects  both  factual  and  moral/conceptual 
matters.  Thus,  if  we  are  told  by  bioethics'  critics  that  we  have  been  assessing, 
weighing,  and  balancing  the  wrong  things^  then  what  are  the  things  missed  or  to 
be  replaced?  On  the  other  hand,  if  we  are  told  we  have  been  testing  the  right 
things  after  all  but  assigning  the  wrong  weights^  or  that  we  have  been  using  an 
inaccurate  scale  or  balancing  mechanism,  how  then  are  these  errors  to  be 
corrected? 

So,  rival  views  concerning  the  identification,  ordering,  weighing,  and 
balancing  of  values  are  one  thing — significant,  but  not  mind-numbing.  On  the 
other  hand,  matters  are  far  more  serious  if  the  deficiency  is  failing  to  identify  the 
material  moral  issues,  or  failing  to  analyze  them  and  instead  relying  solely  on 
mental/intestinal  sensations  of  "repugnance,"^ '^  rejecting  weighing  and  balancing 
and  instead  applying,  absolute  rules  at  a  high  level  of  generality.  If  these  latter 
failures  were  endemic  to  bioethics,  I  would  concur  with  the  critics'  final 
conclusions  and  calls  for  repair,  though  probably  for  different  reasons  and 
contemplating  different  kinds  of  remedy. 

What,  then,  drives  the  critique  of  bioethics? 

7.  Disagreement  with  Outcomes. — In  significant  part,  it  seems  to  be 
disagreement  with  bottom-line  conclusions,  whether  with  a  commentator's 
conclusions,  a  court's  rulings,  a  legislature's  enactments,  an  ethics  committee's 
recommendations,  and  so  on.  But  this  is  not  an  adequate  basis  for  an  ascription 
of  brokenness.  Reflective  critics  are  likely  to  inspect  the  inputs  that  yielded  the 
output,  presuming  that  bad  conclusions  stem  from  bad  thinking  tools  and 
techniques. 

2.  Inappropriate  Methods/Concepts  of  Analysis  and  Valuation. — One  can 
claim  that  any  given  outcome  reflects  a  wide  variety  of  mistakes.  The  outcome 
may  derive,  for  example,  from  a  mistaken  value-ordering  within  a  moral 


214.  See  generally  Michael  H.  Shapiro,  Legislating  the  Control  of  Behavior  Control: 
Autonomy  and  the  Coercive  Use  of  Organic  Therapies,  47  S.  Cal.  L.  Rev.  237  (1974). 

215.  Kass,  supra  note  39,  at  1 7. 


no  INDIANA  LAW  REVIEW  [Vol.  33:17 


hierarchy,  but  this  too  does  not  automatically  mean  that  the  system  of  thought 
embracing  a  particular  ordering  is  seriously  faulty,  nor  that  the  ordering  itself  is 
incoherent.  Far  more  seriously,  it  may  also  derive  from  completely  excluding 
important  considerations,  rejecting  crucial  paradigms,  failing  to  credit  major 
perspectives,  or  from  conflicts  of  interest.  If  so,  something  is  indeed  broken. 
This  is  just  what  we  would  say,  for  example,  if  health  care  commentators  took 
no  account  of  the  role  of  patient  preferences  or  of  patients'  exclusion  from  health 
care  services,  or  if  they  assigned  zero  value  to  community  interests,  or 
completely  discounted  differences  among  racial,  ethnic,  gender,  and  other 
groups. 

The  critique  thus  implicitly  embodies  either  a  bare  objection  to  an  outcome 
or  a  moral  or  conceptual  dispute.  The  latter  sort  of  debate  often  includes  claims 
that  one's  opponents  "don't  get  it":  they  have  missed  material  moral  issues,  are 
misled  by  the  wrong  paradigms  and  analogies,  are  mindlessly  rooted  in  the 
establishment,  etc.  I  think  this  is  generally  not  the  case.  Beyond  its  rhetorical 
usefulness  when  vented  by  ideologues,  insisting  that  "they  don't  get  it"  is  often 
just  a  misleading  way  to  beg  the  question. 

L.  A  More  Suitably  Limited  Critique  ofBioethics  Which,  if  Implemented, 
Would  Clearly  Count  as  Some  Progress 

1.  Loose  Talk. — This  Article  is  not  a  whitewash  of  bioethics.  There  are 
matters  to  complain  about.  I  referred  earlier,  for  example,  to  the  questionable 
quality  of  debates  on  various  issues.^'^  One  can  also  complain  that  there  is  a 
tradition  in  some  areas  of  bioethics  to  buy  into  5w^-establishments — e.g.,  the 
long-standing  opposition  to  some  or  all  TSARs.^'^ 

The  sub-establishment  themes  are  that  TSARs  promote  male  domination, 
professional  domination,  objectification  of  particular  women,  of  women 
generally,  of  children,  and  perhaps  everyone  and  everything  within  range.  Value 
theories  are  not  identified  clearly,  or  if  they  are,  are  largely  undefended; 
inferential  leaps  and  conclusory  arguments  carry  the  day.^'^  Despite  all  these 
deficiencies,  however,  the  anti-TSAR  articles,  judicial  decisions,  or 
commentaries  may  remain  in  other  respects  insightful,  useful,  and,  most 
importantly,  sources  of  important  perspectives  that  others  may  miss.  1  cannot 
recommend  that  a  part  of  bioethics  be  temporarily  shut  down  for  repairs  just 
because  it  is,  more  than  not,  mistaken  in  its  judgments  about  assisted 
reproduction. 


216.  See  supra  Part  I. 

217.  This  point  exhibits  the  dangers  of  arguments  about  ratifying  or  buying  into  the 
establishment.  If  you  attack  the  establishment  consistently  over  an  extended  period  and  gather  a 
substantial,  nontransient  following,  you  have  created  yet  another  establishment  or  sub-establishment 
of  sorts.  This  line  of  criticism  of  bioethics  does  not  seem  well  thought  out.  The  characterization 
is  largely  a  tendentious  way  of  labeling  opposing  views. 

2 1 8.  For  expansion  of  these  views,  see  generally  Shapiro,  supra  note  47;  Shapiro,  supra  note 
66. 


1999]  IS  BIOETHICS  BROKE?  Ill 


Consider,  for  example,  Annas's  view  on  certain  modes  of  assisted 
reproduction: 

Both  clinics  and  courts  like  contracts,  because  they  seem  to  put  private, 
procreation-related  decision  making  in  the  hands  of  the  married  couple 
and  permit  the  courts  simply  to  interpret  and  enforce  voluntary 
agreements.  [1]  The  problem,  however,  is  that  much  more  than  contract 
law  is  at  stake  in  these  cases.  The  courts  are  not  simply  affirming  the 
contents  of  a  contract  but  are  implicitly  making  profound  and  wide- 
ranging  decisions  about  the  status  of  embryos,  the  interests  of  children, 
and  the  identification  and  responsibility  of  their  parents.  [2]  The 
inadequacy  of  contract  analysis  in  this  area  can  be  seen  by  the  fact  that 
no  court  has  ever  forced  any  person  to  fulfill  the  terms  of  a  surrogate- 
mother  contract,  a  custody  contract,  or  a  marriage  contract  by  requiring 
that  the  parties  be  bound  by  the  contractual  terms  regardless  of  their 
current  wishes  or  the  best  interests  of  the  children  involved.^  ^^ 

There  is  much  to  learn  from  these  remarks,  and  much  to  lament. 

Concerning  [1],  the  view  that  the  courts,  in  enforcing  contracts,  are  implicitly 
(it  seems  pretty  explicit)  deciding  serious  value  issues:  embryo  status,  children's 
interests,  and  parental  identification.  This  is  not  generally  an  objection  to 
contract  litigation  (or  any  other  sort  of  litigation);  it  is  one  of  the  rationales  for 
formal  adjudication.  The  problem,  for  some,  is  that  the  issues  were  decided  the 
wrong  way,  not  that  they  were  decided  at  all,  and/or  that  the  underlying 
transactions  should  never  have  occurred.  York  v.  Jones^^^  for  example,  dealt 
with  cryopreserved  embryos  as  property,  more  specifically  as  the  subject  of  a 
bailment  contract.  Perhaps  some  think  the  case  should  have  gone  the  other  way 
by  saying  it  was  contrary  to  public  policy  to  view  embryos  as  "property"  in  the 
sense  that  they  are  subject  to  someone's  right  to  control.  This  too  would  have 
been  a  decision  about  embryonic  status,  although  a  pretty  lame  one  that  gravely 
impairs  procreational  autonomy. 

Claim  [1],  then,  is  1 80°  off,  at  least  in  some  cases.  Every  time  a  contract  (or 
severable  contractual  term)  is  upheld  or  invalidated  because  of  or  despite  public 
policy,  a  common  law  court  is  necessarily  making  value-laden  judgments.  These 
considerations  are  not  "more  than  contract  law,"  but  an  integral  part  of  it.  It  is 
thus  not  apt  to  say  "more  than  contract  law  is  at  stake,"  as  if  the  law  of  contracts 
were  a  discrete,  autonomous  region  having  little  connection  with  the  major  policy 
issues  of  the  day.  "Contract  law"  cannot  be  dismissed  as  some  separate 
irrelevancy:  it  is  intrinsic  to  how  we  live.  "A  matter  of  contracf  is  sometimes 


2 1 9.  George  J.  Annas,  The  Shadowlands — Secrets,  Lies,  and  Assisted  Reproduction,  339  NEW 
Eng.  J.Med.  935, 936  (1998).  The  case  references  are  to  In  re  Marriage  ofBuzzanca,  72  Cal.  Rptr. 
2d  280  (Cal.  Ct.  App.  1 998)  (a  gestational  surrogacy  case)  and  Kass  v.  Kass,  696  N.E.2d  1 74  (N. Y. 
1998)  (concerning  custody  and  use  of  frozen  embryos  after  divorce). 

220.  7 1 7  F.  Supp.  42 1  (E.D.  Va.  1 989)  (ruling  that  genetic  parents  of  a  cryopreserved  embryo 
had  a  contractual  right  to  remove  it  from  the  storage  facility  so  they  could  try  implantation 
elsewhere). 


1 1 2  INDIANA  LAW  REVIEW  [Vol.  33:17 


used  as  an  epithetic  claim  (as  in  "love  is  not  matter  of  contract"),  but  there  is  no 
reductio  ad  absurdum  one  can  make  here;  there  is  no  inherent  contradiction  or 
incoherence  in  applying  contracts  to  certain  matters  of  intimate  association  or 
personal  choice.  Which  ones  are  appropriate  for  contractual  arrangements  and 
which  ones  are  not  is  contested,  but  the  answers  are  not  obvious.  The  error  here 
is  to  reduce  the  idea  of  contract  to  everyday  mercantile  matters  such  as 
purchasing  appliances.  "Contract  law"  is  thus  used  as  an  epithet  or  rhetorical 
flourish.  But  contract  law  is  about  holding  persons  responsible  for  what  they  say 
they  will  do  in  a  variety  of  settings,  and  such  responsibility  is  a  critical 
component  in  vindicating  basic  values  such  as  autonomy,  justice  and  fairness. 

Now,  as  a  jurisprudential  matter,  one  can — one  must,  as  a  good 
jurisprude — ask  whether  the  courts  in  contracts  or  other  cases  are  to  make 
"independent"  moral  judgments  as  the  community's  delegates,  or  whether  they 
are  to  make  complex  empirical  judgments  about  how  the  community  ranks 
certain  moral  claims.  Thor  v.  Superior  Court ^^^  not  a  contracts  case  but  a  dispute 
about  constitutionally  protected  "fundamental  rights,"  suggests  the  latter,  though 
the  matter  is  open  to  doubt.  (Such  heavy  issues  are  not  confined  to  constitutional 
cases:  they  can  come  up  in  litigation  of  any  sort,  including  contracts.) 

Finally,  for  completeness'  sake,  I  note  that  courts,  on  a  daily  basis,  adjudicate 
matters  concerning  "the  interests  of  children"  by  examining  settlement 
agreements — contracts — dealing  with  custody  and  child  support.  They  are  open 
to  judicially  authorized  revision,  but  they  are  far  from  being  contractual  nullities. 

Concerning  [2]:  assuming  arguendo  that  courts  have  never  specifically 
enforced  a  surrogacy  contract  or  any  of  the  others  mentioned,  it  does  not  follow 
that  contract  law  is  "inadequate"  in  this  area.  Indeed,  Annas  should  be  arguing 
that  contract  law  does  exactly  what  he  wants  it  to  do — refuse  to  enforce 
surrogacy  contracts.  In  any  case,  there  is  no  adequate  explanation  of 
"inadequacy";  it  is  simply  a  conclusory  observation. 

Although  it  is  technically  true  that  courts  have  not  enforced  surrogacy 
contracts  as  such,  what  is  left  out  of  this  account  suggests  precisely  the  opposite 
of  what  Annas  claims  about  contract  law's  usefulness.^^^     In  Johnson  v. 


221.  855  P.2d  375,  383  (Cal.  1993).  As  mentioned  earlier,  the  court  ruled  that  a  prisoner's 
choice  to  refuse  lifesaving  care  was  a  fundamental  common  law  right  and  perhaps  a  state 
constitutional  right.  See  id.  at  381.  The  court  investigated  contemporary  philosophical  accounts 
of  autonomy  and  its  moral  ranking  and  incorporated  these  "findings"  into  its  reasoning.  The  court 
said  that  "[g]iven  the  .  .  .  legal  and  philosophical  underpinnings  of  the  principle  of  self- 
determination,  as  well  as  the  broad  consensus  that  it  fully  embraces  all  aspects  of  medical 
decisionmaking  by  the  competent  adult,  we  conclude"  that  a  physician  has  no  duty  to  treat  an 
objecting  patient,  assuming  the  refusal  is  informed.  Id.  at  383.  This  might  be  interpreted  as  an 
empirical  determination  of  the  community's  values,  supplying  a  key  premise  in  the  court's 
argument.  Such  an  investigation  is  critical  in  (dis)confirming  "tradition"  under  the  Fifth  or 
Fourteenth  Amendments  in  order  to  decide  whether  a  claim  involves  a  fundamental  liberty  interest. 
To  be  sure,  it  might  also  be  viewed  as  an  application  of  the  court's  own  views  on  the  moral  status 
of  various  ideals,  such  as  autonomy.  However,  the  distinction,  in  practice,  seems  very  hard  to  draw. 

222.  At  a  later  stage  of  the  article,  Professor  Annas  does  point  out  that  "[tjhese  courts 


1999]  IS  BIOETHICS  BROKE?  1 1 3 


Calvert,^^^  the  California  Supreme  Court  ruled  that  custody  of  a  child  belonged 
to  the  genetic  parents  in  a  gestational  surrogacy  case  because  they  were  the 
intended  rearing  parents.  The  court  took  the  view  that  when  genetics  and 
gestation  are  divided  between  two  women,  identifying  exactly  one  "natural 
mother"  requires  looking  to  the  parties'  intentions  at  the  time  of  agreement.^^"^ 
The  agreement  here,  even  though  not  enforced  as  such,  was  all  but  conclusive  on 
the  question  of  what  that  intention  was.^^^  The  contractual  perspective  was  thus 
hardly  "inadequate"  or  peripheral.  It  was  central  to  the  court's  conclusion. 
Contracts  do  not  have  to  be  enforced  qua  contracts  for  them  to  have  a  powerful 
effect  and  to  adequately  show  what  needs  to  be  shown  under  a  governing  rule  of 
decision. 

Now,  examine  the  claim  in  the  same  article  criticizing  the  role  of  courts  in 
assisted  reproduction: 

[3]  The  California  court's  most  important  insight  was  that  courts  have 
an  extremely  difficult  time  making  meaningful  public  policy  in  the  realm 
of  assisted  reproduction  because  they  are  limited  to  deciding  individual 
disputes  afiter  the  fact,  and  that  the  legislature,  which  ideally  can  foresee 
and  prevent  disputes,  is  therefore  the  preferred  law-making  body  in  this 
area.^^^ 

The  term  "therefore"  ought  to  be  restricted  to  valid  arguments,  and  none  is 
in  evidence  here.  If  courts  find  it  hard  to  make  public  policy  judgments  "because 
they  are  limited  to  deciding  individual  disputes  after  the  fact,"^^^  one  would  think 
this  difficulty  is  not  confined  to  assisted  reproduction:  all  adjudication  is 
impeached  when  public  policy  seriously  intrudes.  But  the  claim  is  hard  to 
fathom.  The  theory  of  common  law  development  and  the  U.S.  Supreme  Court's 
hostility  to  "advisory  opinions"  rest  partly  on  the  notion  that  before  general  rules 
of  decision  are  announced,  the  court  should  be  able  to  see  how  possible  rules  and 


arguably  did  as  well  as  they  could,  and  reliance  on  prior  contracts  as  a  way  to  resolve  controversies 
in  assisted  reproduction  has  also  been  espoused  by  leading  legal  commentators."  Annas,  supra  note 
219,  at  937  (footnote  omitted). 

223.  851  P.2d  776,  787  (Cal.  1993). 

224.  See  id  at  782. 

225.  See  In  re  Marriage  of  Moschetta,  30  Cal.  Rptr.  2d  893,  900  (Cal.  Ct.  App.  1994): 
[T]he  [California  Supreme  Court]  did  not  actually  hold  that  the  gestational  surrogacy 
contract  at  issue  in  Johnson  v.  Calvert  was  enforceable  as  such.  Rather,  the  court  stated 
that  such  a  contract  is  a  proper  basis  on  which  to  ascertain  the  intent  of  the  parties 
because  it  does  not  offend  public  policy  "on  its  face."  In  Johnson  v.  Calvert  the 
function  of  the  surrogacy  contract  was  to  serve  as  a  vessel  in  which  the  parties  could 
manifest  or  express  their  intention.  The  gestational  surrogacy  contract  was  never  held 
to  be  enforceable  per  se. 

Id.  (citations  omitted). 

226.  Annas,  supra  note  219,  at  936.  Annas  is  referring  to  Buzzanca  v.  Buzzanca,  72  Cal. 
Rptr.2d  280  (1998),  a  surrogacy  case. 

227.  Annas,  supra  note  2 1 9,  at  936. 


114  INDIANA  LAW  REVIEW  [Vol.  33:17 


their  variations  play  in  the  concrete  matters  before  them,  incrementally  adjusting 
the  rules  as  new  facts  and  perspectives  come  up  in  new  cases.  The  entire  body 
of  the  common  law  originally  developed  this  way — ^through  deciding  disputes 
"after  the  fact,"  i.e.,  after  a  dispute  arose  that  could  be  presented  in  specific  form 
to  a  court.  Once  again,  talking  about  the  supposed  infirmities  of  adjudication 
seems  in  reality  an  expression  of  hostility  to  the  underlying  transactions. 

As  for  the  non  sequitur  that  legislatures  are  the  "preferred  law-making  body 
in  this  area"  because  they  can  "foresee  and  prevent"^^*  disputes:  First,  absolutely 
nothing  is  shown  about  why  "this  area"^^^  is  more  fit  for  legislatures  than  courts. 
Second,  that  the  legislature  is  able  to  foresee  and  prevent  disputes  does  not 
establish  that  it  is  the  preferred  law  making  body.  While  knowing  in  general 
terms  what  the  future  might  bring  is  pretty  handy,  the  lack  of  concrete  knowledge 
which  in  some  partial  form  may  be  before  a  court  cuts  the  other  way.  True,  a 
court  can  be  overly  swayed  by  particulars;  however,  courts,  as  we  know  them, 
decide  on  the  basis  of  general  rules,  principles  and  standards,  whether  recognized 
as  explicitly  or  implicitly  preexisting,  or  openly  created  in  a  case  of  "first 
impression."  In  doing  so,  courts  look  to  the  future  as  well  as  the  past,  and  in 
articulating  and  applying  their  selected  abstractions  often  assess  the  expected 
impacts  of  their  rulings.  In  many  cases,  courts  can  "foresee  and  prevent"  as  well 
or  better  than  legislatures. 

Third,  we  can  certainly  find  tasks  and  problems  fit  only,  or  primarily,  for 
legislatures.  Tax  codes  are  not  created  in  toto  by  common  law  courts,  although 
they  may  obviously  have  a  spectacular  impact  on  the  legislature's  prior  work. 
We  can  also  find  matters  that  are  fit  only  for  courts.  Adjudications  of  guilt  and 
imposition  of  punishments  are  generally  prohibited  by  constitutional  provisions 
disallowing  bills  of  attainder.^^^  But  beyond  such  polar  cases,  there  is  no 
satisfactory  theory  available  that  decisively  establishes  for  all  kinds  of  disputes, 
past,  present,  or  future,  whether  they  can  be  dealt  with  more  or  less  effectively 
by  legislatures  as  opposed  to  courts.  The  idea  that  legislatures  are  inherently 
better  at  deciding  how  to  handle  TSARs  has  no  foundation  in  jurisprudential 
theory,  legal  philosophy,  historical  analysis,  or  anything  else.  One  might  have 
made  much  the  same  claim  about  whether  transplantation  of  organs  from  live 
sources,  adult  or  child,  competent  or  incompetent,  should  be  permitted.  What 
theory  shows  us  that  legislatures  would  have  been  better  than  courts  in  making 
the  initial  foundational  decisions?^^'  Even  authorization  to  rely  on  "brain  death" 
criteria,  though  now  universally  dealt  with  in  the  United  States  through  adoption 
of  the  Uniform  Anatomical  Gift  Act,^^^  can  in  principle  be  established  through 


228.  Id. 

229.  Id. 

230.  Conviction  by  the  Senate  following  Presidential  impeachment  by  the  House  is  not  an 
exception. 

231.  See,  e.g.,  Strunk  v.  Strunk,445  S.W.2d  145  (Ky.  1969)  (authorizing  transfer  of  a  kidney 
from  a  mentally  impaired  sibling  to  his  brother). 

232.  Unif.  Anatomical  Gift  Act,  8  A.U.L. A.  29-62  ( 1 987). 


1999]  IS  BIOETHICS  BROKE?  115 


common  law  adjudication,  as  in  Lovato  v.  District  CourtP^ 

Perhaps  in  various  cases  legislation,  while  not  indispensable,  would  further 
goals  of  predictability  and  help  avoid  disputes.  But  a  series  of  judicial  decisions 
may  do  the  same.  Nor  is  there  any  basis  for  the  view  that  critical  policy  and 
value-laden  analyses,  whether  styled  as  moral  decision  making  or  reliance  on 
perceived  community  norms,  are  better  made  by  legislatures  than  courts.  It  is 
sometimes  worth  recalling  that  courts,  as  ideally  viewed,  are  meant  to  exclusively 
inhabit  the  universe  of  principled  decision  making;  legislatures  are  not.  While 
we  prefer  legislation  to  be  rational  and,  when  not  horse-trading  or  pork-barreling, 
to  rely  on  principle  as  do  courts,  our  preferences  are  regularly  frustrated  by 
reality.  The  claim  of  legislative  superiority  is  thus  not  only  not  made  out,  but  it 
is  in  tension  with  reality. 

Elsewhere,  Annas  points  out:  "The  court's  opinion  [in  Buzzanca],  for 
example,  gives  no  guidance  on  what  should  happen  if  the  gestational  mother  or 
the  egg  donor  changes  her  mind  and  wants  to  be  designated  the  legal  mother  with 
the  rights  and  responsibilities  to  rear  Jaycee."^^"*  One  could  argue  that  under 
Johnson  v.  Calvert  the  matter  would  be  resolved  by  reference  to  original 
intentions.  The  implication  seems  to  be  that  if  a  legislature  had  considered  the 
problem,  it  would  have  anticipated  this  and,  because  it  is  not  bound  by  judicial 
rules  against  deciding  cases  not  before  it,  would  thus  have  saved  us  a  lot  of 
problems.  Is  it  true  that  legislation  generally  has  fewer  gaps  and  unanticipated 
problems  than  a  judicial  rule  of  decision?  Even  if  this  were  to  some  extent  true, 
would  this  overshadow  the  benefits  of  a  court's  focused  attention  on  the  singular 
and  vivid  facts  of  the  case  before  it? 

Annas  also  asks:  "[4]  Must  obstetricians  and  hospitals  locate  and  interpret 
contracts  to  determine  who  a  child's  legal  mother  is  at  the  time  of  birth?  Do 
commerce,  money,  and  contracts  really  have  more  to  say  about  motherhood  than 
pregnancy  and  childbirth?"^^^ 

Sometimes,  having  skills  in  assembling  words  in  rhetorically  effective  ways 
is  dysfunctional.  (Think  of  Justice  Holmes,  the  master  rhetorician  of  U.S.  law, 
in  Buck  V.  Bell.y^^  One  is  inspired  to  shout,  with  Annas  that  of  course  mere 
matters  of  the  market,  of  trade,  of  (gasp)  contracts  cannot  tell  us  about  (sigh) 
motherhood,  pregnancy,  and  childbirth! 

Sounds  good,  but  question-begging  allusions  often  do — ^that  is  why  we  write 
and  read  them  so  often.  What  is  it  that  pregnancy  and  childbirth  "say"  about 
motherhood?  Cases  such  as  Johnson  v.  Calvert  are  VitigaiQd  precisely  because 
pregnancy  and  childbirth  do  not  tell  us  what  we  need  to  know,  unless  one  begs 
the  question  by  stipulating  what  is  contested:  that  gestation  trumps  genetics 
regardless  of  anyone's  intentions  about  their  respective  roles,  and  therefore 


233.  601  P.2d  1072  (Colo.  1979)  (ruling  after  looking  to  proposals  for  legislative  action, 
including  failed  bills). 

234.  Annas,  supra  note  2 1 9  ,  at  937. 

235.  Id. 

236.  274  U.S.  200  (1927)  (upholding  the  constitutional  validity  of  a  statute  authorizing 
involuntary  sterilization  of  a  supposedly  mentally  impaired  person). 


1 1 6  INDIANA  LAW  REVIEW  [Vol.  33:17 


pregnancy  and  childbirth  "say"  "Mother." 

What  can  we  say  about  motherhood  and  its  relation  to  pregnancy  and 
childbirth?  We  can  say  that  pregnancy  and  childbirth  just  aren't  what  they  used 
to  be  when  we  are  talking  about  gestational  surrogacy.  The  entire  problem  rests 
on  the  division  of  genetics  and  gestation.  To  assume  that  "contracts"  and 
"commerce"  have  little  or  nothing  to  say  about  true  motherhood  simply  ignores 
the  central  moral/conceptual  difficulty  concerning  how  to  determine  whether  our 
exactly  one  natural  mother  is  to  be  the  genetic  source  or  the  gestational  source. 
Asserting  that  "but  for"  the  gestational  mother  the  child  would  not  exist  is 
bootless.  But  for  the  genetic  mother,  the  child  would  not  exist  either.^^^ 

Now,  there  are  some  who  simply  assert  that  obviously  it  is  the  gestational 
mother  because  the  gestational  mother  nurtured  the  child.^^^  I  do  not  doubt  the 
formation  of  emotional  bonds  by  the  gestator,  but  these  gestation-beats-genetics 
commentaries  rarely  even  refer  to  the  supposedly  peripheral  role  of  the  genetic 
mother.  That  flaw  is  fatal  to  the  soundness  of  the  argument,  and  if  such  glaring 
omissions  were  consistently  made  across  an  entire  field,  then,/7ro  tanto,  the  field 
would  be  "broke."  To  fix  one's  gaze  exclusively  on  the  pregnancy  and 
childbirth;  to  systematically  ignore  the  very  genesis  of  the  decision  to  procreate; 
to  fail  to  explore  common  understandings  of  the  idea  of  "my  own  child";  to  fail 
to  inquire  into  the  state  of  mind,  the  expectations,  the  bond-from-afar,  of  the  two 
persons  who  exclusively  formed  the  child's  genetic  template  and  who  await  the 
child's  birth  so  that  he  can  be  integrated  into  their  family — ^this  is  utterly 
incomplete  analysis.  Although  I  disagree  strongly  with  the  weight  of  scholarly 
authority  that  automatically  favors  gestation,  the  overall  field  of  bioethics, 
including  its  legal  processes  and  scholarship,  has  not  systematically  ignored  the 
interests  of  genetic  mothers.  Particular  arguments  may  be  "broke,"  but  the  field 
is  not. 

Annas  concludes: 

[5]  If  we  consider  the  best  interests  of  children  more  important  than  the 
best  interests  of  commerce,  children  will  be  best  protected  by  a  universal 
rule  that  the  woman  who  gives  birth  to  the  child  is  the  child's  legal 
mother  —  with,  among  other  things,  the  right  to  make  treatment 
decisions  on  behalf  of  the  child  and  the  responsibility  to  care  for  the 
child.  [6]  I  believe  this  not  because  it  is  the  traditional  or  natural  rule  but 


237.  But  see  George  J.  Annas,  Assisted  Reproduction:    Who  Is  the  Mother?  (response  to 
letter),  340  New  Eng.  J.  Med.  656  (1999)  (responding  to  letter  to  the  editor). 

238.  See,  e.g.,  Rothman,  supra  note  37,  at  1607. 

We  need  to  reject  the  very  concept  of  surrogacy.  We  need  to  reject  the  notion  that  any 
woman  is  the  mother  of  a  child  that  is  not  her  own,  regardless  of  the  source  of  the  egg 
and[/]or  of  the  sperm.  Maybe  a  woman  will  place  that  child  for  adoption,  but  it  is  her 
child  to  place.  Her  nurturing  of  that  child  with  the  blood  and  nutrients  of  her  body 
establishes  her  parenthood  of  that  child.  Trying  to  find  a  moral  stance  that  recognizes 
the  viewpoint  of  women  in  these  various  patriarchal  traditions  is  not  an  easy  task. 
Id. 


1 999]  IS  BIOETHICS  BROKE?  1 1 7 


because  the  gestational  mother  is  the  only  one  of  the  three  potential 
mothers  [as  in  Buzzanca]  who  must  be  present  at  the  child's  birth  and 
available  to  make  decisions  on  behalf  of  the  child.  [7]  She  is  also  the 
only  one  of  the  three  potential  mothers  who  has  a  personal  relationship 
with  the  child.''' 

[5] :  Annas's  statement  that  the  best  interests  of  children  are  more  important 
than  the  best  interests  of  commerce  registers  a  false  opposition.  "The  best 
interests  of  commerce"?  What  does  this  refer  to?  Commerce  is  commerce  in 
something.  Here,  it  concerns  an  arrangement  designed  to  create  a  nuclear 
familiar  through  a  form  of  TSAR  in  which  someone  is  paid  for  reproductive 
services.  It  is  unsound  to  focus  on  the  exchange  of  wealth  while  systematically 
ignoring  the  creation  of  a  nuclear  family.  If  the  point  is  that  some  methods  of 
family  formation  are  illegitimately  placed  "in  commerce,"  that  point  must  be 
confirmed,  and  to  this  point  it  hasn't.  Using  "commerce"  as  a  conclusory  epithet, 
but  without  additional  analysis  of  the  supposedly  baleful  effects  of  exchanging 
money  or  other  value,  is  all  but  useless.  "Commerce  vs.  best  interests"  is  thus  a 
comparison  much  too  tendentious  to  be  helpful. 

Item  [6]  offers  prudential  reasons  for  saying  that  the  birthmother  is  the  legal 
mother.  You  know  who  the  birthmother  is.  But  if  the  genetic  sources  get  caught 
in  traffic — or  even  if  they  do  not- — how  do  you  know  they  are  really  the  selfsame 
genetic  sources  mentioned  in  surrogacy  contract?  You  cannot  see  genetic 
motherhood  the  way  you  can  see  childbirth. 

There  is  some  risk  here,  not  overwhelming,  but  nonzero.  Now,  are  we  going 
to  overturn  a  novel  way  of  forming  a  nuclear  family,  to  which  all  the  parties 
agreed,  because  of  the  small  chance  that  the  gestational  mother,  or  a  stranger, 
will  claim  that  she  is  in  fact  the  genetic  mother,  leaving  us  all  hopelessly 
confused  without  the  vaunted  bright-line  rule  that  gestation  proves  all?  And,  if 
this  unlikely  scenario  does  come  up  (as  unlikely  scenarios  have  a  way  of  doing), 
there  are  relatively  quick  and  accurate  scientific  methods  to  determine  who's 
whom.  This  is  annoying  and  costs  money,  but  it  will  not  happen  in  a  large 
fraction  of  cases  and  the  asserted  risks  simply  do  not  outweigh  the  benefits, 
except  for  those  who  place  small  value  on  the  interests  of  genetic  parents  who 
want  a  family.  Here  again,  we  see  that  the  central  moral  question  has  been 
begged:  What  is  the  relative  valuation  of  supplying  ova  in  order  to  become  a 
genetic  mother  and  being  the  gestator  of  a  child?  A  low  value  assigned  to  the 
former  leads  almost  automatically  to  assigning  custody  to  the  gestator,  and 
explains  why  custody  is  decided  on  the  basis  of  an  unlikely  and  minor  delay  in 
identification.  If  the  value  of  reproductive  planning  by  a  genetic  mother  and 
father  is  near  zero,  then  even  a  minor  risk  of  confusion  vastly  outweighs  it. 

So,  the  proposed  pragmatic  rule  favoring  gestation  not  only  avoids  the  hard 
moral  choice — it  presupposes  that  it  has  been  settled,  and  thus  adds  little  or 
nothing  to  rational  debate  on  the  issue. 

[7]  Next,  we  have  Annas's  argument  that  the  gestational  mother  is  the  only 


239.     Annas,  supra  note  2 1 9,  at  937  (footnote  omitted). 


1 1 8  INDIANA  LAW  REVIEW  [Vol.  33:17 


one  with  a  "personal  relationship"  to  the  child.  Is  it  hard  to  see  the  circularity 
here?  What  does  "personal  relationship"  mean?  It  must  mean,  in  this  context, 
that  the  pre-child  developed  inside  the  gestator's  body.  So,  "I  have  a  personal 
relationship  with  this  child"  means  "this  child's  body  was  locked  into  and 
growing  in  mine."  Genetic  connection,  however,  is  evidently  no  basis  for  a 
personal  relationship.  After  all,  what  about  anonymous  sperm  donors  or  even 
egg  donors?  No  personal  relationships  there,  right?  Why  aren't  all  problems  this 
easy? 

But  we  are  not  dealing  with  anonymous  suppliers  of  gametes.  We  are 
dealing  with  someone  who  supplied  half  the  child's  genes  on  the  understanding 
that  this  procreational  contribution  would  be  realized  through  the  custody  and 
companionship  of  the  child.  Genetic  determinism  may  be  false,  but  if  "Genes- 
'i?'«Y-Us" — if  they  aren't  everything — ^they  sure  as  hell  aren't  nothing. 
Environmental  determinism  is  at  least  as  false  as  genetic  determinism.  Why  this 
intended  connection  via  genetics  and  companionship  is  not  a  personal 
relationship — different,  to  be  sure,  from  the  gestational  connection — is  not 
apparent.  It  is  obvious  that,  once  again,  a  rhetorical  display  rests  on  begging  the 
central  question:  Is  the  gestational  relationship  the  true  personal  relationship, 
and  the  genetic  relationship  the  imposter — or  the  reverse?  Note  that  nothing 
whatever  is  said  about  one  of  the  prime  elements  of  the  personal  relationships  in 
question  here:  the  nature  of  the  psychological  bonds  of  the  genetic  and 
gestational  mothers  with  the  child  in  any  given  case,  and  in  general. 

Perhaps  the  baleful  influence  of  Oliver  Wendell  Holmes,  Jr.  really  is  at  work 
here.  He  has  caused  generations  of  imitators  to  struggle  for  their  Black  Belts  in 
Rhetoric.  They  have  all  failed.  What's  more.  Holmes  himself  failed.  (No  time 
to  show  this  and  the  margins  are  too  small,  but  I  have  a  great  proof.)  Give  it  up. 

Finally  Annas  states:  "[8]  [A]  bad  way  to  protect  the  children  who  have  been 
conceived  and  bom  with  the  assistance  of  the  new  reproductive  techniques  is 
simply  to  provide  the  adults  involved  with  what  they  want."^"^^ 

Is  it  a  bad  way  to  protect  children  bom  the  more-or-less  regular  way  to  let 
their  parents  keep  themyw5^  because  that  is  what  the  parents  want?  Why,  the 
very  idea  is  ridiculous.  It's  time  to  institute  Plato's  Republic  and  stop  all  this 
procreational  autonomy  foolishness  and  install  the  true  protector  of  all,  the 
Republic.  Let  the  parents  get  together,  let  the  child  be  born,  and  then  the 
Philosopher  Kings  will  take  over  and  the  child  will  be  v2dSQd  properly}^^  The 
idea  that  children's  interests  might  be  ^vomoXQd  precisely  by  providing  the  adults 


240.  Mat  938. 

24 1 .  See  PLATO,  THE  REPUBLIC  AND  OTHER  WORKS,  Book  V,  1 5 1  (B.  Jowett  trans.,  Dolphin 
Books  1 960)  ("The  proper  officers  will  take  the  offspring  of  the  good  parents  to  the  pen  or  fold,  and 
there  they  will  deposit  them  with  certain  nurses  who  dwell  in  a  separate  quarter;  but  the  offspring 
of  the  inferior,  or  of  the  better  when  they  chance  to  be  deformed,  will  be  put  away  in  some 
mysterious,  unknown  place,  as  they  should  be.").  Cf.  Hecht  v.  Superior  Court,  20  Cal.  Rptr.  2d 
275,  286  (Cal.  Ct.  App.  1993)  {qwoXmg  Adoption  ofKelseyS.,  823  P.2d  1216,  1234  (Cal.  1992) 
("We  simply  do  not  in  our  society  take  children  away  from  their  mothers-married  or 
otherwise—because  a  'better'  adoptive  parent  can  be  found")). 


1999]  IS  BIOETHICS  BROKE?  119 


who  planned  their  existence  with  what  they  want  is  ridiculous,  right? 

Now,  substitute  TSAR  for  regular  procreation.  What  are  the  exact  reasons 
for  rejecting  out  of  hand  what  the  parents  want?  There  are  no  exact  reasons. 
There  are  speculations  about  objectification,  dehumanization,  exploitation,  and 
a  large  number  of  other  slogans  indigenous  to  the  TSAR  literature.  But  what  is 
truly  demoralizing  about  this  last  quoted  statement,  which  is  shared  by  many  in 
the  business  of  commenting  on  TSARs,  is  the  offensive  dismissal  of  individual 
and  parental  reproductive  autonomy.  Who  cares  about  it  anyway?  They  want  a 
child?  Who  do  they  think  they  are  to  claim  that  "simply"  wanting  a  child  carries 
any  weight  in  this  Republic? 

None  of  these  complaints  suggest  that  the  pursuit  of  bioethics  is  gravely 
impaired.  They  do  indicate  that  certain  aspects  of  its  practice  can  stand  some 
serious  repairs.  Careful  analysis  will,  I  think,  suggest  that  many  of  the  asserted 
risks  of  life  science  technologies  are  greatly  exaggerated. 

2.  Refocusing  on  Interpersonal  Bonds  in  an  Age  of  "Investing  "  in  Genetic 
and  Nongenetic  Human  Engineering  Plans:  The  Risks  of  Reduction. — ^All 
biological  technologies  used  on  ourselves  and  our  possible  and  actual  children 
ought  to  be  assessed  for  their  risk  of  eroding  noncontingent  bonds.  "Bonds"  here 
refers  to  the  sense  of  duty  and  feelings  of  affection  we  have  for  our  children, 
whatever  their  traits,  and  for  each  other  as  persons.^'*^  It  is  not  silly  to  wonder 
whether,  say,  altering  physical  and  mental  traits  in  living  persons,  or  altering  the 
germ  line  to  produce  or  augment  specific  attributes,  may  lead  to  viewing 
individual  worth  as  contingent  on  whether  the  engineering  plan  "succeeded." 
Different  technological  and  social  arrangements  for  reproductive  engineering 
pose  different  levels  of  such  risks:  It  is  one  thing  to  pursue  IVF  or  surrogacy 
when  used  simply  to  relieve  infertility  within  a  standard  family  (there,  the 
investment  is  in  money,  time,  some  physical  discomfort,  and  emotional  distress). 
It  is  another  to  plan  human  trait  alteration.  I  do  not  propose  flat  bans  on  the 
latter;  I  simply  say  they  pose  greater  risks  because  planning  a  trait  makes  that 
trait  more  salient,  and  possibly  more  valuable  or  fearful  in  our  eyes.  Ideally,  we 
are  more  oriented  toward  viewing  most  traits  as  simply  one  of  many.  We  thus 
can  avoid  one  form  of  "reduction"  in  which  whatever  value  one  has  as  a  person 
is  ascribed  to  the  single  trait  or  traits  in  question.  But  ideals  are  one  thing,  reality 
another.  Reduction  is  the  core  mechanism  of  "objectification,"  and,  if  we  are 
concerned  about  (de)valuing  people  in  this  reductionist  way  it  requires  close 
attention. 

Although  focusing  on  the  precise  mechanisms  of  reduction  may  be  helpful, 
this  too  has  its  limitations.  Yet  another  paradox  is  at  work  in  reduction  analysis: 
We  are  at  risk  for  reducing  people  to  specific  traits  because  these  traits  are  useful 
to  us  or,  in  any  case,  were  planned  or  "ordered  up."  This  is  not  good.  But  what 
is  the  alternative?  How  do  we  value  people  in  the  preferred  way?  After  all,  we 
do  not  bond  to  disembodied  entities.^"^^  We  choose  friends  and  colleagues  on  the 


242.  See  Shapiro,  supra  note  137,  at  683-87. 

243.  See  Hans  Jonas,  Against  The  Stream:  Comments  on  the  Definition  and  Redefinition  of 
Death,  in  PHILOSOPHICAL  ESSAYS:   FROM  ANCIENT  CREED  TO  TECHNOLOGICAL  MAN  132,  139 


120  INDIANA  LAW  REVIEW  [Vol.  33: 17 


basis  of  a  variety  of  traits,  although  usually  in  a  nonspecific  way.  How  would  we 
ordinarily  respond  to  the  question:  "Why  do  you  like  X"?  Specificity  here 
might  suggest  a  diminished  view  of  the  person.  How  would  we  respond  when  the 
person's  attributes  derive  from  germ-line  control? 

It  appears,  then,  that  the  very  process  to  be  feared — reduction  of  persons  to 
things— rests  on  attending  to  traits,  but  that  attending  to  traits  is  central  to 
desirable  valuation  of  persons.  The  (partial)  resolution  of  this  tension  would  be 
to  mark  out  the  differences  in  how  we  address  traits  when  we  improperly  reduce 
persons  as  opposed  to  properly  valuing  them.^"^"* 

III.  The  Idea  of  Progress  in  Ethics  and  Law,  and  Science  and 
Technology:  If  Bioethics  Were  Broke,  How  Would  We  Fix  It? 

A.  Preface:  The  Domains  and  Senses  of  Progress 

1.  Advancement,  Stasis,  Regress,  and  Falls. — There  is  a  sizeable  literature 
on  the  idea  of  progress  and  how  that  idea  has  progressed,  or  has  at  least  changed. 
But  much  of  it  is  of  limited  use  for  my  purposes — comparing  the  ideas  of 
progress  in  moral  and  legal  theory  and  their  applications  to  human  behavior, 
science,  and  the  life  sciences  and  technologies  in  particular. 

Historians  of  both  the  concept  and  the  fact  of  progress  often  note  its  contrast 
with  earlier,  quite  different  visions  of  human  life:  stasis  or  even  regress  in 
human  affairs,  perhaps  in  a  fall  from  some  golden  age.^'^^  Whether  we  have 
"fallen"  or  "regressed"  or  stood  pat,  however,  is  as  much  a  matter  of  evaluation 
as  it  is  of  fact.  "Progress,"  like  many  of  our  major  concepts,  is  normatively 
ambiguous,  and  thus  so  is  "catching  up."  Whether  X  ought  to  catch  up  with  Y 
depends  on  valuations  of  X  and  Y  and  the  moral  and  nonmoral  costs  of  catching 
up.  Whether  X  has  indeed  caught  up,  gained  on,  or  even  exceeded  Y,  is  also  a 
matter  of  value  and  fact. 

Some  of  the  critiques  of  contemporary  technology  seem  to  reflect  the  view 
that  we  have  indeed  fallen  from  better  times,  that  we  are  now  static  or 
backsliding,  and  that  the  misnamed  "progress"  of  technology  is  a  major 
malefactor.  We  will  not  progress  or  rise  from  our  fall  unless  we  abandon  at  least 
some  of  our  major  technological  aberrations.  The  prospects,  on  this  view,  are 
pretty  gloomy.  Who  would  be  willing  to  give  up  polio  vaccines  and  the  complete 
compact  disk  collection  of  Beethoven's  works? 

2.  Categorizing  Progress. — We  can  map  categories  of  progress  onto 


(1974). 

244.  The  issues  of  reduction  and  valuation  are  discussed  more  extensively  in  Shapiro,  supra 
note  66. 

245.  See  DANIEL  SAREWITZ,  FRONTIERS  OF  ILLUSION:    SCIENCE,  TECHNOLOGY,  AND  THE 
Politics  of  Progress  ( 1 996);  Daniel  Callahan,  Challenging  the  Mythology  of  Progress,  1 2  MED. 
Humanities  Rev.  92  (1998)  (reviewing  Sarewitz,  supra).    See  generally  ROBERT  NiSBET, 
History  of  the  Idea  of  Progress  (1980);  Frankel,  supra  note  21,  at  483;  Morris  Ginsberg, 
Progress  in  the  Modern  Era,  3  DICTIONARY  OF  THE  HISTORY  OF  IDEAS  633  (1973). 


1 999]  IS  BIOETHICS  BROKE?  1 2 1 


whatever  classification  scheme  we  use  to  describe  ourselves  and  our  doings.  We 
can  refer  to  our  habits  of  thought  and  feeling;  our  behaviors;  our  social,  political, 
economic,  and  cultural  circumstances;  the  physical  environment  generally;  the 
assorted  branches  of  science  and  technology;  and  so  on.  As  soon  as  one  starts 
this  taxonomic  exercise,  it  is  obvious  that  particular  notions  of  progress,  though 
linked,  may  be  sharply  different.  "Intellectual  progress"  and  "applied 
technological  progress"  are  not  the  same.  One  also  notices  that  how  fields  of 
endeavor  are  sorted  may  hugely  influence  the  proper  ascription  of  progress, 
regress,  or  stasis.  Focusing  on  precisely  defined  enterprises  can  yield  easy 
attributions  of  progress  or  failure,  narrowly  understood.  The  Human  Genome 
Project,  for  example,  will  be  completed  within  a  few  years.  We  will  have 
progressed  in  accumulating  knowledge — ^the  location  and  sequencing  of  all  our 
genes.  How  quickly  we  will  move  in  using  this  knowledge  for  improving 
medical  therapeutics  is  unclear,  and  whether  such  advances  will  always 
constitute  "progress"  in  a  moral  sense  is  also  uncertain.  The  same  reservations 
apply,  with  even  greater  force,  to  enhancing  human  traits. 

One  can  also  distinguish  progress  as  applied  to  different  fields  of  thought  and 
behavior  and  to  different  kinds  of  progress  within  that  field.  Progress  in  physics 
is  different  from  progress  in  philosophy,  and  there  are  different  sorts  of  progress 
within  each  field.  Subsuming  Newton's  gravitational  theory  within  Einstein's 
was  progress,  but  of  a  different  form  than  confirming  the  existence  of  elementary 
particles.  Many  of  Rawls'  contributions  marked  progress  in  philosophy,  but  so 
did  the  long-standing  recognition  that  basic  concepts  such  as  justice  and 
autonomy  come  in  sharply  conflicting  versions.  The  latter  is  a  piece  of 
conceptual  analysis  that  may  or  may  not  help  decisionmakers  in  reaching  a 
conclusion,  whatever  illumination  it  bestows.  The  former  is  meant  to  guide 
decisionmakers  to  at  least  certain  general  conclusions  about  the  structure  and 
institutions  of  a  liberal  political  system. 

Here  the  primary  comparisons  among  different  kinds  of  progress  are,  as  I 
have  said,  between  science  and  technology  of  any  sort,  on  the  one  hand,  and 
moral  and  legal  theory  and  application,  on  the  other.  A  related  inquiry  would 
inspect  progress  in  human  behavior,  but  here  the  difficulties  are  not  in  recounting 
facts  (people  do  keep  killing  and  rescuing  each  other),  but  in  morally 
characterizing  what  they  do.  Some  might  recommend  yet  another  inquiry: 
whether  we  have  uncovered  a  better  way  to  accomplish  a  given  goal.  ''Progress 
is . . .  defined  as  'the  end  point,  temporary  or  permanent,  of  any  social  action  that 
leads  from  a  less  to  a  more  satisfactory  solution  of  the  problems  of  man  in 
society. '"^'^^  This  does  not  seem  to  be  a  separate  project,  however;  at  some  point. 


246.  Leslie  Sklair,  The  Sociology  of  Progress  at  xiv  ( 1 970). 
If  we  wish  to  control  the  sex  of  our  children,  then  the  biological  solution  is  undeniably 
more  satisfactory  than  infanticide,  whether  it  is  considered  innovational  or  non- 
innovational  progress.  In  terms  of  the  sociological  ethic,  </we  want  to  control  sex  then 
given  that  the  choice  is  between  some  form  of  infanticide  or  some  efficient  biological 
solution  the  latter  clearly  satisfies  human  needs,  individual  and  social,  better  than  the 
former. 


122  INDIANA  LAW  REVIEW  [Vol.  33:17 


the  goal  itself  has  to  be  tested  under  a  more  general  concept  of  progress. 

A  major  source  of  both  insight  and  confusion  in  thinking  about  progress  is 
the  enlightenment-era  view  held  by  many  that  "the  methods  and  spirit  of  science 
should  be  applied  to  all  fields.  In  consequence,  the  idea  of  progress  came  to 
include  a  concept  of  social  and  moral  progress. "^'^^  After  all,  sound  moral 
analysis  reflects  rational  thought  just  as  science  does.  If  so,  one  would  expect 
important  links  between  moral  analysis  and  scientific  reasoning — and  the 
parallels  are  indeed  striking.  But  so  are  the  differences.^"*^  One  can  press  the 
analogy  too  far,  blinded  by  the  vision  of  science  and  mathematics  as  the 
paradigms  of  rational  thought. 

Although  many  of  the  issues  remain  disputed,  our  topic  requires  attention  to 
these  domain  differences.  Empirical  observation  and  testing  undergird  both 
science  and  moral  analysis,  but  in  quite  different,  if  overlapping,  ways.  One  way 
of  seeing  this  is  to  think  of  the  existing  range  of  indeterminacy — of  fact  and 
theory  in  science,  and  of  theory  and  application  in  moral  analysis.  The  extent  of 
scientific  indeterminacy  is  regularly  and  clearly  diminished  by  both  grand 
discoveries  and  small  findings. 

Although  we  may  sense  improvement  of  sorts  in  moral  or  legal  thought  and 
understanding,  and  a  corresponding  marginal  reduction  of  indeterminacy,  these 
are  sharply  different  from  advancement  in  science.  Whether  moral  and  legal 
indeterminacy  have  been  reduced  is  itself  notoriously  indeterminate.  Moral  and 


Id.  at  222 

See  id.  at  xiv,  for  a  definition  of  the  innovational/non-innovational  distinction.  The  former 
refers  to  "the  production  of  new  things,  ideas  and  processes,  with  maximum  impact  on  society." 
The  latter  is  "progress  by  means  of  the  maintenance  and  diffusion  of  familiar  things,  ideas  and 
processes,  with  minimal  impact  on  society.  The  term  impact  is  used  in  a  special  sense  to  signify 
the  effect  that  the  different  types  of  progress  have  on  social  structures."  Id. 

241.     Frankel,  supra  note  21,  at  484.  See  generally  Sklair,  supra  note  246. 

248.  See  Nagel,  supra  note  11 ,  at  202-03  (comparing  and  contrasting  the  aims  of  moral  and 
factual  knowledge,  stating  that  "both  require  transcendence  of  a  purely  personal  point  of  view  to 
one  that  is  more  shareable  and  objective.  But  the  convergence  sought  by  moral  thought  is  practical 
and  motivational,  whereas  the  convergence  sought  by  factual  and  scientific  thought  is  convergence 
of  belief — convergence  on  a  true  account  of  how  things  are,  or  a  common  picture  of  the  world.  The 
pursuit  of  moral  knowledge,  therefore,  must  proceed  by  the  development  of  our  motives  and 
practices,  not  of  our  beliefs  and  descriptions.");  Temasky,  supra  note  208,  at  127  ("Note  that 
movement  toward  the  truth  [in  science]  is  measured  not  by  reference  to  the  theory  but  by  the 
strength  of  the  corresponding  evidence.").  This  contrast  may  be  too  sharply  drawn:  what  counts 
as  evidence  may  be  theory-dependent.  See  also  P.  Lance  Temasky,  Moral  Realism  Revisited:  On 
Achievable  Morality,  42  Educ.  THEORY  201,  204-06  (1992)  (discussing  "the  relation  between 
science  and  ethics"  and  "objectivity  in  ethics");  Jeffrie  G.  Murphy,  The  Possibility  of  Moral 
Philosophy  (unpublished  manuscript  described  in  Michael  H.  Shapiro  &  Roy  G.  Spece,  Jr., 
BIOETHICS  AND  LAW:  CASES,  MATERIALS  AND  PROBLEMS  78-79  ( 1 98 1 )).  See  generally  Richard 
B.  Brandt,  Ethical  Theory:  The  Problems  of  Normative  Critical  Ethics  242-44  (Arthur 
E.  Murphy  ed.  1959).  For  additional  discussion  and  citations,  see  Leslie  Sklair,  Moral  Progress 
Revisited,  31  PHIL.  &  Phenom.  Res.  433  (1971). 


1 999]  IS  BIOETHICS  BROKE?  1 23 


legal  progress  may  rest  on  appreciation  of  new  facts  or  a  heightened  appreciation 
of  old  facts  (assuming  this  is  a  meaningful  distinction),  but  they  do  not  consist 
of  finding  or  appreciating  these  facts.  Sometimes  simply  being  confronted  with 
a  new  problem,  recognized  as  such,  is  a  form  of  progress. 

In  many  ways,  then,  the  indeterminacies  of  fact  and  theory  in  science  do  not 
cohere  with  those  in  law  and  morals.  The  indeterminacy  of  major  concepts  of 
moral  and  legal  analysis — justice,  fairness,  due  process,  equality,  liberty — is  built 
into  their  structure  and  in  principle  can  never  be  fully  "resolved."  Indeed,  it  is 
difficult  even  to  posit  what  could  be  meant  by  saying:  "Now  we've  got  it — the 
answer  to  how  to  reconcile  equality  and  fairness,  liberty  and  justice,  etc.,  in 
general,  and  for  all  time."  The  areas  of  indeterminacy  in  science  carry  the 
potential  for  becoming  progressively  and  substantially  smaller  concerning 
particular  issues.  (In  some  sense,  of  course,  science  opens  up  new  areas  of 
indeterminacy  by  its  very  discoveries  and  confirmations.)  True,  we  may  remain 
forever  confused  by  "beginnings"  (did  a  "singularity"  "cause"  the  "infinitesimal" 
point  to  go  bang?)  and  "endings"  (what  could  it  mean  to  say  the  universe  has 
ended?).  In  part,  these  are  scientific/conceptual  problems,  not  just  matters  of  not 
knowing  "the  facts."  But  these  "edge"  problems  and  other  embedded  limitations 
in  scientific  theory  are  different  from  our  across-the-board,  in-your-face,  daily 
confrontations  with  the  intractable  concepts  of  legal  and  moral  theory.  In  any 
case,  one  cannot  simply  "extend[]  the  standards  and  methods  of  the  sciences  to 
all  domains,"  as  some  enlightenment  thinkers  evidently  believed.^"*^ 

One  can  also  "think  small"  in  trying  to  sort  different  forms  of  progress. 
Thus,  we  can  talk  about  progress  in  solving  or  gaining  on  discrete  tasks.  This 
leaves  us  vulnerable  to  the  charge  that  we  cannot  really  know  if  we  have  made 
progress  without  looking  at  the  Big  Picture.  But  we  can  answer,  as  we  often  do, 
that  we  do  what  we  can  at  the  moment.  In  science  and  mathematics,  one  can 
speak  of  settling  a  specifically  characterized  problem,  though  sometimes 
conceding  some  wiggle  room  or  margin  of  error.  How  fast  does  light  go?  We 
seem  to  have  a  pretty  good  grip  on  this,  but  perhaps  not  to  the  «th  decimal  point. 
We  have  less  of  a  grip  on  the  Hubble  Constant  and  because  of  observational 
limitations,  there  may  be  a  limit  to  how  accurate  we  can  be.  On  the  other  hand, 
the  expression  (x"  +  y"  =  z")  really  has  no  positive  integer  solutions  where  n  >  2 
(or  so  we  are  told). 

But  "solution"  is  here  a  weasel  word,  particularly  when  one  is  thinking  small. 
There  was  a  "solution"  in  Johnson  v.  Calvert^^^:  custody  was  awarded  to  the 
genetic  parents  because  that  was  the  original  deal  (yes,  "deal")  and  the  particular 
case  was  over.  But  whether  it  was  a  solution  in  any  other  sense  is  less  clear. 
Many  commentators  think  the  outcome  was  wrong.  In  particular,  many  think  that 
the  criterion  of  "contractors'  intent"  is  morally  flawed — even  if  we  call  it 
"procreators'  intent."  The  larger  problem,  existing  beyond  the  law  of  that  case. 


249.  Frankel,  supra  note  2 1 ,  at  484.  See  also  Holmes,  supra  note  1 5,  at  1 57  (stating  that  "just 
as  science  cannot  by  itself  yield  answers  to  moral  problems,  ethical  analysis  that  looks  to  science 
for  its  model  cannot  do  so  either."). 

250.  851  P.2d776(Cal.  1993). 


1 24  INDIANA  LAW  REVIEW  [Vol.  33:17 


remains  undiminished.  One  can  draw  parallels  to  science  here,  where  all  results, 
from  the  inflationary  universe  to  the  microbial  origins  of  strep  throat,  remain 
theoretically  open.  In  moral  analysis,  however,  there  is  no  char  program  for 
determining  when  previously  accepted  views  have  been  disconfirmed.  Even  the 
vaguer  sciences — ^think  of  paleontology  and  the  supposed  saurian  origins  of 
birds — can  provide  descriptions  of  what  would  count  as  (dis)confirmation,  even 
if  closure  is  unlikely  because  of  the  incompleteness  of  the  natural  record. 

What  is  the  point  for  us?  Was  Johnson  v.  Calvert  "progress"  because  it 
legally  resolved  a  dispute?  Progress  for  whom  or  what?  Was  it  legal,  moral,  or 
intellectual  progress?  Was  pinning  the  result  on  "procreational  intent"  progress, 
regress,  or  neither?  Perhaps  it  was  progress  in  the  simple  sense  that  it  provided 
a  vivid  illustration  of  one  way  of  working  through  the  problem  by  identifying 
material  issues  and  then  resolving  them.  Bioethics,  in  this  sense,  has  been 
developing  a  large  treasury  of  insights,  rules  and  precedents.  It  is  not  that  results 
do  not  matter— far  from  it.  It  is  that  the  complex  mixture  of  commentaries  and 
legal  outcomes  do  not  represent  some  gross  deficiency  in  any  of  the  branches  of 
bioethics.  The  field  has  been  (imperfectly)  progressing  from  its  start,  and 
continues  to  do  so. 

It  seems  necessary,  however,  to  distinguish  progress  along  different  fronts: 
"overall"  progress  does  not  usually  happen  all  at  once.  Moreover,  truly  massive, 
transformative  shifts  do  not  often  occur  in  law  or  ethics^^'  and  are  not  everyday 
or  even  every-century  events  in  science.  Thinking  small  is  probably  the  only 
sensible  way  to  start  talking  about  progress  in  human  behavior — although  one 
certainly  cannot  end  there,  for  smaller  events  may  cascade  into  larger  events 
bearing  unintended  consequences.  The  more  effective  are  our  public  health  and 
health  care  systems,  the  greater  the  population  pressure  (other  things  remaining 
equal,  which  they  might  not).  The  greater  the  range  of  choice  over  some  matters, 
the  more  burdened  some  decisionmakers  become.  True,  some  modern  standards 
of  impermissible  violence  seem  to  be  clear  improvements — e.g.,  the  general  ban 


25 1 .     Note  Rawls's  comment  stating: 

[T]he  extraordinary  deepening  of  our  understanding  of  the  meaning  and  justification  of 

statements  in  logic  and  mathematics  made  possible  by  developments  since  Frege  and 

Cantor.  A  knowledge  of  the  fundamental  structures  of  logic  and  set  theory  and  their 

relation  to  mathematics  has  transformed  the  philosophy  of  these  subjects  in  a  way  that 

conceptual  analysis  and  linguistic  investigations  never  could  ....   The  problem  of 

meaning  and  truth  in  logic  and  mathematics  is  profoundly  altered  by  the  discovery  of 

logical  systems  illustrating  these  concepts.    Once  the  substantive  content  of  moral 

conceptions  is  better  understood,  a  similar  transformation  may  occur.  It  is  possible  that 

convincing  answers  to  questions  of  the  meaning  and  justification  of  moral  judgments 

can  be  found  in  no  other  way. 

Rawls,  supra  note  195,  at  51-52.  Aside  from  the  phrase  "a  similar  transformation  may  occur" 

(how  similar?),  which  seems  somewhat  overdone,  this  seems  a  plausible  account  of  what  "progress" 

might  be  in  moral  analysis.  But  it  remains  quite  distant  from  advances  in  logic,  which  belong  to 

mathematics  as  much  as  to  philosophy.  The  comparison  can  easily  be  pushed  too  far  if  care  is  not 

taken  to  distinguish  between  what  would  count  as  "convincing  answers"  in  widely  different  fields. 


1 999]  IS  BIOETHICS  BROKE?  1 25 


on  dueling  and  various  blood  sports.    To  which  one  can  respond  with  a  few 
simple  words,  such  as  "The  Balkans"  and  "East  Africa." 

Clearly,  then,  characterizing  progress  has  concurrent  aspects  involving 
description,  value  judgments  about  changes  already  in  place,  and,  most 
importantly,  an  ideal  of  striving  toward  whatever  is  deemed  advancement  in  a 
field.  Progress  often  embodies  a  perfectionist  ethic  that  applies  itself  to 
individuals,  groups,  tasks,  disciplines,  and  to  human  thought  and  conduct 
generally. 


B.   The  Search  for  Final  Answers  and  the  Impossibility  of  Progress 

(in  That  Sense) 

1.  Setting  Up  a  Search. — Investigating  moral,  legal,  and  scientific  progress 
sucks  people  into  infinite  loops.  As  we  saw,  one  must  ask,  "Progress  in  whatT\ 
and  the  opportunities  for  tendentious  characterization  are  endless.  Are  we 
addressing  perfectibility  of  human  conduct  or  of  our  normative  and  philosophical 
systems  of  thought?  How  are  the  ideas  of  progress  in  science  or  technology 
different  from  those  of  progress  in  philosophy,  behavior,  or  anything  else? 

There  is  no  way  to  think  about  progress  in  ethical  theory,  analysis,  or 
behavior  unless  one  knows  how  to  evaluate  ethical  theory  or  human  behavior  and 
thus  how  to  know  what  counts  as  improvement.  It  takes  ethical  theory  to  tell  us 
if  progress  in  ethical  theory  has  occurred.  Although  this  is  not  entirely  circular, 
we  may  not  get  very  far  when  we  deal  with  seriously  contested  moral  issues:  the 
very  criteria  for  rightness  or  goodness,  and  therefore  for  moral  progress  are  in 
dispute.  So,  it  is  hard  to  be  even  adequately  superficial  here  (not  an  oxymoron). 

The  idea  of  progress  in  ethical  theory  or  analysis  is  not  empty,  however,  and 
there  is  some  thin  meaning  and  then  truth  to  the  claim  that  these  disciplines  have 
to  "catch  up"  to  the  speedier  progression  of  science  and  technology.  The  non- 
method  method  I  use  in  examining  the  claim  is  to  start  with  a  set  of  problems — a 
kind  of  ostensive  explication  of  the  question  and  of  possible  answers. 

2.  A  Search.—  Consider  again  Johnson  v.  Calvert^^^  which,  as  I  suggested, 
is  a  classic  illustration  of  how  technological  rearrangements  of  important  life 
processes  generate  anomalies  that  seem  to  exceed  the  capacities  of  our  existing 
frameworks  of  thought,  whether  descriptive  or  normative. 

We  saw  that  although  the  California  Supreme  Court  reached  a  decision  and 
disposed  of  the  case,  full  normative  "closure"  has  not  occurred  and  is  not  likely 
to.  Those  dissatisfied  with  the  outcome  of  the  case  and/or  its  reasoning  might 
say  that  this  is  the  perfect  example  of  law  and  ethics  having  to  catch  up  with 
technology.  We  need  progress  in  our  ways  of  dealing  with  these  "category 
bastards" — ^these  "unclassifieds" — born  of  our  reconstruction  of  life. 

Let  us  take  the  demand  for  a  satisfying  answer  seriously.  The  question  is: 
Who  is  the  natural  mother  and  thus  entitled  to  custody?  (First  problem:  is  this 
the  right  question  to  start  with?  What  other  starting  questions  are  there?  Should 
we  have  asked:  Which  groups  and  interests  back  which  side?  But  let's  push  on.) 


252.     851P.2d776(Cal.  1993). 


126  INDIANA  LAW  REVIEW  [Vol.  33:17 


Why  does  there  have  to  be  exactly  one  natural  mother  anyway?  We  can  be 
exhaustive  in  specifying  plausible  answers.  Here  are  all  the  outcomes  that 
reasonably  could  vie  for  being  the  single,  true,  right  answer.  (Perhaps  carelessly, 
I  do  not  list  additional  candidates  for  natural  motherhood  — e.g.,  the  natural 
father,  the  Queen  Mother,  Betelgeuse,  etc.)  1)  The  natural  mother  is  the 
gestational  mother;  2)  The  natural  mother  is  the  genetic  mother;  3)  The  genetic 
and  gestational  mothers  are  both  natural  mothers,  and  custody  must 
presumptively  be  shared  equally;  4)  Neither  one  is  a  natural  mother — that's  just 
the  way  some  things  turn  out  when  the  world  changes;  and  5)  The  natural  mother 
is  the  female  who  was  intended  by  the  parties,  at  the  time  the  reproductive 
arrangement  was  made,  to  have  full,  permanent  custody,  along  with  her  spouse 
or  partner,  if  any. 

What  follows  from  these  sharply  different  premises?  The  fourth 
alternative — there  is  no  natural  mother — is  the  most  problematic.  Although  it  is 
an  obvious  possibility,  it  seems  far  less  plausible  here  than  in  the  biologically 
quite  different  situation  in  cloning,  where  reproduction  is  of  course  asexual.  But 
if  there  were  no  natural  mother  and  no  natural  father  available,  what  then? 
Perhaps  the  state  would  take  initial  custody  and  try  to  arrange  for  the  child's 
adoption  or  her  placement  in  a  Kibbutz,  or  to  award  custody  to  either  the  genetic 
or  gestational  mothers  based  on  which  one  wins  a  coin  toss  or  survives  mortal 
combat  against  the  other. 

The  Johnson  court,  as  we  saw,  chose  the  fifth  possibility — ^the  initial  joint 
decision  of  the  parties  that  the  child  would  be  with  the  genetic  parents.  Of 
course,  we  cdiVinot prove  which  is  the  right  answer,  in  the  way  that  ^Wts proved 
Fermat's  last  theorem.  Nor  can  we  prove  which  is  the  right  answer  in  the  sense 
that  we  can  prove  smoking  causes  cancer.  We  cannot  even  prove  it,  within  the 
boundaries  of  a  specified  set  of  norms,  in  the  sense  that  we  can  prove  that  it  is 
presumptively  wrong  to  kill  a  non-threatening  innocent  person  knowing  that  she 
is  innocent.  But  there's  no  "proof  of  this  in  the  sense  that  a  theorem  or  a 
scientific  claim  is  proved.  (And  it  is  just  a  presumption,  in  any  case.)  The 
absence  of  a  calculable,  or  otherwise  ascertainable  answer  satisfactory  to  all 
rational  persons  is  built  into  the  conceptual  structure  of  the  problem.  Ethical 
theory  and  much  of  legal  analysis  are  disciplines  that  developed  (in  part)  to  deal 
with  certain  matters  of  choice  that  cannot  be  answered  determinately — at  least 
not  in  every  case.  While  one  can  certainly  draw  strong  parallels  between 
scientific  thought  and  ethical  analysis,  doing  so  hardly  shows  their  identity.  It 
shows,  if  anything,  simply  that  they  are  both  rational  enterprises  sharing  certain 
features  of  logical  consistency  and  coherence,  though  they  involve  different 
domains  of  thought. 

So,  what  is  ultimately  in  dispute  in  proving  what  the  right  answer  is  in 
Johnson  v.  Calvert  concerns  the  very  criteria  for  what  counts  as  a  "proof."  If  we 
cannot  settle  this,  is  "progress"  meaningless  here?  "Progress"  itself  cannot  be 
defined  by  necessary  and  sufficient  conditions,  and  in  many  cases  cannot  even 
be  linked  to  a  precise  set  of  "factors"  or  "variables"  that  effectively  narrow  the 
set  of  possible  answers. 

For  example,  think  of  the  ethical/political/legal  idea  of  equality.  We  of 
course  want  to  treat  the  genetic  and  gestational  mothers  equally  by  giving  each 


1 999]  IS  BIOETHICS  BROKE?  1 27 


an  equal  opportunity  to  argue  her  position;  to  satisfy  standards  of  equality  in 
finding  organ  sources  and  selecting  recipients;  and  to  deal  with  people  equally 
as  genetic  and  nongenetic  forms  of  human  enhancement  arrive  on  the  scene. 
How  do  we  do  this?  Whether  we  think  of  "equality"  in  purely  philosophical 
terms  or  as  a  constitutional  concept  to  be  interpreted,  we  cannot,  in  all  cases, 
clearly  determine  what  even  counts  as  (in)equality.  If  the  ratio  of  personal 
income  to  the  energy  expended  in  earning  that  income  is  equal  for  all  persons,  is 
this  equality?  What  if  the  equal  energy  expenditure  is  by  a  brain  surgeon  on  the 
one  hand  and  a  squeegee  worker  on  the  other?  If  everyone  has  equal 
opportunities  (whatever  that  means)  but  everyone  comes  up  with  unequally 
valued  holdings,  is  that  inequality  or  equal ity?^^^  Must  we  provide  enhancement 
opportunities  to  the  least  gifted  and  impoverished  in  order  to  avoid  making 
existing  inequalities  worse?  To  whom  should  forbiddingly  expensive 
opportunities  for  extending  life  to  age  120  be  distributed? 

To  call  for  crisp  demonstrations  of  what  the  right  answers  are  when  doing 
ethical  or  legal  analysis  is,  then,  to  badly  misconstrue  the  nature  of  conceptual, 
moral,  and  legal  reality.  As  long  as  persons  are  different,  we  will  have  equality 
problems,  and  many  of  them  will  never  be  "definitively"  solved,  although  some 
may  become  less  important  or  even  irrelevant  over  time.^^"*  If  progress  entails  the 
perfected  ability  to  find  such  answers,  then  only  minimal  progress,  if  any,  is 
possible  in  ethical  theory — indeed,  in  all  philosophical  analysis — and  in  law. 
There  is  no  such  thing  as  "catching  up"  in  this  sense.  I  think  Johnson  v.  Calvert 
was  rightly  decided  and  can  offer  colorable  arguments  in  its  defense,  but  I  cannot 
prove  that  it  is  right  (in  the  sense  that  Wiles  proved  that  Fermat  was  right),  just 
as  you  cannot  prove  that  it  is  wrong.  If  there  is  any  "progress"  here,  it  is  in 
emphasizing  the  rational  possibility  of  looking  to  original  intentions  as  a  means 
of  resolving  disputes.  Even  critics  of  the  case  should  reasonably  concede  that  the 
quality  of  deliberation  about  its  outcome  was  superior  to  the  deliberation  that 
would  have  taken  place  without  the  introduction  of  the  parenthood-by-original- 
intentions  idea.  That  perspective  required  2ind\y sis.  This  notion  of  progress  in 
deliberation  may  seem  to  be  a  pretty  slender  advance,  but  it  is  the  only  one 
available,  a  point  I  will  return  to  later. 

C  Progress  in  What?:  Behavior,  Theory,  Insight,  and  Deliberation 

Perhaps  the  call  should  not  be  for  progress  in  moral  and  legal  theory.  It 
should  be  for  improvement  in  moral  behavior  in  dealing  with  the  stream  of 
innovations  we  continue  to  generate.  If  so,  we  need  to  separate  progress  in  moral 
and  law-abiding  behavior — human  perfectibility — from  progress  in  moral  and 
legal  theory,  and  to  distinguish  all  of  these  from  progress  in  science  and 


253.  For  an  extended  analysis  of  the  competing  versions  of  (in)equality,  see  Douglas  Rae, 
Equalities  (1981). 

254.  For  example,  it  is  at  least  conceivable  that  technology  for  creating  specialized  tissue  or 
even  organs  might  be  developed  from  a  person's  genome,  and,  over  time,  become  relatively 
inexpensive  to  obtain  and  transplant. 


128  INDIANA  LAW  REVIEW  [Vol.  33:17 


technology.  I  leave  aside  all  attempts  to  explain  notions  of  social,  political,  and 
economic  progress. 

1.  Progress  in  Moral  Behavior  and  Law-abidingnessP^ — First,  I  do  not 
mean  to  conflate  the  ideas  of  moral  behavior  and  law-abidingness — ^they  are  very 
different,  though  linked — but  comparing  them  would  be  an  unnecessary 
distraction. 

Second,  it  is  hard  to  see  how  to  "measure"  such  progress  given  the  empirical 
and  conceptual  difficulties  already  recounted.  The  conceptual  problems  are 
obvious:  to  the  extent  that  we  do  not  know  what  moral  behavior  is,  we  cannot 
measure  changes  in  its  incidence.  For  example,  the  number  of  abortions  and  the 
abortion  rate  have  increased  greatly  during  the  course  of  the  Twentieth  Century. 
Is  this  evidence  of  moral  progress  because  it  reflects  the  ever- improving  status 
of  women  and  their  approach  to  equality  with  men?  Or  is  this  is  moral  regress 
because  it  kills  budding  human  entities  (persons  or  not)  and  reflects  moral 
recklessness  in  risking  the  creation  of  human  entities  bound  for  destruction 
before  birth.  Considering  all  the  available  techniques  for  contraception,  how  can 
people  be  so  stupid  as  to  keep  on  causing  undesired  pregnancies?  This  is  not 
progress  in  human  behavior.  We  are  as  incompetent  as  we  were  tens  of 
thousands  of  years  ago;  we  simply  have  more  technological  options  through 
which  to  display  our  incompetence.  That  isn't  progress  either. 

On  the  other  hand — don't  we  have  fewer  wars,  massacres  and  genocides? 
All  right,  try  something  else.  We  have  better  public  health  measures — at  least 
in  "developed"  countries.  (No  Calcuttas  in  the  United  States.)  This  reflects  a 
more  refined  concern  for  the  value  of  human  life,  and  this  is  paradigmatic  of 
improved  moral  attitudes  and  behaviors.  On  the  other  hand,  human  survival  is 
good  for  business,  other  things  being  equal,  so  it  is  in  our  self-interest  to  keep 
more  people  alive.  Public  health  measures  simply  reflect  rational  collective 
action  to  promote  one's  own  welfare  and  do  not  really  demonstrate  any 
"refinement"  in  moral  sensibilities  and  actions;  they  reflect  just  a  simple 
understanding  of  the  individual  gains  from  collective  action.  After  all,  that  is 
what  the  evolution  of  cooperation  is  all  about.  Whether  this  account  is  sound  or 
not,  it  illustrates  the  difficulty  of  identifying  moral  progress  in  our  behavior. 

At  least  there  are  improvements  in  civility,  tolerance,  and  the  acceptance  of 
human  differences — except,  perhaps,  on  the  roads  and  highways,  and  certainly 
in  the  Balkans,  Northern  Ireland,  the  Middle  East,  Afghanistan,  the  Indian 
Subcontinent,  much  of  Africa,  the  Russian  Republics,  and  the  corner  of  Fifth  and 
Main  Streets  in  downtown  Los  Angeles.  Think  of  the  improvement  in 
professional  instruction  in  law  schools.  No  more  paper  chase,  no  more  "How  did 
you  get  into  this  law  school?"  Even  better,  few  places  on  the  planet  currently 


255.  See  generally  Ternasky,  supra  note  208,  at  1 29  (stating  that  "it  is  difficult  to  refute  the 
claim  that  the  movement  [in  moral  history]  has  been  in  the  direction  of  greater  moral  sophistication 
and  clarity,"  and  suggesting  that  this  claim  rests  on  "the  dramatic  evidence  of  change,"  referring  to 
"the  emergence  of  rights,  egalitarian  sentiments,  widespread  call  for  social  and  distributive  justice" 
as  examples,  and  concluding  that  all  this  "rivals  the  growth  of  science  during  the  same  period."). 
The  author  goes  on  to  cite  the  growth  of  anti-slavery  sentiment.  See  id.  at  1 30-3 1 . 


1 999]  IS  BIOETHICS  BROKE?  1 29 


permit  or  encourage  dueling.  If  only  we  had  advanced  this  far  much  earlier, 
Alexander  Hamilton  might  still  be  with  us.  The  ban  on  dueling  has  no  doubt 
saved  countless  persons,  instead  allowing  them  to  participate  or  die  in  ethnic 
cleansing  operations  and  gang  fights.  Perhaps  serial  killers  are  more  polite  these 
days,  too. 

What  would  constitute  improved  moral  behavior  in  the  face  of  new 
technological  powers?  Think  of  human  cloning.  How  does  behavior  or  moral 
analysis  "catch  up"  here?  By  swiftly,  permanently,  and  flatly  banning  human 
cloning  or  attempts  to  accomplish  it  (taking  care,  of  course,  not  to  snuff 
important  research  that  could  prolong  or  improve  lives).  If  you  don't  see  this  as 
catching  up,  consider  lesser  forms  of  regulation  through  legislation  and/or 
judicial  application  of  existing  laws  combined  with  common  law  development. 
But  what  is  to  be  the  substantive  and  procedural  content  of  such  regulation? 
How  is  lineage  to  be  determined?  Is  the  state  to  monitor  the  custodial  parent(s)' 
quality  of  parenting?  None  of  this  is  catching  up?  There  seem  to  be  few  options 
left:  Doing  absolutely  nothing  about  it  and  letting  private  ordering  determine  the 
rate  and  circumstances  of  human  cloning;  destroying  all  biological  laboratories; 
sending  someone  back  in  time  to  prevent  the  development  of  human  cloning  and 
then  bringing  her  back  to  the  future  in  order  to  minimize  temporal  paradoxes; 
and — ^what  else? 

We  thus  need  to  return  to  the  analysis  of  progress  in  moral  theory.  Without 
doing  so,  we  cannot  make  progress  in  discussing  progress  in  moral  behavior. 

2.  Progress  in  the  Quality  of  Moral  and  Legal  Theory  and  Deliberation; 
Normative  Insights  and  New  Conceptual  Tools  as  Progress;  Micro  and  Macro 
Progress;  The  Limits  of  Progress  in  the  Face  of  Indeterminacy  }^^ — 


256.  I  will  not  probe  the  meaning  of  "indeterminacy"  as  applied  to  legal,  moral,  and 
philosophical  claims  generally,  except  to  say  that  it  suggests  that  there  is  in  principle  no  unique 
reasoned  answer  to  certain  questions  about  the  nature  and  confirmability  of  these  claims. 

There  is  some  parallel  between  the  discussion  in  this  section  and  that  in  Seedhouse.  See 
generally  Seedhouse,  supra  note  206.  The  author  sets  up  several  examples  of  difficult  problems 
in  health  care  rationing,  and  concludes  that  bioethical  reasoning  cannot  provide  predictable 
answers.  See  id.  at  288-90.  I  assume  this  is  a  form  of  indeterminacy.  However,  he  does  not  discuss 
whether  the  conceptual  and  normative  clarifications  represent  any  form  of  advancement,  nor 
whether  it  increases  the  probability  of  some  consensus  decision,  whether  ultimately  defensible  on 
moral  grounds  or  not.  However,  Seedhouse  seems  to  be  saying  that  bioethicists  as  they  are  (or 
were  when  he  wrote  in  1 995)  seem  pretty  useless,  but  that  they  can  be  doing  other  things.  He  says, 
in  reviewing  his  rationing  scenarios,  for  example,  that  it  is  likely  that  bioethicists  "will  miss  the 
point:  it  will  be  detached  from  the  reality  of  the  family  situation."  Id.  at  289.  I  do  not  know  what 
this  reality  is  taken  to  be,  nor  how  coming  to  grips  with  it  will  reveal  the  (or  a)  moral  solution.  I 
suppose  that  coming  to  grips  with  reality  is  a  form  of  rationality,  but  he  complains  of  bioethicists 
who  "suggest  ways  of  health  care  rationing  solely  through  rational  means."  Id.  He  later  says  that 
"because  the  world  is  the  way  it  is  [The  conceptual  world?  The  world  of  everyday  life  and  its 
existing  health  care  systems?],  by  using  standard  bioethics  methods  one  will  never  get  to  the  bottom 
of  the  matter,  and  it  will  be  impossible  to  decide  rationally  between  rival  sets  of  criteria  and 
principles."  Id.  at  290.  "Standard  bioethics  methods"  refers  to  isolating  the  problem;  getting  basic 


130  INDIANA  LAW  REVIEW  [Vol.  33:17 


a.  Does  moral  progress  rest  on  discerning  objective  truths  about  moral 
reality? — The  major  risk  of  discussing  this  is  that  one  will  plunge,  probably 
sooner  than  later,  into  an  extended  discussion  of  "moral  reality /truth,"  which 
seems  to  be  roughly  coextensive  with  the  entire  field  of  ethical  theory  and  moral 
epistemology.  The  challenge  offered  against  the  idea  of  moral  progress  is  that 
if  there  is  no  objective  moral  reality,  what  could  "moral  progress"  possibly 
mean?  If  there  is  no  moral  reality,  then  there  is  no  moral  progress.  There  is 
nothing  we  can  specify  that  we  are  getting  closer  to  or  "progressing  toward." 
Even  achieving  greater  consensus — a  sort  of  practical  progress — does  not 
unequivocally  reflect  moral  progress.  If  a  consensus  avoids  clear  harms  or 
promotes  clear  benefits,  it  might  constitute  moral  progress  independently  of  the 
content  of  the  consensus — or  it  might  not.  It  cannot  automatically  count  as  moral 
progress  unless  the  consensus  is  founded  on  an  intersubjectively  confirmable 
moral  truth. 

The  alternative  to  some  strict  form  of  "provable"  moral  reality  is  not  moral 
relativism,  but  it  is  difficult  to  state  just  what  that  alternative  is.  Perhaps  we 
think  moral  propositions  are  capable  of  being  true  or  false,  but  that  the 
determination  of  these  truth-values  is  so  different  from  that  of  truth-value  in 
science  that  phrases  such  as  "moral  reality"  or  "truth"  are  misleading.  Saying 


information  and  "key  theoretical  considerations"  down,  including  consideration  of  available 
resources,  of  needs,  and  of  outcomes;  applying  criteria  of  fairness  to  the  situation  in  question  and 
to  alternative  situations;  and  suggesting  an  "ethical  arrangement"  to  the  family  beset  with  the  health 
care  distributional  problem.  Id.  at  288-89.  It  may  be  that  he  thinks  the  central  difficulty  is  applying 
principles  of  rational  thought  to  "non-rational"  (random)  or  irrational  systems.  See  id.  at  290. 

At  this  point,  one  would  think  the  only  option  is  to  punt.  But  Seedhouse  has  recommendations 
that  bioethicists,  in  his  words,  need  to  "work  through."  Id.  One  would  think  that  this  was  perfectly 
"rational";  perhaps  Seedhouse  believes  "rational"  applies  only  to  relatively  hamfisted  or  formalistic 
applications  of  various  substantive  principles,  such  as  autonomy  or  utility.  He  complains  of  several 
failings  of  bioethics:  Bioethics  does  not  call  into  question  the  "dominance"  of  medicine  and  "does 
not  challenge  the  deliberations  and  strategies  of  politicians,  which  partly  contribute  to  the  climate 
of  rationing"  (this  is  doubtful);  bioethics  fails  to  compare  "medical  systems"  with  "other  systems 
in  society"  (also  doubtful);  it  views  inequality  in  health  as  mainly  about  access  to  means  of  cure  or 
amelioration  of  disease  (this  seems  quite  appropriate  considering  the  subject  matter,  as  long  as  one 
keeps  matters  of  prevention  and  humane  behavior  in  mind);  it  does  not  question  the  role  of 
technology  as  the  "major  weapon  against  disease";  and  it  "does  not  engage  in  sustained 
philosophical  analysis  of  the  meaning  of  key  words  such  as  health,  welling,  medicine  and 
disease — ^that  is,  bioethics  does  not  properly  examine  central  matters  of  health  care  purpose."  Id. 
at  290.  I  do  not  agree  with  these  claims.  After  then  calling  bioethicists  to  task  for  "accept[ing] 
uncritically  the  context  which  generates  the  problems  it  tries  to  deal  with"  (I  doubt  this  also),  he 
identifies  two  paths — standing  "outside"  the  system,  and  viewing  health  care  systems  "for  what  they 
really  are" — tribal  systems.  Id.  at  291.  He  prefers  the  first  path;  it  is  a  precondition  to  "talk[ing] 
constructively  about  health  care  rationing."  Id.  As  I  suggested  earlier,  it  is  not  clear  what  it  is  to 
be  inside  or  outside  bioethics. 

What  is  missing  is  an  account  or  example  of  "talk[ing]  constructively  about  health  care 
rationing."  Id.  I  have  no  clear  idea  of  what  the  preferred  program  is. 


1999]  IS  BIOETHICS  BROKE?  131 


this  does  not  presuppose  an  objectively  confirmable  moral  reality.  I  do  not  think 
that  "progress"  is  rightly  tied  to  such  a  rigorous,  but  unrealistic,  showing  about 
moral  reality.  Beyond  this,  I  am  not  about  to  solve  the  central  problems  of  moral 
philosophy,  and  say  nothing  about  moral  realit>'.^^^ 

b.  Examples. — Again,  I  turn  to  examples  to  work  out  ideas  of  progress. 

In  Brown  v.  Board  of  Education, ^^^  the  Supreme  Court  ruled  that  de  jure 
separation  of  students  by  race  in  public  schools  violated  the  equal  protection 
clause  of  the  Fourteenth  Amendment.^^^  Did  this  decision,  and  its  long-term 
educative  effects,  represent  progress  in  moral  and  legal  analysis,  and  in  human 
behavior  thereafter? 

Leave  theories  of  constitutional  interpretation  aside  for  now,  and  deal  with 
pure  normative/conceptual  analysis  of  the  idea  of  equality.  (The  two  are  not 
utterly  divorced.  "Pure  moral  analysis"  is  for  some  a  proper  path  of 
constitutional  interpretation  in  which  one  searches  for  the  best  theory  of  the 
moral  concepts  in  question.)  Compare  the  prior  dominant  view — ^that  equality 
is  satisfied  when  the  groups  that  are  separated  are  nevertheless  treated  equally  in 
a  limited  material  sense — "separate  but  equal."  One  can  easily  formulate  an 
egalitarian  description  of  this  at  a  high  level  of  abstraction:  "Everyone  is  being 
treated  the  same.  Whatever  your  race,  you  have  substantially  identical 
educational  (or  other)  facilities." 

How  did  we  come  to  think  otherwise — ^to  move  from  these  thin  abstractions 
tendered  in  defense  of  segregation  to  begin  taking  account  of  different 
conceptions  of  equality  and  perhaps  of  certain  real-world  effects?  Did  we 
discover  previously  unknown  empirical  truths?  Perhaps  we  learned  for  the  first 
time  that  formal  legal  separation  injures  the  members  of  the  nondominant  group 
in  some  ways  (insult,  offense,  diminished  self-view,  depression,  stigmatization, 
and  so  on),  even  without  regard  to  "equality"  of  material  facilities.  Or  did  we 
already  "know"  this  in  some  flaccid  sense  but  not  notice  or  attend  to  it?  Had  we 
previously  thought  that  these  effects  were  not  injuries  at  all — or  that  if  they  were, 
they  were  deserved,  considering  racial  differences?  (Such  differences  are  of 
course  not  pure  matters  of  fact.)  Did  our  views  of  the  overall  situation  change 
because  we  changed  our  view  of  the  nondominant  class  and  came  to  think  that 
they  were  persons  we  should  respect  in  certain  ways?  Did  this  respect  entail  an 
expanded  view  of  what  impermissible  injury  is,  requiring  removal  of  its  sources? 
If  so,  how  did  this  happen?  Was  it  stimulated  by  vivid  events  in  the  Civil  Rights 
movement  that  made  us  rethink  our  evaluations?  If  so,  how  did  the  movement 
itself  begin  and  why  did  it  receive  increasing  support  from  the  dominant  group? 
Did  the  dominant  and  nondominant  groups  change  their  respective  views  about 


257.  See  generally  Richard  N.  Boyd,  How  to  Be  a  Moral  Realist,  in  ESSAYS  ON  MORAL 
Realism  181  (Geoffrey  Sayre-McCord  ed.,  1988);  Michael  Moore,  Moral  Reality,  1982  Wis.  L. 
Rev.  1 06 1 ;  Peter  Railton,  Moral  Realism,  95  PHIL.  REV.  1 63  ( 1 986).  There  is  a  rather  intimidating 
collection  of  moral  terms  that  regularly  accompany  discussions  of  moral  realism,  such  as  "moral 
facts,"  "moral  relativism,"  and  "moral  skepticism,"  but  for  present  purposes,  I  aim  to  avoid  them. 

258.  347  U.S.  483  (1954).  See  supra  note  94  (comparing  Brown  with  Plessy). 

259.  See  Brown,  347  U.S.  at  495. 


132  INDIANA  LAW  REVIEW  [Vol.  33:17 


themselves?  Was  it  all  a  matter  of  sheer  chance  in  which  a  particular  collection 
of  jurists  sat  on  the  Supreme  Court  when  a  clear  opportunity  allowed  them  to 
implement  their  personal  moral  judgments  and  constitutional  theories?  And  how 
did  these  respected  members  of  the  establishment  come  to  these  radical 
positions? 

Perhaps  others  know  the  answers,  but  I  do  not.  In  any  case,  the  idea  that 
there  has  been  progress  in  re- interpreting  the  concept  of  equality  is  not  totally  off 
the  wall.  The  morally  superior  sentiments  of  those  in  both  groups  trying  to  undo 
what  we  now  recognize  as  evil  were  eventually  put  in  operation  through  formal 
constitutional  interpretation  and  its  applications.  These  constitutional  processes 
in  turn  seem  to  have  produced  important  (if  not  universal)  educative  effects.  In 
this  sense,  there  has  been  an  improvement  in  moral  behavior  and  in  moral  theory: 
Many  of  us  have  refined  our  understanding  of  equality  and  acted  on  \i?^^ 

Perhaps,  overall,  we  can  say  that  whatever  facts  were  or  were  not  uncovered, 
some  influential  opinion-molders,  judges,  and  lawmakers  had  a  new  normative 
insight  concerning  equality,  fairness,  and  justice:  "This  is  part  of  what  'equality' 
means — no  legal  barriers,  based  on  race,  to  human  association.  Such  barriers 
ratify  the  unacceptable  judgments  underlying  the  segregation  laws,  and  their  very 
existence  as  well  as  their  implementation  work  true  harms."  Simply  being 
addressed  by  the  State  (and  "the  People")  in  certain  ways — "You  cannot  be  in 
each  others'  company  here!" — was  seen  to  constitute  and  cause  moral  and 
constitutional  injury.  Our  conduct  thus  reflected  some  elevation  in  moral 
sensibilities,  at  least  on  the  part  of  some  influential  groups,  and  the  insight  spread 
to  others.  In  this  limited  sense,  we  "caught  up"  with  what  should  have  been 
viewed  as  a  basic  egalitarian  ideal.  We  recognized  and  acted  upon  human  needs 
that  had  been  seen  only  dimly,  if  at  all. 

The  Brown  case  may  give  us  something  to  start  with,  but  it  carries  us  only  so 
far.  Where  in  bioethics  can  we  expect  new  normative  insights,  whether  inspired 
by  salient  facts,  conceptual  analysis,  or  assorted  firings  of  the  brain?  Would 
expanded  research  on  the  effects  of  varying  gestational  circumstances,  or  on  the 
so-called  nature/nurture  tension,  help  resolve  contests  between  genetic  and 
gestational  mothers?  What  new  facts  or  thoughts  will  tell  us  to  whom  to  assign 
the  next  liver  when  we  already  know  the  candidates'  medical  conditions?  Or 
whether  it  is  permissible  to  take  a  kidney  from  a  child  in  order  to  save  his 
brother?  Or  whether  one  is  significantly  harmed  by  having  the  same  genome  as 
someone  else  who  has  already  lived  or  is  currently  in  full  bloom? 

These  expressions  of  optimism  may  seem  a  bit  labored.  If  we  could  say  what 
the  mysterious  new  insights  would  be,  we  would  already  have  them,  although  our 
behavior  might  lag.  If  we  do  not  already  have  them,  they  might  be  a  long  time 
coming,  if  they  come  at  all.  For  example,  with  segregation,  the  issue — do  equal 
facilities  for  separated  races  satisfy  equality  standards? — had  been  understood 


260.  Others  argue  that  Brown  constituted,  if  anything,  moral  regress,  because  the  Court's 
decision  was  lawless  and  unjustified  on  any  proper  theory  of  interpreting  the  constitutional  text. 
The  Court,  on  this  view,  thus  violated  some  aspect  of  the  Rule  of  Law  ideal.  See  generally  Herbert 
Wechsler,  Toward  Neutral  Principles  of  Constitutional  Law,  73  Harv.  L.  Rev.  1  (1959). 


1999]  IS  BIOETHICS  BROKE?  133 


for  quite  a  while  before  Brown  was  decided.  By  the  time  we  have  our  insight,  the 
technological  rabbit  may  be  beyond  sight. 

But,  by  all  means  go  ahead  and  get  more  facts  about  the  impact  of  gestation 
on  fetal  development  and  maternal-fetal  bonding — but  also  about  the  feelings  and 
attitudes  of  genetic  parents  awaiting  the  birth  of  a  child  they  expect  to  raise.  Get 
facts  about  the  psychological  and  physical  effects  of  losing  a  sibling  to  kidney 
disease  and  discovering  later  in  life  that  the  sibling  could  have  been  saved  if  only 
your  parents,  or  a  court,  had  allowed  the  transfer  of  your  kidney  to  her.  Get  facts 
about  the  effects  of  being  born  of  a  genetic  plan — cloning,  germ-line 
enhancement  engineering,  whatever.  Of  course,  we  cannot  do  that  too  well 
unless  we  actually  have  some  cloning,  and  after  we  start,  it  may  be  hard  to  stop. 

When  we  get  these  facts,  we  may  indeed — at  least  on  an  individual  basis — be 
aided  in  reaching  closure  on  some  given  matter  of  choice.  In  particular,  the  facts 
may  inspire  reflection  and  new  perceptions  ("Why  didn't  I  see  that  before?"). 
But  such  facts  will  not  dictate  a  normative  result.^^^  No  set  of  facts  will 
determine  which  mode  of  distribution  of  lifesaving  resources  is  the  true  and 
correct  one,  except  in  the  company  of  moral  premises. 

In  1 97 1 ,  John  Rawls  published  A  Theory  of  Justice.  He  drew  on  and  sharply 
revised  and  extended  some  important  constructs  within  political  and  moral 
theory — ideas  such  as  the  social  contract,  the  ideal  observer,  detachment  and 
impartiality,  the  need  to  accommodate  liberty  with  equality,  and  justice  as  fair 
treatment  of  persons.  It  is  hard  to  say  precisely  what  is  "new"  in  his  work  and 
what  is  not.  However,  few  philosophers,  even  those  in  sharp  disagreement  with 
him,  would  deny  the  impact  and  worth  of  Rawls's  refinement  and  synthesis  of 
these  preexisting  tools — perhaps  to  the  extent  of  saying  he  fashioned  powerful 
new  tools. 

Is  this  a  case  of  progress  in  philosophy?  Is  bioethics  improved  by  the 
installation  of  these  ideas?  Why  not?  If  it  is  a  smaller  degree  of  incremental 
progress  than  that  worked  by  Aristotle,  Plato,  and  Kant,  it  is  still  progress. 
Matters  that  were  fuzzy  before  are  clearer  now,  and  we  have  a  more  precise  idea 
of  what  is  entailed  by  particular  notions  of  justice,  equality,  and  liberty.  Some 
may  even  say  that  calling  his  work  an  incremental  advance  is  misleading  because 
he  has  moved  significantly  beyond  his  illustrious  predecessors.  In  any  case,  the 
sort  of  claim  that  Rawls  or  others  have  made  progress  is  reasonably  coherent  and 
far  from  implausible.  Perhaps  substituting  Nozick  for  Rawls  would  make  the 
ascription  of  progress  go  down  more  easily  for  some  auditors. 

However,  as  many  have  noted,  Rawlsian  analysis  does  not  give  us  a  bunch 
of  right  answers  to  hard  questions  at  all  levels  of  abstraction,  and  Rawls  did  not 


261 .  Cf.  Ternasky,  supra  note  208,  at  128  (arguing  that  given  a  "robust  conception  of  human 
flourishing"  and  moral  theories  that  "stand  relevantly,  approximately,  near  the  truth  of  that 
motivation,  then  we  may  expect  to  move  nearer  the  truth  as  our  intuitions  are  informed  by 
additional  social,  scientific,  and  historical  evidence.").  I  am  not  sure  we  are  aided  by  the  notion  of 
"moving  nearer  the  truth,"  but  the  point  about  intuitions  evolving  with  the  presentation  of  new 
evidence  seems  sound. 


134  INDIANA  LAW  REVIEW  [Vol.  33:17 


claim  it  would,  although  he  did  deal  with  a  number  of  specific  issues.^^^  Try 
applying  his  (or  anyone's)  tool  matrix  to  the  "who-is-the-natural-mother"  issue 
oi  Johnson  v.  Calvert,  or  to  the  questions  whether  we  should  ban  human  cloning, 
allow  the  use  of  various  performance-enhancing  techniques,  or  solve  scarce- 
resource  distribution  by  this  or  that  mechanism.^^^  The  most  that  can  be  hoped 
for,  in  many  cases,  is  that  we  narrow  the  range  of  permissible  options,  or  that  we 
more  fully  understand  and  can  justify  assorted  preferences,  attitudes,  and 
behaviors,  or  that  we  more  adequately  justify  particular  plans  or  prior  actions. 
In  some  cases,  the  Rawlsian  analysis  not  only  offers  an  overarching  structure  of 
general  application,  but  indeed  yields  strong  answers  to  some  problems,  at  least 
within  the  framework  of  Western  thought.  However,  it  seems  unreasonable  to 
expect  any  political  or  ethical  theory,  whatever  its  internal  philosophical 
constructs,  to  tell  us,  say,  whether  the  entire  nation,  rather  than  regions  or 
localities,  should  be  the  constituency  for  organ  distribution.  Nor  will  it  tell  us, 
after  human  enhancement  techniques  become  effective,  precisely  to  whom 
increments  in  intelligence  or  other  merit  or  wealth-attracting  attributes  should 

If  Brown  v.  Board  of  Education  and  Rawls's  Theory  of  Justice  constitute  or 
reflect  progress,  what  is  it  progress  inl  How  do  we  describe  it,  especially  to 
skeptics  who  think  of  progress  as  referring  to  new  proofs  in  mathematics  or  logic, 
or  theory  confirmation  in  science,  or  paradigm  shifts  that  pan  out  empirically,  or 
setting  new  records  in  the  100-meter  dash?  Should  we  refer  to  it  as  "progress  in 
the  quality  and  sophistication  and  relative  completeness  of  analysis,  such  that  it 
is  likelier  to  draw  assent"?  There  is  a  sense,  af^er  Brown  and  Theory  of  Justice, 
in  which  we  know  more  than  we  did  before  about  equality,  about  how  to  think 
about  constructing  political/economic/social  systems,  and  so  on.  As  has  been 
said  of  metaethics:  "Such  philosophical  progress  as  has  been  made  in  metaethics 
has  come  not  from  simplifying  the  debate  or  reducing  the  number  of  viable 
alternatives,  but  from  bringing  greater  sophistication  to  the  discussion  of  well- 
known  positions  and  from  exploring  heretofore  disregarded  possibilities  and 
interconnections."^^^ 

Rawls  himself  provides  an  account  of  what  we  might  rightly  call  "progress": 
"If  the  scheme  as  a  whole  seems  on  reflection  to  clarify  and  to  order  our 
thoughts,  and  if  it  tends  to  reduce  disagreements  and  to  bring  divergent 
convictions  more  in  line,  then  it  has  done  all  that  one  may  reasonably  ask."^^^ 

There  is  thus  a  bounded  but  plausible  account  of  progress  in  moral  and  legal 


262.  See  Rawls,  supra  note  195,  at  53  (stating  that  if  his  scheme  adds  clarity  and  order  in 
our  thinking  and  reduces  disagreement,  it  has  served  its  purpose).  See  also  John  Rawls,  The  Basic 
Liberties  and  Their  Priority,  in  POLITICAL  LIBERALISM,  289,  340-68  (1993)  (discussing  political 
free  speech  and  commenting  on  several  major  cases  and  constitutional  standards). 

263.  See  Johnson  v.  Calvert,  851  P.2d  776  (Cal.  1993). 

264.  See  generally  Michael  H.  Shapiro,  Who  Merits  Merit?  Problems  in  Distributive  Justice 
and  Utility  Posed  by  the  New  Biology,  48  S.  Cal.  L.  Rev.  318(1 974). 

265.  Darwall  et  al.,  supra  note  67,  at  32. 

266.  Rawls,  supra  note  195,  at  53. 


1999]  IS  BIOETHICS  BROKE?  135 


argumentation  and  analysis  that  rests  on  ideas  of  normative  illumination  and 
increasingly  refined  analytical  tools.  That  sort  of  progress  may  play  some  role 
in  behavioral  progress,  and  behavioral  progress  may,  in  turn,  aid  insight.  This 
account  probably  does  not  meet  the  expectations  of  those  w^ho  call  for  law  and 
philosophy  to  catch  up  with  science  and  technology,  but  nothing  can. 

c.  "Micro"  vs.  "macro"  progress:  Personal  moral  "closure"  and  objective 
moral  progress. — Think  back  to  your  own  difficulties  in  decision  making, 
whether  it  was  to  decide  which  concert  or  movie  to  attend,  whether  to  vote  to  hire 
or  promote  someone,  or  what  advice  to  give  your  children  on  moral  issues.  Some 
aspects  of  these  problems,  including  your  personal  circumstances,  may  well  have 
been  especially  salient  to  you  and  more  or  less  settled  your  mind.  This  is 
perfectly  consistent  with  continued  reservations  or  even  regret  over  what  you  did 
or  "had"  to  do,  and  with  a  realization  that  the  issue  was  not  settled  for  all  time, 
whether  for  you  or  for  others  generally .^^^ 

This  is  obviously  not  a  general  summary  of  human  decision  making.  I  am 
suggesting  only  that  reflection  may,  for  a  given  person,  help  decide  the  matter  for 
j^gj.  268  j^  jg  immaterial  whether  one  describes  the  final  resolution  of  doubts  as 
involving  a  particular  consideration  that  tipped  the  scales,  or  as  the  result  of  a 
rough  weighing  or  balancing.  Much  the  same  may  hold,  with  various 
complexities,  for  group  decision  making  by  ethics  committees,  Institutional 
Review  Boards,  juries,  and  so  on.  This  notion  of  (provisional)  settlement  is  a 


267.  Cf.  Railton,  supra  note  257,  at  1 88-90  (discussing  a  theory  of  individual  rationality,  and 
following  this  with  a  discussion  of  moral  norms  going  beyond  individual  viewpoints — rationality 
from  what  might  be  called  a  social  point  of  view).  In  a  footnote,  the  author  observes  that  "there  can 
be  no  guarantee  that  what  would  be  instrumentally  rational  from  any  given  individual's  point  of 
view  will  coincide  with  what  would  be  instrumentally  rational  from  a  social  point  of  view."  Id.  at 
190  n.30.  See  generally  Simon,  supra  note  85  (discussing  cognition  injudicial  problem-solving). 

268.  Once  again,  this  is  not  an  account  of  or  argument  for  standard  moral  relativism,  although 
it  is  plausibly,  if  nonetheless  confusingly,  referred  to  as  justificatory  relativism.  See  Brock,  supra 
note  4,  at  236-37.  Brock  states  that  his 

account  of  moral  reasoning  and  justification  .  .  .,  which  employs  a  critical  screening 
process  together  with  reflective  equilibrium,  does  allow  for  the  possibility  of  moral 
disagreement  that  is  in  principle  rationally  irresolvable,  and  for  the  possibility  that 
different  individuals  may  each  be  justified  in  holding  incompatible  moral  judgments; 
we  can  call  this  justificatory  relativism. . . .  Some  moral  disagreement  does,  1  believe, 
turn  out  to  be  irresolvable  in  principle,  but  not  as  often  as  many  people  today  suppose. 
Very  often  disagreement  that  initially  appears  to  be  moral  turns  out  on  closer  analysis 
to  be  empirical  disagreement  about  matters  of  fact,  [fl  Justificatory  relativism  implies 
that  moral  judgments  are  correctly  understood  to  be  in  one  sense  subjective. . . .  What 
I  have  in  mind  here  by  the  claim  of  subjectivity  is  this.  At  the  end  of  the  day, . . .  after 
the  process  of  moral  reasoning  and  justification  has  been  completed,  a  particular 
individual's  moral  judgments,  principles,  or  theory  will  depend  on  what  that  person  is 
prepared  on  reflection  to  accept,  to  try  to  live  by,  and  to  judge  him-or  herself  and  others 
by. 
Id. 


136  INDIANA  LAW  REVIEW  [Vol.  33:17 


critical  aspect  of  making  decisions.  Thus,  despite  rational  reservations  such  as 
Robert  Holmes's — "more  should  not  be  expected  of  it  [analytical  ethics  within 
bioethics]  than  it  is  capable  of  del ivering"^^^— such  analytics  may  be  strongly 
decisive  for  an  individual  decision  maker,  even  if  the  underlying  moral  issues  are 
not  settled  within  any  overall  moral  theory  either  from  her  viewpoint  or  that  of 
others. 

Examples  are  not  hard  to  imagine,  though  they  are  more  difficult  to  confirm 
empirically.  Suppose  there  is  a  terminally  ill  patient  who  had  been  unusually 
energetic  but  has  suffered  prolonged,  intractable  depression  during  prior 
illnesses.  She  now  wishes  to  terminate  artificial  nutrition  and  hydration.  How 
do  we  assess  and  respond  to  her  preferences?  We  invoke  rough  ideas  of 
autonomy-as-opportunities-to-realize-one's  preferences,  and  of  relief  of 
suffering.  This  may  occur  within  a  nonconsequentialist  or  consequentialist  moral 
theory.  What  strikes  you  as  especially  compelling  is  the  ongoing,  impenetrable 
depression  of  the  patient,  making  every  day  an  utter  horror,  that  is  unresponsive 
to  all  medications  and  even  to  electroconvulsive  therapy.  So  far  from  this 
condition  being  a  plausible  blockade  to  aid-in-dying,  because  of  its  distorting 
effect  on  the  perception  of  one's  own  preferences,  it  is  now  an  indication  for  it. 
So  you  think  it  best  to  let  her,  or  even  help  her,  go. 

This  is  a  conclusion  that  one  might  not  have  reached,  or  might  have  reached 
more  reluctantly,  if  one  had  not  been  introduced  to  ideas  of  impaired  decision 
making  capacity,  of  clinical  depression  as  a  disorder  that  entails  pain 
unimaginable  to  those  never  so  afflicted,  of  the  possible  transformative  effects 
of  biological  treatment,  and  of  the  bitter  fact  that  these  transformative  treatments 
failed  completely.  Simply  learning  these  ideas  and  facts  may  advance  individual 
progress  to  provisional  closure.  This  view  may  endure  even  if  the  decisionmaker 
knows  of  the  risks  of  undue  influence  or  abuse. 

Think  next  of  someone  who  applauds  the  latest  successes  in  multiple 
transplants,  where  several  organs  are  distributed  to  a  single  person.  Someone 
else  points  out  that  multiple  transplants  given  to  just  one  person  do  not  generally 
maximize  lifesaving.  Even  if  one  continues  to  support  multiple  transplants,  one 
recognizes  the  pull  of  other  considerations  when  one  had  not  done  so  before. 
This  too  is  progress. 

Problems,  of  course,  are  not  of  equal  difficulty  or  gravity.  However, 
reflection  may  significantly  advance  equilibrium  for  particular  persons  or  groups, 
even  though  most  of  the  overarching  moral  tensions  can  never  be  resolved. 
Perhaps  this  is  a  form  of  reflective  equilibrium,^^^  and  easing  the  way  for  it 
promotes  both  personal  and  community  progress.^^'  For  the  persons  directly  on 


269.  Holmes,  supra  note  15,  at  145. 

270.  See  Rawls,  supra  note  1 95,  at  48-5 1  (defining  reflective  equilibrium);  see  also  Brody, 
supra  note  20,  at  172-74,  177-78  (applying  the  concept  to  bioethical  deliberation);  Railton,  supra 
note  257,  at  190-94  (discussing  individual  and  social  rationality  in  connection  with  the  idea  of 
moral  realism). 

27 1 .  See  generally  Nagel,  supra  note  1 1 ,  at  202. 

[MJost  theorists  would  recognize,  as  characteristic  of  morality,  the  aim  of  convergence 


1999]  IS  BIOETHICS  BROKE?  137 


the  job  of  decision  making,  reservations  about  ultimate  moral  reality  may  be  of 
some  moment  because  of  anticipated  regret  concerning  the  factors  outweighed 
but  far  from  annihilated,  and  because  of  fears  that  future  problems  may  resist  all 
closure.^^^  However,  this  is  largely  inevitable  in  many  domains  of  thought. 

3.  Progress  in  Bioethics. — 

a.  Conceptual  constraints  on  the  idea  of  progress. — 

(i)  Again,  the  example  of  principl ism. —Recall  the  references  above  to 
principl ism,  understood  as  a  plan  for  evaluating  actions  and  situations  in  light  of 
mid-level  moral  imperatives.  Its  central  thrust  is  to  advance  moral  and  legal 
decision  making  by  referring  largely  or  exclusively  to  a  small  set  of  concepts.^^^ 
More  specifically,  it  involves  "what  has  sometimes  been  called  the  four- 
principles  approach  to  biomedical  ethics,  and  also  called,  somewhat 
disparagingly,  principl  ism. "^^'^  The  four  "clusters  of  principles"  are  respect  for 
autonomy,  which  entails  respect  for  a  competent  person's  decisions; 
nonmaleficence  or,  a  bit  loosely,  not  causing  harm;  beneficence,  or  generating 
benefits,  balanced  against  risks  and  costs;  and  justice,  understood  as  fair 
distribution  of  benefits,  risks  and  costs.  These  abstractions  are  used  to  illuminate 
and  resolve  certain  disputes.   Beauchamp  and  Childress  contrast  "principles" 


by  individuals  with  diverse  and  conflicting  points  of  view  on  standards  of  conduct  and 
choice  which  all  can  see  as  justified.  Morality,  if  there  is  such  a  thing,  requires  us  to 
transcend  in  the  practical  domain  our  individual  perspectives,  and  by  means  of  this 
collective  transcendence  to  converge  on  a  common  standpoint  of  evaluation.  It  aims  to 
supply  a  framework  of  potential  agreement  or  harmony  within  which  the  remaining 
differences  can  operate  without  doing  harm. 


Id. 


Later,  Nagel  refers  to  "formulating  general  hypotheses  and  testing  them  by  the  credibility  of 
their  implications,"  finding  reasons  for  different  opinions  and  the  principles  they  depend  upon,  and 
concluding  that  "progress  can  often  be  made  on  this  basis — at  least  to  produce  greater 
understanding  of  the  grounds  of  disagreement,  if  not  to  resolve  it  finally."  Id  at  21 1.  See  also 
Brock,  supra  note  4,  at  2 1 7  (discussing  ethics  commissions'  efforts  toward  "sharpening  the  issues" 
and  "forging  consensus"). 

Consider  the  moral  evolution  of  Andrei  Sakharov  over  a  period  of  about  two  decades,  as 
recounted  in  Gennady  Gorelik,  The  Metamorphosis  of  Andrei  Sakharov,  280  Sci.  AM.  98,  101 
(1998):  "'If  I  feel  myself  free,'  [Sakharov]  once  mused,  'it  is  specifically  because  I  am  guided  to 
action  by  my  concrete  moral  evaluation,  and  I  don't  think  I  am  bound  by  anything  else. '  He  always 
did  exactly  what  he  believed  in,  led  by  a  clear,  unwavering  inner  morality." 

But  it  is  clear  from  the  earlier  portions  of  the  article  that  Sakharov  didn't  simply  intuit  moral 
reality  in  a  moment  of  time  and  act  as  an  absolutist.  His  recognition  of  conflicting  obligations, 
patriotic  and  global,  developed  as  he  witnessed  historical  developments  and  saw  the  growing  risks 
of  nuclear  weapons.  His  development  is  thus  arguably  an  example  of  personal  moral  progress. 

272.  See  Williams,  supra  note  122,  at  49. 

273 .  Principlism's  origins  are  often  associated  generally  with  William  K.  Frankena,  Ethics 
(2d  ed.  1973)  and,  in  bioethics,  with  the  first  edition  (now  into  the  fourth)  of  TOM  L.  Beauchamp 
&  James  F.  Childress,  Principles  of  Biomedical  Ethics  (4th  ed.  1994). 

274.  Beauchamp  &  Childress,  supra  note  273,  at  37  (footnote  omitted)  (emphasis  omitted). 


138  INDIANA  LAW  REVIEW  [Vol.  33:17 


with  ethical  theory  (which  is  more  abstract  than  principles),  rules  (less  abstract), 
and  particular  judgments.^^^ 

Are  the  principlists'  offerings  progress?  Even  opponents  of  principlism 
should  think  so.  Any  crystallization  of  ideas  that  helps  explain  how  we  think 
(e.g.,  with  heuristics  and  other  shortcuts),^^^  and  gives  people  a  conceptual  map 
addressing  how  we  should  think,  may  be  an  advance.  Even  if  it  is  mistaken  and 
ultimately  incoherent,  it  takes  us  down  cognitive  pathways  we  may  have  missed, 
and  we  can  choose  which  forks  to  follow  on  our  own.  One  learns  something 
from  principlism  even  when  rejecting  it. 

The  law  provides  a  brief  example.  The  identification  of  standards  of  review 
in  constitutional  litigation  helped  define  and  implement  various  hierarchies  of 
constitutional  rights,  powers,  duties,  etc.,  and  helped  organize  and  clarify  both 
what  we  were  doing  and  what  we  should  have  been  doing.^^^  It  is  not  a 
principlist  system  of  the  sort  dealt  with  here,  but  it  generally  deals  with  mid-level 
abstractions  in  adjudicating  constitutional  claims.  Thinking  about  the  nature  of 
standards  of  review,  why  they  are  in  place,  and  what  they  do  and  are  supposed 
to  do  is  instructive,  whether  or  not  one  thinks  the  way  these  standards  are  used 
or  expressed  is  mistaken.  Instructive  on  what?  On  matters  of  constitutional  or 
moral  relevance  that  we  may  have  over-  or  underlooked. 

There  are  obvious  risks  in  this  largely  mid-level  evaluation  process.  In 
constitutional  law,  many  have  stressed  the  risks  of  clumsy,  possibly  question- 
begging  use  of  standards  of  review.  Critics  have  also  condemned  the  implicit 
constitutional  hierarchies  that  they  reflect,  but  their  own  preferred  orderings 
would  still  have  to  be  reflected  in  standards  of  review.^^*  Critics  of  principlism 
have  tendered  parallel  objections.  As  long  as  we  understand  some  basic 
limitations  of  principlism,  however,  the  principlists'  schemas  may  accelerate  our 
personal  decision  making  efforts  as  well  as  our  agreement  with  others.  This  may 
represent  a  kind  of  moral  efficiency;  one  can  be  efficient  or  inefficient  in  moral 
deliberation,  and  efficiency  here  may  itself  be  a  moral  imperative,  depending  on 
the  circumstances.^^^  As  for  principlism's  limitations,  they  are  readily  stated: 


275.  Mat  15,  37-38. 

276.  I  am  using  these  terms  loosely — for  some,  perhaps  too  loosely.  One  might  urge,  for 
example,  that  a  decision  procedure  in  a  given  case  was  not  a  "shortcut"  because  no  material  and 
useful  consideration  was  excluded;  there  was  in  fact  no  longer  journey  to  greater  accuracy — high 
theory  would  not  have  advanced  deliberation. 

277.  I  do  not  want  to  press  the  comparison  between  standards  of  review  and  principlism  too 
far.  It  is  not  clear  that  they  operate  at  the  same  level  of  abstraction.  Moreover,  standards  of  review 
are  not  articulated  by  specific  reference  to  principles  of  any  sort,  although  the  standards  may 
presuppose  abstractions  properly  called  "principles."  The  standards  of  review  themselves,  however, 
do  not  seem  to  be  akin  to  the  structures  contemplated  by  principlism.  Perhaps  they  are  more  like 
casuistical  rules,  maxims,  or  apothegms,  or  heuristics  generally. 

278.  The  point  is  that,  given  interpretive  maneuvers  that  yield  an  ordering  of  constitutional 
values,  standards  of  review  that  reflect  this  ordering  are  a  logical  inevitability. 

279.  I  note  this  for  the  sake  of  completeness.  "Efficiency"  is  a  general  term  concerning  the 
relationship  between  ends  and  means,  and  it  is  far  from  exclusively  linked  to  matters  of  commerce. 


1999]  IS  BIOETHICS  BROKE?  139 


one's  heuristics  are  not  the  final  word.  In  some  cases,  appeal  must  be  made  to 
higher-order  abstractions  to  interpret  the  moral  premises  and  to  help  resolve 
conflicts  among  them.  One  may  even  have  to  de-select  principles  or  reinterpret 
them.  Moreover,  the  very  articulation  of  principles  may  fool  one  into  thinking 
that  things  are  simpler  than  they  are. 

So,  principlism  is  not  the  chopped  liver  of  moral  philosophy;  its  problems  are 
serious.^^^  Are  its  specified  criteria  sufficiently,  but  not  excessively, 
comprehensive?  One  wonders  whether  equality  is  rightly  assigned  to  the 
discussion  of  justice  or  to  some  other  combination  of  the  itemized  concepts. 
Where  does  fairness  go — inside  justice,^^'  or  inside  equality,  wherever  that  may 
be?  Are  the  criteria  overbroad,  underbroad,  or  void  for  vagueness,  i.e.,  too 
sweeping,  too  narrow  or  incomplete,  or  too  imprecise  to  be  serviceable?  When 
do  they  produce  reasonably  determinate  results  or  at  least  narrow  the  range  of 
competing  arguments?  What  are  "principles"  anyway  and  where  do  they  come 
from  and  how  do  they  relate  to  each  other,  to  higher  abstractions,  to  lower 
abstractions,  to  standards,  rules,  maxims,  apothegms,  and  bromides?  If  the 
principles  in  principlism  were  not  randomly  assembled,  then  what  overarching 
theory  produced  them,  or  are  they  simply  inferred  from  how  people  in  fact  make 
decisions,  with  no  additional  search  for  foundations?  Moreover,  the  principles 
within  "principlism"  are  imprecise,  overlapping,  often  pull  in  different  directions, 
and  have  internal  tensions  that  put  their  very  coherence  at  risk.  Don't  we  have 
to  invoke  the  underlying  moral  theory  to  deal  with  such  difficulties,  if  they  can 
be  dealt  with  at  all?  If  there  is  no  such  thing  as  independent  freestanding 
principles,  in  short,  how  did  we  come  by  them?  Is  autonomy  a  product  of  a 
consequentialist  or  nonconsequentialist  theory?  If  autonomy  derives  from 
different  theories,  does  its  applications  vary,  not  just  with  the  particular  situation, 


as  some  careless  critics  think.  More  generally,  it  embodies  rules  of  rationality.  If  someone  residing 
in  Los  Angeles  wishes  to  visit  the  Pacific  Ocean  forthwith,  she  should,  other  things  remaining  the 
same,  move  westerly  rather  than  circumnavigating  the  globe  by  traveling  eastward.  In  moral 
analysis,  efficient  moves  are  obligatory,  where  efficiency  represents  the  use  of  methods  that  under 
the  circumstances  are  the  best  means  of  satisfying  the  requirements  of  the  governing  moral  theory. 
Of  course,  this  account  reduces  efficiency  to  the  content  of  the  moral  theory  and  its  applications, 
and  there  is  usually  no  need  to  invoke  the  idea  explicitly  when  doing  moral  analysis. 

280.  For  a  critique  of  principlism,  see  Ronald  M.  Green  et  al..  The  Method  of  Public  Morality 
Versus  the  Method  of  Principlism,  18  J.  Med.  &  PHIL.  477  (1993).  For  a  response  to  various 
criticisms  of  principlism,  see  Beauchamp  &  Childress,  supra  note  273,  at  106-09. 

28 1 .  See  BEAUCHAMP  &  CHILDRESS,  supra  note  273,  at  326-34  (identifying  "the  principle  of 
formal  justice"  with  the  "principle  of  formal  equality,"  and  indicating  that  in  deciding  particular 
questions,  e.g.,  admissions  to  a  hospital,  "[a]ny  answer  to  this  question  will  presuppose  an  account 
of  justice  that  contains  material  principles  in  addition  to  the  formal  principles"). 

Note  the  extensively-discussed  issue  of  the  "emptiness"  of  equality  in  constitutional  law. 
Compare  Peter  Westen,  The  Empty  Idea  of  Equality,  95  Harv.  L.  Rev.  537  (1982),  with  Kent 
Greenawalt,  How  Empty  Is  the  Idea  of  Equality?,  83  COLUM.  L.  REV.  1 1 67  ( 1 983).  On  the  location 
of  fairness  on  the  principlist  conceptual  map,  see  Beauchamp  &  Childress,  supra  note  273,  at 
327,  341-43  (discussing  fair  opportunity). 


140  INDIANA  LAW  REVIEW  [Vol.  33:17 


but  with  the  parent  theories?  If  the  applications  vary  with  their  foundations,  why 
should  we  bother  with  this  intermediate  stage  of  governance  by  principle  at  all? 
Because  higher  theory  does  not  have  to  be  invoked  in  every  case  and  we  can  do 
some  coasting?  In  which  cases  does  it  (not)  belong?  The  principles,  then, 
require  interpretation,  internal  reconciliation,  and  reconciliation  with  each  other, 
and  the  only  way  to  do  so  is  to  test  the  authority  and  meaning  of  the  principles 
in  light  of  higher-order  concepts  of  ethical  theory. 

Think  again  of  autonomy  to  illustrate  this  point.  It  is  a  concept  with  internal 
tensions  that  often  confront  us,  and  its  various  aspects  are  not  accorded  the  same 
ranking  by  everyone.  If  a  patient  wants  to  delegate  an  important  value-laden 
decision  to  his  physician,  should  we  follow  his  preferences,  vindicating  one 
aspect  of  autonomy?  Or  should  we  instead  stress  autonomy  as  rational  self- 
direction  in  order  to  discourage  the  delegation,  and  implement  this  goal  by 
adjuring  physicians  to  reject  such  delegations  and  insist  that  the  patient  make  his 
own  decision?  If  a  prospective  organ  donor  expresses  assent  to  the  donation  of 
her  kidney  to  a  relative  but  seems  conflicted,  should  the  donation  be  disallowed 
because  of  the  risk  that  assent  was  compromised  by  familial  pressure,  undue 
influence  or  coercion?  Autonomy  is  threatened  either  way.  We  already  noted 
the  problem  of  overriding  a  competent  patient's  veto  of  therapy  mental  disorder 
in  order  to  promote  her  long-run  autonomy.  More  precisely,  this  compromises 
her  external  autonomy  (freedom  from  the  interferences)  in  order  to  promote  her 
internal  autonomy  (her  capacities,  impaired  by  disorder),  which  in  turn  will 
enhance  her  external  autonomy  down  the  line.^^^ 

Despite  such  critiques  of  principlism,  which  are  well  known  to  the 
principlists,  it  is  fair  to  refer  to  it  as  reflecting  progress.  Again,  what  sort  of 
progress?  The  sort  of  progress  involved  in  deciding  if  a  scholar's  publications 
have  "advanced  the  field"  and  are  therefore  tenure-worthy?  Nonacademics  might 
be  excused  for  questioning  this  as  a  standard  of  progress.  Perhaps  principlism 
represents  some  methodological  insights  that  reveal  its  principles  as 
crystallizations  of  concepts  derived  from  one  or  more  higher-level  theories  that 
can  be  used  as  heuristics  or  very  soft  algorithms.  Perhaps  it  is  a  sort  of 
acceptable  moral  satisficing,  even  an  obligatory  one,  given  scarce  resources  of 
time  and  effort.  If  an  admittedly  soft  shortcut  helps  reach  rough  consensus,  isn't 
this  an  advance?  Scarce  resources  may  indeed  demand  satisficing,  and 
principlism  may  be  effective  in  some  cases.  Why  reinvent  the  moral  wheel  at 
every  turn?  Of  course,  if  the  problems  seem  simple,  we  are  unlikely  to  feel  a 
need  even  to  review  the  relevant  principles,  never  mind  the  larger  abstractions. 

However,  as  critics  have  repeatedly  charged,  the  principles  cannot  simply  be 
fitted  onto  a  situation  to  yield  a  determinate  result.  Some  say  there  is  no  such 
thing  as  manageable  principles  in  the  sense  the  principlists  require,  or  they 
cannot  really  be  applied,  as  a  true  algorithm  can.^^^  (Principlists  of  course  do  not 


282.  See  Shapiro,  supra  note  121  for  further  discussions  of  this  issue. 

283.  This  is  more  or  less  the  objection  made  by  Clouser  &  Gert,  supra  note  212,  at  226-27 
("[TJhis  'principle'  [of  beneficence]  is  simply  a  chapter  heading  under  which  many  superficially 
related  topics  are  discussed;  it  is  primarily  a  label  for  a  general  concern  with  consequences.  But 


1 999]  IS  BIOETHICS  BROKE?  1 4 1 


say  they  are  constructing  algorithms,  which  are  quite  different  from  principles.) 
Such  algorithms  often  provide  determinate  results  in  application,  such  as 
computer  programs  for  playing  tic-tac-toe,  or,  more  impressively,  chess. 
Principles  rarely  do. 

To  clarify,  organize,  and  add  perspectives  and  insights  hitherto  hidden  are  all 
forms  of  progress,  and  they  may  indeed  advance  the  time  when  some  answer  is 
settled  upon,  and  we  can  move  on  to  other  matters.  Such  advances  are  important, 
but  they  should  not  be  overstated.  After  a  time,  one  grows  weary  of  clarifications 
that  better  acquaint  us  with  our  confusion  but  do  not  provide  satisfying 
answers.^^'*   However,  if  clarification^^^  helps  move  us  toward  even  partial  or 


by  being  called  a  principle,  it  avoids  the  kind  of  fundamental  questioning  that  a  theory  should 

undergo.").  See  also  id.  at  234-36. 

[T]here  is  neither  room  nor  need  for  principles  between  the  [adequate,  unified  moral] 
theory  and  the  rules  or  ideals  which  are  applied  to  particular  cases.  Rather,  one  applies 
the  relevant  rules  and  ideals  and  then,  after  taking  into  account  all  of  the  morally 
relevant  features,  one  decides  whether  or  not  it  is  justified  to  violate  a  particular  moral 

rule We  believe,  in  the  sense  given  to  'principle'  by  Frankena  and  by  Beauchamp 

and  Childress,  that  for  all  practical  and  theoretical  purposes  there  are  no  moral 
principles.  ...    By  invoking  several  'principles'  they  implicitly  deny  the  unity  of 
morality. 

Id. 

284.  Robert  Holmes  also  questions  a  similar  defense  of  "elucidation."  See  Holmes,  supra 
note  15,  at  144-45.  Note,  however,  the  remarks  in  the  text  suggesting  that  individuals  might  find 
personally  satisfactory  solutions  when  aided  by  morally  relevant  considerations  they  had  not 
thought  of.  See  generally  JONSEN  &  TOUI.MIN,  supra  note  7,  at  305. 

[Tjaken  by  themselves,  disputations  between  'consequentialists'  and  'deontologists,' 
or  between  Kantians  and  Rawlsians,  were  not  of  much  help  in  settling  vexed  practical 
issues,  such  as  the  question,  'How  much  responsibility  should  physicians  allow  gravely 
ill  patients  []  in  deciding  what  treatments  they  shall  undergo?'  Philosophical  concepts 
may  be  of  help  in  clarifying  the  manner  and  terms  in  which  these  problems  are  stated. 
But  in  the  end  the  debate  will  always  return  to  the  particular  situation  of  an  individual 
patient  with  a  specific  medical  condition,  and  the  discernment  that  is  needed  to  reach 
any  wise  decisions  in  such  cases  goes  beyond  the  explanatory  or  clarifying  insights  of 
even  the  best  theories — whether  scientific  insights  of  molecular  biologists  or  ethical 
perceptions  of  moral  philosophers. 
Id.  (footnote  omitted). 

285.  Cf.  Nagel,  supra  note  1 1 ,  at  209  (remarking  that"[t]he  present  state  of  moral  controversy 
reveals  a  high  level  of  uncertainty  about  both  methods  and  conclusions,  but  at  the  same  time  there 
is  clearly  a  lot  of  value  in  the  three  primary  standards  I  have  described:  common  interest,  overall 
utility,  and  equal  rights.  On  some  questions,  these  standards  will  give  the  same  answer.").  Without 
pressing  the  comparison,  one  can  make  parallel  claims  about  principlism,  though  it  seems  to  be  at 
a  lower  level  of  specificity. 

But  cf.  Michael  Bishop,  The  Possibility  of  Conceptual  Clarity  in  Philosophy,  29  AM.  Phil.  Q. 
267, 268  (1992)  (arguing  that  "[cjlassical  conceptual  analysis"  in  the  form  of  specifying  necessary 
and  jointly  sufficient  conditions  "is  doomed  because  most  concepts  are  not  structured  classically."). 


1 42  INDIANA  LAW  REVIEW  [Vol.  33:17 


temporary  settlements,  the  effort  required  may  be  worth  it.  In  many  cases, 
nothing  more  than  these  provisional  accommodations  are  logically  possible  for 
philosophical  analysis  or  legal  decision  making.^^^  We  will  forever  be  using 
familiar  tools,  perhaps  with  innovative  refinements  and  reconstructions.  But  no 
set  of  tools  will  bring  us  to  moral  or  legal  closure  that  matches  what  can  be 
accomplished  in  mathematics,  logic  and  science.  The  kind  of  provisionality  that 
applies  to  even  the  best-confirmed  scientific  claims  does  not  suggest  the  contrary; 
it  is  quite  different,  despite  the  parallels,  from  moral  indeterminacy.  No  doubt, 
these  defining  differences  move  some  to  view  philosophy  and  law  as  fields 
inferior  to  science  and  mathematics,  a  view  not  worth  stopping  on,  except  to  say 
that  using  the  term  "inferior"  begs  a  lot  of  questions,  and,  in  any  case,  we  have 
to  live  with  what  we  have. 

(ii)  The  example  of  distributing  scarce  lifesaving  resources,  especially 
organs:  When  paradox  blocks  ''progress  ";  lotteries  and  rationality. — Scarcity 
is  a  central  driving  force  of  life.  Distributing  scarce  lifesaving  resources  to 
human  beings  is  not  amenable  to  the  relatively  simple  solutions  to,  say,  dividing 
a  cake  at  a  birthday.  Lifesaving  are  rarely  distributed  in  ways  that 
simultaneously  satisfy  everyone.  The  image  of  triage  is  a  searing  one,  and 
although  that  concept  is  not  directly  applicable  to  all  distributional  problems,  it 
is  easily  brought  to  mind  when  scarce  lifesaving  resources  are  at  stake,  whether 
on  the  battlefield  or  the  civilian  hospital  ward.^*^  Some  of  the  most  vivid 
examples  of  this  come  from  organ  transplantation  and  use  of  artificial  organs 
such  as  dialysis  machines  and,  one  anticipates,  implantable  artificial  hearts. 
Indeed,  the  problem  of  selecting  patients  to  receive  the  first  operationally  useful 
dialysis  machines  was  a  defining  moment  in  the  early  development  of 
bioethics.^^^ 


But  few  of  our  powerful  moral,  philosophical  and  legal  abstractions  can  be  part  of  classical 
conceptual  analysis  in  this  sense.  Most  ethical  and  legal  theory  is  thus  nonclassical  in  the  author's 
sense.  Non-classical  proceedings,  however,  can  yield  incremental  clarity  for  such  non-classical 
concepts. 

286.  Some  authors  draw  clinical  uncertainty  into  the  analysis.  See,  e.g. ,  Toon,  supra  note  34, 
at  17. 

It  is  foolish  to  believe  that  a  knowledge  of  moral  philosophy  or  an  ethical  analysis 
makes  a  difficult  moral  decision  easy,  any[]more  than  knowledge  of  physiology  and 
pathophysiological  analysis  makes  a  complex  clinical  case  simple  to  diagnose  or  to 
prognosticate.  In  both  cases[,]  ars  longa  vita  brevis.  What  sound  training  in 
philosophical  analysis  can  do  for  moral  problems  is  exactly  parallel  to  what  training  in 
clinical  sciences  can  do  for  the  diagnostic  problem:  i.e.[,]  provide  a  framework  in  which 
choices  can  be  organised  and  evaluated  logically,  avoiding  conclusions  not  justified  by 
the  evidence  and  decisions  made  on  irrelevant  grounds. 
Id. 

287.  The  decisions  are  likely  to  be  sharply  different  in  military  and  civil  contexts.    See 
generally  GERALD  R.  WiNSLOW,  TRIAGE  AND  JUSTICE  (1982). 

288.  See  Sanders  &  Dukeminier,  supra  note  1 4 1 ,  at  37 1 ,  377-79;  see  also  ROTHMAN,  supra 
note  6,  at  1 55-57. 


1999]  IS  BIOETHICS  BROKE?  143 


Here,  as  elsewhere,  we  have  made  a  series  of  pragmatic  accommodations 
despite  our  moral  uncertainty.  Indeed,  we  are  morally  obliged  to  proceed  in 
some  way  even  if  moral  considerations  fail  to  identify  the  best  options. ^^^ 
However,  no  set  of  criteria  has  ever  commanded  a  consensus  that  identifies  the 
correct  premises  governing  distribution  of  lifesaving  resources.  These  premises 
would  specify  all  the  required,  permitted  and  forbidden  distributions.  But  the 
limitations  of  any  known  set  of  criteria  for  determining  distribution  have  been 
reviewed  many  times.^^°  Whatever  the  meta-ethical  views;  whatever  the  general 
ethical  theories,  whether  consequential ist,  nonconsequentialist,  or  tertium  quid, 
whatever  the  particular  theory  or  its  sub-branches;  and  whatever  the  particular 
criteria — none  can  satisfy  all  moral  theories  or  observers,  ideal,  reasonable,  or 
otherwise.  Social  worth,  ability  to  pay,  prior  good  works,  degree  of  medical 
need,  and  inherent  or  acquired  merit  are  all  failed  criteria  as  decisive  sources  of 
guidance,  but  remain  morally  relevant.  One  might  call  this  impossibility  a  moral 
theorem  of  sorts,  but  trying  to  formulate  a  proof  would  be  bootless,  and  in  any 
case  not  to  the  point.  Check  any  operational  set  of  criteria,  e.g.,  the  federal 
guidelines  for  heart  transplantation,  and  this  claim  will  quickly  be  illustrated. 
These  heart  transplantation  guidelines,^^*  which  apply  to  federally  funded 
transplants,  specify  the  need  for  social  support  networks,  thus  making  it  hard  for 
those  who  live  in  relative  solitude  to  receive  a  transplant;  discourage  transplants 
to  overage  persons;  and  say  nothing  about  maximizing  utility  and  so  on. 
Decisions  are  taken  and  specific  complaints  are  rare.  But  if  complaints  and 
recommendations  are  made,  say,  to  equalize  patients'  opportunities,  what  exactly 
gets  equalized  and  how?  The  ratio  of  medical  need  to  chance  of  getting  the  next 
transplant?  On  what  measure  of  need?  Imminence  of  death  before  transplant? 


289.  See  generally  David  B.  Wong,  Coping  with  Moral  Conflict  and  Ambiguity,  1 02  ETHICS 
763  (1992)  (arguing  that  "[a]  complete  ethic  should  address  the  question  of  how  people  are  to  act 

toward  one  another  when  they  are  in  serious  moral  disagreement [A]ccommodation  is  a  moral 

value  rooted  in  the  fact  that  serious  conflict  is  a  regular  feature  of  our  ethical  lives."). 

290.  See,  e.g.,  BARBARA  GOODWIN,  JUSTICE  BY  Lottery  (1 992);  James  F.  Childress,  Who 
Shall  Live  when  Not  All  Can  Live?,  53  SOUNDINGS  339  (Winter  1970);  Albert  R.  Jonsen,  Ethical 
Issues  in  Organ  Transplantation,  in  MEDICAL  ETHICS  229,  231  (Robert  M.  Veatch  ed.  1989);  Teri 
Randall,  Criteria/or  Evaluating  Potential  Transplant  Recipients  Vary  Among  Centers,  Physicians, 
269  JAMA  3091  (1993);  Nicholas  Rescher,  The  Allocation  of  Exotic  Lifesaving  Therapy,  79 
ETHICS  173  (1969). 

29 1 .  See  Health  Care  Financing  Administration  of  the  U.S.  Department  of  Health  and  Human 
Services,  Heart  Transplant  Coverage,  in  1  MEDICARE  &  MEDICAID  GUIDE  1  CCH  ^403 0.3 0(D) 
(Aug.  11,  1994).  The  criteria  for  patient  selection  include  critical  medical  need;  maximum 
likelihood  of  successful  clinical  outcome;  very  poor  prognosis  without  transplant.  Adverse  factors 
include  advancing  age;  various  concurrent  diseases;  and  a  history  or  behavior  pattern  or  psychiatric 
illness  likely  to  interfere  significantly  with  medical  compliance.  ^4030.30(D)(4)  states:  "We 
recognize  that  some  who  may  not  be  considered  'good  candidates'  may  also  benefit,  but  the 
likelihood  or  extent  of  benefit  is  significantly  less."  The  United  Network  for  Organ  Sharing 
(UNOS)  guidelines  do  not  seem  as  rigorous.  See  UNOS  Allocation  Policy  3,  June  26,  1998 
<http://www.unos.org>. 


144  INDIANA  LAW  REVIEW  [Vol.  33:17 


Life  expectancy  after  the  transplant?  Expected  quality  of  life  with  the  transplant? 
Or  are  we  instead  to  equalize  the  ratio  of  social  worth  to  chance  of  receiving  the 
next  transplant?  Are  we  to  work  with  some  ordered  set  of  these  variables,  or  are 
we  now  simply  replicating  the  list  of  failed  criteria? 

Consider  now  the  very  useful  example  suggested  by  Annas  concerning 
distribution  of  a  fixed  number  of  fully  implantable  artificial  hearts.^^^  His 
Minerva  case  concerns  a  lottery  as  the  final  selection  mechanism,  a  form  of  being 
"unprincipled  on  principle,"  to  import  Bickel's  phrase  into  this  context.^^^ 
Obviously,  some  of  the  same  difficulties  we  just  encountered  are  built  into  the 
prior  threshold  decision  to  the  number  of  hearts  to  be  constructed  and  made 
available.  They  are  also  at  work  at  the  stage  where  persons  are  included  or 
excluded  from  the  lottery  pool.  Membership  in  the  lottery  constituency  is  thus 
itself  a  scarce  resource  that  must  be  distributed  before  the  implants  are  assigned. 

A  lottery  might  seem  to  be  the  very  antithesis  of  rational  moral  choice  based 
upon  ideals  of  personhood.  Moral  rationality  adjures  us  to  find  a  reason  to  select 


292.  See  George  Annas,  Allocation  of  Artificial  Hearts  in  the  Year  2002:  Minerva  v. 
National  Health  Agency,  3  Am.  J.  Law  &  Med.  59  (1977). 

293 .  Alexander  M.  Bickel,  The  Supreme  Court,  1 960  Term — Foreword:  The  Passive  Virtues, 
75  Harv.  L.  Rev.  40,  76  (1961).  For  both  analytic  and  entertainment  purposes,  see  Jorge  Luis 
Borges,  The  Lottery  in  Babylon,  in  LABYRINTHS:  SELECTED  STORIES  AND  OTHER  WRITINGS,  at  30 
(Donald  A.  Yates  &  James  E.  Irby  eds.,  story  trans.,  John  M.  Fein,  1964). 

I  come  from  a  dizzy  land  where  the  lottery  is  the  basis  of  life.  .  .  .  Their  [the  older 
lotteries  in  which  people  won  silver  coins]  moral  virtue  was  nil.  They  were  not  directed 
at  men's  faculties,  but  only  at  hope. . . .  If  the  lottery  is  an  intensification  of  chance,  a 
periodical  infusion  of  chaos  in  the  cosmos,  would  it  not  be  right  for  chance  to  intervene 
in  all  stages  of  the  drawing  and  not  in  one  alone?  is  it  not  ridiculous  for  chance  to 
dictate  someone's  death  and  have  the  circumstances  of  that  death — secrecy,  publicity, 
and  the  fixed  time  of  an  hour  or  a  century — not  subject  to  chance? 
Id.  at  30,  3 1,  34.  See  also  the  short  story,  Shirley  Jackson,  The  Lottery  (Popular  Library  ed., 
1949). 

In  real  life,  lotteries  for  scarce  medical  resources  are  used  rarely,  apparently  mostly  for  new 
drugs  in  short  supply.  Even  then,  they  are  viewed  as  short-lived  phenomena.  Supplies  of  therapies 
proved  useful  can  generally  be  expected  to  increase,  thus  moving  distribution  into  its  usual  forms. 
See  Michael  Waldholz,  Unit  of  Roche  Sets  Up  Lottery  for  AIDS  Drug;  Enough  for  2,280  Patients 
Will  Be  Given  Out  Free  Under  Pact  with  FDA,  WALL  ST.  J.,  June  21,  1995.  But  see  New  AIDS 
Drugs  Spawn  a  Global  Pill  Chase,  WALL  ST.  J.,  July  8,  1996  ("France,  where  30,000  people  have 
died  of  AIDS,  is  a  front-line  battleground  for  getting  the  drugs  approved  and  distributed.  Earlier 
this  year,  France's  National  AIDS  Council  suggested  holding  a  lottery  among  patients  to  determine 
who  would  get  the  scarce  protease  drugs.  The  idea  triggered  outrage  and  protests.").  See  also 
Tamar  Lewin,  Experimental  Drug  Is  Prize  in  a  Highly  Unusual  Lottery,  N.  Y.  TIMES,  Jan.  7,  1 994, 
at  Al  (quoting  one  patient's  suggestion  that  "it  might  have  been  fairer  if  people  who've  had  the 
disease  longer,  and  are  in  worse  shape,  got  it  first."  A  physician  said  that  "patients  were  generally 
very  supportive  of  the  idea.  Some  of  the  doctors  were  less  so,  because  they  thought  they  should  be 
able  to  choose  which  patients  to  put  before  which  others.").  See  generally  Ralph  P.  Forsberg, 
Rationality  and  Allocating  Scarce  Medical  Resources,  20  J.  MED.  &  PHIL.  25  (1995). 


1 999]  IS  BIOETHICS  BROKE?  1 45 


one  person  over  another.  However,  every  reason  and  set  of  reasons  fail  as 
decisive  criteria  of  selection  for  lifesaving.  Even  if  some  reasons  succeed  from 
the  decisionmakers'  viewpoints  and  the  selections  are  made,  the  distributional 
scheme,  whatever  it  is,  will  be  unacceptable  to  various  major  segments  of  the 
public.  What  does  moral  rationality  tell  us  when  moral  rationality  based  on 
finding  relevant  differences  among  persons  needing  lifesaving  resources  fails  at 
every  turn?  Quit  the  project  and  let  them  all  die?  ^^"^  The  options  seem 
inconsistent  with  one  of  our  moral  heuristics — a  strong  presumption  for 
lifesaving. 

One  would  think,  given  this  apparent  failure  of  our  system  of  moral 
rationality,  that  metaethical  rationality  would  require  us  to  revise  our 
understanding  of  moral  rationality,  which  should  forbid  differentiating  among 
persons  needing  the  resource.  Instead,  we  should  use  an  objective  procedure  that 
suppresses  differences,  perhaps  by  some  randomization  device.  Because  first- 
come,  first-served  seems  too  linked  to  one's  social  position  and  wealth,  a  lottery 
seems  appropriate,  perhaps  even  morally  mandatory,  despite  the  serious  moral 
issues  concerning  entry  into  the  lottery  pool. 

To  most  persons,  lotteries  of  this  sort  seem  morally  outrageous.  Lotteries  are 
deliberately  inattentive  to  individual  variations  within  the  included  group.  We 
thus  have  the  maddening  situation  in  which  the  chief  moral  deficit  of  a  plan 
coincides  with  its  chief  moral  merit — ^the  suppression  of  interpersonal 
differences.  The  personhood  of  the  lottery  participants  is  suppressed,  one  might 
say,  and  they  are  treated  as  fungible,  though  not  as  objects:  we  would  not  be 
facing  a  grave  distributional  difficulty  if  they  were  mere  objects.  Respect  for 
personhood,  a  critical  aspect  of  moral  rationality,  demands  otherwise.  Something 
as  valuable  as  human  life  cannot  turn  on  the  arbitrariness  of  pure  random  chance. 
It  suggests  human  life  is  no  more  valuable  than  winning  at  roulette.  It  appears 
to  make  life  contingent  on  essentially  nothing  at  all — ^that  is,  the  morally 
irrelevant  difference  of  whose  number  was  drawn — and  so  devalues  it.  This 
perception  of  illicit  contingency  is  amplified  when  the  lottery  is  run  by  the 
government.  Although  the  government  is  "ours"  in  a  republic,  it  may  appear  still 
as  a  voice  from  above  stating  that  society  is  unwilling  to  divert  sufficient 
resources  from  other  areas  in  order  to  save  lives  in  the  area  at  hand.  This  view 
is  irrational  when  the  alternative  uses  of  the  resources  are  other  forms  of 
lifesaving,  but  these  other  forms  may  be  less  salient,  and  thus  barely  noticed. 
Thus,  although  suppressing  differences  in  assigning  voting  rights  in  general 
elections  is  required  by  personhood  ideals,  suppressing  them  when  distributing 
lifesaving  resources  is,  on  the  anti-lottery  view,  inconsistent  with  those  ideals. 

We  are  thus  back  to  individual  differences.  A  qualified  proposition  seems 
plausible:  moral  rationality  requires  attention  to  some  interpersonal  differences 


294.  See  generally  Fred  Rosner,  Managed  Care:  A  Contradiction  or  Fulfillment  of  Jewish 
Law  <http://www.ijme.org/Content/Transcripts/Rosner/rmanagedcare.html>,  at  8  (the  view  that  this 
may  be  a  preferred  outcome,  and  citing  to  the  discussion  of  a  "lifeboat  ethics"  problem  in  a 
Talmudic  source). 


146  INDIANA  LAW  REVIEW  [Vol.  33:17 


in  some  contexts,  and  inattention  to  other  differences  in  other  contexts.  Extreme 
age  and  debility  is  a  difference  that  most  would  accept  as  a  reason  for 
withholding  organ  transplantation.  Being  a  member  of  one  racial,  ethnic,  or 
gender  group  rather  than  another  is  not  an  acceptable  reason,  unless  there  is  a 
link  to  medical  concerns,  and  if  so,  it  is  the  idea  of  medical  concerns  and  not  that 
of  group  membership  that  forms  the  criterion. 

In  a  sense,  we  are  being  whipsawed  from  one  "lottery"  to  another.  If  we 
reject  lotteries  crafted  by  humans  as  well  as  objective  schemes  that  favor  those 
with  superior  access  to  health  care,  we  are  left  with  the  natural  lottery — ^that 
complex  of  genetics,  gestation,  and  post-birth  environment  that  wires  in  our 
attributes  and  substantially  affects  our  opportunities.  But  relying  on  attributes 
derived  from  the  natural  lottery  is  what  failed  us  in  the  first  place.  The  two 
regimes  of  chance  represent  different  sorts  of  arbitrariness,  but  under  either  sort, 
lifesaving  rests  on  criteria  that  many  believe  are  not  morally  relevant.  In  the 
artifactual  lottery,  in  particular,  life  appears  to  be  contingent  on  morally 
irrelevant  differences  among  persons — differences  having  nothing  to  do  with 
their  separate,  individuated  personhood.  Consider,  however,  what  happens  when 
we  turn  back  to  differences  that  define  individual  personhood — ^the  variations 
that  mark  our  separate  identities  as  persons  and  our  relative  merit  and  desert.  We 
find  that  we  cannot  bear  to  doom  persons  to  death  because  of  the  very  same 
interpersonal  trait  differences  that  move  us  to  respect  individual  personhood:  this 
person  is  smart,  this  one  is  sweet,  this  one  is  a  wretch,  and  so  on. 

The  cycle  is  now  complete;  we  have  been  thrown  from  end  to  the  other. 
Respect  for  persons,  in  our  lifesaving  context,  requires  us  to  consider  certain 
interpersonal  differences,  and  also  prohibits  us  from  doing  so.  The  only 
possibility  for  redemption  lies  in  sorting  these  differences,  identifying  which  of 
them  must/may/must  not  be  suppressed/addressed.  Distinguishing  elections 
(where  we  generally  suppress  traits)  from  choosing  mates  (where  we  search  for 
distinguishing  traits)  raises  no  contradictions  in  the  ordinary  run  of  cases. 
Lifesaving,  however,  is  harder  to  characterize.  One  might  say  that  lifesaving  is 
so  important  that  it  cannot  be  left  to  chance;  or  that  it  is  so  important  that  it  must 
be  left  to  chance.  Moral  rationality  seems  to  require  two  inconsistent  paths; 
therefore,  moral  rationality  is  false.  The  virtue  of  the  contrived  lottery  is  its  vice; 
the  vice  of  the  natural  lottery  is  its  virtue;  and  partially  objective  schemes 
combine  the  worst  of  both  systems — although  the  latter  have  endured  as  the  least 
worst  of  our  options.  The  very  logic  of  personhood  fails  as  a  moral  guide,  or 
some  might  think.^^^ 

What  are  we  supposed  to  do  about  this?  How  do  we  make  progress  here? 
It  is  no  answer  to  say  that  these  opposing  vectors  concerning  selection  for 


295 .  See  PAUL  A.  Freund,  Introduction  to  EXPERIMENTATION  WITH  HUMAN  SUBJECTS  at  xvii 
(Paul  A.  Freund  ed.,  1 970),  quoted  in  GERALD  R.  WINSLOW,  TRIAGE  AND  JUSTICE  1 03  ( 1 982).  "The 
more  nearly  total  is  the  estimate  to  be  made  of  an  individual  and  the  more  nearly  the  consequence 
determines  life  and  death,  the  more  unfit  the  judgment  becomes  for  human  reckoning  .  .  .  ." 
Winslow  adds:  "On  this  view,  truer  testimony  to  the  dignity  and  worth  of  each  individual's  life  is 
borne  when  human  judgment  about  the  relative  value  of  it  is  kept  to  a  minimum."  Id.  at  103. 


1999]  IS  BIOETHICS  BROKE?  147 


lifesaving  are  in  part  culturally  relative.  For  one  thing,  moral  relativity  does  not 
follow  from  cultural  relativity.  For  another,  however  one  designates  this 
audience's  main  culture,  we  are  in  it. 

Seeing  these  moral  difficulties  might  count  as  progress,  although,  again,  this 
is  not  very  satisfying.  We  now  have  a  clearer  idea  of  the  structure  of  our 
difficulty.  Knowing  that  we  may  be  involved  in  systemic  inconsistency  is  better 
than  not  knowing  it.  Still,  there  is  an  abundant  literature  on  the  virtues  of 
obfuscation,  delusion,  and  the  maintenance  of  ambiguity  .^'^  Perhaps  it  is  better 
for  elderly  persons,  and  for  the  community,  to  think  that  they  are  being  excluded 
from  dialysis  for  medical  reasons  rather  than  because  of  age.  Was  it  progress  or 
regress  when  the  exclusion  was  exposed?^^^ 

Perhaps  progress  of  a  sort  occurs  when  consensus  forms,  even  if  the  content 
of  the  consensus  is  no  more  or  less  rational  than  the  competing  views.  In  some 
cases,  the  consensus  may  mark  agreement  on  what  passes  for  the  foundations  of 
the  social  and  political  system  in  which  they  live.  For  whatever  reason,  whether 
historical  accident  or  some  aspect  of  human  cognition,  we  might  come  to  agree 
that  lotteries  for  lifesaving  are  permissible  or  even  required.  Or  we  might 
delegate  the  choice  to  seers  thought  to  have  special  access  to  moral  truth,  or  to 
judges  of  a  similar  bent  who  can  link  moral  truth  to  legal  truth.  It  is  common  in 
human  decision  making  to  remit  confusing  problems  to  a  "black  box"  that  emits 
decisions  after  a  hidden  or  internal  process  (think  of  juries  or  even  markets),  or 
simply  to  leave  things  to  those  formally  anointed  as  possessing  expertise. 

Some  decisional  problems  may  "disappear"  if  society  is  radically 
transformed,  say,  by  rejecting  republicanism  in  favor  of  a  single  source  of  power 
presumed  to  have  privileged  access  to  knowing  what  is  best  for  us.  This  is  yet 
another  black  box  procedure.  At  least  one  commentator  suggests  that  some 
bioethical  problems  stem  from  our  commitment  to  liberalism.  In  any  event, 
Ezekiel's  remarks  are  a  partial  characterization  of  the  distinguishing  attributes 


296.  See  generally  SECULAR  RITUAL  3,  22  (Sally  F.  Moore  &  Barbara  G.  Myerhoff  eds. 
1 977).  See  also  GuiDO  Calabresi  &  PHILIP  BOBBIT,  Tragic  Choices  ( 1 978)  (tracing,  throughout 
the  book,  instances  of  masking  or  suppressing  moral  contradictions  and  anomalies  in  distributing 
scarce  benefits  and  burdens). 

297.  See  generally  HENRY  J.  AARON  &  WILLIAM  B.  SCHWARTZ,  The  Painful  Prescription: 
Rationing  Hospital  Care  89- 11 2  ( 1 984). 

[T]he  British  physician  often  appears  to  rationalize,  or  at  least  to  redefine,  medical 
standards  so  that  he  can  deal  more  comfortably  with  resource  constraints.  .  .  .  Most 
patients  in  Britain  appear  willing  to  accept  their  doctor's  word  if  he  says  that  no  further 
treatment  of  a  particular  disease  is  warranted.  This  passivity  may  stem  from  lack  of 
knowledge  about  possible  treatments  or  simply  from  a  patient's  respect  for  the 
physician's  authority. 

Id.  at  100. 

On  the  public  exposure  of  this  system,  see  Norman  G.  Levinsky,  The  Organization  of  Medical 

Care:  Lessons  from  the  Medicare  End  Stage  Renal  Disease  Program,  329  NEW  Eng.  J.  MED.  1 395, 

1398  (1993)  (stating  that  patient-advocacy  groups  have  exerted  sufficient  pressure  on  the  British 

health  system  "to  reduce  the  barrier  to  dialysis  for  older  patients"). 


148  INDIANA  LAW  REVIEW  [Vol.  33:17 


of  bioethics: 

[T]he  most  striking  characteristic  of  discussions  of  medical  ethical 
questions  is  their  persistent  irresolution.  It  is  not  just  that  [questions 
raised  concerning  treatment  of  AIDS  patients — nontreatment,  medical 
costs,  and  so  on]  are  hard  and  require  tentative  and  subtle  answers. . .  . 
The  ethical  framework  in  which  these  medical  ethical  discussions  and 
debates  occur  seems  to  ensure  no  agreement.  To  put  it  another  way: 
within  the  last  two  decades  or  so,  medical  ethical  questions  have  become 
irresolvable  medical  ethical  dilemmas.  [One  physician  is  quoted  as 
asking,]  'What  does  one  do,  then?'  ....  Discordant  positions, 
irresolution,  and  an  exhausted  uncertainty  seem  the  only  conclusive 
products  of  three  decades  of  discussion  on  medical  ethics."^^^ 

Emanuel  later  refers  to  "the  claim  that  these  problems  remain  irresolvable 
because  of  certain  elements  of  liberal  political  philosophy  . . . ,"  and  argues  that 
"[t]he  acute  and  interminable  irresolution  surrounding  medical  ethical  questions 
in  the  United  States  arises  not  from  advances  in  biomedical  technology  but  from 
the  tenets  of  liberal  political  philosophy."^^^ 

It  may  well  be  that  some  ethical  dilemmas  are  artifacts  of  particular  politico- 
philosophic  positions,  but  we  are  pretty  well  committed  to  some  form  of 
liberalism.  Dilemmas  do  not  necessarily  disappear  with  the  abandonment  of 
liberalism.  (Would  the  abandonment  of  liberalism,  in  whole  or  in  part,  thus  be 
progress?)  They  may  simply  take  different  forms.  For  example,  life  also  may  be 
viewed  as  intrinsically  valuable  in  totalitarian  regimes,  and  natural  and  artificial 
organs  are  likely  to  be  scarce  there  too.  Particular  conceptions  of  social  worth, 
desert,  and  so  on  may  vary  from  culture  to  culture,  but  this  variance  does  not 
necessarily  render  them  acceptable  criteria  for  saving  lives.  Even  a  hierarchical, 
non-democratic  society  may  place  a  high  intrinsic  value  on  human  life,  and  thus 
also  face  a  criterial  selection  problem  in  saving  lives.  Does  the  next  artificial 
heart,  assuming  its  use  is  legitimate  within  the  group,  go  to  the  best  Talmudist  or 
to  the  poor  tailor  with  ten  children?  To  the  security  chief  or  the  head  of  the 
armed  forces?  To  Mother  Theresa  or  the  Pope  or  a  small  child?  Just  because  a 
political  culture  is  not  liberal  does  not  mean  its  selection  criteria  are  limited  to, 
say,  estimates  of  future  service  to  the  State  to  the  exclusion  of  everything  else. 

There  are  of  course  limiting  cases  in  which  cultural  differences  diverge 
immensely  from  our  baseline.  If  our  culture  were  assimilated  into  a  Borg-like 
collective,  whose  members  are  not  considered  individual  persons,  lifesaving 
choices  would  seem  to  rest  on  whether  one's  mechanical  functioning  within  the 
collective  is  worth  preserving  given  the  resource  costs.  However,  to  say  that  a 
dilemma  is  the  result  of  accepting  personhood  as  a  dominant  moral  category 
certainly  does  not  diminish  the  dilemma's  force.  Of  course,  many  of  our 
dilemmas  would  cease  if  we  abandoned  personhood,  or  decided  human  life  was 
worthless,  or  believed  that  it  was  wrong  to  interfere  with  Fate  or  The  Force  in 


298.  Emanuel,  supra  note  123,  at  5-6. 

299.  Mat  33,  155. 


1999]  IS  BIOETHICS  BROKE?  149 


trying  to  save  lives.  The  problem  is,  we  don't  want  to  be  assimilated  with  the 
Borg  precisely  because  it  does  away  with  individuated  personhood;  we  don't 
think  life  is  worthless;  and  most  don't  think  we  sin  by  trying  to  forestall  death 
with  medical  technology.  Of  course,  at  a  high  level  of  abstraction,  we  too,  like 
the  Borg,  consider  the  advantages  and  disadvantages  of  any  course  of  action, 
including  lifesaving.  For  us,  however,  advantage  and  disadvantage  are  not  solely 
matters  of  mechanical,  financial,  or  resource-use  efficiency.  All  cultures  place 
some  value  on  human  life,  even  if  it  does  not  look  that  way  from  the  outside  or 
because  the  value  is  recognized  only  for  members  of  the  culture.  Assuming  we 
retain  a  moral  ideal  of  personhood,  think  human  life  is  valuable,  and  have  no 
rigorous  belief  about  the  impropriety  of  human  interference  with  Nature, 
decisions  about  whom  to  save  or  even  whether  to  save  will  have  to  be  made,  and 
the  learning  impacts  of  these  choices  on  community  values  will  have  to  be 
considered. 

b.  Catching  up  on  "catching  up'':  Is  it  progress  to  know  that  progress  is 
impossible? ;  remarks  on  markets  and  decentralized  choice. — Despite  its 
awkwardness,  the  call  for  law  and  ethics  to  catch  up  to  technology  is  not 
meaningless.  To  the  extent  that  the  request  is  for  unique  right  answers  across  the 
board,  it  reflects  a  major  misunderstanding  of  ethics  and  law  because  it  calls  for 
the  impossible.  Yet  the  "ethics  is  falling  behind"  lament  is  made  so  often  by  so 
many  that  one  is  reluctant  to  say  it  just  reflects  a  mass  false  belief  in  a  Realm  of 
Truth,  or  is  just  an  expression  of  frustration  over  irresolvable  dilemmas.  Perhaps 
the  frustration  is  compounded  by  anger  at  those  who  profess  expertise  but  offer 
no  solutions. 

Can  the  catch-up  call  be  reconstructed?  How  can  one  reconstruct,  without 
demolishing,  a  request  that  presupposes  an  impossibility?  Substantive 
difficulties  of  this  sort  often  suggest  use  of  decentralized,  atomized  procedures 
such  as  markets  or  lotteries.  Why  worry  about  how  to  select  genetically 
influenced  traits  as  a  matter  of  centralized  choice  on  the  merits?  Let  people 
pursue  their  preferences  (within  limits)  and  an  invisible  hand  will  lead  to  some 
equilibrium.^^^  (This  maneuver  of  course  does  not  instruct  the  atomized 
decisionmakers  how  to  choose.  If  they  ask  that  question  from  within  the  market, 
they  still  will  have  no  answer.)  Evaluation  of  the  equilibrium  can  be  left  to  moral 
and  political  philosophers,  who  need  something  to  do  to  be  kept  from  harm's 
way.  Progress,  lies  in  coming  to  understand  that  decisions  at  some  cosmic  macro 
level  are  not  only  unnecessary,  they  are  ineffective.  As  far  as  substantive 
regulation  is  concerned,  progress,  consists  of  backing  off  from  seeking  the 
impossible.  It  is  acquiring  "meta-knowledge" — knowledge  about  whether  it  is 
even  possible  to  acquire  knowledge  needed  for  answers  to  troubling  questions, 
and  if  so  how  we  acquire  it.  ProgresSj  is  getting  the  right  answer. 

There  is  much  to  be  said  for  the  recommendation  to  leave  some  matters  to 
decentralized,  atomistic  decision  making.  The  reflexive  disdain  for  the 
marketplace  often  expressed  by  critics  of  using  biological  technology  is  not  a 


300.     See  NoziCK,  supra  note  134,  at  315  (referring  to  the  possibility  of  a  genetic 
'supermarket"). 


1 50  INDIANA  LAW  REVIEW  [Vol.  33:17 


point  in  their  favor  and  projects  an  image  of  ideological  cement.^^'  Unless  there 
are  important  reasons  pulling  us  the  other  way  in  certain  areas,  I  take  the  liberal 
stance  that  a  decentralized  system  of  personal  choice  on  most  commercial  and 
many  non-commercial  and  in-between  matters  is  the  preferred  default  method  for 
"solving"  many  complex  social  problems,  such  as  who  gets  what.  Some  of  these 
systems  are  markets  or  embrace  market-like  mechanisms. 

Allergy  to  markets  is  understandable  here  because  the  most  familiar  and 
visible  markets  concern  trade  in  things,  tangible  or  intangible.  All-or-nothing 
views  about  the  taint  of  commerce  are  not  well  taken,  however.  In  particular, 
category  straddling,  as  with  certain  forms  of  what  we  might  call  "commerce  in 
persons,"  is  not  automatically  immoral.  Think  of  a  professional  sports  team 
purchasing  and  trading  athletes — more  precisely,  the  exclusive  rights  to  their 
services.  More  to  the  point,  of  course,  is  the  intersection  of  family  formation  and 
commercial  transactions,  as  in  surrogacy,  gamete  sales,  and  even  adoption. 
True,  things  that  are  not  clearly  one  thing  or  another  make  us  nervous:  it  is  hard 
to  describe,  judge,  and  perhaps  even  use  them.  Many  thus  think  that  otherwise 
admirable  or  at  least  tolerable  practices  such  as  reproduction  and  sex  are  polluted 
by  the  intrusion  of  commerce.  The  response  that  this  is  not  necessarily  so,  of 
course,  does  not  commit  one  to  holding  that  all  category  mixing  reflects  progress. 
But  in  some  cases  it  may  indeed  be  progress,  or  at  least  is  not  regress,  and  seeing 
this  is  itself  a  form  of  progress j.^^^ 

Leaving  things  to  market  forces  and  decentralized  choice  generally  is  not  a 
political  non-decision.  As  many  have  said,  even  if  markets  were  viewed  as 
"natural"  (they  are  in  fact  no  more  or  less  natural  than  many  other  systems  of 
exchange  and  distribution),  we  know  that  we  can  alter  natural  processes  and 
conditions,  and  not  doing  so  represents  a  choice  of  sorts.  Obviously,  the 
consequences  of  our  selection  of  economic  regime  and  of  the  choices  made  by 
the  individuals  within  them  may  escalate  sharply  as  technology  expands  our 
range  of  options.  The  expansion  of  opportunities  may  enhance  autonomy  and 
general  well  being  in  many  respects,  but  it  also  may  be  ruinous  in  others. 

Recall  that  discussion  of  decentralized  choice  mechanisms  came  up  because 
of  our  encounter  with  supposedly  failed  substantive  rationality,  and  our  resulting 
insight  that  clearly  correct  answers  to  hard  problems  are  often  impossible.  How 
valuable  is  it  to  realize  this?  If  we  have  more  meta-knowledge  and  a  clearer  idea 
of  our  limitations,  so  what?  This  insight  is  about  as  fulfilling  as  "Do  the  right 
thing"  or  "Keep  on  truckin'."  As  "progress,"  is  it  worth  even  a  nickel? 

Whatever  its  worth,  it  may  be  all  we  can  aspire  to  when  confronting  values 
and  concepts  that  conflict  both  among  and  within  themselves.  No  amount  of 
research  or  reflection  on  our  deepest  problems  is  likely  to  serve  up  a  stunning 


301 .  See  George  Annas,  Human  Cloning:  A  Choice  or  an  Echo,  23  DAYTON  L.  REV.  247, 
250  (1998)  (criticizing  "choice  for  the  sake  of  choice"  and  the  noisome  effects  of  markets). 

302.  See  generally  Henry  Hansmann,  The  Economics  and  Ethics  of  Markets  for  Human 
Organs,  14  HEALTH  POL.,  Pol'y  &  L.  57,  76  (1989)  (discussing  the  inflexibility  of  normative 
categories,  but  noting  that  they  may  change  over  time;  referring  to  changes  in  views  about 
assessments  of  artificial  insemination;  and  commenting  on  the  possibility  of  markets  for  organs). 


1999]  IS  BIOETHICS  BROKE?  151 


illumination  that  inspires  the  cry,  "How  come  we  didn't  see  that  before?"  We 
may,  however,  by  reflection  and  careful  application  and  refinement  of  our  tools 
of  thought,  reduce  the  time  between  seeing  a  problem  and  responding  to  it  in 
some  way;  we  may  increase  our  sense  of  having  attained  a  comfortable,  if 
somewhat  regret-filled  equipoise,  even  though  it  does  not  reflect  some  timeless 
right  answer;  and,  in  implementing  our  choice,  we  may  behave  in  ways  that  wil! 
reinforce  valued  attitudes  and  beliefs.  This  will  not  magically  resolve  tensions 
between  liberty  and  equality,  or  within  contending  versions  of  equality  and 
autonomy,  but  it  can  ease  the  way  for  the  sorts  of  working  compromises  and 
clumsy  institutions^^^  that  we  make  as  we  bungle  along.  I  do  not  see  this  as  an 
empty  call  for  dialogue  or  conversation.  People  can  meet  and  dither,  but  they 
still  must  grapple  with  what  they  ought  to  talk  about,  how  to  construct  their 
agendas,  what  substantive  principles  to  apply  to  the  problems  at  hand,  and  what 
procedures  to  install  to  further  the  process  and/or  keep  the  peace. 

Sometimes  the  result  constitutes  a  sort  of  progressj.  The  volumes  produced 
by  the  President's  Commission  for  the  Study  of  Ethical  Problems  in  Medicine 
and  Biomedical  and  Behavioral  Research  in  (1982)  are  one  example.  On  the 
other  hand,  the  1997  Report  and  Recommendations  of  the  National  Bioethics 
Advisory  Commission  on  cloning  seems  to  me  to  be  a  counterexample. 

If  we  cannot  in  principle  attain  definitive  answers  whenever  we  like,  and  we 
are  simply  told  to  discuss  and  deliberate,  how  do  we  proceed?  When  Professor 
Roger  Dworkin  states  that  "our  [legal-institutional]  tools  for  dealing  with  social 
problems  posed  by  rapid  change  in  biology  and  medicine  are  limited  at  best,"^^"* 
he  is  correct.  They  cannot  be  improved  to  the  extent  that  the  right  answers  are 
identified  across  the  board.  However,  the  substantive  content  of  these  legal- 
institutional  tools,  along  with  connected  tools  of  moral/political/policy  analysis, 
are  all  that  we  have  to  work  with  in  finding  answers  or  determining  whether  we 
should  rely  on  a  decentralized  choice  mechanism  or  other  form  of  "black  box." 
To  the  extent  that  we  do  find  answers,  however,  the  mechanisms  of  formal  and 
informal  legal  processes  may  be  important  features  of  decision  making  and  of 
reinforcement  of  preferred  norms.  Some  issues  and  problems  can  be  resolved 
well  enough  by  substantive  principle. 

As  for  gains  in  our  moral  behavior  ("progressj"),  there  is  no  a  priori  reason 
why  it  cannot  improve  with  respect  to  forms  of  moral  conduct  that  most 
reasonable  persons  in  most  cultures  can  agree  on.  Such  improvement,  at  any  rate, 
does  not  violate  any  laws  of  nature,  and  may  significantly  alter  the  bioethics 
terrain.  In  another  article,^°^  for  example,  I  suggest  that  the  chief  sources  of  harm 
from  human  cloning — ^to  clones  and  to  everyone  else — arise  from  a  self-fulfilling 
prophecy:  we  will  treat  many  of  the  cloned  offspring  in  ways  that  will  help 
assure  that  they  are  harmed,  not  by  their  existence  as  such,  but  by  the  avoidable 
conduct  of  their  custodial  parents  and  various  external  observers  and  busybodies 
among  the  general  public.  If  we  learned  not  to  ill-treat  others  having  different 


303.  See  Wong,  supra  note  289.  See  generally  Shapiro,  supra  note  205.  . 

304.  Dworkin,  supra  note  187,  at  18. 

305.  See  Shapiro,  supra  note  62. 


1 52  INDIANA  LAW  REVIEW  [Vol.  33:17 


origins,  then  the  prospect  of  human  cloning  would  be  less  intimidating.  That  is 
progressj:  actual  improvement  in  human  behavior  where  we  have  concluded  that 
we  know  what  proper  behavior  is. 

As  for  definitely  settling  acute  moral  conflicts  and  anomalies,  this  is  no  more 
possible  than  it  is  to  identify  the  limits  of  infinity.  That's  the  way  the  world  is. 
We  can  strive  to  get  straight  the  core  of  our  confusion — ^this  is  clarification  as 
progress — but  here  we  need  to  be  reminded  of  yet  another  paradox.  The  very 
project  of  clarification  can  be  called  in  question,  for  at  least  two  major  reasons. 
One  is  the  occasional  need  to  keep  some  things  hidden  from  ourselves;  the  other 
is  the  widespread  hostility  to  reflection  noted  earlier.  The  critique  of 
clarification  reflects  a  confused  belief  that  the  truth  is  out  there  and  all  we  need 
is  common  sense  to  see  it. 

4.  Terminating  Technology;  Technological  Imperatives  Again. — One  might 
recommend  terminating  technological  progress  along  several  fronts  where  the 
expected  harms  are  thought  to  exceed  the  expected  benefits.  The  cessation  of 
technological  progress  in  such  circumstances  would  thus  constitute  true  progress 
overall.  It  is  hard  to  see  how  this  can  be  done,  however,  without  terminating  or 
neutralizing  all  persons  with  intact  cortexes.  We  could  instead  try  to  delay  the 
onset  or  implementation  of  various  technologies.  (Recall  the  moratoria  on 
human  cloning.) 

Such  delays  are  not  impossible,  despite  what  some  call  the  "technological 
imperative."  One  of  the  underlying  assumptions  of  the  catch-up  call  is  that  this 
imperative  is  in  continuous  operation.  The  idea  is  that  technologies  are 
irresistible  to  us:  we  are  driven  to  acquire  the  knowledge  to  develop  them,  and 
once  they  are  here  or  within  sight,  we  are  impelled  to  use  or  develop  them. 
These  irresistible  urges  are  strongly  reinforced  by  the  escalating  need  to  recover 
our  prior  financial  and  emotional  investments  in  the  technologies,  by  our 
anticipation  of  the  sheer  fun  and  general  utility  in  using  them,  and  by  the  general 
influence  of  the  ideal  of  progress.  No  doubt  there  are  other  complex  emotional 
factors  that  account  for  technology's  perceived  status  as  a  Great  Attractor, 
inexorably  pulling  us  to  embrace  it  so  it  can  embrace  and,  as  some  think, 
consume  us. 

Such  imperatives,  then,  are  sets  of  incentives  to  develop  and  apply 
technologies.  The  pressures  installed  by  these  incentives  derive  from 
expectations  and  from  preferences  arising  out  of  prior  investments— pressures 
that  may  raise  the  probability  that  a  technology  will  in  fact  be  used.^^^  This  is  the 
only  plausible  interpretation  of  the  claim  that  "'can'  implies  'ought.'" 

Unearthing  the  true  nature  of  technological  imperatives  is  only  a  weak  form 
of  progressj  because  of  the  high  level  of  generality  involved.  It  is  not  useless, 
however,  because  it  argues  against  an  automatic  bar  on  scientific  research. 


306.     See  Shapiro,  supra  note  47,  at  1 1 00-0 1  (describing  the  pressures  upon  childless  couples 
to  use  the  new  reproductive  technologies  in  order  to  have  children). 


1999]  IS  BIOETHICS  BROKE?  1 53 


IV.  A  Reversal:  When  Science  and  Technology  Catch  Up  with 
Human  Thought — Implementing  the  Idea  of  Progress 

A.  In  General 

This  inversion  of  the  symposium  theme  suggests  some  instructive  points 
about  it.  There  is  one  obvious  sense  in  which  science  and  technology  may  catch 
up  with  human  thought:  the  arrival  of  new  capabilities  after  we  have  first 
imagined  them.  Indeed,  one  might  say  that  most  scientific  and  engineering 
progress,  pure  serendipities  aside,  involve  catching  up  to  one's  advance  vision. 
People  formulate  hypotheses  and  test  them.  Science  and  invention  do  not  thrive 
solely  on  the  amorphous  idea  that  things  aren't  so  great.  They  require  that  we 
grasp  the  notion  that  things  can  improve.  That  notion  necessarily  requires 
imagination — a  perception,  however  inchoate — of  how  we  and  the  world  might 
change  to  our  benefit  by  acquiring  knowledge  and  acting  on  it. 

Catching  up  with  one's  vision  is  thus  an  intrinsic  aspect  of  an  ethic  of 
progress  in  any  domain.  One  must  picture  an  ideal,  however  hazily,  and  think 
that  it  is  possible  to  approach  or  attain  it.  Sometimes  it  is  perceived  need  that 
drives  vision,  although  such  needs  may  themselves  be  generated  by  prior 
scientific  developments:  one  sense  of  technological  imperative  is  suggested  by 
the  reverse  aphorism,  "invention  is  the  mother  of  necessity."^^^  Deliberate 
progress  presupposes  an  idea  of  something  not  yet  accomplished  that  might  and 
should  be. 

What  would  be  an  example  of  science  and  technologically  catching  with  our 
advance  vision?  Think  of  a  basic  presupposition  underlying  scientific  research 
and  application:  the  causal  principle.  I  reduce  this  complex  idea  by  saying  that 
it  is  a  scientific/philosophical  postulate  that  the  universe  is  orderly  because  its 
processes  and  happenings  are  causally  related  and  these  relations  can  be 
discovered. 

The  causal  principle,  expressed  in  assorted  forms,  has  long  engaged 
philosophers,  scientists,  and  law-persons  in  trying  to  reconcile  it  with  ideas  of 
human  freedom  and  responsibility.  It  seems  endlessly  troublesome  to  be 
coherent  about  freedom  and  responsibility  if  we  believe  in  the  locked-in 
workings  of  reality.  Until  recently,  however,  we  knew  little  or  nothing  about  the 
specific  pathways  of  the  causal  principle  in  life  processes.  Despite  some 
cognitive  dissonance  (at  least  among  scientists,  legislators,  judges,  and  of  course 
philosophers),  we  have  all  gone  about  our  business,  including  the  business  of 
assigning  responsibility,  relatively  untroubled  by  these  reconciliation  problems. 
We  imagined  a  universe  of  causation,  but  had  little  idea  of  how  it  operated. 
Things  are  different  now. 


307.  Arthur  Kornberg,  The  Golden  Helix:  Inside  Biotech  Ventures  8  ( 1 995)  ("It  was 
generally  agreed  that  the  age-old  saying  'necessity  is  the  mother  of  invention'  is  usually  wrong. 
Generally,  the  reverse  has  proved  to  be  true:  invention  is  the  mother  of  necessity.  Inventions  only 
later  become  necessities."). 


1 54  INDIANA  LAW  REVIEW  [Vol.  33:17 


B.  Neuroscience,  Genetics,  Ethics,  andLaw^^^ 

The  philosophical  project  of  accommodating  free  will  and  determinism  is 
maddening,  although  in  this  respect  it  differs  only  in  degree  from  other 
philosophical  subjects.  There  are  major  disputes  about  how  even  to  describe  the 
project.  On  some  views,  there  is  nothing  to  be  accommodated  because  there 
aren't  two  things  at  war:  causality  is  not  only  compatible  with  freedom,  it  is 
required  by  it.  In  any  case,  we  all  sense  that  our  decisions  are  generally  our 
authentic  decisions,  arrived  at  freely,  and  that  in  most  cases  we  could  have 
altered  the  course  of  our  lives  by  deciding  differently.  Therefore,  our  wills  are 
perceived  to  be  free. 

This  self-perceived  freedom  is  the  determinism  debate's  analogue  to  the 
well-known  naive  refutation  of  philosophical  idealism:  one  kicks  the  stone, 
senses  the  pressure,  feels  the  pain,  and  concludes  that  the  world  is  real  and 
physical  because  an  idea  can't  mash  your  toes.  A  latter-day  Samuel  Johnson 
might,  in  parallel,  exercise  his  will  to  snap  his  finger,  see  that  it  snaps,  and 
conclude  that  his  will  is  free. 

Notions  of  compatibilism  or  of  viewing  freedom  solely  as  a  subjective 
perception  have  not  resolved  the  issues,  at  least  not  for  all  who  think  about  them. 
Many  remain  skeptical  about  whether  the  idea  that  one  could  have  done 
otherwise  can  endure  alongside  the  principle  of  causality.  In  reality,  some  think, 
we  are  no  freer  than  machines  and  mindless  or  unreflective  forms  of  life.  The 
conscious  sense  of  freedom  is  just  an  adaptive  delusion. 

Such  views  may  have  quite  an  impact  on  our  notions  of  moral  agency  and 
responsibility,  desert,  merit,  character  and  virtue.  The  difficulties  in  making 
sense  of  them  in  a  causal  world  may  seem  overwhelming,  when  we  bother  to 
think  about  them.  Much  of  the  time,  of  course,  we  don't  think  about  it  because 
we  don't  have  to.  It  is  important  only  to  the  obsessive  workings  of  some 
academic  minds.  When  pressed,  some  will  say  that  we  operate  the  criminal 
justice  system  and  much  of  everyday  morality  on  a  useful  pretense.  We  proceed 
as  if-wQ  were  free.  Others  may  insist,  however,  that  we  need  not  proceed  as  if  we 
are  free,  because  we  really  are  free.  Being  free  simply  means  freedom  from 
certain  external  and  possibly  internal  constraints,  not  from  the  orderly  workings 
of  the  universe.  Unfreedom  occurs  only  when  there  is  a  significant  departure 
from  this  normal  causality  baseline,  and  freedom  and  causality  are  thus 
compatible.  (Indeed,  how  could  we  be  free  if  our  actions  were  not  full  caused?) 

We  are,  of  course,  reminded  of  the  debate  whenever  criminal  defendants 
mount  an  insanity  or  other  defense  based  on  mental  disorder.  Still,  it  has  been 
relatively  easy  to  avoid  internal  reservations  about  the  causal  principle  and 
continue  to  operate  moral  and  penal  systems  founded  on  notions  of  personal 
responsibility  for  actions  taken  freely. 


308.  See  Michael  H.  Shapiro,  Law,  Culpability,  and  the  Neural  Sciences,  in  THE 
Neurotransmitter  Revolution:  Serotonin,  Social  Behavior  and  the  Law  179(R.  Masters 
&  M.  McGuire  eds.,  1994)  (describing  advances  in  neuroscience  and  arguing  that  they  do  require 
abandoning  ideas  of  freedom  and  responsibility). 


1999]  IS  BIOETHICS  BROKE?  155 


Within  the  last  few  years,  however,  neuroscientific  work  has  suggested  not 
simply  that  the  causal  principle  holds  for  thought  and  behavior,  which  we  already 
believed  but  that  we  can  begin  to  identify  some  of  the  specific 
neurophysiological  mechanisms  underlying  them.  Several  related  discourses 
now  describe  these  causal  networks  in  great,  if  very  incomplete,  detail,  some 
relying  on  the  language  of  chemistry,  others  on  genetic  pathways,  and  still  others 
uniting  both  or  offering  still  more  discourses. 

For  example,  studies  that  correlate  impulsive  misconduct  or  explosive  anger 
with  the  neurochemistry  of  serotonin  suggest  that  the  likelihood  of  misbehavior 
goes  up  with  the  lesser  availability  of  serotonin  as  a  mediator  of  electrical 
activity  in  the  brain.  Because  neurotransmitter  chemistry  is  significantly  affected 
by  genetic  factors,  neuroscience  research  in  combination  with  accelerating 
knowledge  of  the  human  genome  may  greatly  enhance  our  ability  to  assay, 
predict  and  control  the  course  of  mental/behavioral  pathologies.  It  is  still  too 
early  to  definitively  evaluate  the  serotonin  studies,  but  they  have  revived  talk  of 
neurophysiological  screening  and  treatment  of  some  sort  for  those  with  what 
might  come  to  be  called  "serotonin  deficiency."^^^  Indeed,  a  conference  on  the 
biological/genetic  roots  of  violence  was  partly  inspired  by  these  findings, 
although  it  was  aborted  because  of  the  objections  of  those  who  thought  the 
project  racist.^ '° 

Of  course,  this  account  is  still  very  general.  We  are  nowhere  near  specifying 
the  Book  of  Life.  However,  the  increasingly  finer-textured  accounts  of  the 
causes  of  behavior  have  invigorated  the  determinism/free  will  debate.  The  causal 
pathways,  or  the  possibility  of  learning  more  and  more  about  them,  are  now 
striking.  It  is  harder  to  ignore  them. 

From  the  viewpoint  of  ethical  theory  concerning  freedom  and  determination, 
however,  nothing  has  changed  except  the  details.  We  have  moved  from  saying, 
"All  this  has  got  to  be  caused  by  determinable  factors  subject  to  scientific 
discovery,  although  we  are  presently  clueless  about  the  nature  of  these  factors," 
to  saying,  "It  is  quite  possible  that  the  occurrence  of  certain  kinds  of  behavior  has 
a  lot  to  do  with  identifiable  and  controllable  features  of  brain  chemistry  and 
structure,  specifically,  with  . . . ." 

Such  increased  knowledge  brings  at  least  the  theoretical  possibility  of 


309.  See  generally  J.  Philippe  Rushton,  The  Neurotransmitter  Revolution:  Serotonin,  Social 
Behavior  and  the  Law,  14  POLS.  &  THE  LIFE  Sci.  1 1 7  (1995)  (discussing  genetic  prescreening  for 
low  serotonin);  Gabrielle  Strobel,  Pugnacious  Mice  Lack  Serotonin  Receptor,  144  SCIENCE  NEWS 
367  (1993).  Note,  however,  that  the  correlations  between  conduct  and  serotonin  chemistry  are  not 
simple.  "As  [certain  researchers]  have  shown  ...  the  combination  of  alcoholism,  low  serotonergic 
function,  and  a  third  biochemical  condition,  low  glucose  uptake,  are  highly  predictive  of  impulsive 
violence  or  arson."  Roger  D.  Masters,  Environmental  Pollution  and  Crime,  22  Vt.  L.  Rev.  359 
(1997). 

310.  See  Eliot  Marshall,  NIH  Told  to  Reconsider  Crime  Meeting,  262  Sci.  23  (1993).  A 
conference  on  heredity  and  violence  was  eventually  held,  although  it  was  disrupted.  See  Natalie 
Angier,  At  Conference  on  Links  of  Violence  to  Heredity,  a  Calm  After  the  Storm,  N.  Y.  TIMES,  Sept. 
26,  1995,  at  C8. 


1 56  INDIANA  LAW  REVIEW  [Vol.  33:17 


sharply  increased  control  over  thought  and  behavior.  We  can  screen  large 
populations  for  anomalies  in  their  serotonin  chemistry,  or  in  the  size,  shape  or 
structure  of  this  or  that  part  of  their  brains.^"  We  can  place  this  information  in 
huge  databases.  We  can  in  principle  engineer  drugs  and  surgical  procedures  to 
avert,  encourage  and  shape  thought  and  conduct.  And  why  shouldn't  we?  We 
are  merely  replacing  our  insufficiently  precise  current  forms  of  biological  control 
over  behavior  with  more  finely  calibrated  tools. 

So,  biological  science  has  caught  up  with  human  thought  in  this  sense.  The 
axiom-like  causal  principle  of  science  and  philosophy,  when  applied  to  complex 
life  processes,  has  historically  been  a  broad  working  formula  serving  as  a  vague 
foundation  for  science  and  technology.  Now,  however,  we  are  filling  in  the  huge 
blanks,  replacing  the  vagueness  of  the  causal  principle  with  the  specificity  of 
neurotransmitter  pumps  and  pathways,  and  devising  medicines  to  regulate  the 
pumps  or  to  block  or  open  chemical  pathways  or  pave  new  ones.  The  causal 
principle  now  confronts  us  with  an  increasingly  detailed  blueprint,  and  it  is  hard 
to  ignore. 

There  is  no  new  fundamental  abstract  insight  here,  however.  That  intuitive 
flash  occurred  a  long  time  ago.  It  is  the  newly  discovered  particulars  that  make 
the  fundamental  insight  vivid  and  compelling,  reviving  the  freedom/determinism 
debates.  We  are  not  conceptually  or  morally  obliged  to  abandon  any  notions  of 
freedom  or  unfreedom  we  held  before,  but  our  attention  has  been  caught  and  the 
problem  is  before  us.  It  is  one  thing  to  say  everything  is  caused.  It  is  quite 
another  to  say  that  your  assault  on  an  aggressive  entrepreneur  demanding  to  clean 
your  windshield  for  free  was  in  significant  part  caused  by  a  relatively  low 
serotonin  availability  in  your  brain.  The  apparent  incoherence  of  our  clumsy 
institutions  of  moral  and  legal  responsibility  are  now,  if  not  at  the  forefront  of 
our  minds,  far  more  visible. 

In  this  sense,  then,  science  and  technology  have  gained  on  an  enduring  body 
of  moral  and  legal  analysis  resting  on  long-held  philosophical  and  scientific 
postulates,  and  are  threatening  to  move  past  our  moral  and  legal  thinking, 
returning  us  to  our  original  catch-up  problem. 

For  bioethicists  and  lawyers,  then,  serious  problems  are  raised  both  by  the 
symposium's  question  whether  science  is  outrunning  law  and  ethics,  and  its 
inverse  question  whether  human  thought  in  formulating  scientific  projections  and 
philosophical/moral  problems  is  outrunning  science.  But  when  science  makes 
gains  on  human  imagination  and  begins  to  outrun  it,  we  are  returned  to  the 
symposium  theme-in-chief.  When  technology's  advances  finally  match  or 
exceed  our  scientific/technological  imaginations,  our  moral  and  legal  systems  for 
determining  responsibility  are  again  urged  to  make  progress. 

Now  we  are  back  to  where  we  were.  Assume  that  some  practical 
technological  mastery  is  attained  in  predicting  individual  human  conduct  far 


311.  Cf.  Richard  Stone,  HHS  '  Violence  Initiative '  Caught  in  a  Crossfire,  258  Sci.  2 1 2  ( 1 992) 
(describing  one  research  proposal:  "[T]he  researchers  will  provide  'intervention'  for  the  children 
in  the  form  of  parent  training,  tutoring,  and  social  skills  training.  The  children  will  be  followed 
through  high  school."). 


1999]  IS  BIOETHICS  BROKE?  157 


more  precisely  than  ever,  and  in  intervening  into  specific  mental  processes  so  as 
to  forestall  misconduct,  encourage  sound  conduct,  enhance  intellectual  abilities, 
and  so  on.  At  this  point,  the  power  of  ethical  and  political  theory  to  help  us 
seems  to  run  out.  We  have  never  solved  to  everyone's  satisfaction  the  paradoxes 
of  human  freedom.  We  cannot  be  free  if  our  conduct  is  caused,  and  we  cannot 
be  free  if  it  is  not,  or  so  the  puzzle  goes.  Some  will  be  strongly  inclined  to 
conclude,  though  they  are  not  conceptually  bound  to,  that  only  the  therapeutic 
state  makes  sense.  Despite  its  apparent  support  in  various  quarters,  however,  the 
therapeutic  state  is  hard  to  fit  into  our  constitutional  system.  Apparently,  we 
cannot  live  as  we  prefer  without  a  posit  of  responsibility  and  desert  based  on  a 
notion  of  free  decision  making.  And  we  cannot  live  with  it  because  it  appears  to 
be  false. 

Once  again,  our  systems  of  moral  and  legal  thought  cannot  fully  relieve  our 
misery  in  facing  the  possibilities  of  biological  technology,  and  it  makes  no  sense 
to  expect  otherwise.  The  moral  and  conceptual  reality  is  that  there  are  conflicts, 
paradoxes,  and  indeterminacies  that  we  cannot  settle  decisively  by  resort  to 
principle,  though  we  will  act  pragmatically,  if  clumsily,  to  work  around  our 
difficulties  through  political  and  policy  compromises. 

Why  should  we  continue  our  moral  and  legal  deliberations  if  catching  up  to 
technology  is  impossible?  Because  not  everything  is  hopelessly  indeterminate 
and  progress  of  a  sort  is  possible.  Learning  the  structure  of  what  ails  our  present 
deliberations  may  aid  our  future  deliberations  and  assist  us  in  constructing 
institutions  that  try  to  accommodate  conflicting  attitudes,  values  and  beliefs. 

Conclusion:  Bioethics  Defended  Against  the  Charge  That  It  Is 

Presently  Inadequate  to  the  Task  of  Appraising 

Biological  Technology 

Bioethics  is  getting  a  lot  of  heat  and  in  most  respects  does  not  deserve  it,  at 
least  insofar  as  its  threshold  recognition  of  moral  and  legal  issues  and  its  use  of 
normative/conceptual  tools  are  concerned.  If  the  discipline  of  bioethics 
persistently  yields  results  or  recommendations  at  war  with  your  own  views,  it 
does  not  follow  that  the  foundations  of  the  discipline  are  infirm,  whether  as  a 
matter  of  substance  or  procedure.  Bioethics  could  of  course  criticize  its  critics 
on  such  bottom-line  grounds,  but  this  is  no  more  appropriate  for  bioethics  than 
it  is  for  anti-bioethics. 

Alternatively,  if  bottom-line  disagreement  does  not  authorize  an  inference 
that  a  discipline  is  operating  without  a  cortex,  what  criteria  would  justify  saying 
that  the  discipline  is  infirm?  We  would  so  characterize  it  if  its  practitioners 
systematically  misstate  facts,  directly  or  by  suppressing  context;  rely  on  invalid 
or  unsound  arguments;  select  immaterial  abstractions  or  overrate  their 
importance;  ignore  material  abstractions  or  underrate  their  importance;  misapply 
the  abstractions  by  ignoring  or  undergrading  relevant  criteria  of  interpretation  or 
selecting  or  overgrading  them;  or  make  pronouncements  or  offer  arguments  when 
working  under  an  undisclosed  conflict  of  interest. 

These  criteria  for  intellectual  infirmity,  however,  rest  on  certain  critical 
ideas,  such  as  moral  materiality.  There  is  no  shortage  of  disagreement  on  what 


158  INDIANA  LA W  REVIEW  [Vol.  33:17 


indeed  is  morally  material.  Do  courts  or  commentators  ignore  or  understate  the 
interests  of  gestational  mothers  when  they  defer  to  the  parties'  original  intentions 
to  lodge  custody  with  the  genetic  parents.  There  is  no  easy  answer  to  this, 
despite  some  contrary  claims.^ '^  Perhaps  the  right  to  custodial  motherhood  is  too 
important  to  be  left  to  contract,  and  should  instead  rest  on  status.  Which 
status — ^that  of  being  the  ovum  source  or  of  being  the  gestator?  I  say  that 
Johnson  v.  Calveri^^^  was  correct  in  ruling  that  where  a  prior  custodial  agreement 
is  in  evidence,  we  can  leave  status  aside  and  address  the  parties'  original 
expressed  understandings.^'"*  Critics  wrongly  think  that  the  decision  "ignored" 
the  interests  of  gestational  mothers.  To  say  that  an  interest  lost  in  a  given  case 
does  not  mean  it  was  "ignored"  or  even  downgraded  by  anyone.  Nor  does  it 
mean  that  the  decisionmaker  failed  to  recognize  the  significant  effects  of 
gestation  on  the  developing  fetus  and  thus  the  child  ultimately  bom.^'^ 


312.  See  Rothman,  supra  note  37,  at  1607  (rejecting  "the  notion  that  any  woman  is  the 
mother  of  a  child  that  is  not  her  own,  regardless  of  the  source  of  the  egg  and  or  the  sperm"). 

313.  851P.2d776(Cal.  1993). 

314.  Seeid.2Xl^\. 

315.  There  is  no  reason  to  suppose  that  the  impact  of  gestation  was  unknown.  See  generally 
R.  Brian  Oxman,  Maternal-Fetal  Relationships  and Nongenetic  Surrogates,  33  JURIMETRICS  J.  387 
(1993).  The  author  recommends  that  the  custody  decision  in  gestational  surrogacy  rests  on  the 
child's  best  interests,  and  states  that 

[a]  child  bom  to  a  gestational  mother  who  has  not  contributed  genetic  material  to  the 

zygote  has  two  mothers,  a  gestational  mother  and  a  genetic  mother The  gestational 

mother's   endocrine   connection   and   role   in   the   formation,   development,   and 
physiological  functioning  of  the  fetus  are  unique  in  every  instance  and  create  a 

biological  mother-child  relationship There  is  no  organ  system  of  the  resulting  fetus 

that  is  not  anatomically,  physiologically,  and  genetically  affected  by  the  maternal 
endocrine  system  to  the  extent  that  the  resulting  fetus  is  a  unique  product  of  the 
gestational  mother  that  gives  rise  to  a  lifelong  maternal-child  relationship.  This 
relationship  must  be  taken  into  consideration  in  any  legal  proceeding  where  the  physical 
and  legal  custody  of  a  surrogate-produced  child  is  at  issue.  The  surrogate  mother  is  a 
creator  of  the  child  sharing  an  equal  role  with  the  genetic  mother,  and  the  surrogate's 
right  to  a  relationship  with  the  child  she  has  created  must  receive  legal  recognition.  [^ 
Because  the  gestational  mother's  contribution  to  the  genetically  unrelated  child  is  so 
significant,  the  appropriate  disposition  of  custody  disputes  requires  the  best  interests  of 
the  child  to  be  assessed  . . . ." 
Id.  at  424  (footnote  omitted). 

The  idea  of  an  "equal  role"  is  clearly  normatively  ambiguous.  It  is  one  thing  to  describe 
physiological  impacts,  but  quite  another  to  evaluate  them  for  purposes  of  determining  comparative 
effects.  Before,  being  a  biological  mother  was  a  matter  of  empirical  fact — sex,  pregnancy,  and 
birth — although  impaired  observation  might  create  evidentiary  difficulties.  Artificial  insemination 
and  IVF  were  not  thought  to  compromise  biological  motherhood,  and  this  was  probably  not  even 
perceived  as  a  value  issue.  Gestational  surrogacy,  however,  makes  it  impossible  to  rest  on  empirical 
observation  as  decisive.  If  the  gestational  mother  has  X  impacts  on  the  child  and  the  genetic 
mother's  genome  has  Y  impacts,  nothing  follows,  without  further  premises,  about  who  the  natural 


1 999]  IS  BIOETHICS  BROKE?  1 59 


In  Johnson,  gestation's  value  was  outweighed  by  another  consideration — the 
intentions  of  autonomous  parties  concerning  their  reproductive  interests.  Perhaps 
Johnson 's  critics  have  misapprehended  the  nature  and  value  of  genetics  and  of 
the  overarching  value  of  reproductive  autonomy — although  this  too  would  not 
follow  simply  from  the  fact  that  they  XYiink  Johnson  was  wrongly  decided.  In  any 
event,  if  the  root  of  the  objection  to  a  viewpoint,  decision,  or  discipline  is  a  raw 
moral  disagreement  rather  than  a  clear  flaw  on  one  or  both  sides,  it  may  be 
misleading  and  time-wasting  to  complain  about  the  fatal  deficiencies  in  the 
opposition's  thinking. 

Sometimes  an  entire  field  or  some  substantial  part  of  it  may  have  taken  the 
wrong  path,  or  at  least  failed  to  take  the  best  one.  It  took  a  while  for  the  germ 
theory  of  disease  to  be  accepted  in  medicine  and  science.  Here,  "path"  must  be 
described  at  a  fairly  high  level  of  abstraction.  Simply  reaching  conclusions  at 
war  with  your  own  does  not  mean  your  opponents  have  taken  the  wrong  fork  at 
some  fundamental  point.  Of  course,  if  there  is  disagreement,  then  at  some  stage 
the  partisans  have  taken  different  roads.  This,  hardly  establishes  that  either  of 
their  argument  structures  is  deeply  flawed. 

In  any  event,  it  is  no  failing  of  ethical  theory,  law,  or  bioethics  that  they  do 
not  always  give  us  answers  that  a  group  of  skilled  commentators,  courts, 
legislatures,  and  an  informed  citizenry  could  agree  on  with  near-unanimity  as 
definitive.  Here,  an  admonition  of  Heidegger  is  to  the  point:  sometimes  we 
notice  things  only  when  they  fail.^'^  Perhaps  bioethics  fails  when  faced  with  the 
moral  and  legal  anomalies  created  by  our  division  and  recombination  of 
biologically  integrated  life  processes.  But  every  discipline  and  approach  may  fail 
under  such  circumstances.  In  some  arenas,  answers  are  often  provided,  at 
varying  levels  of  generality  and  specificity.  Many  agree  that  we  have  identified 
the  primary  criteria  for  withdrawal  or  withholding  of  medical  care  where  the 
likely  consequence  of  doing  so  is  the  patient's  death;  that  there  is  nothing 
inherently  wrong  with  organ  transplantation;  that  the  idea  of  brain  death  is 
needed,  despite  the  technical  and  philosophical  disputes  still  swirling  about  it; 
that  informed  consent  by  patients  or  their  proxies,  or  possibly  by  families  as  an 
autonomous  unit,  is  a  necessary  (though  not  sufficient)  condition  for  various 
forms  of  medical  intervention;  and,  answers  or  no,  that  we  have  identified  many 
of  the  critical  variables  necessary  to  evaluate  the  technological  alteration  of 
living  persons  or  of  possible  persons  via  the  germ  line. 

In  various  situations,  however,  not  only  is  there  no  clear  consensus,  it  is 
impossible  to  specify  what  such  a  consensus  could  rationally  be  based  on  even 


mother  is,  or  about  whether  there  are  really  two  of  them.  Of  course,  it  is  a  vast  factual 
oversimplification  to  put  the  question  this  way,  but  the  conceptual  point  is  clear.  How  would  we 
rate  a  large  effect  on  kidney  development  as  against  liver,  heart,  or  brain  development?  If  we  were 
assessing  brain  development  impacts,  would  cognitive  or  emotional  impacts  count  for  more,  or  does 
it  make  any  sense  to  calibrate  so  finely?  If  it  does  not,  what  is  the  point  of  the  physiological 
comparison  in  the  first  place? 

316.     See  generally  MARTIN  HEIDEGGER,  BEING  AND  TIME  102-03  (John  Macquarrie  & 
Edward  Robinson  trans.,  1962). 


160  INDIANA  LAW  REVIEW  [Vol.  33:17 


if  we  arrived  at  it.  We  cannot  resolve  the  paradox  of  lotteries:  on  one  view, 
respect  for  persons  requires  individuation  when  distributing  important  but  scarce 
resources,  especially  lifesaving  procedures;  on  the  rival  view,  respect  for  persons 
forbids  such  individuation  and  rationally  calls  for  its  opposite — ^total  fungibility 
within  the  class  of  potential  recipients.  Of  course,  we  will  either  have  lotteries 
or  we  will  not,  but  the  decision  will  turn  not  on  the  solution  to  the  lottery 
paradox,  but  on  many  other  factors,  including  our  sense  of  the  impact  of 
institutionalized  lotteries  on  our  preferred  attitudes  and  values.  Even  if  we 
achieved  consensus,  we  could  not  infer  that  we  had  found  the  true  right  answer. 
(If  we  did,  would  the  state  or  society  be  permitted  or  obliged  to  recognize  and 
enforce  the  right  answer?^ '^) 

What  is  possible  is  knowing  more  clearly  the  nature  of  the  blockades  to 
moral  closure  in  some  areas,  and  seeing  its  possibility  in  others.  Knowing  that 
something  is  impossible  may  not  sound  like  much,  but  we  sometimes  do  pay 
experts  to  tell  us  whether  we  can  or  cannot  do  what  we  wish  to.  Furthermore, 
this  knowledge  may  have  spillover  effects  in  helping  bring  closure  for  issues 
capable  of  it  and  help  us  design  institutions,  perhaps  awkward,  unwieldy  edifices, 
that  effectively  allow  us  to  get  on  with  things.  In  any  event,  learning  the  nature 
of  the  difficulties  preventing  progress  is  itself  progress.  If  we  cannot  get  more 
than  that,  then  the  question  becomes  whether  we  should  or  can  delude  ourselves 
otherwise. 

I  have  said  that  most  criticisms  of  bioethics  seem  off  the  mark  and  too  result- 
oriented.  Resting  our  critiques  of  moral  and  legal  analysis  largely  on  outcomes 
does  not  provide  adequate  guidance  in  assessing  either  the  cases  at  hand  or  future 
disputes.  This  is  fatal  to  a  coherent  ethics  and  a  coherent  legal  system,  at  least 
as  we  have  come  to  understand  these  ideas.  The  critiques  of  bioethics  are  often 
far  more  plausibly  called  "flawed"  than  bioethics  itself  because  of  their  fixation 
on  conclusions.  As  a  moral  and  methodological  critique,  this  is  too  insubstantial 
to  be  of  service.  Not  only  is  there  nothing  wrong  at  the  threshold  in  working  with 
paradigms,  principles,  and  other  abstractions,  one  cannot  proceed  or  even  start 
without  them,  and  the  critique  of  particular  paradigms  in  bioethics  is 
unpersuasive. 

In  general,  the  talk  about  law  and  ethics  being  behind  science  and  technology 
has  to  be  reconstructed  to  make  sense.  Law  and  ethics  are  categorically  different 
from  science  and  technology  and  from  each  other,  despite  isomorphisms  in 
argument  structure  and  the  "fuzziness"  of  the  fact/value  distinction.  They 
concern  science  and  technology,  they  are  about  science  and  technology  (and 
everything  else),  but  they  are  a  different  order  of  existence,  and  it  is  thus 
impossible  to  apply  the  same  sense  of  progress  to  both  domains.  Their  canons 
of  verification  differ  strongly,  despite  the  structural  similarities.  There  is  no  race 
between  law  and  ethics  on  the  one  hand,  and  science  and  technology  on  the  other. 


317.      See   generally    WILL    KYMLICKA,    CONTEMPORARY    POLITICAL    PHILOSOPHY:       An 
Introduction  206-07  ( 1 990);  Stephen  A.  Gardbaum,  Law,  Politics,  and  the  Claims  of  Community, 
90  Mich.  L.  Rev.  685  (1992);  Stephen  A.  Gardbaum,  Why  the  Liberal  State  Can  Promote  Moral 
Ideals  After  All,  1 04  Harv.  L.  REV.  1350,  1356(1991). 


1999]  IS  BIOETHICS  BROKE?  161 


In  many  instances,  indecision,  paradox,  and  indeterminacy  are  not  usefully 
considered  flaws  in  law  or  in  ethics  because  they  are  inherent  in  them.  One  is  not 
deficient  for  failing  to  come  up  with  a  certainly  correct  answer  when  it  is 
impossible  to  find  one. 

Progress  in  the  connected  worlds  of  law  and  ethics  can  be  assayed  by 
inspecting  both  the  large  and  the  fine  structures  of  our  thinking.  For  one  thing, 
thinking  about  how  we  think  can  help  yield  answers  where  answers  are  possible. 
Many  observers  initially  had  major  reservations  about  the  very  propriety  of,  say, 
withholding  artificial  nutrition  and  hydration,  or  of  transplanting  organs,  or  of 
allowing  persons  to  refuse  lifesaving  or  life-prolonging  treatment.  Some  still  do, 
but  the  degree  of  consensus  that  these  procedures  may  be  pursued  in  many 
situations  is  quite  high.  One  encounters  opposition  within  relatively  discrete 
groups  defined  by  certain  moral  and/or  religious  views,  but  not  global  rejection. 

One  can  expect  progress  in  seeing  and  addressing  some  issues  that  are 
strongly  contested  at  particular  levels  of  specificity.  For  example,  people  who 
agree  on  the  desirability  of  organ  transplantation  may  part  company  on  whether 
queues  for  organs  should  be  set  up  for  local,  regional,  or  national  constituencies. 
Seeing  the  issue  of  constituencies  came  early,  but  its  perceived  importance  has 
grown  because  of  the  interaction  of  technological  change  and  debate.  Thus, 
extension  of  organ  preservation  times  strengthens  (but  does  not  prove)  the  case 
for  a  national  constituency  and,  more  generally,  makes  the  constituency  issue 
more  vivid.  Immunosuppression  technology  favorably  affects  the  case  for 
transplantation  even  where  tissue  matches  are  nonoptimal.  It  also  alters  supply 
and  demand  forces,  perhaps  intensifying  distributional  issues  generally.  Such 
subtechnologies  stimulate  recognition  of  new  perspectives  or  the  relative 
importance  of  old  perspectives,  and  new  normative  insights  become  likelier.^'^ 
The  facilitator  for  such  insights  is  continued  rational  debate,  not  simply 
conversation  without  criteria.  Perhaps  we  did  not  follow  the  precedent  for 
kidney  disease — government  funding  for  medically  indicated  treatment — in 
managing  other  specific  disease  categories  because  we  came  to  understand  that 
such  allocations  were  themselves  death  decisions. 

Even  where  no  satisfactory  answers  are  conceptually  possible,  we  may  still 
develop  a  rough,  perhaps  temporary,  consensus.  Very  few  persons  would  opt  for 


318.  See  Nagel,  supra  note  11,  at  21 1  (stating  that  "characteristic  of  the  modem  Kantian 
tradition,  moral  thought  involves  the  development  of  more  complex,  morally  influenced  motives, 
as  our  sense  of  what  is  and  is  not  a  sufficient  reason  for  action  is  altered  by  changing  conceptions 
of  equity,  fairness,  responsibility,  cruelty,  desert,  and  so  forth."). 

Butcf.  Holmes,  supra  note  15,  at  157  (arguing  that  "philosophical  ethics"  has  "[s]ome . . .  but 
not  much"  relevance  to  solving  bioethical  problems;  noting  that  it  promotes  "conceptual  clarity" 
and  "can  provide  the  categories  by  which  to  discuss  the  problems  theoretically,"  and  in  some  cases 
it  can  show  that  acceptance  of  a  given  moral  position  may  allow  inferences  within  "substantive 
morality").  The  author  insists,  however,  that  philosophical  ethics  is  neither  necessary  nor  sufficient 
for  resolving  the  problems  at  hand.  See  id.  I  assign  more  importance  to  moral  and  legal 
clarification,  where  it  assists  in  achieving  personal  moral  closure,  if  not  without  regret,  and  in 
allowing  parties  in  disagreement  to  reach  a  decision. 


162  INDIANA  LAW  REVIEW  [Vol.  33:17 


a  lottery  to  distribute  validated  lifesaving  resources  such  as  a  fully  implantable 
artificial  heart,  despite  their  unhappiness  with  any  conceivable  set  of  substantive 
criteria  for  differentiating  persons.  They  are  unlikely  to  change  their  minds  even 
after  exposure  to  the  lottery  paradox.  Perhaps  understanding  the  structure  of  the 
paradox  may  help  them  see  w^hy  they  are  opposed  to  lotteries,  and/or  make  them 
more  comfortable  with  their  discomfort.  Perhaps  understanding  the  paradox  will 
lead  them  to  inquire  into  empirical  questions  such  as  how  we  are  likely  to  react 
to  shifting  from  the  search  for  substantive  criteria  to  their  rejection  in  favor  of 
randomness.  Perhaps  the  consensus  will  change  if  some  moral  and  religious 
views  change. 

Finally,  and  of  considerable  practical  importance,  moral  reflection  in  some 
cases  may  highlight  aspects  of  a  situation,  leading  particular  decisionmakers  to 
their  own  informed  resolution.  Enabling  these  personal  decisions  may  be  a  form 
of  moral  progress  even  when  it  cannot  yield  definitive  answers  within  normative 
or  metaethical  theory.  Moreover,  even  if  a  wrong  decision  is  taken  to  engage 
habitually  in  good  faith  moral  reflection  is  a  virtue  apart  from  the  outcome.^ '^ 

I  am  not  even  remotely  suggesting  that  progress  is  simply  a  function  of 
process.  The  temptation  to  forego  substance  because  of  its  uncertainties  in  favor 
of  choosing  fair  procedures  is  understandable,  and  in  various  situations  resort  to 
procedural  solutions  may  be  the  only  available  pragmatic  strategy  for  securing 
an  acceptable  a  bottom-line  decision.  However,  there  can  be  no  assurance  that 
the  process  will  culminate  in  a  morally  convincing  answer  or  a  situation  that  all 
would  say  is  the  best  of  the  alternatives.  Indeed,  conscientious  decisionmakers 
who  find  themselves  planted  within  some  procedural  scheme,  say,  a  committee 
to  distribute  scarce  medical  resources,  will  experience  precisely  the  same 
difficulties  encountered  by  those  who,  not  knowing  how  to  generate  a  right 
answer,  established  the  procedure  in  the  first  place.  What  would  be  clearly 
amiss,  then,  is  to  assert  that  because  we  cannot  resolve  a  matter  definitively, 
something  is  wrong  with  moral  and  legal  theory  generally  and  bioethics  in 
particular.  There  are  many  who  cannot  abide  such  uncertainty  and  the  shortage 
of  answers  it  entails.  The  only  sensible  response  is:  get  used  to  it,  because  there 
is  no  honest  alternative. 


319.  Cf.  Holmes,  supra  note  1 5,  at  1 57  (stating  that  "[t]he  cultivation  of  a  morally  sensitive, 
caring,  and  compassionate  character  probably  counts  for  more  in  the  end  than  analytical  skills."). 
Emphasis  on  moral  virtue  and  virtuous  acts  and  on  moral  character  generally  is  an  important  topic 
in  all  branches  of  ethical  theory,  but  I  do  not  think  it  can  displace  to  any  significant  degree  the 
received  forms  of  normative,  metaethical  and  applied  ethical  theory.  The  idea  of  virtue  is  not 
independent  of  basic  questions  of  rightness  and  goodness.  See  generally  Beauchamp  & 
Childress,  supra  note  273,  at  62-69. 


The  Misperception  That  Bioethics  and  the  Law  Lag 

Behind  Advances  in  Biotechnology: 

A  Response  to  Michael  H.  Shapiro 


David  Orentlicher* 


Introduction 

In  his  article  in  this  symposium.  Professor  Michael  Shapiro  responds  very 
well  to  the  critiques  of  bioethics.'  As  he  observes,  standard  critiques  of  the  field 
are  misguided  or  misinformed.  Critics  either  are  incorrect  in  their  observations, 
or  they  demand  more  of  bioethics  than  is  reasonable.^  According  to  some 
writers,  for  example,  it  is  nice  that  bioethicists  can  elucidate  valid  considerations 
on  both  sides  of  a  particular  debate,^  but  society  also  needs  to  know,  in  the  end, 
what  kind  of  action  to  take.  Professor  Shapiro  is  right  in  saying  that  we  cannot 
condemn  bioethics  simply  because  it  often  does  not  generate  clear  answers.  To 
the  extent  that  we  can  fault  bioethics  for  its  indeterminacy,  we  can  also  fault 
other  academic  disciplines  like  economics,  sociology  and  political  science. 
Moreover,  as  Professor  Shapiro  points  out,  there  is  an  important  kind  of  expertise 
in  improving  the  quality  of  our  moral  reasoning;  bioethicists  do  very  much 
contribute  when  they  indicate  how  one  might  legitimately  analyze  a  bioethical 
dilemma. 

Because  I  generally  agree  with  what  Professor  Shapiro  has  written,  I  will 
respond  to  his  article  by  adding  to  it,  rather  than  detracting  from  it.  But,  I  should 
acknowledge  that,  as  someone  who  characterizes  himself  as  a  bioethicist,  it  is  in 
my  self-interest  to  agree  that  bioethics  is  not  broken  and  that  bioethical  thought 
is  unfairly  viewed  as  lagging  behind  developments  in  science  and  technology. 

In  making  my  comments,  I  want  to  accomplish  two  things.  First,  I  will 
reinforce  Professor  Shapiro's  defense  of  bioethics  by  providing  some  evidence 
that  bioethical  thought  anticipates  developments  in  science  and  technology  more 
than  it  lags  behind  them.  Or,  as  Professor  Shapiro  suggests,  it  may  be  more 
accurate  to  talk  about  science  and  technology  catching  up  with  bioethical 
thought,  rather  than  about  bioethics  catching  up  with  science  and  technology."^ 
Second,  I  will  offer  some  speculation  about  why  the  view  persists  that  bioethics 
lags  behind  developments  in  science  and  technology  despite  convincing 
arguments  to  the  contrary. 


♦  Samuel  R.  Rosen  Professor  of  Law  and  Co-Director,  Center  for  Law  and  Health,  Indiana 
University  School  of  Law— Indianapolis.  Adjunct  Associate  Professor  of  Medicine,  Indiana 
University  School  of  Medicine.  A.B.,  1977,  Brandeis;  M.D.,  1981,  Harvard  Medical  School;  J.D., 
1986,  Harvard  Law  School.  I  am  grateful  for  the  comments  of  Judy  Failer  and  the  research 
assistance  of  Will  Binder. 

1 .  See  Michael  H.  Shapiro,  Is  Bioethics  Broke?  On  the  Idea  of  Ethics  and  Law  "Catching 
Up"  with  Technology,  33  IND.  L.  REV.  17  (1999). 

2.  See  id.  at  24-26. 

3 .  Or,  as  Professor  Shapiro  observes,  bioethicists  are  quite  good  at  talking  the  "on  one  hand 
...  on  the  other  hand"  talk.  See  id.  at  30. 

4.  See  id. 


164  INDIANA  LAW  REVIEW  [Vol.  33:163 


As  a  preliminary  matter,  I  begin  with  a  definition  of  terms.  Professor  Shapiro 
quite  correctly  observes,  we  can  conceive  of  bioethics  lagging  behind  science  and 
technology  in  different  ways.^  I  will  discuss  the  lagging  charge  in  terms  of  the 
idea  that  we  see  science  and  technology  come  up  with  important  new 
developments  with  which  our  ethical  thought  is  unprepared  to  deal.  That  is, 
according  to  this  version  of  the  critique  of  bioethics,  we  learn  to  do  new  things 
before  we  know  whether  it  is  a  good  idea  to  do  them. 

I  will  now  to  turn  to  the  first  part  of  my  article — evidence  that  in  fact 
bioethical  thought  anticipates  developments  in  science  and  technology  more  than 
it  lags  behind  those  developments. 

I.  Evidence  That  Bioethics  Anticipates  Developments  in 
Science  and  Technology 

In  recent  years,  we  have  had  no  shortage  of  important  developments  in 
medicine  that  raise  ethical  dilemmas.  As  these  developments  occur,  it  is  all  too 
common  to  hear  people  say  that  bioethics  is  lagging  behind,  that  we  are  not 
morally  prepared  for  the  dilemmas.  Yet,  if  one  looks  more  closely,  it  turns  out 
that  bioethical  thought  has,  in  fact,  anticipated  developments  in  science  and 
technology. 

For  example,  consider  what  some  might  view  as  the  most  stunning 
development  in  medical  technology  in  recent  years,  the  announcement  in  1997 
that  Scottish  scientists  had  cloned  a  sheep,  "Dolly."^  The  announcement 
provoked  a  flurry  of  hand  wringing  and  other  expressions  of  concern,  and 
newspapers  and  magazines  were  filled  with  commentary.^  Had  bioethicists  not 
adequately  considered  the  ethical  implications  of  cloning,  as  many  suggested? 
It  turns  out  that  a  major  academic  debate  on  the  morality  of  cloning  was  sparked 
in  1966  by  Joshua  Lederberg,  a  Nobel  Prize- winning  geneticist.^  Lederberg 
thought  cloning  would  be  a  good  idea,^  and  the  debate  was  quickly  joined  by  two 


5.  See  id. 

6.  See  Ian  Wilmut  et  al..  Viable  Offspring  Derived  from  Fetal  and  Adult  Mammalian  Cells, 
385  Nature  810,  810  (1997). 

7.  See,  e.g. ,  Sharon  Begiey,  Little  Lamb,  Who  Made  Thee?,  NEWSWEEK,  Mar.  1 0,  1 997  at 
52;  Gina  Kolata,  Scientist  Reports  First  Cloning  Ever  of  Adult  Mammal,  N.Y.  TIMES,  Feb.  23, 
1997,  at  1;  Charles  Krauthammer,  A  Special  Report  on  Cloning,  Time,  Mar.  10,  1997,  at  60; 
Thomas  H.  Maugh  II,  Scientists  Report  Cloning  Adult  Mammal,  L.A.  TIMES,  Feb.  23,  1 997,  at  Al ; 
Scientists  Succeed  in  Cloning  a  Sheep;  Genes  Transplanted,  Then  Hello,  'Dolly, '  ST.  LOUIS  POST- 
DlSPATCH,  Feb.  24,  1997,  at  Al;  David  Stipp,  Gene  Chip  Breakthrough  Microprocessors  Have 
Reshaped  Our  Economy,  Spawned  Vast  Fortunes,  and  Changed  the  Way  We  Live;  Gene  Chips 
Could  Even  Be  Bigger,  FORTUNE,  Mar.  31,  1997,  at  56,  56. 

8.  Lederberg  shared  the  Nobel  Prize  in  medicine-physiology  in  1958.  See  The  World 
Almanac  and  Book  of  Facts  1999  at  667  (Robert  Famighetti  ed.,  1998). 

9.  See  Joshua  Lederberg,  Experimental  Genetics  and  Human  Evolution,  100  Am. 
Naturalist  519  (1966)  [hereinafter  Lederberg,  Am.  Naturalist];  Joshua  Lederberg, 
Experimental  Genetics  and  Human  Evolution,  22(8)  BULL.  ATOMIC  SCIENTISTS  at  4  (1966) 


1 999]  BIOETHICS  AND  THE  LAW  1 65 


prominent  ethicists  of  that  generation,  Paul  Ramsey  and  Joseph  Fletcher,'^  as 
well  as  other  moral  philosophers  and  ethicists  over  the  ensuing  decade." 

If  one  looks  at  the  commentary  about  cloning  between  the  late  1960s  and  late 
1 970s,  one  sees  the  same  "staking  out"  of  sides  that  has  occurred  in  the  past 
couple  of  years.  Like  many  contemporary  critics  of  cloning,  Paul  Ramsey 
worried  about  ( 1 )  the  unknown  medical  risks  to  children  bom  of  cloning,  ^^  (2)  the 
threat  to  personal  identity  of  children  bom  with  very  specific  expectations  as  to 
how  they  should  tum  out,^^  and  (3)  the  threat  to  parenting  if  people  started 
viewing  children  as  products  to  be  artificially  designed  rather  than  persons  to  be 
naturally  conceived.'"*  Other  commentators  invoked  (4)  the  interest  or  even  the 
right  of  people  to  not  be  deprived  of  their  unique  genetic  identity'^  and  (5) 
concems  about  the  psychological  effects  on  children  of  cloning  from  not  having 
a  biological  father  and  mother  in  the  way  everyone  else  does.  '^  As  to  the  concem 
that  cloning  could  be  abused  by  authoritarian  regimes  or  mad  scientists,  one  can 
go  back  to  1976  and  the  Boys  of  Brazil  by  Ira  Levin, '^  or  at  least  as  far  back  as 
1932  and  Aldous  Huxley's  Brave  New  World,^^  for  such  an  argument. 

Arguments  in  favor  of  cloning  are  also  not  new.  Long  before  Dolly  was 
cloned,  we  also  had  already  seen  (1)  emphasis  on  the  importance  of  procreative 
autonomy,'^  (2)  observations  that  concems  about  psychological  harm  from 
cloning  are  exaggerated  and  fail  to  take  adequate  account  of  non-genetic  sources 
of  personality,^^  and  (3)  claims  for  important  benefits  that  might  be  gained  from 
cloning.  For  example,  writers  have  noted  the  ability  of  parents  to  avoid  passing 
a  genetic  disease  to  their  offspring,^'  or  the  ability  of  infertile  couples  to  have 
genetically  related  offspring  rather  than  children  from  a  mix  of  their  own  genes 


[hereinafter  Lederberg,  Bull.  Atomic  Scientist]. 

1 0.  See  Allen  D.  Verhey,  Cloning:  Revisiting  an  Old  Debate,  4  KENNEDY  iNST.  ETHICS  J. 
227,227(1994) 

1 1 .  See  Craig  M.  Klugman  &  Thomas  H.  Murray,  Cloning,  Historical  Ethics,  and  NBAC, 
in  Human  Cloning  1  (James  M.  Humber  &  Robert  F.  Almeder  eds.,  1998). 

12.  See  Paul  Ramsey,  Fabricated  Man:  The  Ethics  of  Genetic  Control  67-68, 76-79 
(1970). 

13.  Seeid.atl\'72. 

14.  See  id.  at  S6-90. 

1 5 .  See,  e.g. ,  Leon  R.  Kass,  Making  Babies — The  New  Biology  and  the  "Old"  Morality,  26 
Pub.  Interest  1 8,  42-45  (Winter  1972);  Albert  Studdard,  The  Lone  Clone,  3  Man  &  MED.  109, 
1 10  (1978)  (describing  arguments  by  others  about  the  interest  or  right  to  genetic  distinctiveness). 

1 6.  See  John  D.  Rainer,  Commentary,  3  MAN  &  MED.  115,116(1 978). 

1 7.  Ira  Levin,  The  Boys  from  Brazil  ( 1 976). 

1 8.  Aldous  Huxley,  Brave  New  World  ( 1 932). 

19.  See  Verhey,  supra  note  1 0,  at  228-29. 

20.  See  Joseph  Fletcher,  Ethical  Aspects  of  Genetic  Controls:  Designed  Genetic  Changes 
in  Man,  285  NEW  Eng.  J.  Med.  776, 779  ( 1 97 1 );  Lewis  Thomas,  Notes  of  a  Biology-  Watcher:  On 
Cloning  a  Human  Being,  291  NEW  Eng.  J.  MED.  1296  (1974). 

21.  See  Lederberg,  Am.  Naturalist,  supra  note  9,  at  527. 


166  INDIANA  LAW  REVIEW  [Vol.  33:163 


and  the  genes  of  outsiders  to  the  marriage.^^ 

The  decades-old  discussion  of  cloning  is  paralleled  by  a  decades-old 
discussion  of  genetic  engineering.^^  We  can  rest  assured  that  by  the  time 
scientists  really  can  manipulate  a  person's  genetic  makeup,  there  will  be  more 
analysis  of  the  ethical  considerations  than  most  people  will  have  time  to  read. 

We  see  the  same  anticipation  by  bioethical  thought  of  developments  in 
medicine  with  another  leading  issue  in  bioethics,  physician-assisted  suicide  and 
euthanasia.  When  Dr.  Jack  Kevorkian  assisted  the  suicide  of  Janet  Adkins  in 
1990,^"*  his  action  was  preceded  by  repeated  controversy  over  the  morality  of 
assisted  suicide  and  euthanasia  during  the  past  century.  For  example,  there  was 
a  heated  debate  about  euthanasia  in  this  country  at  the  end  of  the  Nineteenth 
Century  and  the  beginning  of  the  Twentieth  Century.^^  Notably,  the  same 
arguments  that  commentators  make  today  in  favor  and  against  assisted  suicide 
were  made  a  hundred  years  ago  in  the  debate  about  legalizing  euthanasia.  Those 
favoring  euthanasia  cited  (1)  patient  self-determination,  (2)  the  importance  of 
relieving  patient  suffering,  and  (3)  the  absence  of  any  moral  distinction  between 
euthanasia  and  other  actions  by  physicians  that  might  hasten  a  patient's  death, 
like  the  withdrawal  of  medical  intervention  or  the  administration  of  palliative 
drugs.^^  Supporters  of  assisted  suicide  and  euthanasia  also  argued  that  (4)  we 
have  the  ability  to  limit  euthanasia  to  truly  compelling  cases  without  sliding 
down  the  slippery  slope  of  abuse.^^ 

In  contrast,  opponents  of  euthanasia  argued  (I)  that  there  is  an  important 
moral  distinction  between  active  and  passive  euthanasia,  (2)  that  patient  suffering 
can  be  relieved  without  resorting  to  euthanasia,  (3)  that  legalizing  euthanasia 
would  undermine  patient  trust  in  physicians,  and  (4)  that  the  right  to  die  would 
become  a  duty  to  die.  Opponents  also  argued  (5)  that  patients  would  choose 
euthanasia  in  cases  when  the  physician  was  mistaken  about  their  prognosis^^  and 
(6)  that  euthanasia  would  not  be  limited  only  to  appropriate  cases  but  rather  that 
the  disabled  would  be  victimized  by  legalization  of  euthanasia.^^  Contemporary 


22.  See  Leon  Eisenberg,  The  Outcome  as  Cause:  Predestination  and  Human  Cloning,  1  J. 
Med.&Phil.  318,  326(1976). 

23.  For  some  earlier  discussions  of  genetic  engineering,  see  articles  reprinted  in  Ethics  in 
Medicine:  Historical  Perspectives  and  Contemporary  Concerns  356-393  (Stanley  Joel 
Reiser  et  al.  eds.,  1 977).  For  a  more  recent  discussion,  see  Council  on  Ethical  and  Judicial  Affairs, 
American  Medical  Association,  Ethical  Issues  Related  to  Prenatal  Genetic  Screening,  3  ARCH. 
Fam.  MED.  633(1994). 

24.  See  Lisa  Belkin,  Doctor  Tells  of  First  Death  Using  His  Suicide  Device,^.^ .  TlMES,  June 
6,  1990,  at  Al. 

25.  See  Ezekiel  J.  Emanuel,  The  History  of  Euthanasia  Debates  in  the  United  States  and 
Britain,  121  ANNALS  INTERNAL  Med.  793  (1994). 

26.  See  id  at  797-98. 

27.  See  id.  at  798. 

28.  See  id. 

29.  See  id.  at  798-99.  More  than  40  years  ago,  Yale  Kamisar  wrote  a  widely  cited  law 
review  article  on  "mercy-killing,"  and  he  too  made  many  of  the  same  arguments  that  are  made 


1 999]  BIOETHICS  AND  THE  LAW  1 67 


discussion  of  physician-assisted  suicide  adds  to  the  debate  in  important  ways,^° 
but  one  would  be  seriously  mistaken  in  believing  that  bioethical  thought  was 
unprepared  for  Dr.  Kevorkian. 

If  it  is  not  in  fact  true  that  bioethical  thought  lags  behind  developments  in 
science  and  technology,  why  is  there  a  persistent  myth  that  the  lag  exists? 

II.  Reasons  for  the  Myth  That  Bioethics  Lags  Behind 
Science  and  Technology 

A.  Professional  Self-Interest 

In  some  ways,  it  is  in  the  professional  self-interest  of  bioethicists  to  maintain 
the  myth  that  the  field  of  bioethics  lags  behind  developments  in  science  and 
technology.  If  we  in  the  field  were  to  forthrightly  state  that  bioethical  thought 
has  anticipated  scientific  developments,  then  the  need  for  current  bioethicists 
would  be  diminished.  The  public  would  often  only  need  someone  to  point  it  to 
the  articles  that  have  already  been  written.  For  example,  in  1997  when  the 
cloning  of  Dolly  the  sheep  was  announced,^'  President  Clinton  asked  the 
National  Bioethics  Advisory  Commission  to  study  the  ethics  of  cloning  and 
report  back  to  him  in  ninety  days.^^  Instead  of  launching  their  analysis  of 
cloning,  members  of  the  Commission  might  have  said,  "We  don't  need  ninety 
days  to  prepare  our  report.  In  fact,  we  don't  need  really  to  study  the  issue  at  all. 
Paul  Ramsey,  Joseph  Fletcher  and  others  have  done  an  excellent  job  debating  the 
morality  of  cloning  over  the  past  thirty  years.  We  can  just  tell  you  what  they 
said." 

Consider  another  example  of  how  bioethicists  like  to  reinforce  the  idea  that 
bioethical  thought  is  only  catching  up  with  developments  in  science  and 
technology.  Bioethicists  often  speak  about  the  youth  of  the  field  of  bioethics  and 
how  the  field  had  its  birth  just  forty  years  ago.^^  I  suspect  that  Hippocrates,  not 
to  mention  Maimonides^"*  and  Percival,^^  would  have  been  surprised  to  hear  that 


today.     See  Yale  Kamisar,  Some  Non-Religious  Views  Against  Proposed  "Mercy-Killing" 
Legislation,  42  MiNN.  L.  REV.  969  (1958). 

30.  See.  e.g.,  PHYSICIAN  ASSISTED  SUICIDE:  EXPANDING  THE  DEBATE  (Margaret  P.  Battin 
et  al.  eds,  1998);  David  Orentlicher,  The  Legalization  ofPhysician  Assisted  Suicide:  A  Very  Modest 
Revolution,  38  B.C.  L.  REV.  443  (1997);  David  Orentlicher,  The  Supreme  Court  and  Terminal 
Sedation:  Rejecting  Assisted  Suicide,  Embracing  Euthanasia,  24  HASTINGS  CONST.  L.Q.  947 
(1997). 

3 1 .  See  Wilmut  et  al.,  supra  note  6. 

32.  See  Letter  from  the  President,  reprinted  in  CLONING  HUMAN  BEINGS:  REPORT  AND 
Recommendations  of  the  National  Bioethics  Advisory  Commission  at  preface  (June  1 997). 

33.  Another  leading  bioethicist,  Albert  Jonsen,  refers  to  the  birth  of  bioethics  as  having 
occurred  in  1947,  but  he  tempers  his  claim  by  observing  that  the  field  has  its  roots  in  earlier 
thinking.  See  ALBERT  R.  JONSEN,  THE  BIRTH  OF  Bioethics  at  xii  ( 1 998). 

34.  Moses  Maimonides  was  a  noted  physician  and  philosopher,  who  lived  in  the  Twelfth 
Century,  and  is  thought  by  many  to  have  written  a  prayer  that  incorporated  important  principles  of 


1 68  INDIANA  LAW  REVIEW  [Vol.  33 : 1 63 


bioethical  analysis  began  in  the  middle  of  the  Twentieth  Century.  As  Professor 
Shapiro  writes,  there  may  be  new  issues  for  bioethicists  to  consider,  but  the 
fundamental  concepts  of  moral  analysis  are  hardly  novel.^^  We  might  want  to  say 
that  the  field  of  bioethics  entered  adulthood  forty  or  fifty  years  ago,  but  not  that 
it  was  bom  at  that  time.^^  Yet,  by  characterizing  bioethics  as  a  very  young  field, 
some  bioethicists  substantiate  the  view  that  bioethics  has  some  catching  up  to  do. 
I  think  that  research  scientists  also  like  to  reinforce  the  myth  that  bioethical 
thought  lags  behind  developments  in  science  and  technology.  By  doing  so,  they 
can  avoid  responsibility  for  the  moral  consequences  of  their  work.  They  can  say 
something  like,  "we're  just  scientists  working  in  a  morally  neutral  way  to 
increase  our  understanding  of  human  life.  It  is  for  others  to  decide  whether  this 
is  morally  acceptable."^*  If,  however,  scientists  were  to  acknowledge  that  some 
types  of  technology  were  considered  to  be  ethically  problematic,  they  would  have 
to  explain  why  they  were  nevertheless  pursuing  their  research  into  those 
technologies.^^ 

B,  Traditional  Neglect  of  Historical  Examples 

The  persistence  of  the  myth  that  bioethics  lags  behind  science  also  reflects 
the  tendency  of  people  generally  to  overlook  historical  examples.  We  like  to  see 
our  era  or  our  generation  as  unique.  Thus,  for  example,  it  is  often  asserted  that 
physician-assisted  suicide  has  become  a  major  issue  in  recent  years  because  of 
advances  in  medical  technology.  According  to  common  wisdom,  the  fact  that 
people  today  die  of  chronic,  degenerative  conditions,  like  cancer  and  heart 
disease,  rather  than  from  acute,  infectious  diseases  like  pneumonia,  and  the  fact 
that  we  have  modem  machines,  like  dialysis  and  ventilators,  to  prolong  life  has 
prompted  the  desire  for  ways  to  end  life,  to  avoid  a  prolonged  dying  process. '^^ 


medical  ethics.  See  4  ENCYCLOPEDIA  OF  BIOETHICS  2638-39  (Warren  Thomas  Reich  ed.,  rev.  ed. 
1995). 

3  5 .  Thomas  Perci val  was  an  English  physician  who  authored  MEDICAL  Ethics  in  1 803 .  See 
JONSEN,  supra  note  33,  at  7. 

36.  See  Shapiro,  supra  note  1,  at  36-37. 

37.  Even  if  some  scholars  are  technically  correct  in  saying  that  bioethics  became  a  distinct 
academic  field  40  or  50  years  ago,  they  create  the  misleading  impression  among  lay  people  that 
bioethical  thought  began  at  that  time. 

38.  See,  e.g. ,  Robert  Marquand,  Cloning  Bolts  Ahead . . .  Toward  People?,  CHRISTIAN  Sci. 
Monitor,  Jan.  22,  1998,  at  1  (quoting  Marcel  LaFollette,  a  science-policy  expert  at  George 
Washington  University,  "In  the  laboratory,  .  .  .  you  are  supposed  to  carry  the  research  forward 
without  any  regard  for  questions  of  what  is  right  and  wrong."). 

39.  With  some  technologies,  it  will  be  the  case  that  they  can  be  used  ethically  or  unethically 
and  that  the  potential  ethical  uses  would  be  sufficiently  weighty  to  justify  development  of  the 
technologies.  In  such  cases,  scientists  would  be  entitled  to  pursue  their  research  and  rely  on  others 
to  implement  regulations  to  channel  the  technologies  in  the  appropriate  direction. 

40.  5ee  Marilyn  Webb,  The  Good  Death:  The  New  American  Search  to  Reshape  the 


1 999]  BIOETHICS  AND  THE  LAW  1 69 


However,  as  Ezekiel  Emanuel  has  written,  assisted  suicide  has  periodically 
been  advocated  in  western  society,  and  debates  much  like  we  have  today  existed 
well  before  the  advent  of  cancer  ventilators,  cancer  chemotherapy,  and  dialysis. 
For  example,  Emanuel  quotes  a  "typical  case"  from  nearly  2000  years  ago  in 
Rome: 

[Titius  Aristo]  has  been  seriously  ill  for  a  long  time  ....  He  fights 
against  pain,  resists  thirst,  and  endures  the  unbelievable  heat  of  his  fever 
without  moving  or  throwing  off  his  coverings.  A  few  days  ago,  he  sent 
for  me  and  some  of  his  intimate  friends,  and  told  us  to  ask  the  doctors 
what  the  outcome  of  his  illness  would  be,  so  that  if  it  was  to  be  fatal,  he 
could  deliberately  put  an  end  to  his  life.'*' 

For  just  about  every  development  in  science  and  technology,  abundant 
bioethics  analysis  exists,  but  people  have  to  make  the  effort  to  dig  the  analysis 
out  of  the  library."*^ 

C  Lack  of  Societal  Interest  in  Future  Possibilities 

A  third  reason  for  the  perception  that  bioethics  lags  behind  technology  is  the 
natural  societal  indifference  to  efforts  by  bioethicists  to  anticipate  developments 
in  medicine.  When  scholars  write  about  future  possibilities,  people  are  not  likely 
to  pay  attention.  Why  worry  about  something  that  may  never  happen? 

If  I  had  written  an  article  about  cloning  ten  years  ago  and  sent  it  off  for 
publication  to  a  medical  journal,  here  is  what  probably  would  have  happened: 
If  the  journal  took  my  article  seriously  enough  to  send  it  out  for  peer  review,  a 
biologist  probably  would  have  responded,  "This  is  a  well-written,  thoughtful 
analysis  of  an  interesting  problem" — ^what  reviewers  always  say  right  before  tliey 
recommend  rejection  of  an  article — "but  cloning  is  simply  not  biologically 
possible.  Once  a  cell  differentiates,  it  cannot  be  made  to  dedifferentiate."'*^  The 
journal  would  also  have  sent  the  article  out  to  a  bioethicist  for  review,  and  the 
ethicist  probably  would  have  said,  "This  is  a  well  written,  thoughtful  analysis  of 
an  interesting  problem,  but  there  are  more  pressing  issues  in  bioethics  to  worry 
about  than  cloning.  We  have  too  many  people  not  receiving  basic  health  care  to 
worry  about  health  care  luxuries  like  cloning,  especially  when  it's  not  even  a 
possibility  at  this  time."  If  we  are  going  to  blame  bioethics  for  not  anticipating 
ethical  dilemmas,  then  we  have  to  blame  ourselves  for  not  being  willing  to  listen 
when  bioethicists  try  to  warn  us. 

All  of  the  reasons  I  have  given  so  far  are  not  peculiar  to  bioethics.  One  could 


End  of  Life  at  xxiii  ( 1 997). 

41 .  Emanuel,  supra  note  25,  at  793. 

42.  That  bioethical  analysis  precedes  developments  in  science  and  technology  is  not 
surprising.  Major  advances  in  research  occur  step  by  step  rather  than  in  one  big  leap.  Accordingly, 
there  are  almost  always  early  indications  of  new  developments  before  they  are  actually  achieved. 

43.  5ee  Lee  M.  Silver,  Remaking  Eden:  Cloning  and  Beyond  in  a  Brave  New  World 
96(1997). 


170  INDIANA  LAW  REVIEW  [Vol.  33:163 


say  the  same  things  about  other  academic  disciplines.  Economists,  political 
scientists,  and  other  scholars  also  have  incentives  to  exaggerate  the  novelty  of 
their  work;  they  also  tend  to  overlook  historical  examples;  and  they  also  are  not 
likely  to  find  interest  by  others  if  they  write  about  speculative  matters.  I  suspect, 
for  example,  that  scholars  of  ethnic  tension  between  Kosovar  Albanians  and 
Kosovar  Serbs  are  finding  much  more  interest  in  their  work  now  than  existed 
several  years  ago.  If  bioethics  gets  less  respect  than  other  academic  disciplines, 
why  is  that  the  case? 

D.  Individual  Confidence  in  the  Morality  of  One 's  Own 
Behavior  and  Thought 

Let  me  introduce  what  I  think  is  the  answer  to  this  question  by  recounting 
some  of  my  experience  in  teaching  ethics.  I  began  teaching  bioethics  several 
years  ago,  at  schools  of  both  law  and  medicine,  and  I  preferred  teaching  bioethics 
to  the  law  students.  They  seemed  much  more  interested  in  delving  into  the 
issues. 

To  illustrate  this  apparent  difference  between  law  students  and  medical 
students,  I  use  an  example  from  a  medical  school  class  in  which  we  discussed 
whether  women  in  their  fifties  and  sixties  should  be  using  artificial  methods  of 
reproduction  to  have  children.'*'*  I  asked  one  of  the  students  what  she  thought 
about  the  recent  announcement  of  a  fifty-nine-year-old  woman  giving  birth,  and 
the  student  said  something  like,  "I  think  it's  wrong.  It's  not  natural  and  the 
woman  could  have  had  kids  when  she  was  younger."  In  response,  I  said 
something  like,  "Doctors  always  do  unnatural  things,  like  transplanting  artificial 
heart  valves,  and  maybe  the  woman  did  not  find  the  love  of  her  life,  the  man  with 
whom  she  wanted  to  have  children,  until  she  was  post-menopausal."  The  student 
then  replied  something  like,  "I  don't  care  what  you  say,  you're  not  going  to 
change  my  mind."  My  law  students  would  not  have  responded  that  way,  and  this 
episode  reinforced  my  theory  that  law  students  are  more  inclined  to  grapple  with 
ethical  dilemmas  than  medical  students. 

But,  when  I  began  to  teach  professional  responsibility,  or  legal  ethics,  to  law 
students,  I  found  that  those  students  had  about  the  same  interest  in  discussing 
issues  about  legal  ethics  as  medical  students  in  discussing  matters  of  medical 
ethics.  Just  as  most  of  my  medical  students  seemed  to  consider  bioethics  to  be 
a  relatively  unimportant  course  in  their  curriculum,  so  did  most  of  my  law 
students  seem  to  consider  professional  responsibility  to  be  a  relatively 
unimportant  course.  Just  as  my  medical  students  seemed  to  be  more  interested 
in  my  teaching  them  rules  of  practice  rather  than  how  to  analyze  ethical 
dilemmas,  so  did  most  of  my  law  students  seem  more  interested  in  the  rules  of 
professional  conduct  than  the  underlying  principles. 

So,  my  new  theory  is  that  people  are  happy  to  talk  about  someone  else's 


44.  The  issue  generated  public  controversy  in  1993  when  a  clinic  in  Rome  reported  that  a 
59-year-old  woman  gave  birth  after  using  the  clinic's  services.  See  William  E.  Schmidt,  Birth  to 
59-Year-Old  Briton  Raises  Ethical  Storm,  N.Y.  TIMES,  Dec.  29,  1993,  at  A2. 


1 999]  BIOETHICS  AND  THE  LAW  1 7 1 


ethics,  but  not  their  own.  My  law  students  have  been  more  engaged  in  my 
bioethics  course  than  in  my  professional  responsibility  course  because  the 
students  focus  on  the  ethics  of  physicians  in  bioethics  rather  than  on  their  own 
ethics  in  professional  responsibility/^  Likewise,  I  suspect  that  a  course  on  legal 
ethics  at  a  medical  school  would  be  much  more  interesting  to  teach  than  a  course 
on  legal  ethics  at  a  law  school.  Medical  students  would  probably  have  plenty  to 
say  about  the  ethics  of  lawyers,  even  if  they  do  not  have  much  interest  in  hearing 
about  their  own  ethical  obligations. 

Why  are  students  more  willing  to  study  someone  else's  professional  ethics? 
I  believe  the  reason  why  people  do  not  like  to  critically  analyze  their  own  ethics 
is  that  people  do  not  like  to  think  that  they  ever  behave  unethically.  Rather,  they 
prefer  to  think  of  themselves  as  ethical  as  the  next  guy.  Few  people  take  affront 
if  they  are  told  that  they  do  not  understand  quantum  physics,  pathological 
processes  or  the  intricacies  of  the  federal  tax  code.  People  do  take  affront, 
however,  if  someone  tells  them  that  they  do  not  understand  how  to  think  or  act 
in  an  ethical  way."^^ 

Now,  if  that  is  how  people  feel,  it  follows  that  they  do  not  need  ethics 
"experts"  to  tell  them  how  to  behave.  If  I  were  to  conduct  a  poll  and  ask  people 
if  they  thought  they  were  a  non-expert  in  ethical  thinking,  I  suspect  I  would  get 
very  few  people  to  say  that  they  were.  In  terms  of  bioethics,  I  think  people  see 
themselves  as  being  in  a  kind  of  Lake  Wobegon,  "where  all  the  people  are  above 
average  morally.'"^'' 

If  we  all  think  that  we  are  experts  in  ethical  thinking  and  behavior,  there  is 
hardly  a  need  for  a  field  of  bioethics  or  a  profession  of  bioethics.  In  this  view, 
bioethicists  are  like  the  Wizard  of  Oz,  acting  with  a  good  deal  of  self  importance, 
but  not  being  able  to  provide  a  real  service.  I  suspect  that  this  may  be  the  most 
important  reason  why  the  myth  persists  that  the  field  of  bioethics  is  somehow 
deficient. 

To  be  sure,  I  reject  this  view.  As  Professor  Shapiro  argues  so  well,  thinkers 
in  the  field  of  bioethics  have  much  to  offer  society.  The  problem  really  seems 
to  lie  in  the  reluctance  of  many  members  of  the  public  to  recognize  the 
assistance  that  bioethicists  can  provide  society  in  resolving  its  ethical  dilemmas. 


45.  Undoubtedly,  part  of  the  differences  in  my  teaching  experiences  can  be  explained  by 
the  fact  that  some  of  my  courses  are  elective  and  some  are  required.  I  have  taught  required 
bioethics  courses  in  medical  schools  and  required  professional  responsibility  courses  in  law 
schools.  Conversely,  my  bioethics  courses  at  law  schools  are  elective  courses. 

46.  When  I  was  Director  of  the  American  Medical  Association's  Division  of  Medical  Ethics, 
I  noticed  a  related  phenomenon.  Physicians  were  more  receptive  to  guidelines  that  addressed  new 
ethical  issues  than  to  guidelines  that  called  into  question  existing  practices.  For  example,  it  was 
easier  to  establish  guidelines  on  genetic  testing  than  to  restrict  the  freedom  of  physicians  to  treat 
family  members.  When  existing  practices  are  questioned,  it  suggests  that  some  people  have  been 
acting  unethically. 

47.  In  Garrison  Keillor's  fictional  Lake  Wobegon,  "all  of  the  men  are  good-looking,  all  of 
the  women  are  strong,  and  all  of  the  children  are  above  average."  A  Prairie  Home  Companion 
(NPR  weekly  radio  broadcast). 


1 72  INDIANA  LAW  REVIEW  [Vol.  33 : 1 63 


Conclusion 

I  agree  with  Professor  Shapiro  that  bioethics  is  not  broken  and  that  it  is  only 
a  myth  that  bioethical  thought  lags  behind  developments  in  science  and 
technology.  I  have  argued  that  this  myth  reflects  a  few  considerations  common 
to  academic  fields  of  inquiry  (e.g.,  the  tendency  to  disregard  historical  examples) 
but  that  it  rests  primarily  in  the  fact  that  bioethicists  preach  their  views  in  an  area 
that  is  very  sensitive  for  people.  It  is  very  difficult  to  accept  the  idea  that  one  is 
not  an  ethical  person,  and  the  idea  of  an  expertise  in  ethics  seems  to  presuppose 
the  idea  that  some  people  are  more  ethical  than  others. 

How  can  we  respond  to  social  hostility  to  the  idea  of  bioethics  expertise? 
That  is  a  complicated  question  that  is  beyond  the  scope  of  this  commentary.  I 
will  offer  one  suggestion,  however.  I  suspect  that  much  would  be  gained  if 
bioethicists  were  clearer  as  to  the  nature  of  their  expertise.  To  some  extent, 
bioethicists  may  have  contributed  to  societal  skepticism  about  the  value  of 
bioethical  thought  by  misrepresenting  their  expertise.  There  is  an  important 
difference  between  claiming  expertise  in  what  is  right  and  claiming  expertise  in 
the  kinds  of  analysis  that  can  help  people  determine  what  is  right,'*^  and 
bioethicists  have  often  implied  the  first  when  the  second  is  more  accurate.  That 
is,  when  bioethicists  suggest  that  they  have  a  special  understanding  of  what 
conduct  is  morally  correct,  they  are  on  much  shakier  ground  than  when  they 
identify  their  expertise  as  lying  in  the  process  of  moral  reasoning.  By  being 
clearer  about  their  expertise,  bioethicists  can  avoid  the  tendency  to  reinforce 
public  skepticism  of  their  field  and  instead  can  point  the  public  to  a  better 
understanding  of  their  role. 


48.     Shapiro,  supra  note  1,  at  44-47. 


The  Changing  Face  of  Privacy  Protection  in  the 
European  Union  and  the  United  States 


Fred  H.  Gate* 


*  Professor  of  Law,  Harry  T.  Ice  Faculty  Fellow,  and  Director  of  the  Information  Law  and 
Commerce  Institute,  Indiana  University  School  of  Law— Bloomington.  Senior  Counsel  for 
Information  Law,  Ice  Miller  Donadio  &  Ryan. 

I  am  grateful  for  the  thoughtful  comments  of  Professor  Ronald  J.  Krotoszynski,  Jr.  that  appear 
in  this  same  issue.  I  agree  entirely  with  his  cautionary  words  about  new  technologies  and  the 
potential  dangers  of  embracing  them  mindlessly.  I  commend  to  the  reader  his  close  analysis  of 
cases,  especially  those  involving  the  First  Amendment,  although  it  is  clear  that  I  disagree  with  some 
of  the  conclusions  he  draws  from  those  cases.  For  example,  all  of  the  cases  he  puts  forward  as 
supporting  government  restraints  on  information  involveya/5e  expression;  I  therefore  question  their 
predictive  value  for  how  the  Supreme  Court  might  evaluate  a  restriction  on  true  speech.  Similarly, 
the  expression  in  commercial  contexts,  which  he  treats  as  lower  value  speech  and  therefore  less 
worthy  of  protection  under  the  First  Amendment — as  did  the  Court  itself  in  the  1 970s  and  1 980s — I 
believe  is  more  likely  to  receive  full  First  Amendment  protection  today,  in  light  of  the  fundamental 
importance  of  such  expression  in  most  of  our  lives  and  the  Court's  repudiation  of  Posadas.  See 
Posadas  de  Puerto  Rico  Assoc,  v.  Tourism  Co.  of  Puerto  Rico,  478  U.S.  328  ( 1 986);  44  Liquormart, 
Inc.  V.  Rhode  Island,  517  U.S.  484,  509  (1996)  (holding  that  the  decision  in  Posadas  incorrectly 
performed  First  Amendment  analysis  by  deferring  to  the  legislature). 

Even  if,  however.  Professor  Krotoszynski  is  correct  that  the  Court  might  conclude  that  the  First 
Amendment  is  not  an  obstacle  to  a  ban  on  the  collection  or  use  of  true,  lawfully  obtained 
information,  my  reading  of  the  Constitution  and  the  interests  at  stake  leads  me  to  conclude  that  the 
Court  should  not. 

I  disagree  with  Professor  Krotoszynski 's  reading  of  the  Takings  Clause  and  recent  Takings 
jurisprudence.  Although  the  Takings  Clause — unlike  the  First  Amendment — is  not  central  to  my 
analysis  of  information  privacy  issues  and  why  the  government  should  proceed  very  cautiously 
before  regulating  information  to  address  those  issues,  it  is  by  no  means  clear  that,  as  Professor 
Krotoszynski  writes,  "a  state  legislature  could  simply  pass  legislation  declaring  that  no  property 
interest  accrues  from  the  collection  of  personal  information."  Ronald  J.  Krotoszynski,  Jr.,  Identity, 
Privacy,  and  the  New  Information  Scalpers:  Recalibrating  the  Rules  of  the  Road  in  the  Age  of  the 
Infobahn,  33  IND.  L.  REV.  233,  246  (1999).  On  the  contrary,  the  Court's  solicitude  in  Ruckelshaus 
V.  Monsanto  Co.A^l  U.S.  986  (1984),  for  an  entity's  "reasonable  investment-backed  expectation 
with  respect  to  its  control  over  the  use  and  dissemination  of  the  data"  I  believe  suggests  that  states 
would  face  significant  constitutional  hurdles  if  they  were  to  attempt  to  prohibit  outright  the 
collection  or  use  of  data.  Id.  at  1011. 

The  assertion  of  Professor  Krotoszynski 's  that  I  find  most  intriguing  is  his  proposal  that  we 
eliminate  the  historical  dividing  line  between  the  government  and  everyone  else  for  purposes  of 
regulating  the  collection  and  use  of  personal  information.  See  Krotoszynski,  supra,  at  250-5 1 .  The 
special  protection  that  applies  to  personal  information  in  the  hands  of  the  government  is  justified 
on  significant  constitutional  and  practical  grounds.  The  current  structure  of  data  protection  is  a 
trade-off:  the  government  gets  the  power  to  compel  disclosure  of  data;  in  exchange,  it  is  subject 
to  special  restraints  on  its  use  of  those  data.  To  abolish  that  distinction,  either  by  giving  private 
parties  government-like  powers  to  compel  citizens  to  disclose  personal  information  or  by  weakening 
the  privacy  protections  applicable  to  the  government  by  extending  them  to  private  entities,  seems 
to  me  profoundly  unwise. 

At  heart.  Professor  Krotoszynski 's  arguments  and  mine  differ  most  in  terms  of  the  vision  they 
reflect.  He  writes  of  "abuses"  and  "confidential"  data  without  defining  what  these  are.  If  these 
terms  refer  to  collecting  information  illegally,  or  distributing  false  and  harmful  data  about  an 
individual,  or  violating  a  promise  concerning  the  use  of  personal  information,  then  current  law 
already  provides  significant  penalties  and  I  agree  with  him  that  it  should.  If,  however,  as  I  suspect. 
Professor  Krotoszynski  means  something  broader  by  these  terms,  then  I  do  not  share  the  vision  that 


1 74  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


Introduction 

"Privacy"  is  the  new  hot  topic  in  Washington  and  other  national  and  state 
capitals  as  we  head  into  the  new  millennium.  The  debate  over  privacy  is 
reaching  a  fevered  pitch  as  policymakers,  public  interest  advocates,  and  industry 
leaders  clash  over  how  much  is  enough  and  over  what  role  the  government 
should  play  in  protecting  it.  The  U.S.  Congress,  after  decades  of  virtually 
ignoring  privacy  issues,  considered  almost  1000  bills — one  out  of  eight  bills 
introduced — addressing  some  aspect  of  privacy  in  its  104th  session.  The  105th 
Congress  debated  an  even  broader  array  of  privacy  bills,  ranging  from  identity 
theft^  to  collecting  data  from  children,^  confidentiality  of  health  care  records^  to 
employers'  use  of  credit  reports,"^  privacy  in  banking^  to  privacy  on  the  Internet.^ 
Congress  also  held  a  series  of  hearings  on  privacy  issues.^  State  legislatures  were 


something  must  be  done.  My  vision  is  dominated  instead  by  tiie  benefits  we  all  share  of  a  society 
dominated  by  open  information  flows,  the  wide  range  of  valuable  services  that  such  flows  make 
available,  the  broad  array  of  steps  that  the  very  technologies  and  markets  that  Professor 
Krotoszynski  laments  make  available  to  me  to  protect  my  privacy,  and  fear  of  burdensome  and 
costly  government  regulation  to  protect  privacy,  such  as  Europe  now  enjoys. 

Our  differences,  however,  and  especially  on  such  fundamental  issues,  highlight  the  issues 
involved  in,  and  the  importance  of,  the  growing  debate  over  information  privacy.  I  am  grateful  to 
the  editors  of  the  Indiana  Law  Review  for  inviting  me  to  participate  in  their  symposium  and  to 
appear  alongside  Professor  Krotoszynski,  and  I  am  grateful  to  Professor  Krotoszynski  for  his 
insightful  commentary.  Finally,  I  want  to  thank  my  research  assistant,  Reid  Cox,  for  his  help  with 
this  article. 

1 .  See  Identity  Theft  and  Assumption  Deterrence  Act,  Pub.  L.  No.  1 05-3 1 8, 1 1 2  Stat.  3007 
(1998). 

2.  See  Children's  Online  Privacy  Protection  Act,  Pub.  L.  No.  105-277,  112  Stat.  2681 
(1998). 

3.  See  S.  2609,  105th  Cong.  (1998);  H.R.  3900,  105th  Cong.  (1998);  H.R.  3605,  105th 
Cong.  (1998);  S.  1712,  105th  Cong.  (1998);  S.  1921,  105th  Cong.  (1998);  H.R.  52,  105th  Cong. 
(1998);  S.  1368,  105th  Cong.  (1998);  H.R.  3756,  105th  Cong.  (1998);  S.  1890  and  S.  1891,  105th 
Cong.,  2d  Sess.(  1998). 

4.  See  Consumer  Reporting  Employment  Clarification  Act  of  1 998,  Pub.  L.  No.  1 05-347, 
112  Stat.  3208(1998). 

5.  See  H.R.  4388,  105th  Cong.  (1998);  H.R.  4478,  105th  Cong.  (1998). 

6.  See  H.R.  4667,  105th  Cong.  (1998);  H.R.  98,  105th  Cong.  (1998);  H.R.  2368,  105th 
Cong  (1998);  H.R.  4470,  105th  Cong.  (1998);  Children's  Online  Privacy  Protection  Act,  Pub.  L. 
No.  105-277,  112  Stat.  2681  (1998). 

7.  See,  e.g..  Protection  of  Children 's  Privacy  on  the  World  Wide  Web:  Hearings  on  S. 
2326  "Children's  Online  Privacy  Protection  Act  of  J 998"  Before  the  Subcomm.  on 
Communications  of  the  Senate  Comm.  on  Commerce,  Science  &  Transportation,  105th  Cong. 
( 1 998);  National  ID  Card:  Hearings  Before  the  Subcomm.  on  National  Economic  Growth,  Natural 
Resources  and  Regulatory  Affairs  of  the  House  Government  Reform  and  Oversight,  105th  Cong. 
(1998);  Financial  Information  Privacy  Act:  Hearings  Before  House  Comm.  on  Banking  & 
Financial  Services,  1 05th  Cong.  ( 1 998);  Electronic  Commerce:  Privacy  in  Cyberspace:  Hearings 


1 999]  PRIVACY  PROTECTION  1 75 


no  less  attentive  to  privacy  issues.  In  1998,  2367  privacy  bills  were  introduced 
or  carried  over  in  U.S.  state  legislatures;  forty-two  states  enacted  a  total  of  786 
bills.' 

The  Federal  Trade  Commission  has  led  a  series  of  privacy-related  initiatives, 
including  a  recently  completed  audit  of  web  site  privacy  policies.^  In  addition, 
in  1998  the  Commission  announced  its  first  Internet  privacy  case,  in  which 
GeoCities,  operator  of  one  of  the  most  popular  sites  on  the  World  Wide  Web, 
agreed  to  settle  Commission  charges  that  it  had  misrepresented  the  purposes  for 
which  it  was  collecting  personal  identifying  information  from  children  and  adults 
through  its  online  membership  application  form  and  registration  forms  for 
children's  activities  on  the  GeoCities  site.^°  The  Commission  has  announced  the 
conclusion  of  its  second  Internet  privacy  case,  a  settlement  with  Liberty  Financial 
Companies,  Inc.,  operator  of  the  Young  Investor  Web  site.  The  Commission 
alleged,  among  other  things,  that  the  site  falsely  represented  the  personal 
information  collected  from  children,  including  information  about  family  finances, 
would  be  maintained  anonymously. ''  The  Department  of  Commerce  convened 
a  major  conference  on  privacy  last  summer,  and  the  President,  Vice  President, 
and  Secretary  of  Commerce  have  all  threatened  regulatory  action  to  protect 
privacy  if  industry  self-regulation  does  not  improve.  Privacy  even  made  it  into 
the  President's  1999  State  of  the  Union  address.^^ 

This  debate  is  prompted  largely  by  extraordinary  technological  innovations 


Before  the  Subcomm.  on  Telecommunications,  Trade,  and  Consumer  Protection  of  the  House 
Comm.  on  Commerce,  105th  Cong.  (1998);  Hearings  on  H.R.  2448  " Protection  from  Personal 
Intrusion  Act"  and  H.R.  3224  "The  Privacy  Protection  Act  of  1998  "  Before  the  House  Comm.  on 
the  Judiciary,  1 05th  Cong.  ( 1 998);  Privacy  of  Individual  Genetic  Information:  Hearings  Before 
the  Senate  Comm.  on  Labor  and  Human  Resources,  105th  Cong.  (1998);  Privacy  Protection: 
Hearings  on  H.R.  2448  "Protection  From  Personal  Intrusion  Act"  and  H.R.  3224  "Privacy 
Protection  Act  of  1998"  Before  the  House  Comm.  on  the  Judiciary,  105th  Cong.  (1998);  Medical 
Privacy  Protection:  Hearings  on  H.R. 5 2  "The  Fair  Health  Information  Practices  Act "  Before  the 
Subcomm.  on  Government  Management,  Information  and  Technology  of  the  House  Comm.  on 
Government  Reform  and  Oversight,  105th  Cong.  (1998);  Privacy  in  Electronic  Communications: 
Hearings  Before  the  Subcomm.  on  Courts  and  Intellectual  Property  of  the  House  Comm.  on  the 
Judiciary,  105th  Cong.  (1998). 

8.  See  Privacy  Legislation  in  the  States,  Priv.  &  AM.  BUS.,  Nov./Dec.  1 998,  at  1 ,  3. 

9.  See  Federal  Trade  Commission,  Privacy  Online:  A  Report  to  Congress  ( 1 998)  (visited 
January  3,  2000)  <http://www.ftc.gov/reports/privacy3/index.htm>. 

10.  ^ee  GeoCities,  Docket  No.  C-3849  (Feb.  12, 1999)  (Final  Decision  and  Order  available 
at  <http://www.ftc.gOv/os/l  999/9902/98230 1 5d&o.htm>). 

11.  See  Liberty  Financial,  Case  No.  9823522  (proposed  consent  agreement  available  at 
<http://www.ftc.gov/os/1999/9905/lbtyord.htm>). 

1 2.  "As  more  of  our  medical  records  are  stored  electronically,  the  threats  to  all  our  privacy 
increase.  Because  Congress  has  given  me  the  authority  to  act  if  it  does  not  do  so  by  August,  one 
way  or  another,  we  can  all  say  to  the  American  people,  we  will  protect  the  privacy  of  medical 
records  and  we  will  do  it  this  year."  President  William  Jefferson  Clinton,  State  of  the  Union 
Address  (1999)  <http://www.whitehouse.gov/WH/New/htmi/199901 19-2656.html>. 


1 76  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


that  are  dramatically  expanding  both  the  practical  ability  to  collect  and  use 
personal  data  and  the  economic  incentive  to  do  so.  Computers  and  the  networks 
that  connect  them  have  become  a  dominant  force  in  virtually  all  aspects  of 
society  in  the  United  States  and  throughout  the  industrialized  world.  Information 
services  and  products  today  constitute  the  world's  largest  economic  sector.'^ 
Institutions  and  individuals  alike  are  flocking  to  the  Internet — and  particularly 
to  the  World  Wide  Web — in  record  numbers,  making  it  the  fastest-growing 
medium  in  human  history.'"* 

First  made  available  to  the  public  in  1992,  the  Web  is  used  today  by  more 
than  147  million  people  and  continues  expanding  at  approximately  thirty  percent 
per  year.'^  Much  of  the  Web's  explosive  growth  is  due  to  the  rapid  increase  in 
businesses  online.  In  1995,  World  Wide  Web  hosts  designated  ".com"  for 
commercial  uses  slightly  outnumbered  those  designated  ".edu"  for  educational 
institutions,  which  were  the  historical  backbone  of  the  Internet.  By  January 
1998,  ".com"  sites  outnumbered  their  ".edu"  counterparts  more  than  two-to- 
one. '^ 

The  growth  and  commercialization  of  the  Web  are  only  two  examples  of  a 
much  larger  trend.  Computers,  computer  networks,  and  digital  information 
increasingly  dominate  business,  government,  education  and  entertainment. 
Businesses  are  investing  heavily  in  information  technologies  and  increasingly 
taking  advantage  of  new  information  services.  Consider  these  examples: 

♦  During  the  1980s,  U.S.  businesses  alone  invested  $1  trillion  in  information 
technology;'^  since  1990  they  have  spent  more  money  on  computers  and 
communications  equipment  than  on  all  other  capital  equipment  combined.'* 
This  trend  is  reflected  throughout  the  economy.  Beginning  in  1996,  for 
example,  U.S.  consumers  have  purchased  more  computers  each  year  than 
televisions.'^ 

♦  A  1 999  University  of  Texas  study  calculates  that  the  Internet  generated  $301 
billion  in  revenue  in  the  United  States  last  year,  including  $102  billion  in 


13.  See  National  Telecommunications  and  Information  Administration  Fact  Sheets  May  30, 
1995,  at  2. 

14.  Only  five  years  after  its  creation,  it  reached  more  than  50  million  homes  in  the  United 
States.  By  comparison,  it  took  38  years  for  radio  to  reach  50  million  U.S.  homes,  13  for  television, 
and  10  for  cable. 

15.  See  The  Big  Picture  Geographies  (visited  Dec.  1,  1999)  <http .//cyberatlas,  internet. 
com/big_picture/geographics/cia.html>. 

16.  See  Host  Distribution  by  Top-Level  Domain  Names  (visited  Dec.  1,  1999) 
<http://www.nw.com/zone/WWW-9501/dist-byname.html>;  Distribution  by  Top-Level  Domain 
Name  by  Name  (visited  Dec.  1,  1999)  <http://www.nw.com/zone/WWW/dist-bynum.html>. 

17.  See  Howard  Gleckman,  The  Technology  Payoff,  BUS.  WEEK,  Jun.  14,  1993,  at  57. 

1 8.  See  Larry  Irving,  Equipping  Our  Children  with  the  Tools  to  Compete  Successfully  in  the 
New  Economy,  remarks  to  the  Conference  on  Technology  and  the  Schools:  Preparing  the  New 
Workforce  for  the  21st  Century,  Randolph  Center,  VT,  Oct.  28,  1996 
<http://www. ntia.doc.gov. ntiahome/speeches/1 028961  i_vermont.html>. 

1 9.  See  id.  See  generally  FRED  H.  Cate,  PRIVACY  IN  THE  INFORMATION  AGE  5-7  ( 1 997). 


1999]  PRIVACY  PROTECTION  177 


on-line  sales.  By  comparison,  the  U.S.  telecommunications  industry 
accounted  for  $270  billion  in  revenue  during  the  same  period.^^ 
♦♦♦  The  Internet  now  carries  twenty-five  times  more  mail  within  the  United 
States  each  day  than  the  U.S.  Post  Office.  The  Electronic  Messaging 
Association  reports  that  about  four  trillion  e-mails  were  received  in  the 
United  States  in  1998,  up  from  two  trillion  in  1997.  By  contrast,  the  U.S. 
Postal  Service  handles  about  160  billion  letters  and  packages  per  year.^' 

♦  A  Booz-Allen  Hamilton  study  found  that  a  single  banking  transaction  costs 
$1.08  at  a  bank  branch,  sixty  cents  at  an  ATM  machine,  twenty-six  cents 
with  PC  banking,  but  only  thirteen  cents  on  the  Intemet.^^ 

♦  Alamo  Rent-a-Car  trimmed  an  estimated  $1  million  from  its  administrative 
budget  by  opening  a  Web  site  that  lets  tour  operators  tap  directly  into 
reservation  and  billing  systems.  Airlines  are  offering  incentives  for 
customers  to  book  travel  online,  and  many  companies  and  government 
offices  now  handle  procurement  and  manage  relations  with  vendors 
exclusively  online.^^ 

♦  During  first  quarter  1997,  Dell  Computer  Corporation  sold  more  than  $1 
million  of  computers  every  day  via  the  Internet.  By  the  third  quarter,  that 
figure  had  risen  to  $3  million  per  day.  Eighteen  months  later  it  is  more  than 
$14  million  per  day.^"* 

As  we  see,  the  dominance  of  the  Internet  and  of  digital  information  generally 
is  reflected  clearly  in  the  degree  to  which  activities  wholly  unrelated  to  the 
provision  or  transmission  of  information — such  as  banking,  insurance,  air 
transportation,  medicine,  and  even  heavy  industries  like  automobile 
production — are  being  transformed  by  information  technologies. 

The  extraordinary  role  of  information  products  and  services  and  their 
transforming  affect  on  virtually  all  aspects  of  human  activity  are  certainly  not 
limited  to  the  United  States.  Currently  205  countries  are  connected  to  the 
Internet.  Moreover,  the  U.S.  share  of  Internet  users  is  declining.  According  to 
studies  by  Computer  Industry  Almanac,  Inc.,  in  1981  eighty  percent  of  Internet 
users  were  in  the  United  States;  by  1994  that  figure  had  fallen  to  sixty-five 
percent;  and  by  the  end  of  1997,  fifty-five  percent  of  Internet  users  were  in  the 
United  States.^^  One  year  later,  the  United  States  accounted  for  only  fifty-two 


20.  See    The    Internet   Economy   Indicators    (visited    Dec.    1,    1999)    <http://www. 
InternetIndicators.com>. 

21.  See  As  E-Mail  Grows  Up,  So  Do  the  Uses  for  It,  GLOBE  AND  MAIL  (Toronto),  Oct.  1 3, 
1998,  at  C2;  Notebook,  TIME,  Jan.  25,  1999,  at  15. 

22.  See  Sharon  Reier,  Battlelines  Are  Forming  for  Next  "War  of  Wires,  "  INT'L  HERALD 
Trib.,  Sept.  30,  1996. 

23.  See  Clinton  Wilder,  Big  Businesses  Head  to  Online  Procurement,  TECH  WEB  NEWS, 
Nov.  23,  1998,  at  1. 

24.  See  Dell  Tops  $18  Billion  in  Annual  Revenue;  Internet  Sales  Rise  to  $14  Million  per 
Day;  Company  Announces  2-for-l  Stock  Split,  BUS.  WIRE,  Feb.  16,  1999. 

25.  See  Computer  Industry  Almanac  Inc.,  Top  15  Countries  with  the  Most  Internet  Users 
(visited  Dec.  1,  1999)  <http://www.c-i-a.com/199801pr.htm>. 


178  INDIANA  LAW  REVIEW  [Vol.  33:173 


percent  of  people  worldwide  who  use  the  Internet  at  least  once  each  week.^^ 
Finland,  Norway,  and  Iceland  all  have  higher  per  capita  percentages  of  Internet 
users  than  the  United  States. ^^ 

The  result  of  this  extraordinary  proliferation  of  computers  and  networks  is 
that  more  data  than  ever  before  is  made  available  in  digital  format,  which  is 
significant  because  digital  information  is  easier  and  less  expensive  than 
nondigital  data  to  access,  manipulate,  and  store,  especially  from  disparate, 
geographically  distant  locations.  Also  more  data  is  generated  in  the  first  place 
because  of  the  ease  of  doing  so,  the  very  low  cost,  and  the  high  value  of  data  in 
an  increasingly  information-based  society.  Data  often  substitutes  for  what  would 
previously  have  required  a  physical  transaction  or  commodity.  In  electronic 
banking  transactions,  for  example,  no  currency  changes  hands,  only  data.  And 
recorded  data,  such  as  a  list  of  favorite  web  sites  or  an  automatically  generated 
back-up  copy  of  a  document,  also  makes  the  use  of  computers  easier,  more 
efficient,  and  more  reliable.  Finally,  computer  technologies  and  services  often 
record  a  wide  array  of  data  necessary  to  complete  a  transaction  or  make  its  use 
more  convenient,  such  as  the  web  sites  visited  or  the  time  and  date  an  e-mail 
message  is  sent. 

The  ramifications  of  such  a  readily  accessible  storehouse  of  electronic 
information  are  astonishing:  other  people  know  more  about  you — even  things 
you  may  not  know  about  yourself — ^than  ever  before.  Data  routinely  collected 
about  you  includes  your  health,  credit,  marital,  educational,  and  employment 
histories;  the  times  and  telephone  numbers  of  every  call  you  make  and  receive; 
the  magazines  to  which  you  subscribe  and  the  books  you  borrow  from  the  library; 
your  cash  withdrawals;  your  purchases  by  credit  card  or  check;  your  electronic 
mail  and  telephone  messages;  and  where  you  go  on  the  World  Wide  Web.^^ 

According  to  a  1994  estimate,  U.S.  computers  alone  held  more  than  five 
billion  records,  trading  information  on  every  man,  woman,  and  child  an  average 
of  five  times  every  day.  Just  one  industry — credit  reporting — ^accounted  for  400 
million  credit  files,  which  are  updated  with  more  than  two  billion  entries  every 
month.^^ 

As  a  result,  a  growing  number  of  citizens  and  lawmakers  in  the  United  States 
and  around  the  world  are  concerned  about  protecting  privacy.  According  to  a 
June- July  1998  Privacy  &  American  Business/Louis  Harris  survey,  eighty-seven 
percent  of  the  1 008  respondents  reported  being  "concerned"  or  "very  concerned" 
about  personal  privacy.  Eighty-two  percent  said  they  had  "lost  all  control  over 
how  personal  information  is  circulated  and  used  by  companies,"  and  sixty-one 
percent  said  that  their  privacy  was  not  protected  adequately  by  law  or  business 


26.  See  Latest  Headcount:   148  Million  Online  (visited  Dec.  1,  1999)  <http://cyberatlas. 
internet.com/big_picture/geographics/cia.html>. 

27.  See  Computer  Industry  Almanac  Inc.,  15  Leading  Countries  in  Internet  Users  Per 
Capita  (visited  Dec.  I,  1999)  <http://www.c-i-a.com/19980319.htm>. 

28.  See  James  Gleick,  Big  Brother  Is  Us,  N.Y.  TIMES,  Sep.  29,  1996,  at  Fl . 

29.  See  142  CONG.  Rec.  SI  1,868  (Sep.  30,  1996)  (statement  of  Sen.  Bryan);  Steven  A. 
Bibas,  A  Contractual  Approach  to  Data  Privacy,  17  Harv.  J.  L.  &  PUB.  POL'Y  591,  593  (1994). 


1 999]  PRIVACY  PROTECTION  1 79 


practices.  Seventy-eight  percent  of  respondents  said  that  they  had  refused  to  give 
out  personal  information  because  of  concern  for  their  privacy.^^  A  Business 
Week/Hams  poll,  released  in  March  1998,  suggests  that  concern  about  privacy 
may  be  escalating.  Seventy-eight  percent  of  the  999  respondents  said  that  they 
would  use  the  Web  more  if  privacy  were  better  protected,  and  fifty  percent  of 
current  Internet  users  responded  that  the  government  should  pass  laws  now  to 
regulate  how  personal  data  is  collected  and  used  on  the  Internet.^'  Surveys  in 
other  nations  yield  similar  results. 

As  Marc  Rotenberg,  Director  of  the  Washington-based  Electronic  Privacy 
Information  Center,  has  observed:  "Privacy  will  be  to  the  information  economy 
of  the  next  century  what  consumer  protection  and  environmental  concerns  have 
been  to  the  industrial  society  of  the  20th  century. "^^ 

Among  the  wide  variety  of  national  and  multinational  legal  regimes  for 
protecting  privacy,  two  dominant  models  have  emerged,  reflecting  two  very 
different  approaches  to  the  control  of  information.  The  European  Union  ("EU") 
has  enacted  a  sweeping  data  protection  directive  that  imposes  significant 
restrictions  on  most  data  collection,  processing,  dissemination,  and  storage 
activities,  not  only  within  Europe,  but  throughout  the  world  if  the  data  originates 
in  a  member  state.  The  United  States  has  taken  a  very  different  approach  that 
extensively  regulates  government  processing  of  data,  while  facilitating  private, 
market-based  initiatives  to  address  private-sector  data  processing. 

The  interaction  between  these  two  systems  is  of  far  more  than  merely 
academic  interest.  The  EU  and  the  United  States  are  each  other's  largest  trading 
partners,  with  total  trade  and  investment  exceeding  $1  trillion  annually. ^^ 
Moreover,  information,  especially  digital  information,  is  inherently  global.  Data 
ignores  national  and  provincial  borders,  and,  unlike  a  truckload  of  steel  or  a 
freight  train  of  coal,  data  is  difficult  to  pinpoint  and  almost  impossible  to  block, 
through  either  legal  or  technological  means.  As  a  result,  the  laws  applicable  to 
information  of  one  nation  or  group  of  nations  inherently  impact  other  nations; 
when  nations  pursue  different  legal  regimes  applicable  to  information,  conflict 
between  those  laws  is  inevitable.  In  the  case  of  the  EU  and  the  United  States, 
that  conflict  implicates  core  values. 

Under  the  EU  data  protection  directive,  information  privacy  is  a  basic  human 
right;  the  failure  of  the  U.S.  legal  system  to  treat  it  as  such  offends  European 
values  and  has  led  the  EU  to  threaten  to  suspend  information  flows  to  the  United 
States.  This  threat  is  understandable  in  light  of  the  directive's  treatment  of 
privacy  as  a  human  right,  and  the  threat  is  necessary  if  the  privacy  of  European 
nationals  is  to  be  protected  effectively  in  a  global  information  economy.  In  the 
United  States,  however,  the  government  is  constitutionally  prohibited  under  the 
First  Amendment  from  interfering  with  the  flow  of  information,  except  in  the 


30.  See  P&AB  Survey  Overview:   Consensual  Marketing  Is  Coming,  Priv.  &  Am.  Bus., 
Jan./Feb.  1999,  at  1,  4-5. 

31.  See  Heather  Green  et  al.,  A  Little  Privacy,  Please,  Bus.  WEEK,  Mar.  1 6,  1 998,  at  98. 

32.  Id;  see  generally  Cate,  supra  note  19,  at  90. 

3  3 .     See  David  L.  Aaron,  Euro-age  Bright  for  US  Firms,  J.  COMMERCE,  Jan.  1 4, 1 999,  at  6A. 


180  INDIANA  LAW  REVIEW  [Vol.  33:173 


most  compelling  circumstances.  The  EU  data  protection  directive  is  plainly 
contrary  to  that  constitutional  maxim,  and  the  suggestion  that  the  directive  should 
be  extended  to  the  United  States  exacerbates  that  conflict,  as  well  as  threatens 
U.S.  leadership  in  information  technologies  and  services. 

This  Article  examines  the  expanding  conflict  and  emerging  compromises 
between  the  EU  and  the  United  States  over  data  protection.  Part  II  briefly 
examines  the  requirements  of  the  EU  directive,  particularly  with  regard  to 
transborder  data  flows;  the  interpretative  statements  of  European  regulators  about 
the  directive's  requirements;  and  implementation  of  the  directive  by  member 
states.  Part  III  examines  the  framework  for  privacy  protection  in  the  United 
States  and  the  limits  imposed  on  that  framework  by  the  Constitution.  The  Article 
concludes  by  addressing  the  conflict  between  the  fundamental  principles 
undergirding  the  European  and  U.S.  systems  of  data  protection,  current  political 
efforts  to  minimize  that  conflict,  and  the  inadequacies  of  both  systems  in  the 
context  of  the  Internet. 

I.  European  Union 

A.  Data  Protection  Directive 

Europe  was  the  site  of  the  first  national  privacy  legislation,  beginning  with 
Sweden  in  1973,  and  today  virtually  all  European  countries  have  broad  privacy 
or  data  protection  statutes.^"*  Those  statutes  have  been  paralleled  and,  in  some 
cases,  anticipated  by  multinational  action.  In  1980  the  Committee  of  Ministers 
of  the  Organization  for  Economic  Cooperation  and  Development  (OECD)^^ 
issued  Guidelines  on  the  Protection  of  Privacy  and  Transborder  Flows  of 
Personal  Data ?^  The  guidelines  outline  basic  principles  for  both  data  protection 
and  the  free  flow  of  information  among  countries  that  have  laws  conforming  with 
the  protection  principles.  The  guidelines,  however,  have  no  binding  force  and 
permit  broad  variation  in  national  implementation. 

One  year  after  the  OECD  issued  its  guidelines,  the  Council  of  Europe 
promulgated  a  convention  For  the  Protection  of  Individuals  with  Regard  to 


34.  In  1970  the  German  state  of  Hesse  enacted  the  first  data  protection  statute;  Sweden 
followed  in  1973  with  the  first  national  statute.  Today,  Austria,  Belgium,  the  Czech  Republic, 
Denmark,  Finland,  France,  Germany,  Greece,  Hungary,  Iceland,  Ireland,  Italy,  Luxembourg,  the 
Netherlands,  Norway,  Portugal,  Spain,  Sweden,  Switzerland,  and  the  United  Kingdom  have  broad 
privacy  or  data  protection  statutes.  See  Cate,  supra  note  19,  at  32-34. 

35.  The  OECD  was  founded  in  1 960  by  20  nations,  including  the  United  States,  "to  promote 
economic  and  social  welfare  throughout  the  OECD  area  by  assisting  member  governments  in  the 
formulation  and  coordination  of  policies;  to  stimulate  and  harmonize  members'  aid  efforts  in  favor 
of  developing  nations;  and  to  contribute  to  the  expansion  of  world  trade."  Robert  C.  Boehmer  & 
Todd  S.  Palmer,  The  1992  EC  Data  Protection  Proposal:  An  Examination  of  Its  Implications  for 
U.S.  Business  and  U.S.  Privacy  Law,  31  AM.  BUS.  L.J.  265,  271  n.33  (1993). 

36.  O.E.C.D.  Doc.  (C  58  final)  (Oct.  1,  1980). 


1 999]  PRIVACY  PROTECTION  1 8 1 


Automatic  Processing  of  Personal  Data?^  The  Convention,  which  took  effect 
in  1985,  is  similar  to  the  Guidelines,  ahhough  it  focuses  more  on  the  importance 
of  data  protection  to  protect  personal  privacy. 

The  resulting  protection  for  personal  privacy  was  far  from  uniform,  for  at 
least  four  reasons.  First,  not  all  of  the  Council  of  Europe  member  states  had 
adopted  implementing  legislation.  In  fact,  by  1992,  only  ten  countries — Austria, 
Denmark,  France,  Germany,  Ireland,  Luxembourg,  Norway,  Spain,  Sweden,  and 
the  United  Kingdom — had  ratified  the  Convention,  while  eight — Belgium, 
Cyprus,  Greece,  Iceland,  Italy,  Netherlands,  Portugal,  and  Turkey — had  signed 
without  ratification.^^  Second,  some  of  the  national  data  protection  legislation 
existed  prior  to  adoption  of  the  Convention.  Third,  the  Convention  was  not  self- 
executing  and  therefore  both  permitted  each  country  to  implement  its  national 
laws  conforming  to  the  Convention's  terms  in  very  different  ways  and  denied 
rights  to  citizens  in  those  countries  which  had  failed  to  ratify  the  convention. 
Finally,  the  Convention  did  not  include  definitions  for  important  terms,  such  as 
what  constitutes  an  "adequate"  level  of  data  protection;  as  a  result,  member 
countries  were  free  to  adopt  inconsistent  definitions  in  their  national  legislation. 

As  a  result  of  the  variation  and  uneven  application  among  national  laws 
permitted  by  both  the  guidelines  and  the  convention,  in  July  1990,  the 
Commission  of  the  then-European  Community  published  a  draft  Council 
Directive  on  the  Protection  of  Individuals  with  Regard  to  the  Processing  of 
Personal  Data  and  on  the  Free  Movement  of  Such  Data.^^  The  draft  directive 
was  part  of  the  ambitious  program  by  the  countries  of  the  EU'*^  to  create  not 
merely  the  "common  markef  and  "economic  and  monetar>'  union"  contemplated 
by  the  Treaty  of  Rome,"*'  but  also  the  political  union  embodied  in  the  Treaty  on 
European  Union  signed  in  1992  in  Maastricht."^^ 

The  shift  from  economic  to  broad-based  political  union  brought  with  it  new 
attention  to  the  protection  of  information  privacy.  On  March  11,1 992,  the 
European  Parliament  amended  the  commission's  proposal  to  eliminate  the 
distinction  in  the  1990  draft  between  public-  and  private-  sector  data  protection 
and  then  overwhelmingly  approved  the  draft  directive.  On  October  15,1 992,  the 
Commission  issued  its  amended  proposal;  on  February  20,  1995,  the  Council  of 


37.  Eur.  T.S.  No.  108  (Jan.  28,  1981). 

38.  See  generally  Joel  R.  Reidenberg,  The  Privacy  Obstacle  Course:  Hurdling  Barriers  to 
Transnational  Financial  Services,  60  FORD.  L.  REV.  SI  37,  SI 43-48  (1992). 

39.  Com(92)422  final-S YN  287  (Oct.  1 5,  1 992). 

40.  The  15  current  members  of  the  EU  are  Austria,  Belgium,  Denmark,  Finland,  France, 
Germany,  Greece,  Ireland,  Italy,  Luxembourg,  the  Netherlands,  Portugal,  Spain,  Sweden,  and  the 
United  Kingdom. 

41 .  Treaty  Establishing  the  European  Economic  Community,  Mar.  25,  1957,  28  U.N.T.S. 
3,  art.  2  (1958),  as  amended  by  the  Single  European  Act,  O.J.  (L  169)  1  (1987),  [1987]  2  C.M.L.R. 
741,  and  the  Treaty  on  European  Union,  Feb.  7,  1992,  O.J.  (C  224)  1  (1992),  [1992]  1  C.M.L.R. 
719,  reprinted  in  31  LL.M.  247  (1992). 

42.  Treaty  on  European  Union,  Feb.  7, 1992,  O.J.  (C224)  1  (1992),  [1992]  1  C.M.L.R.  719, 
reprinted  in  31  I.L.M.  247  (1992). 


182  INDIANA  LAW  REVIEW  [Vol.  33:173 


Ministers  adopted  a  Common  Position  with  a  View  to  Adopting  Directive 
9 4/4 6/ EC  of  the  European  Parliament  and  of  the  Council  on  the  Protection  of 
Individuals  with  Regard  to  the  Processing  of  Personal  Data  and  on  the  Free 
Movement  of  Such  Data^^  The  directive  was  formally  approved  on  October  24, 
1995,  and  took  effect  three  years  later/'*  On  October  25,  1998,  data  protection 
law  became  significantly  stronger  throughout  Europe. 

The  directive  requires  each  of  the  fifteen  EU  member  states  to  enact  laws 
governing  the  "processing  of  personal  data,"  which  the  directive  defines  as  "any 
operation  or  set  of  operations,"  whether  or  not  automated,  including  but  not 
limited  to  "collection,  recording,  organization,  storage,  adaptation  or  alteration, 
retrieval,  consultation,  use,  disclosure  by  transmission,  dissemination  or 
otherwise  making  available,  alignment  or  combination,  blocking,  erasure  or 
destruction.""*^  "Personal  data"  is  defined  equally  broadly  as  "any  information 
relating  to  an  identified  or  identifiable  natural  person."'*^  This  would  include  not 
only  textual  information,  but  also  photographs,  audiovisual  images,  and  sound 
recordings  of  an  identified  or  identifiable  person,  whether  dead  or  alive. 

As  a  practical  matter,  the  directive  does  not  apply  in  only  two  contexts: 
activities  outside  of  the  scope  of  Community  law,  such  as  national  security  and 
criminal  law,  and  the  processing  of  personal  data  that  is  performed  by  a  "natural 
person  in  the  course  of  a  purely  private  and  personal  activity."'*^ 

National  laws  enacted  in  compliance  with  the  directive  must  guarantee  that 
"processing  of  personal  data"  is  accurate,  up-to-date,  relevant,  and  not  excessive. 
Personal  data  may  be  used  only  for  the  legitimate  purposes  for  which  they  were 
collected  and  kept  in  a  form  that  does  not  permit  identification  of  individuals 
longer  than  is  necessary  for  that  purpose.  Personal  data  may  be  processed  only 
with  the  consent  of  the  data  subject,  when  legally  required,  or  to  protect  "the 
public  interesf  or  the  "legitimate  interests"  of  a  private  party,  except  when  those 
interests  are  trumped  by  the  "interests  of  the  data  subject."'*^  The  processing  of 
personal  data  revealing  "racial  or  ethnic  origin,  political  opinions,  religious  or 
philosophical  beliefs,  trade-union  membership,  and  the  processing  of  data 
concerning  health  or  sex  life""*^  is  severely  restricted  and  in  most  cases  forbidden 
without  the  written  permission  of  the  data  subject.^^ 

The  directive  requires  member  states  to  enact  laws  guaranteeing  individuals 
access  to,  and  the  opportunity  to  correct,  processed  information  about  them.  At 
a  minimum,  those  laws  must  permit  data  subjects  "to  obtain,  on  request,  at 


43.  1995  O.J.  (C  93)1. 

44.  See  Directive  95/46/EC  of  the  European  Parliament  and  of  the  Council  on  the  Protection 
of  Individuals  with  Regard  to  the  Processing  of  Personal  Data  and  on  the  Free  Movement  of  Such 
Data  1 995  O.J.  95  (L28 1 )  [hereinafter  Directive  95/46/EC]. 

45.  Id.  art.  2(b). 

46.  Id  art.  2(a). 

47.  Id  art.  3(2). 

48.  Id  art.  7. 

49.  Id  art.  8. 

50.  See  id 


1 999]  PRIVACY  PROTECTION  1 83 


reasonable  intervals  and  without  excessive  delay  or  expense,  confirmation  of  the 
existence  of  personal  data  relating  to  them,  communication  to  them  of  such  data 
in  an  intelligible  form,  an  indication  of  their  source,  and  general  information  on 
their  use."^' 

National  laws  under  the  directive  must  also  permit  data  subjects  to  correct, 
erase  or  block  the  transfer  of  "inaccurate  or  incomplete  data,"^^  and  the 
opportunity  to  object  at  any  time  "on  legitimate  grounds"  to  the  processing  of 
personal  data.^^  The  directive  requires  that  data  subjects  be  offered  the 
opportunity  to  have  personal  data  erased  without  cost  before  they  are  disclosed 
to  third  parties,  or  used  on  their  behalf,  for  direct  mail  marketing. 

Data  processors  must  inform  persons  from  whom  they  intend  to  collect  data, 
or  from  whom  they  have  already  collected  data  without  providing  this  disclosure, 
of  the  purposes  for  the  processing;  the  "obligatory  or  voluntary"  nature  of  any 
reply;  the  consequences  of  failing  to  reply;  the  recipients  or  "categories  of 
recipients"  of  the  data;  and  the  data  subject's  right  of  access  to,  and  opportunity 
to  correct,  data  concerning  her.^'^ 

The  directive  requires  that  data  processors — called  "controllers"  in  the 
directive — notify  the  applicable  national  "supervisory  authority"  before 
beginning  any  data  processing.^^  "Controller"  is  such  a  menacing  term;  under  the 
directive,  "controllers"  include  not  only  giant  data  processing  companies,  but 
also  individuals  who  record  the  names  and  addresses  of  business  contacts  in  their 
data  organizers;  students  operating  web  sites  which  invite  visitors  to  register;  and 
neighborhood  children  who  record  orders  for  Girl  Scout  cookies. 

Under  the  directive,  member  states'  national  laws  must  require  that  the 
notification  include,  at  a  minimum:  the  name  and  address  of  the  controller;  the 
purpose  for  the  processing;  the  categories  of  data  subjects;  a  description  of  the 
data  or  categories  of  data  to  be  processed;  the  third  parties  or  categories  of  third 
parties  to  whom  the  data  might  be  disclosed;  any  proposed  transfers  of  data  to 
other  countries;  and  a  description  of  measures  taken  to  assure  the  security  of  the 
processing.  Controllers  must  also  notify  the  supervisory  authority  of  changes  in 
any  of  the  above  information. 

Each  member  state  must  establish  an  independent  public  authority  to 
supervise  the  protection  of  personal  data.  Each  "supervisory  authority"  must 
have,  at  minimum,  the  power  to  investigate  data  processing  activities,  including 
a  right  of  access  to  the  underlying  data,  as  well  as  the  power  to  intervene  to  order 
the  erasure  of  data  and  the  cessation  of  processing,  and  to  block  proposed 
transfer  of  data  to  third  parties.  The  supervisory  authority  must  also  be 
empowered  to  hear  complaints  from  data  subjects  and  must  issue  a  public  report, 
at  least  annually,  concerning  the  state  of  data  protection  in  the  country.  The 
directive  requires  each  supervisory  authority  to  investigate  data  processing  that 


51.  Mart.  13(1). 

52.  Id.  art.  14(3). 

53.  Id.  art.  15(1). 

54.  Mart.  11(1). 

55.  Id  art.  18(1). 


1 84  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


"poses  specific  risks  to  the  rights  and  freedoms  of  individuals."^^  Each 
supervisory  authority  is  required  to  keep  and  make  available  to  the  public  a 
"register  of  notified  processing  operations."^^ 

The  directive  requires  that  member  states'  laws  provide  for  civil  liability 
against  data  controllers  for  unlawful  processing  activities,  and  provide 
"dissuasive"  penalties  for  noncompliance  with  the  national  laws  adopted 
pursuant  to  the  directive.^^  In  addition  to  requiring  the  supervisory  authority  to 
enforce  those  laws  and  to  hear  complaints  by  data  subjects,  the  directive 
mandates  creation  of  a  "right  of  every  person  to  a  judicial  remedy  for  any  breach 
of  the  rights  guaranteed  by  this  Directive."^^ 

Finally,  and  most  central  in  ongoing  U.S.-EU  discussions  about  data 
protection  and  trade,  Article  25  of  the  directive  requires  member  states  to  enact 
laws  prohibiting  the  transfer  of  personal  data  to  non-member  states  that  fail  to 
ensure  an  "adequate  level  of  protection,"^^  although  member  states  are  forbidden 
from  restricting  the  flow  of  personal  data  among  themselves  because  of  data 
protection  or  privacy  concerns.^*  The  directive  provides  that  the  adequacy  of  the 
protection  offered  by  the  transferee  country  "shall  be  assessed  in  the  light  of  all 
circumstances  surrounding  a  data  transfer,"  including  the  nature  of  the  data,  the 
purpose  and  duration  of  the  proposed  processing,  the  "rules  of  law,  both  general 
and  sectoral,"  in  the  transferee  country  and  the  "professional  rules  and  security 
measures  which  are  complied  with"  in  that  country .^^ 

The  prohibition  in  Article  25  is  subject  to  exemptions,  provided  in  Article  26, 
when  ( 1 )  the  data  subject  has  consented  "unambiguously"  to  the  transfer;  (2)  the 
transfer  is  necessary  to  the  performance  of  a  contract  between  the  data  subject 
and  the  controller  or  of  a  contract  in  the  interest  of  the  data  subject  concluded 
between  the  controller  and  a  third  party;  (3)  the  transfer  is  legally  required  or 
necessary  to  serve  an  "important  public  interest";  (4)  the  transfer  is  necessary  to 
protect  "the  vital  interests  of  the  data  subject;"  or  (5)  the  transfer  is  from  a 
"register  which  according  to  laws  or  regulations  is  intended  to  provide 
information  to  the  public  and  which  is  open  to  consultation  either  by  the  public 
in  general  or  by  any  person  who  can  demonstrate  legitimate  interest.  . .  ."^^ 

Because  of  the  difficulty  of  separating  data  collected  within  Europe  from 
data  collected  elsewhere,  the  directive  effectively  requires  multinational 
businesses  to  conform  all  of  their  data  processing  activities  to  European  law. 
Even  businesses  that  do  not  operate  in  Europe  may  violate  the  directive  if  they 
collect,  process,  or  disseminate  personal  data  about  European  nationals  or  via 
multinational  networks. 


56. 

Id.  art.  18(4). 

57. 

Mart.  21. 

58. 

Id.  arts.  23,  25. 

59. 

Id  art.  22. 

60. 

Mart.  25(1). 

61. 

See  id.  art.  25(2) 

62. 

Id 

63. 

Id  art.  26(1). 

1 999]  PRIVACY  PROTECTION  1 85 


Effective  October  1998,  these  became  the  minimum  levels  of  protection; 
individual  states  have  the  freedom  to  adopt  more  stringent  protection. ^^ 

B.  European  Privacy  Concepts  and  Principles 

The  EU  data  protection  directive  and  national  European  data  protection  laws 
reflect  at  least  eight  broad,  overlapping  principles. 

1.  Purpose  Limitation  Principle. — The  first  principle  of  European  data 
protection  requires  that  information  be  collected  only  for  specific  and  specified 
purposes,  used  only  in  ways  that  are  compatible  with  those  purposes,  and  stored 
no  longer  than  is  necessary  for  those  purposes.  An  important  corollary  to  the 
purpose  limitation  principle  is  that  information  unnecessary  to  those  purposes 
should  not  be  collected.^^ 

2.  Data  Quality  Principle.— ThQ  data  quality  principle  requires  that 
information  be  accurate  and  up-to-date. 

3.  Data  Security  Principle. — The  data  security  principle  requires  that 
measures  appropriate  to  the  risks  involved  be  taken  to  protect  the  security  of  data 
processing  and  transmission.  The  focus  of  this  principle  is  not  only  to  protect  the 
physical  data  from  "accidental  or  unlawful  destruction  or  accidental  loss,"  but 
also  to  ensure  compliance  with  European  laws  prohibiting  "unauthorized 
alteration  or  disclosure  or  any  other  unauthorized  form  of  processing."^^ 

4.  Special  Protection  for  Sensitive  Data  Principle. — The  principle  that 
special  protection  be  provided  for  sensitive  data  requires  that  there  be  restrictions 
on,  and  special  government  scrutiny  of,  data  collection  and  processing  activities 
of  information  identifying  "racial  or  ethnic  origin,  political  opinions,  religious 
beliefs,  philosophical  or  ethical  persuasion  . . .  [or]  concerning  health  or  sexual 
life."^^  Under  the  directive,  such  data  collection  or  processing  is  generally 
forbidden  outright. 

5.  Transparency  Principle. — Guaranteeing  transparent  processing  of 
personal  data  requires  that  processing  activities  "be  structured  in  a  manner  that 
will  be  open  and  understandable."^^  At  minimum,  this  requires  that  individuals 
about  whom  personal  information  is  to  be  collected  be  informed  of  that  fact,  the 
purposes  for  which  the  data  will  be  used,  and  the  identity  of  the  person 


64.  Article  32  permits  member  states  to  delay  compliance  with  the  directive  in  two  areas. 
First,  member  states  may  allow  existing  processing  to  continue  under  current  rules  for  up  to  three 
years  after  the  date  on  which  the  implementing  national  law  or  regulations  come  into  effect.  Second, 
member  states  may  exempt  the  processing  of  data  "already  held  in  manual  filing  systems"  from  the 
application  of  most  substantive  provisions  of  the  directive  until  as  late  as  October  24,  2007. 
However,  during  the  long  transition  to  full  coverage,  individuals  are  to  be  allowed  access  to  manual 
files  concerning  them,  with  the  right  to  demand  correction  or  deletion  of  inaccurate  data.  See  id. 
art.  32. 

65.  See  PAUL  M.  SCHWARTZ  &  Joel  R.  Reidenberg,  Data  Privacy  Law  13-14  (1996). 

66.  Directive  95/46/EC,  supra  note  44,  art.  1 7(  1 ). 

67.  Id.  art.  8. 

68.  Schwartz&Reidenberg,  5M/?ranote65,  at  15. 


1 86  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


responsible  for  the  data  collection.  In  most  cases,  European  law  seems  to 
indicate  that  consent  must  be  obtained  before  personal  information  is  collected 
or  processed. 

6.  Data  Transfers  Principle. — The  data  transfer  principle  restricts  authorized 
users  of  personal  information  from  transferring  that  information  to  third  parties 
without  the  permission  of  the  data  subject.  In  the  case  of  transborder  transfers, 
the  directive  prohibits  data  transfers  outright  to  countries  lacking  an  "adequate 
level  of  protection."^^ 

7.  Independent  Oversight  Principle. — The  last  two  principles  are  closely 
related.  The  independent  oversight  principle  requires  that  there  be  effective  and 
independent  oversight  of  data  processing  activities.  At  minimum,  this  seems  to 
require  that  some  authority  have  the  power  to  audit  data  processing  systems, 
investigate  complaints  brought  by  individuals,  and  enforce  sanctions  against 
noncomplying  data  processors.  Under  the  directive,  that  oversight  includes 
registration  of  all  data  processors  and  collection  and  processing  activities.  As  a 
result,  no  person  in  Europe,  other  than  an  individual  engaged  in  a  "purely  private 
and  personal  activity,"^^  may  collect  information  that  identifies  specific 
individuals  without  the  knowledge  and  permission  of  a  national  government. 

8.  Individual  Redress  Principle. — The  individual  redress  principle  requires 
that  individuals  have  a  right  to  access  their  personal  information,  correct 
inaccurate  information,  and  pursue  legally  enforceable  rights  against  data 
collectors  and  processors  who  fail  to  adhere  to  the  law.  This  principle  seems  to 
require  not  only  that  individuals  have  enforceable  rights  against  data  users,  but 
also  that  individuals  have  recourse  to  courts  or  a  government  agency  to 
investigate  and/or  prosecute  noncompliance  by  data  processors.  The  directive 
would  require  that  individuals  have  the  opportunity  to  have  recourse  to 
independent  government  authorities  empowered  to  investigate  and  prosecute 
complaints. 

With  these  eight  principles,  the  data  protection  directive  marks  the  high- 
water  mark  of  legal  protection  for  information  privacy.  It  is  distinguished  by  its 
breadth  in  the  data,  activities,  and  geographic  area  to  which  it  applies.  It  is  very 
much  a  European  product,  reflecting  the  tenor  of  predecessor  national  data 
protection  laws  and  the  economic  demand  for  a  larger,  more  unified  EU. 

C.  Interpretation  of  the  Directive  by  the  Article  29  Working  Party 

Article  29  of  the  EU  directive  created  a  "Working  Party  on  the  Protection  of 
Individuals  with  regard  to  the  Processing  of  Personal  Data,"  charged  with 
interpreting  key  portions  of  the  directive.^'  The  Working  Party  is  composed  of 
representatives  from  member  states'  data  protection  authorities  and  from  the  EU 
itself  Under  Article  30,  the  Working  Party  is  given  broad  responsibilities, 
including  the  power  to  "give  the  Commission  an  opinion  on  the  level  of 


69.  Directive  95/46/EC,  supra  note  44,  art.  25(  1 ). 

70.  Id.  art.  3(2). 

71.  See  id  art.  29. 


1 999]  PRIVACY  PROTECTION  1 87 


protection  in  . . .  third  countries;"  "on  its  own  initiative,  make  recommendations 
on  all  matters  relating  to  the  protection  of  persons  with  regard  to  the  processing 
of  personal  data  in  the  Community;"  and  "draw  up  an  annual  report  on  the 
situation  regarding  the  protection  of  natural  persons  with  regard  to  the  processing 
of  personal  data  in  the  Community  and  in  third  countries."^^ 

The  Working  Party  met  for  the  first  time  on  January  1 7, 1996,  and  since  that 
time,  under  the  chairmanship  of  Peter  J.  Hustinx,  President  of  the  Dutch  data 
protection  authority,  the  Working  Party  has  focused  extensive  attention  on  data 
transfers  to  non-European  countries  under  Articles  25  and  26.  The  Working 
Party's  conclusions  to  date  are  reflected  in  a  series  of  working  documents,  which 
were  reissued  in  July  1 998  into  a  single  document^^ 

1.  Objectives. — The  Working  Party  has  identified  three  objectives  that  any 
data  protection  system  must  satisfy  to  comply  with  the  directive's  "adequacy" 
requirement: 

1)  deliver  a  good  level  of  compliance  with  the  rules.  (No  system  can 
guarantee  100%  compliance,  but  some  are  better  than  others).  A  good 
system  is  generally  characterized  by  a  high  degree  of  awareness  among 
data  controllers  of  their  obligations,  and  among  data  subjects  of  their 
rights  and  the  means  of  exercising  them.  The  existence  of  effective  and 
dissuasive  sanctions  can  play  an  important  role  in  ensuring  respect  for 
rules,  as  of  course  can  systems  of  direct  verification  by  authorities, 
auditors,  or  independent  data  protection  officials. 

2)  provide  support  and  help  to  individual  data  subjects  in  the  exercise 
of  their  rights.  The  individual  must  be  able  to  enforce  his/her  rights 
rapidly  and  effectively,  and  without  prohibitive  cost.  To  do  so  there 
must  be  some  sort  of  institutional  mechanism  allowing  independent 
investigation  of  complaints. 

3)  provide  appropriate  redress  to  the  injured  party  where  rules  are  not 
complied  with.  This  is  a  key  element  which  must  involve  a  system  of 
independent  adjudication  or  arbitration  which  allows  compensation  to 
be  paid  and  sanctions  imposed  where  appropriate.'''^ 

These  three  objectives  focus  on  the  availability  of  independent  verification, 
investigation,  and  enforcement,  and  of  compensation  and  other  sanctions  for 
failure  to  comply  with  substantive  data  protection  obligations. 

2.  Substantive  Rules. — The  substantive  rules  identified  by  the  Working  Party 
as  a  precondition  to  a  finding  of  "adequacy"  include: 

1)  the  purpose  limitation  principle — data  should  be  processed  for  a 


72.  Id.  arts.  30(1  )(b),  (3),  (6). 

73.  Working  Party  on  the  Protection  of  Individuals  with  Regard  to  the 
Processing  of  Personal  Data,  Working  Document  on  Transfers  of  Personal  Data  to 
Third  Countries:  Applying  Articles  25  and  26  of  the  EU  Data  Protection  Directive  (July 
24, 1998)  [hereinafter  Transfers  of  Personal  Data  to  Third  CountriesI. 

74.  See  id. 


1 88  INDIANA  LAW  REVIEW  [Vol.  33: 1 73 


specific  purpose  and  subsequently  used  or  further  communicated  only 
insofar  as  this  is  not  incompatible  with  the  purpose  of  the  transfer. .  . . 

2)  the  data  quality  and  proportionality  principle — data  should  be 
accurate  and,  where  necessary,  kept  up  to  date.  The  data  should  be 
adequate,  relevant  and  not  excessive  in  relation  to  the  purposes  for 
which  they  are  transferred  or  further  processed. 

3)  the  transparency  principle — individuals  should  be  provided  with 
information  as  to  the  purpose  of  the  processing  and  the  identity  of  the 
data  controller  in  the  third  country,  and  other  information  insofar  as  this 
is  necessary  to  ensure  fairness.  . . . 

4)  the  security  principle — ^technical  and  organizational  security 
measures,  should  be  taken  by  the  data  controller  that  are  appropriate  to 
the  risks  presented  by  the  processing.  Any  person  acting  under  the 
authority  of  the  data  controller,  including  a  processor,  must  not  process 
data  except  on  instructions  from  the  controller. 

5)  the  rights  of  access,  rectification  and  opposition — ^the  data  subject 
should  have  a  right  to  obtain  a  copy  of  all  data  relating  to  him/her  that 
are  processed,  and  a  right  to  rectification  of  those  data  where  they  are 
shown  to  be  inaccurate.  In  certain  situations  he/she  should  also  be  able 
to  object  to  the  processing  of  the  data  relating  to  him/her. . . . 

6)  restrictions  on  onward  transfers — further  transfers  of  the  personal  data 
by  the  recipient  of  the  original  data  transfer  should  be  permitted  only 
where  the  second  recipient  (i.e.,  the  recipient  of  the  onward  transfer)  is 
also  subject  to  rules  affording  an  adequate  level  of  protection. ^^ 

According  to  the  Working  Party,  certain  types  of  data  processing  must  be 
subject  to  additional  controls.  Those  situations  include: 

1)  sensitive  data — where  "sensitive"  categories  of  data  are  involved 
[data  concerning  "racial  or  ethnic  origin,  political  opinions,  religious 
beliefs,  philosophical  or  ethical  persuasion  . . .  [or]  concerning  health  or 
sexual  life"^^]  additional  safeguards  should  be  in  place,  such  as  a 
requirement  that  the  data  subject  gives  his/her  explicit  consent  for  the 
processing. 

2)  direct  marketing — ^where  data  are  transferred  for  the  purposes  of 
direct  marketing,  the  data  subject  should  be  able  to  "opt-out"  from 
having  his/her  data  used  for  such  purposes  at  any  stage. 


75.  Id. 

76.  Directive  95/46/EC,  supra  note  44,  art.  8. 


1 999]  PRIVACY  PROTECTION  1 89 


3)  automated  individual  decision — where  the  purpose  of  the  transfer  is 
the  taking  of  an  automated  decision  in  the  sense  of  Article  1 5  of  the 
directive,  the  individual  should  have  the  right  to  know  the  logic  involved 
in  this  decision,  and  other  measures  should  be  taken  to  safeguard  the 
individual's  legitimate  interest^^ 

3.  Self-regulation. — Recognizing  that  few  if  any  other  countries  provide  the 
level  of  statutory  data  protection  that  the  EU  data  protection  directive  requires, 
the  Working  Party  has  addressed  the  extent  to  which  extra-legal 
mechanisms — particularly  industry  self-regulation  and  private  contracts — may 
satisfy  the  requirements  of  Article  25. 

The  Working  Party  has  defined  self-regulation  as  "any  set  of  data  protection 
rules  applying  to  a  plurality  of  data  controllers  from  the  same  profession  or 
industry  sector,  the  content  of  which  has  been  determined  primarily  by  members 
of  the  industry  or  profession  concerned."^^  The  Working  Party  stressed  that  the 
standard  forjudging  "adequacy"  must  continue  to  be  the  six  substantive  and  three 
procedural  requirements  identified  for  evaluating  data  protection  laws.  Again, 
much  of  the  Working  Party's  discussion  of  self-regulatory  measures  focused  on 
the  importance  of  assuring  independent  verification,  investigation,  and 
enforcement,  and  of  providing  compensation  and  other  sanctions  for  failure  to 
comply  with  substantive  data  protection  obligations.  For  example,  the  Working 
Party  has  concluded  that  "remedial"  sanctions  are  insufficient;  "genuinely 
dissuasive  and  punitive"  sanctions  must  also  be  available  to  provide  an  incentive 
for  future  compliance  with  self-regulatory  standards.  Similarly,  the  Working 
Party  would  require  an  "independent"  arbiter  or  adjudicator,  either  "from  outside 
the  profession  or  sector  concerned"  or,  if  a  body  including  industry 
representatives,  including  at  least  an  equal  number  of  "consumer 
representatives."^^ 

4.  Contracts. — ^As  with  self-regulation,  the  Working  Party  has  stressed  that 
for  a  contract  to  provide  adequate  data  protection,  it  must  comply  with  the  nine 
principles  identified  above.  This,  the  Working  Party  concludes,  is  "a  major 
though  not  impossible  challenge. "^^  Because  of  the  difficulties  inherent  in 
enforcing  contractual  terms  for  data  protection  on  a  party  outside  of  the  EU,  the 
Working  Party  discusses  in  detail  mechanisms  for  maintaining  European 
oversight.  "The  preferred  solution,"  according  to  the  Working  Party, 

would  be  for  the  contract  to  provide  that  the  recipient  of  the  transfer  has 
no  autonomous  decision-making  power  in  respect  of  the  transferred  data, 
or  the  way  in  which  they  are  subsequently  processed.  The  recipient  is 
bound  in  this  case  to  act  solely  under  the  instructions  of  the  transferor, 
and  while  the  data  may  have  been  physically  transferred  outside  of  the 
EU,  decision-making  control  over  the  data  remains  with  the  entity  who 


77.  Transfers  of  Personal  Data  to  Third  Countries,  supra  note  73 . 

78.  Id. 

79.  Id. 

80.  Id 


1 90  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


made  the  transfer  based  in  the  Community.  The  transferor  thus  remains 
the  data  controller,  while  the  recipient  is  simply  a  sub-contracted 
processor.  In  these  circumstances,  because  control  over  the  data  is 
exercised  by  an  entity  established  in  an  EU  Member  State,  the  law  of  the 
Member  State  in  question  will  continue  to  apply  to  the  processing 
carried  out  in  the  third  country,  and  furthermore  the  data  controller  will 
continue  to  be  liable  under  that  Member  State  law  for  any  damage 
caused  as  a  result  of  an  unlawful  processing  operation.^' 

This  describes  few  of  the  situations  in  which  data  are  currently  transferred 
from  one  country  to  another.  However,  the  Working  Party  goes  on  to  consider 
alternatives  for  maintaining  European  oversight  over  such  transfers: 

•  the  transferor,  perhaps  at  the  moment  of  obtaining  the  data  initially 
from  the  data  subject,  could  enter  into  a  separate  contractual  agreement 
with  the  data  subject  stipulating  that  the  transferor  will  remain  liable  for 
any  damage  or  distress  caused  by  the  failure  of  the  recipient  of  a  data 
transfer  to  comply  with  the  agreed  set  of  basic  data  protection 
principles.^^ 

•  a  member  state  could  enact  a  national  law  specifying  continuing 
liability  for  data  controllers  transferring  data  outside  the  Community  for 
damages  incurred  as  a  result  of  the  actions  of  the  recipient  of  the 
transfer.^^ 

•  a  member  state  could  require  a  contractual  term  which  grants  the 
supervisory  authority  of  the  member  state  in  which  transferor  of  the  data 
is  established  a  right  to  inspect,  either  directly  or  through  an  agent,  the 
processing  carried  out  by  the  processor  in  the  third  country.^'* 

•  a  standards  body  or  specialist  auditing  firm  could  be  required  to 
provide  external  verification  of  the  recipient's  processing  activities.^^ 

Despite  the  availability  of  these  and  other  alternatives,  the  Working  Party  is 
openly  skeptical  about  the  practicality  of  using  contracts  to  provide  for  adequate 
data  protection.  The  Working  Party  has  stressed  that  "there  remain  significant 
doubts  as  to  whether  it  is  proper,  practical,  or  indeed  feasible  from  a  resource 
point  of  view,  for  a  supervisory  authority  of  an  EU  Member  State  to  take 
responsibility  for  investigation  and  inspection  of  data  processing  taking  place  in 
a  third  country."^^  In  addition,  all  contracts  with  private  parties  are  subject  to  the 
laws  of  the  countries  in  which  those  parties  are  domiciled.  A  number  of  those 
laws  may  impose  disclosure  obligations  (relating,  for  example,  to  tax  regulations, 
securities  and  commodities  rules,  civil  and  criminal  discovery  orders)  on  private 


81.  /of.  (footnotes  omitted). 

82.  Id. 

83.  Id. 

84.  Id 

85.  Id 

86.  Id 


1 999]  PRIVACY  PROTECTION  1 9 1 


parties  that  clearly  trump  any  contractual  obligations.  The  problem  of  such  an 
overriding  law  "simply  demonstrates  the  limitations  of  the  contractual  approach. 
In  some  cases  a  contract  is  too  frail  an  instrument  to  offer  adequate  data 
protection  safeguards,  and  transfers  to  certain  countries  should  not  be 
authorized."^^ 

5.  Exemptions. — Finally,  the  Working  Party  has  stressed  that  the  exemptions 
from  the  adequacy  requirement,  set  forth  in  Article  26,  are  to  be  construed 
"restrictively."  For  example,  the  Working  Party  has  concluded  that  for  an 
individual  to  consent  to  the  transfer  of  data  concerning  him  or  her  to  a  country 
lacking  adequate  data  protection,  that  consent  must  be  unambiguous,  freely 
given,  specific  to  each  proposed  transfer,  and  informed,  not  just  to  the  nature  of 
the  transfer  but  also  as  to  the  "particular  risks"  posed  by  each  transfer.^^ 

The  Working  Party's  broad  reading  of  Article  25 's  restriction  on  transborder 
transfers  of  personal  data  and  its  narrow  reading  of  the  exemptions  to  that 
restriction  in  Article  26  create  a  high  standard  for  what  constitutes  "adequate" 
data  protection. 

D.  Implementation  of  the  Directive 

The  data  protection  directive — like  all  EU  directives — requires  that  member 
states  enact  statutes  transposing  its  terms  into  national  law.  Those  national  laws 
may  offer  greater,  but  not  less,  protection  than  the  directive,  but  they  may  not 
impose  any  limits  on  the  movement  of  data  among  member  states.  Those  laws 
are  interpreted  in  the  first  instance  by  national  courts.  However,  because  the 
laws  are  carrying  out  the  requirements  of  a  directive,  the  ultimate  judicial 
interpreter  of  the  national  laws  is  the  European  Court  of  Justice.  Members  states 
which  fail  to  comply  by  the  effective  date  of  the  directive  can  be  sanctioned  by 
the  EU.  Moreover,  in  certain  circumstances,  the  terms  of  the  directive  may  come 
into  force  directly,  so  that  citizens  are  not  denied  the  protection  guaranteed  to 
them  by  the  directive. 

To  date,  only  five  EU  member  states — Greece,  Italy,  Portugal,  Sweden,  and 
the  United  Kingdom— have  enacted  national  laws  to  comply  with  the  directive, 
although  laws  are  pending  in  most  other  member  states. ^^   Most  of  the  other 


87.  Id. 

88.  See  id. 

89.  The  Second  Annual  Report  of  the  EU  Working  Party  on  the  Protection  of 
Individuals  with  Regard  to  the  Processing  of  Personal  Data,  adopted  on  November  30, 
1 998,  summarized  progress  towards  implementing  the  directive  in  national  legislation  in  other 
member  states  as  follows: 

In  Belgium,  the  Bill  to  transpose  the  directive,  revised  following  the  opinion  of  the 
Council  of  State,  was  submitted  to  Parliament  in  April  1998. 

In  Denmark,  the  Bill  was  submitted  on  30  April  1998,  and  Parliament  finished  its 
first  reading  in  June. 

In  Spain,  the  preliminary  Bill  amending  current  legislation  on  data  protection 
(organic  law  5/1992)  was  submitted  to  the  Council  of  State  for  opinions  and  should  be 


192  INDIANA  LAW  REVIEW  [Vol.  33:173 


member  states  are  expected  to  have  enacted  laws  transposing  the  directive  by 
2000,  and  it  must  be  remembered  that  each  of  the  member  states  which  has  not 
yet  transposed  the  directive  into  national  law  nonetheless  has  an  existing  data 
protection  law  still  in  force. 

In  the  five  countries  that  have  implemented  the  law  to  date,  the  newly 
adopted  national  data  protection  laws  have  included  a  number  of  provisions 
affecting  both  the  substantive  level  of  data  protection  in  each  country  and  the 
ease  of  complying  with  each  country's  laws,  particularly  with  regard  to 
transborder  data  flow.  A  quick  survey  of  three  of  these  laws  provides  a  number 
of  important  examples. 

Sweden's  new  Personal  Data  Protection  Act,  which  was  enacted  on  April  29, 


discussed  by  Parliament  during  summer  1998;  however,  most  of  the  provisions  have 
already  been  transposed  by  the  "Ley  Organica"  5/1992  of  29  October  1992  on  the 
automatic  processing  of  personal  data 

In  Germany,  ....  [t]he  Ministry  of  Interior  .  .  .  submitted  a  bill  on  1  December 
1997,  on  which  the  Federal  Data  Protection  Commissioner  made  comments  on  30 
January  1998.  A  new  bill  of  8  April  1998  has  not  been  dealt  with  further  because  of  the 
national  election  on  27  September  1998.  Due  to  the  constitutional  principle  of 
incontinuity  of  legislation,  a  new  draft  bill  has  to  be  submitted  to  the  Parliament  in  the 
new  legislative  period. . . . 

In  France,  a  report  was  sent  to  the  Prime  Minister  in  March  1998  and  will  be 
followed  by  a  new  report  on  telematic  networks.  The  French  authority  responsible  for 
data  protection,  the  Commission  Nationale  de  I'Informatique  et  des  Libertes  (CNIL)  will 
be  consulted  concerning  the  preliminary  bill,  which  was  not  however  available  at  the 
time  of  the  drafting  of  this  report. 

In  Ireland,  the  Justice  Minister  is  responsible  for  legislation  on  data  protection. 
The  legislation  necessary  to  apply  the  directive,  which  will  include  amendments  to  the 
law  of  1988  on  data  protection,  is  being  drafted. . . . 

In  Luxembourg,  transposition  of  the  directive  into  national  law  falls  to  the  Ministry 
of  Justice.  A  bill  was  drawn  up  in  1997,  but  was  later  withdrawn.  A  new  bill  will  be 
examined  by  Parliament  in  September  1998. 

The  Netherlands  government  had  announced  its  intention  to  replace  the  current  law 
on  data  protection,  in  force  since  1  July  1989,  with  an  entirely  new  law  on  the  same 
subject,  in  accordance  with  the  provisions  of  the  directive.  On  1 6  February  1 998,  a  bill 
was  submitted  to  Parliament  to  that  end.  The  relevant  parliamentary  subcommittee  gave 
its  opinion  in  June  1 998,  and  the  debate  in  plenary  session  is  expected  to  take  place 
before  the  end  of  this  year. 

The  Austrian  federal  chancellery  (Osterreichisches  Bundeskanzleramt)  prepared 
a  draft  for  transposition  of  the  directive  into  national  law,  which  was  examined  by  the 
Council  responsible  for  data  protection;  a  revised  version  should  be  submitted  to 
Parliament  in  autumn  1998.  . .  . 

In  Finland,  an  ad  hoc  committee  responsible  for  the  transposition  of  the  directive 
(Henkilotietotoimikunta)  completed  its  work  in  1997.    The  bill  was  submitted  to 

Parliament  in  July  1998 

Id. 


1 999]  PRIVACY  PROTECTION  1 93 


1998,  and  took  effect  on  October  24,  1998,  effectively  abandons  mandatory 
registration  of  data  processing  activities.  After  twenty-five  years'  experience 
with  such  a  system — the  longest  in  Europe — Sweden  concluded  that  such 
registration  was  burdensome  and  unnecessary  for  effective  protection  of  privacy 
rights.  Instead,  the  new  Swedish  law  allows  data  processors  to  avoid  registration 
if  they  appoint  a  "personal  data  representative."  The  personal  data 
representative,  usually  a  lawyer,  "shall  have  the  function  of  independently 
ensuring  that  the  controller  of  personal  data  processes  personal  data  in  a  lawful 
and  correct  manner  and  in  accordance  with  good  practice  and  also  points  out  any 
inadequacies  to  him  or  her."^^  The  personal  data  representative  must  also  help 
aggrieved  data  subjects  seek  resolution  of  their  complaints  with  the  data 
processor.  Once  the  data  processor  has  informed  the  supervisory  authority  of  the 
name  and  address  of  its  personal  data  representative,  further  recourse  to  the 
supervisory  authority  is  necessary  only  if  the  personal  data  representative  does 
not  believe  that  the  data  processor  is  in  compliance  with  the  national  law  or 
cannot  achieve  successful  resolution  of  a  data  subject's  complaint.  This 
provision  promises  to  streamline  the  process  of  complying  with  the  national  law 
and  effectively  eliminate  registration  with  the  national  authority  as  a  condition 
of  processing  personal  data. 

Similarly,  Sweden  has  determined  to  allow  "research  ethics 
committees" — Institutional  Review  Boards  in  the  United  States — ^at  hospitals  and 
universities  to  handle  all  data  protection  functions  related  to  data  involved  in  the 
studies  and  protocols  those  IRBs  approve.^'  The  national  supervisory  authority 
will  effectively  have  no  role  with  regard  to  such  data,  other  than  its  judicial  role 
(i.e.,  hearing  complaints),  thereby  avoiding  having  data  protection  issues 
addressed  by  two  separate  regulatory  authorities — ^the  supervisory  authority  and 
an  IRB. 

At  the  same  time,  while  Sweden  has  reduced  the  burden  of  complying  with 
its  national  data  protection  law,  it  has  also  shown  that  it  is  serious  about  data 
protection.  For  example,  the  Swedish  data  protection  commissioner,  Anitha 
Bondestam,  has  required  American  Airlines  to  obtain  the  "explicit  consent"  of 
Swedish  passengers  before  recording  information  concerning  their  meal 
preferences  or  requests  for  wheelchairs  or  other  assistance  in  American's  Sabre 
reservation  system.  Commissioner  Bondestam  reasoned  that  the  data  were 
especially  sensitive  because  they  could  reveal  health  or  religious  information. 
American  has  lost  two  judicial  appeals;  the  matter  is  now  before  the  Swedish 
Supreme  Court.^^ 

Sweden's  new  law  also  prohibits  outright  the  processing  of  personal  data 
"concerning  legal  offences  involving  crime,  judgments  in  criminal  cases, 
coercive  penal  procedural  measures  or  administrative  deprivation  of  liberty"  by 


90.  Swedish  Personal  Data  Act  ( 1 998:204),  art.  37. 

91.  See  id.  art.  \9. 

92.  See  American  Airlines  v.  Sabre.  Kammarratan  i  Stockholm  (Administrative  Court  of 
Appeals,  Stockholm),  Apr.  1997. 


194  INDIANA  LAW  REVIEW  [Vol.  33:173 


anyone  other  than  a  public  authority .^^  However,  the  law  exempts  from  this 
prohibition  and  most  of  its  other  substantive  restrictions  processing  of  personal 
data  "exclusively  for  journalistic  purposes  or  artistic  or  literary  expression" — an 
exception  that  is  far  broader  than  that  contained  in  the  directive  itself.^"^ 

Italy,  by  contrast,  was  a  comparative  latecomer  to  European- style  data 
protection.  However,  in  January  1997  Italy  enacted  a  sweeping  law 
implementing  the  directive — the  Protection  of  Individuals  and  Legal  Persons 
Regarding  the  Processing  of  Personal  Data  Act.  This  law,  which  took  effect  on 
May  8,  1 997,  defines  "personal  data"  as  "any  information  relating  to  natural  or 
legal  persons,  bodies  or  associations  that  are  or  can  be  identified,  even  indirectly, 
by  reference  to  any  other  information  including  by  a  personal  identification 
number[.]"^^  This  definition  is  broader  than  the  directive's,  which  only  applies 
to  natural  persons,  and  clearly  encompasses  even  encrypted  or  anonym ized  data 
that  "can  be  identified,  even  indirectly,  by  reference  to  any  other 
information[.]"'^ 

The  Italian  law  specifies  that  consent  for  the  processing  of  sensitive  data 
must  be  in  writing  and  that  such  processing  must  be  specially  authorized  by  the 
national  government's  supervisory  authority  which  is  a  much  broader  restriction 
than  that  contained  in  the  directive.^^  The  law's  disfavor  for  the  processing  of 
such  personal  data  is  further  reflected  in  the  provision  specifying  that  if  the 
supervisory  authority  fails  to  respond  within  thirty  days  to  a  request  for 
authorization  to  process  sensitive  data,  the  request  "shall  be  considered  to  have 
been  dismissed. "^^ 

The  Italian  data  protection  law  contains  a  stronger  restriction  on  data  export 
than  that  required  by  the  directive.  The  law  requires  that  the  exporter  notify  the 
supervisory  authority  of  any  proposed  transfer  of  data  outside  of  EU  member 
states,  whether  "temporarily  or  not,  in  any  form,  and  by  any  means  whatsoever," 
not  less  than  fifteen  days  before  the  proposed  transfer.  Where  sensitive  data  are 
involved,  the  notification  is  required  for  transfer  even  to  other  EU  member  states 
and  must  take  place  at  least  twenty  days  before  the  proposed  transfer.^^ 

As  in  the  directive,  transfers  are  prohibited  to  countries  which  do  not  provide 
adequate  data  protection.  However,  for  transfers  involving  sensitive  data,  the  law 
requires  that  the  protection  must  be  "equal  to  that  ensured  by  Italian  laws."'^°  As 
a  result,  to  transfer  data  revealing  "racial  or  ethnic  origin,  political  opinions, 
religious  or  philosophical  beliefs,  trade-union  membership, . . .  [or]  concerning 
health  or  sex  life,"  the  transferor  would  have  to  demonstrate  that  the  destination 


93.  Swedish  Personal  Data  Act,  supra  note  90,  art.  21 . 

94.  Id  ait.  1. 

95.  Protection  of  Individuals  and  Legal  Persons  Regarding  the  Processing  of  Personal  Data 
Act  (1998),  art.  l(2)(c)  (It.). 

96.  Id.  art. 

97.  See  id  an.  2\. 

98.  Id  art.  22(2). 

99.  See  id  arts.  2S(\)-i2). 
100.  /6/.  art.  28(3). 


1999]  PRIVACY  PROTECTION  195 


country  offers  equivalent,  not  merely  adequate,  data  protection.  This  was  the 
language  originally  considered,  but  later  rejected  as  too  stringent,  for  the  EU 
directive. 

The  United  Kingdom's  new  Data  Protection  Act,'^'  which  received  the  Royal 
Assent  on  July  16,  1998,  but  is  not  expected  to  be  brought  into  effect  by  the 
government  until  at  least  April  1999,  is  perhaps  the  most  different  of  the  five 
national  laws  transposing  the  directive.  While  Sweden,  Italy,  Greece,  and 
Portugal  enacted  laws  largely  mirroring  the  broad  style  and  structure  of  the 
directive — often  referred  to  as  "framework"  legislation,  because  of  the  need  for 
subsequent  legislation  or  regulations  to  provide  necessary  detail — ^the  United 
Kingdom  adopted  a  lengthy,  extraordinarily  detailed  law  that  leaves  few 
questions  unaddressed.  Running  to  more  than  100  pages  and  including  seventy- 
five  articles  and  sixteen  schedules  (four  times  longer  than  any  of  the  other 
national  laws),  the  U.K.  law  includes  detailed  provisions  on  all  of  the  subjects 
covered  by  the  EU  data  protection  directive,  as  well  as  jurisdictional  issues,  the 
administration  of  the  new  law,  and  the  interaction  of  various  government  offices. 
The  law  even  includes  specific  sections  on  direct  marketing  and  credit  reports, 
and  detailed  exemptions  from  specific  sections  of  the  law  for  "national  security," 
"crime  and  taxation,"  "health,  education  and  social  work,"  "regulatory  activity," 
"journalism,  literature  and  art,"  "research,  history  and  statistics,"  "information 
available  to  the  public  or  under  enactment,  "disclosures  required  by  law  or  made 
in  connection  with  legal  proceedings  etc.,"  "domestic  purposes,"  and 
"miscellaneous  exemptions;"  the  law  empowers  the  Secretary  of  State  to 
promulgate  additional  exemptions. '°^ 

The  likely  effect  of  this  level  of  detail  is  not  necessarily  to  change  the  level 
of  protection  afforded  privacy,  but  rather  to  provide  a  statute  that  is  difficult  to 
understand  without  legal  assistance,  but  that  leaves  fewer  important  matters  to 
the  discretion  of  the  national  supervisory  authority. 

As  the  examples  of  Sweden,  Italy,  and  the  United  Kingdom  suggest,  the 
process  of  transposing  the  directive  into  national  law  introduces  significant 
differences  in  the  legal  standards  applicable  to  the  processing  of  personal  data  in 
each  member  state.  This  is  a  far  cry  from  the  uniform  data  protection  standards 
anticipated  by  the  directive's  proponents.  These  variations  in  protection  are  of 
comparatively  minor  concern  to  European  data  processors  because  the  directive 
forbids  outright  one  member  state  from  interfering  with  the  flow  of  personal  data 
to  another  member  state,  no  matter  how  much  their  national  laws  may  differ.  But 
the  variety  of  national  data  protection  standards  heightens  the  concerns  of  non- 
European  data  processors,  who  anticipate  having  to  comply  separately  with  the 
national  law  of  each  member  state  from  which  they  wish  to  export,  or  about 
whose  citizens  they  process,  personal  data. 


101.  Data  Protection  Act,  1 998  ( 1 998  Chapter  29)  (UK). 

102.  Id.  arts.  28-38. 


196  INDIANA  LAW  REVIEW  [Vol.  33:173 


II.  United  States 

When  compared  with  the  omnibus,  centralized  data  protection  of  the  EU 
directive  and  member  states'  national  laws,  U.S.  privacy  protection  stands  in 
stark  contrast  and  to  some  observers  seems  to  pale  altogether.  The  novelty  and 
urgency  of  the  recent  surge  of  attention  to  privacy  in  the  United  States  may 
appear  to  lend  credence  to  this  view.  This  section  addresses  the  extent  of  privacy 
protection  in  the  United  States  by  first  surveying  the  major  legal  protections  for 
privacy,  and  then  considering  the  principles  that  both  undergird  that  protection 
and  impose  limits  on  it. 

A.  Constitutional  Framework 

In  the  United  States,  there  is  no  explicit  constitutional  guarantee  of  a  right  to 
privacy.  The  Supreme  Court,  however,  has  interpreted  many  of  the  amendments 
constituting  the  Bill  of  Rights  to  provide  some  protection  to  a  variety  of  elements 
of  individual  privacy  against  intrusive  government  activities.  ^^^ 

None  of  these  provisions  refer  to  privacy  explicitly,  and  the  circumstances 
in  which  privacy  rights  are  implicated  are  as  widely  varied  as  the  constitutional 
sources  of  those  rights.  Moreover,  it  must  be  remembered  that  constitutional 
rights  protect  only  against  state  action  and  are  generally  "negative"  in  nature. '^"^ 
As  a  result,  any  constitutional  concept  of  "privacy"  applies  only  against  the 
government  and  at  most  requires  that  the  government  refrain  from  taking  actions 
which  impermissibly  invade  privacy. 

7.  Expression,  Association,  and  Religion. — The  Court  has  identified  a 
number  of  privacy  interests  implicit  in  the  First  Amendment. '°^  In  NAACP  v. 
Alabama,^^^  the  U.S.  Supreme  Court  struck  down  an  Alabama  ordinance 
requiring  the  NAACP  to  disclose  its  membership  lists,  finding  that  such  a 
requirement  constituted  an  unconstitutional  infringement  on  NAACP  members' 
First  Amendment  right  of  association. '^^  In  Breard  v.  City  of  Alexandria, ^^^  the 
Court  upheld  an  ordinance  prohibiting  solicitation  of  private  residences  without 


1 03 .  See  Cate,  supra  note  1 9,  at  49-66. 

1 04.  Only  the  Thirteenth  Amendment,  which  prohibits  slavery,  applies  to  private  parties.  See 
Clyatt  V.  United  States,  197  U.S.  207, 216-220  (1905).  Although  state  action  is  usually  found  when 
the  state  acts  toward  a  private  person,  the  Supreme  Court  has  also  found  state  action  when  the  state 
affords  a  legal  right  to  one  private  party  which  impinges  on  the  constitutional  rights  of  another,  see 
New  York  Times  Co.  v.  Sullivan,  376  U.S.  264,  265  (1964),  and  in  rare  cases  when  a  private  party 
undertakes  a  traditionally  public  function,  see  Marsh  v.  Alabama,  326  U.S.  501  (1946),  or  when 
the  activities  of  the  state  and  a  private  entity  are  sufficiently  intertwined  to  render  the  private 
parties'  activities  public,  see  Evans  v.  Newtown,  382  U.S.  296  (1966). 

105.  "Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  prohibiting  the 
free  exercise  thereof;  or  abridging  the  freedom  of  speech,  or  of  the  press;  or  the  right  of  the  people 
peaceable  to  assemble  .  .  .  ."  U.S.  CONST,  amend.  I. 

106.  357  U.S.  449(1958). 

107.  ^-ee /V/.  at  464-65. 

108.  341  U.S.  622(1951). 


1 999]  PRIVACY  PROTECTION  1 97 


prior  permission.  The  Court  found  in  the  First  Amendment's  free  speech 
guarantee  an  implicit  balance  between  "some  householders'  desire  for  privacy 
and  the  publisher's  right  to  distribute  publications  in  the  precise  way  that  those 
soliciting  for  him  think  brings  the  best  results."'^^  The  Court  has  invoked  this 
same  implied  balancing  test  is  numerous  other  cases.  In  Kovacs  v.  Cooper, ^^^  the 
Court  upheld  a  Trenton,  New  Jersey,  ordinance  prohibiting  the  use  of  sound 
trucks  and  loudspeakers: 

The  unwilling  listener  is  not  like  the  passer-by  who  may  be  offered  a 
pamphlet  in  the  street  but  cannot  be  made  to  take  it.  In  his  home  or  on 
the  street  he  is  practically  helpless  to  escape  this  interference  with  his 
privacy  by  loudspeakers  except  through  the  protection  of  the 
municipality."' 

In  Rowan  v.  U.S.  Post  Ojfice^^^  the  Court  upheld  a  federal  statute  which 
permitted  homeowners  to  specify  that  the  Post  Office  not  deliver  to  their  homes 
"erotically  arousing"  and  "sexually  provocative"  mail."^  In  Federal 
Communications  Commission  v.  Pacifica  Foundation,^ ^^  the  Court  allowed  the 
Federal  Communications  Commission  to  sanction  a  radio  station  for  broadcasting 
"indecent"  programming,  fmding  that  "the  individual's  right  to  be  left  alone 
plainly  outweighs  the  First  Amendment  rights  of  an  intruder.""^  In  Frisby  v. 
Schultz,^^^  the  Court  upheld  a  Brookfield,  Wisconsin  statute  that  banned  all 
residential  picketing,  writing  that  the  home  was  "the  one  retreat  to  which  men 
and  women  can  repair  to  escape  from  the  tribulations  of  their  daily  pursuits"''^ 
and  "the  last  citadel  of  the  tired,  the  weary,  and  the  sick.""*  In  Carey  v. 
Brown,^^^  the  Court  wrote  that  "the  State's  interest  in  protecting  the  well-being, 
tranquility,  and  privacy  of  the  home  is  certainly  of  the  highest  order  in  a  free  and 
civilized  society ."'^^ 

Although  the  Court  rarely  specifies  the  source  of  these  privacy  rights,  it  treats 
them  as  values  implicitly  balanced  with  the  First  Amendment  right  to  free 


109.  /^.  at  644. 

110.  336  U.S.  77(1949). 

111.  Mat  86-87. 

112.  397  U.S.  728(1970). 

113.  Mat  729-30. 

114.  438  U.S.  726(1978). 

115.  /c/.  at  748. 

116.  487  U.S.  474(1988). 

117.  Id.  at  484  (quoting  Carey  v.  Brown,  447  U.S.  455  (1980)). 

118.  Id.  (quoting  Gregory  v.  City  of  Chicago,  394  U.S.  Ill,  125  (1969)  (Black,  J., 
concurring)). 

1 19.  447  U.S.  455  (1980).  The  Court  in  Carey  struck  down  the  Illinois  ordinance  at  issue 
that  prohibited  residential  picketing,  on  the  grounds  that  the  ordinance  excluded  labor  picketing. 
See  id.  at  470. 

120.  Mat  471. 


198  INDIANA  LAW  REVIEW  [Vol.  33:173 


expression.  In  Stanley  v.  Georgia,^^^  however,  the  Court  explicitly  linked  privacy 
and  free  expression  by  identifying  the  mutual  interests  that  they  serve.  The  Court 
overturned  a  conviction  under  Georgia  law  for  possessing  obscene  material  in  the 
home.  While  the  "States  retain  broad  power  to  regulate  obscenity,"  Justice 
Marshall  wrote  for  the  unanimous  Court,  "that  power  simply  does  not  extend  to 
mere  possession  by  the  individual  in  the  privacy  of  his  own  home."'^^  The  Court 
based  its  decision  squarely  on  the  First  Amendment,  which  the  Court  found 
included  the  "right  to  be  free,  except  in  very  limited  circumstances,  from 
unwanted  governmental  intrusion  into  one's  privacy. "'^^  The  Court  concluded: 
"If  the  First  Amendment  means  anything,  it  means  that  a  State  has  no  business 
telling  a  man,  sitting  alone  in  his  own  house,  what  books  he  may  read  or  what 
films  he  may  watch.  Our  whole  constitutional  heritage  rebels  at  the  thought  of 
giving  government  the  power  to  control  men's  minds."'^"* 

2.  Searches  and  Seizures. — Most  of  the  Supreme  Court's  jurisprudence 
concerning  a  constitutional  right  to  privacy  has  centered  on  the  Fourth 
Amendment's  prohibition  on  unreasonable  searches  and  seizures. '^^  This 
prohibition  reflects  two  deeply  rooted  concerns:  that  citizens'  property  be 
protected  from  seizure  by  the  government  and  that  citizens'  homes  and  persons 
be  protected  from  warrantless  or  arbitrary  searches.  These  concerns  are  reflected 
in  the  Declaration  of  Independence  and  many  of  the  colonial  debates  and 
writings,  as  well  as  in  the  Constitution.  In  1 886,  the  Supreme  Court  first  applied 
the  term  "priva[cy]"  to  the  interests  protected  by  the  Fourth  Amendment. '^^  Four 
years  later.  Supreme  Court  Justice  Louis  Brandeis  joined  forces  with  Samuel 
Warren  to  articulate  "The  Right  to  Privacy"  in  the  Harvard  Law  Review. ^^^ 
Justice  Brandeis  boldly  stated  his  views  on  privacy  in  his  1928  dissent  in 
Olmsteadv.  United  States. ^^^  Five  of  the  nine  justices  had  found  that  wiretapping 
of  telephone  wires  by  federal  officials  did  not  constitute  a  search  or  seizure 
because  there  had  been  no  physical  trespass  and  nothing  tangible  had  been  taken. 
Justice  Brandeis  wrote: 


121.  394  U.S.  557(1969). 

122.  Mat  568. 

123.  Mat  564. 

124.  Mat  565. 

125.  The  Fourth  Amendment  provides: 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and  effects,  against 
unreasonable  searches  and  seizures,  shall  not  be  violated,  and  no  Warrants  shall  issue, 
but  upon  probable  cause,  supported  by  Oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  persons  or  things  to  be  seized. 
U.S.  Const,  amend.  IV. 

126.  Boyd  v.  United  States,  1 16  U.S.  616,  625-26  (1886). 

127.  Samuel  D.  Warren  &  Louis  D.  Brandeis,  The  Right  to  Privacy,  4  Harv.  L.  Rev.  193 
(1890). 

128.  277  U.S.  438(1928). 


1 999]  PRIVACY  PROTECTION  1 99 


The  protection  guaranteed  by  the  [Fourth  and  Fifth '^^]  Amendments  is 
much  broader  in  scope.  The  makers  of  our  Constitution  undertook  to 
secure  conditions  favorable  to  the  pursuit  of  happiness.  They  recognized 
the  significance  of  man's  spiritual  nature,  of  his  feelings  and  of  his 
intellect.  They  knew  that  only  a  part  of  the  pain,  pleasure  and 
satisfactions  of  life  are  to  be  found  in  material  things.  They  sought  to 
protect  Americans  in  their  beliefs,  their  thoughts,  their  emotions  and 
their  sensations.  They  conferred,  as  against  the  Government,  the  right 
to  be  let  alone — the  most  comprehensive  of  rights  and  the  right  most 
valued  by  civilized  men.  To  protect  that  right,  every  unjustifiable 
intrusion  by  the  Government  upon  the  privacy  of  the  individual, 
whatever  the  means  employed,  must  be  deemed  a  violation  of  the  Fourth 
Amendment.  And  the  use,  as  evidence  in  a  criminal  proceeding,  of  facts 
ascertained  by  such  intrusion  must  be  deemed  a  violation  of  the  Fifth. '^^ 

Almost  forty  years  later,  the  Court  adopted  Justice  Brandeis'  reasoning  in 
Katz  V.  United  States }^^  The  case  addressed  the  constitutionality  of  federal 
authorities'  use  of  an  electronic  listening  device  attached  to  the  outside  of  a 
telephone  booth  used  by  Charles  Katz,  who  the  authorities  suspected  of  violating 
gambling  laws.  The  Court  found  that  this  method  of  gathering  evidence 
infringed  on  Katz'  Fourth  Amendment  rights,  even  though  his  property  had  not 
been  invaded. *^^  The  Court  found  that  the  Constitution  protects  whatever  one 
"seeks  to  preserve  as  private,  even  in  an  area  accessible  to  the  public. . .  ."'^^  In 
his  concurrence.  Justice  Harlan  introduced  what  was  later  to  become  the  Court's 
test  for  what  was  "private"  within  the  meaning  of  the  Fourth  Amendment.  ^^"^ 
Justice  Harlan  wrote  that  the  protected  zone  of  Fourth  Amendment  privacy  was 
defined  by  the  individual's  "actual,"  subjective  expectation  of  privacy,  and  the 
extent  to  which  that  expectation  was  "one  that  society  was  prepared  to  recognize 
as  'reasonable. '"^^^  The  Court  adopted  that  test  in  1968  and  continues  to  apply 
it  today,  with  somewhat  uneven  results. ^^^  The  Court  has  found  "reasonable" 
expectations  of  privacy  in  homes,  businesses,  sealed  luggage  and  packages,  and 
even  drums  of  chemicals,  but  no  "reasonable"  expectations  of  privacy  in  bank 
records,  voice  or  writing  samples,  phone  numbers,  conversations  recorded  by 
concealed  microphones,  and  automobile  passenger  compartments,  trunks,  and 


129.  "No  person  shall ...  be  deprived  of  life,  liberty,  or  property,  without  due  process  of 
law  . .  ."  U.S.  Const,  amend.  V. 

1 30.  Olmstead,  277  U.S.  at  478-79  (Brandeis,  J.,  concurring). 

131.  389  U.S.  347(1967). 

132.  See  id  3X353. 

133.  Mat  351. 

134.  See  id.  at  360-61  (Harlan,  J.,  concurring). 

135.  Id.  at  361  (Harlan,  J.,  concurring). 

136.  See,  e.g.,  Terry  v.  Ohio,  392  U.S.  1,  9  (1968);  Smith  v.  Maryland,  442  U.S.  735,  740 
(1979). 


200  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


glove  boxes. '^^ 

3.  Fundamental  Decision-making. — The  U.S.  Supreme  Court's  most 
controversial  constitutional  right  to  privacy  has  developed  within  a  series  of 
cases  involving  decisionmaking  about  contraception,  abortion,  and  other 
profoundly  personal  issues.  In  1965,  the  Court  decided  in  Griswold  v. 
Connecticut^^^  that  an  eighty-year-old  Connecticut  law  forbidding  the  use  of 
contraceptives  violated  the  constitutional  right  to  "marital  privacy."'^^  Justice 
Douglas,  writing  for  the  Court,  offered  a  variety  of  constitutional  loci  for  this 
right: 

Various  guarantees  create  zones  of  privacy.   The  right  of  association 

contained  in  the  penumbra  of  the  First  Amendment  is  one The  Third 

Amendment  in  its  prohibition  against  the  quartering  of  soldiers  "in  any 
house"  in  time  of  peace  without  the  consent  of  the  owner  is  another  facet 
of  that  privacy.  The  Fourth  Amendment  explicitly  affirms  the  "right  of 
the  people  to  be  secure  in  their  persons,  houses,  papers,  and  effects, 
against  unreasonable  searches  and  seizures."  The  Fifth  Amendment  in 
its  Self-incrimination  Clause  enables  the  citizen  to  create  a  zone  of 
privacy  which  government  may  not  force  him  to  surrender  to  his 
detriment.  The  Ninth  Amendment  provides:  "The  enumeration  in  the 
Constitution,  of  certain  rights,  shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people."''^^ 

But  the  Court  could  not  specifically  identify  a  constitutional  basis  for  the 
right  to  marital  privacy.  Instead,  Justice  Douglas  wrote  that  the  "specific 
guarantees  in  the  Bill  of  Rights  have  penumbras,  formed  by  emanations  from 
those  guarantees  that  help  give  them  life  and  substance."''*'  It  was  in  these 
"penumbras,  formed  by  emanations"  that  the  Court  grounded  this  new  right. '"^^ 

Eight  years  later,  the  Court  extended  this  privacy  right  in  Roe  v.  Wade^^^  to 
encompass  "a  woman's  decision  whether  or  not  to  terminate  her  pregnancy."''*'* 
Rather  than  base  that  right,  directly  or  indirectly,  on  one  or  more  of  the 
specific  guarantees  of  the  Bill  of  Rights,  the  Court  looked  instead  to  "the 
Fourteenth  Amendment's  concept  of  personal  liberty  and  restrictions  upon  state 
action "'"^^  Notwithstanding  this  broad  foundation,  however,  the  Court  in  Roe 


137.  See  Ken  Gormley,  One  Hundred  Years  of  Privacy,  1992  Wis.  L.  REV.  1335,  1368-70 
(1992). 

138.  381  U.S.  479(1965). 

139.  /^.  at  485-86. 

140.  Mat  484. 

141.  Id 

142.  Id 

143.  410  U.S.  113(1973). 

144.  /c/.  at  153. 

145.  Id.  The  Fourteenth  Amendment  provides,  in  relevant  part:  "No  State  shall  make  or 
enforce  any  law  which  shall . . .  deprive  any  person  of  life,  liberty,  or  property,  without  due  process 
of  law. . . ."  U.S.  Const,  amend.  XIV,  §  1. 


1 999]  PRIVACY  PROTECTION  20 1 


found  that  the  constitutional  "guarantee  of  personal  privacy"  only  includes 
"personal  rights  that  can  be  deemed  'fundamental'  or  'implicit  in  the  concept  of 
ordered  liberty'.  .  .  ."''*^  The  Court  specified  that  those  fundamental  rights 
include  activities  concerning  marriage,  procreation,  contraception,  family 
relationships,  and  child  rearing  and  education.  ^*^  Government  regulation  of  those 
activities  "may  be  justified  only  by  a  'compelling  state  interest,'"  and  they  must 
be  "narrowly  drawn  to  express  only  the  legitimate  state  interests  at  stake. "'"^^ 

Although  the  Supreme  Court  indicated  that  government  intrusion  into 
inherently  private  areas  of  personal  life  would  be  subject  to  strict  scrutiny,  the 
Court  has  limited  the  scope  of  what  it  considers  "private."  In  1988,  in  Bowers 
V.  Hardwick,^^^  the  Court  declined  to  extend  the  right  of  privacy  to  the  interests 
of  homosexuals  to  engage  in  sodomy  within  their  homes.  The  following  year,  in 
Webster  v.  Reproductive  Health  Services, ^^^  the  Court  upheld  a  Missouri  statute 
imposing  significant  limitations  on  performing  abortions,  including  an  outright 
ban  on  the  use  of  public  funds,  employees,  or  facilities  to  perform  abortions  not 
necessary  to  save  the  mother's  life  or  to  counsel  a  woman  to  have  such  an 
abortion.  Chief  Justice  Rehnquist,  writing  for  a  five-justice  plurality  of  the 
Court,  argued  that  the  privacy  interest  at  issue  was  merely  "a  liberty  interest 
protected  by  the  Due  Process  Clause"  and  not  a  "fundamental"  constitutional 
right.  ^^^  As  Laurence  Tribe  has  written,  the  reasoning  in  Webster  suggests  that 
a  woman's  "right"  to  an  abortion  is  "apparently  no  different  from  her  'right'  to 
drive  a  car,  say,  or  open  a  store,  or  work  as  a  dentist."'^^ 

4.  Nondisclosure. — Although  the  Court  has  identified  constitutional  privacy 
interests  in  a  variety  of  settings,  the  area  most  likely  to  be  applicable  to  the 
interest  of  individuals  in  information  privacy  has  arisen  in  a  series  of  cases 
involving  nondisclosure  of  sensitive  information.  In  1977,  the  Supreme  Court 
decided  Whalen  v.  Roe}^^  Whalen  involved  a  challenge  to  a  New  York  statute 
requiring  that  copies  of  prescriptions  for  certain  drugs  be  provided  to  the  state. 
The  Court  held  that  the  requirement  would  infringe  upon  patients'  privacy 
rights.'^"*  In  his  opinion  for  the  unanimous  Court,  Justice  Stevens  wrote  that  the 
constitutionally  protected  "zone  of  privacy"  included  two  separate  interests:  "the 
interest  in  independence  in  making  certain  kinds  of  important  decisions"  and  "the 
individual  interest  in  avoiding  disclosure  of  personal  matters  .  . .  ."'^^  The  first 


146.  Roe,  410  U.S.  at  152  (quoting  Palko  v.  Connecticut,  302  U.S.  319,  325  (1937)). 

147.  ^e^/flf.  at  152-53. 

148.  Mat  155. 

149.  478  U.S.  186(1986). 

150.  492  U.S.  490  (1989)  (plurality  opinion). 

151.  Mat  520. 

1 52.  Laurence  H.  Tribe,  Abortion:  The  Clash  of  Absolutes  23  ( 1 990). 

153.  429  U.S.  589(1977). 

154.  5ee /^.  at  603-04. 

155.  Mat  599-600. 


202  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


interest  is  clearly  grounded  in  Roe  v.  Wade,^^^  Griswoldv.  Connecticut, ^^^  and 
similar  cases,  to  which  Justice  Stevens  cited.  The  second  interest  appears  to  be 
a  new  creation  of  the  Whalen  Court,  although  based  on  the  "Fourteenth 
Amendment's  concept  of  personal  liberty"  identified  in  Roe}^^  Nevertheless, 
having  found  this  new  privacy  interest  in  nondisclosure  of  personal  information, 
the  Court  did  not  apply  strict  scrutiny,  apparently  because  the  interest  was  not  a 
right  involving  a  "fundamental"  interest.  Instead,  the  court  applied  a  lower  level 
of  scrutiny,  and  held  that  the  statute  did  not  infringe  the  individuals'  interest  in 
nondisclosure.  ^^^ 

Likewise,  federal  appellate  courts  in  the  Second,  Third,  Fifth,  and  Ninth 
Circuits  have  reached  similar  results,  finding  a  constitutional  right  of  privacy  in 
individuals  not  being  compelled  by  the  government  to  disclose  personal 
information,  particularly  medical  records. '^°  However,  by  extending  the  right  of 
nondisclosure  beyond  fundamental  rights,  these  courts  have  applied  a  lower 
standard  of  scrutiny  than  that  applicable  in  cases  involving  marriage,  procreation, 
contraception,  family  relationships,  and  child  rearing  and  education.  Instead  of 
strict  scrutiny,  these  courts  used  intermediate  scrutiny: 

The  government  may  seek  and  use  information  covered  by  the  right  to 
privacy  if  it  can  show  that  its  use  of  the  information  would  advance  a 
legitimate  state  interest  and  that  its  actions  are  narrowly  tailored  to  meet 
the  legitimate  interest.  The  more  sensitive  the  information,  the  stronger 
the  state's  interest  must  be.'^' 

Courts  in  the  Fourth  and  Sixth  Circuits,  however,  have  severely  limited  the 
scope  of  the  Whalen  nondisclosure  privacy  right.  In  1993,  the  Court  of  Appeals 
for  the  Fourth  Circuit  decided  Walls  v.  City  of  Petersburg  }^^  Walls  involved  a 
city  employee's  claim  that  her  dismissal  for  refusing  to  answer  an  official 
questionnaire  violated  her  constitutional  right  to  nondisclosure.  The  employee 
particularly  objected  to  Question  40,  which  asked  "Have  you  ever  had  sexual 
relations  with  a  person  of  the  same  sex?"'^^  The  appellate  court,  while 
acknowledging  that  the  "relevance  of  this  question  to  Walls'  employment  is 
uncertain,"  nonetheless  found  that  "Question  40  does  not  ask  for  information  that 


156.  410  U.S.  113,  153(1973). 

157.  381  U.S.  479,  485-86  (1965). 

158.  Whalen,  429  U.S.  at  598  n.23. 

1 59.  See  id.  at  603-04.  The  Court  also  explicitly  rejected  the  application  of  the  Fourth 
Amendment  right  of  privacy,  writing  that  Fourth  Amendment  cases  "involve  affirmative, 
unannounced,  narrowly  focused  intrusions."  Id.  at  604  n.32. 

160.  See  Doe  v.  Southeastern  Pa.  Transp.  Auth.,  72  F.3d  1133  (3d  Cir.  1995);  Doe  v. 
Attorney  General,  941  F.2d  780  (9th  Cir.  1991);Barry  v.City  ofNew  York,  712F.2d  1554  (2d  Cir. 
1983);  United  States  v.  Westinghouse  Elec.  Corp.,  638  F.2d  570,  577  (3d  Cir.  1980);  Schacter  v. 
Whalen,  581  F.2d  35,  37  (2d  Cir.  1978);  Plante  v.  Gonzalez,  575  F.2d  1 1 19  (5th  Cir.  1978). 

161.  Doe,  94 1  F.2d  at  796  (citations  omitted). 

162.  895  F.2d  188  (4th  Cir.  1990). 

163.  Id  at  190. 


1999]  PRIVACY  PROTECTION  203 


Walls  has  a  right  to  keep  private.'"^'*  The  court  reasoned  that  because  the 
Supreme  Court  had  found  no  fundamental  right  to  engage  in  homosexual  acts, 
there  could  be  no  constitutional  right  not  to  disclose  such  practices.  '^^  The  Court 
of  Appeals  for  the  Sixth  Circuit  has  similarly  restricted  the  right  not  to  disclose 
personal  information  to  information  concerning  fundamental  rights. '^^ 

5.   The  Limits  of  Constitutional  Protections  for  Privacy. — 

a.  First  Amendment. — While  the  Constitution  affords  substantial  protection 
for  personal  privacy  from  invasion  by  the  government,  it  affords  effectively  no 
protection  for  privacy  from  interference  by  private  parties  and  it  even  restricts  the 
government's  efforts  to  create  statutory,  regulatory,  or  common  law  tools  for 
protectmg  privacy  from  non-governmental  intrusion.  In  short,  the  Constitution 
is  the  source  not  only  of  privacy  rights,  but  also  of  other  significant  rights  against 
which  all  government  efforts — ^treaty  commitments,  statutes,  regulations, 
administrative  and  executive  orders,  and  daily  functions — must  be  measured. 
One  of  the  most  important  of  these  rights,  the  one  most  often  implicated  by 
government  efforts  to  protect  privacy,  and  one  of  the  most  distinct  products  of 
U.S.  history  and  culture,  is  the  First  Amendment  restraint  on  government 
abridgement  of  freedom  of  expression  or  of  the  press. '^^  Any  effort  by  the 
government  to  protect  privacy,  whether  through  direct  regulation  or  the  creation 
or  enforcement  of  legal  causes  of  action  among  private  parties,  must  be 
consonant  with  the  First  Amendment  if  that  protection  is  to  survive  constitutional 
review. 

This  tension  between  the  First  Amendment  as  protecting  privacy  and  as 
prohibiting  the  government  from  restricting  expression  in  order  to  protect  privacy 
runs  throughout  First  Amendment  jurisprudence.  Ken  Gormley  has  written  that 
over  time,  "the  First  Amendment  came  to  be  viewed  as  possessing  two  distinct 
hemispheres."'^^  One  was  the  traditional  freedom  to  speak  and  associate  without 
governmental  interference.  The  other  was  "the  less  familiar  freedom  of  the 
citizen  to  think  and  engage  in  private  thoughts,  free  from  the  clutter  and 
bombardment  of  outside  speech." '^^  Neither  yields  any  significant  protection  for 
privacy,  beyond  that  already  implicit  in  the  First  Amendment's  guarantees  to 
speak,  associate,  and  worship  without  governmental  interference. 

The  association  and  expression  cases  clearly  suggest  the  recognition  of  a 
constitutional  right  of  privacy,  in  the  sense  of  solitude  or  seclusion  from 
intrusion,  based  on  the  First  Amendment.  That  right  is  necessarily  limited, 
however,  to  restricting  the  conduct  of  government  and  the  government's  creation 
of  legal  rights  that  private  parties  might  use  to  interfere  with  the  privacy  of 
others.  Moreover,  case  law  recognizing  the  right  is  relatively  overshadowed  by 


164.  Mat  193. 

165.  See  id. 

166.  See  J.P.  v.  DeSanti,  653  F.2d  1080  (6th  Cir.  1981)  (disseminating  juveniles'  social 
histories  prepared  by  state  probation  officers  does  not  violate  privacy  rights). 

167.  See  U.S.  CONST,  amend.  I. 

168.  Gormley,  supra  note  137,  at  1381. 

169.  Id. 


204  INDIANA  LAW  REVIEW  [Vol.  33: 1 73 


cases  indicating  that  the  right  carries  little  weight  when  balanced  against  other, 
explicit  constitutional  rights,  especially  in  situations  involving  activities  outside 
of  the  private  home.  For  instance,  the  Court  has  accorded  privacy  rights  little 
protection  when  confronted  with  freedom  of  association  claims  of  groups  such 
as  the  American  Communist  Party.  '^^  The  Court  often  has  overturned  ordinances 
restricting  door-to-door  solicitation  with  little  if  any  comment  on  the  privacy 
interests  of  the  occupants.'^' 

Similarly,  the  Court  has  often  demonstrated  little  concern  for  the  privacy 
interests  of  unwilling  viewers  or  listeners,  rejecting  claims  against  broadcasts  of 
radio  programs  in  Washington,  D.C.  streetcars, ^^^  R-rated  movies  at  a  drive-in 
theater  in  Jacksonville,  Florida,'^^  and  a  jacket  bearing  an  "unseemly  expletive" 
worn  in  the  corridors  of  the  Los  Angeles  County  Courthouse. '^"^  Moreover, 
plaintiffs  rarely  win  suits  brought  against  the  press  for  disclosing  private 
information.  When  information  is  true  and  obtained  lawfully,  the  Supreme  Court 
repeatedly  has  held  that  the  state  may  not  restrict  its  publication  without  a 
showing  that  the  government's  interest  in  doing  so  is  "compelling"  and  that  the 
restriction  is  no  greater  than  is  necessary  to  achieve  that  interest. '^^  This  is  "strict 
scrutiny,"  the  highest  level  of  constitutional  review  available  in  the  United  States. 
Protection  of  privacy  rarely  constitutes  a  sufficiently  compelling  interest  to 
survive  strict  scrutiny.  Even  if  information  published  by  the  press  is 
subsequently  proved  to  be  false,  the  Supreme  Court  has  demonstrated 
extraordinary  deference  to  the  First  Amendment  expression  rights  of  the  press 
and  little  concern  for  the  privacy  interests  involved. '^^ 

In  fact,  when  privacy  rights  conflict  with  free  expression  rights  before  the 
Court,  the  latter  prevail,  virtually  without  exception.  Under  the  Court's  strict 
scruting  requirement,  it  has  struck  down  laws  restricting  the  publication  of 
confidential  government  reports, '^^  and  of  the  names  of  judges  under 
investigation,'^^  juvenile  suspects,'^^  and  rape  victims.'*^  The  dominance  of  the 
free  expression  interests  over  the  privacy  interests  is  so  great  that  Peter  Edelman 


170.  See  Noto  v.  United  States,  367  U.S.  290  (1961);  Scales  v.  United  States,  367  U.S.  203 
(1961);  Communist  Party  v.  Subversive  Activities  Control  Bd.,  367  U.S.  1  (1961). 

171.  See,  e.g.,  Staub  v.  City  of  Baxley,  355  U.S.  313  (1958);  Schneider  v.  State,  308  U.S.  147 
(1939);  Lovell  v.  City  of  Griffin,  303  U.S.  444  (1938). 

172.  See  Public  Util.  Comm'n  v.  Pollack,  343  U.S.  451  (1952). 

173.  See  Erznoznik  v.  City  of  Jacksonville,  422  U.S.  205  (1975). 

174.  See  Cohen  v.  California,  403  U.S.  15  (1971). 

175.  See,  e.g.,  Florida  Star  v.  B.J.F.,  491  U.S.  524  (1989);  Smith  v.  Daily  Mail  Publ'g  Co., 
443  U.S.  97  (1979);  Landmark  Communications  Inc.  v.  Virginia,  435  U.S.  829  (1978);  Cox  Broad. 
Corp.  V.  Cohn,  420  U.S.  469  (1975). 

176.  See,  e.g..  Hustler  Magazine,  Inc.  v.  Falwell,  485  U.S.  46  (1988);  Time,  Inc.  v.  Hill,  385 
U.S.  374(1967). 

177.  See  New  York  Times  Co.  v.  United  States,  403  U.S.  713  (1971). 

178.  See  Landmark  Communications,  Inc.,  435  U.S.  at  829. 

1 79.  See  Smith,  443  U.S.  at  97. 

1 80.  See  Florida  Star,  491  U.S.  at  524;  Cox  Broad  Corp.,  420  U.S.  at  469. 


1999]  PRIVACY  PROTECTION  205 


has  written: 

[T]he  Court  [has]  virtually  extinguished  privacy  plaintiffs'  chances  of 
recovery  for  injuries  caused  by  truthful  speech  that  violates  their  interest 
in  nondisclosure. . . .  If  the  right  to  publish  private  information  collides 
with  an  individual's  right  not  to  have  that  information  published,  the 
Court  consistently  subordinates  the  privacy  interest  to  the  free  speech 
concerns.'^' 

This  is  true  irrespective  of  whether  the  speaker  is  an  individual  or  an 
institution.  Even  wholly  commercial  expression  is  protected  by  the  First 
Amendment.  The  Court  has  found  that  such  expression,  if  about  lawful  activity 
and  not  misleading,  is  protected  from  government  intrusion  unless  the 
government  can  demonstrate  a  "substantial"  public  interest,  and  that  the  intrusion 
"directly  advances"  that  interest  and  is  "narrowly  tailored  to  achieve  the  desired 
objective." '^^  The  Court  does  not  characterize  expression  as  "commercial,"  and 
therefore  subject  government  regulations  concerning  it  to  this  "intermediate 
scrutiny,"  just  because  it  occurs  in  a  commercial  context.  The  speech  of 
corporations  is  routinely  accorded  the  highest  First  Amendment 
protection — "strict  scrutiny"  review — unless  the  Court  finds  that  the  purpose  of 
the  expression  is  to  propose  a  commercial  transaction'^^  or  that  the  expression 
occurs  in  the  context  of  a  regulated  industry  or  market  (such  as  the  securities 
exchanges)  and  concerns  activities  which  are,  in  fact,  being  regulated  (the  sale 
of  securities).'^'' 

Any  governmental  effort  to  protect  privacy  from  intrusion  by  non- 
governmental entities,  either  directly  or  through  the  passage  or  enforcement  of 
laws  permitting  suits  by  private  parties,  faces  significant  First  Amendment 
obstacles.  This  is  particularly  true  when  the  privacy  protection  would  apply  to 
information  concerning  government  activities  and  the  qualifications  and  behavior 
of  government  officials,  or  would  restrict  access  on  the  basis  of  the  content  of  the 
material  to  be  protected. 

b.  Fifth  Amendment. — The  Fifth  Amendment  to  the  U.S.  Constitution 
prohibits  the  government  from  taking  private  property  for  public  use  without  both 
due  process  of  law  and  just  compensation.'^^  Historically,  the  Supreme  Court  has 
applied  the  "Takings  Clause"  to  require  compensation  when  the  government 
physically  appropriated  real  property,  even  if  only  a  tiny  portion  of  the  property 


181.  Peter  B.  Edelman,  Free  Press  v.  Privacy:  Haunted  by  the  Ghost  of  Justice  Black,  68 
TEX.  L.  REV.  1195,1198(1 990). 

182.  Board  of  Trustees  v.  Fox,  492  U.S.  469, 480  (1989);  Central  Hudson  Gas  &  Elec.  Corp. 
V.  Public  Serv.  Comm'n,  447  U.S.  557,  566  (1980). 

1 83.  See  Central  Hudson,  447  U.S.  at  562. 

184.  See  Lowe  v.  Securities  &  Exch.  Comm'n,  472  U.S.  181  (1985). 

185.  "No  person  shall . . .  be  deprived  of  life,  liberty,  or  property,  without  due  process  of  law, 
nor  shall  private  property  be  taken  for  public  use,  without  just  compensation."  U.S.  CONST,  amend. 
V. 


206  INDIANA  LAW  REVIEW  [Vol.  33:173 


at  issue  was  occupied '^^  or  if  that  occupation  was  only  temporary. '^^  Beginning 
in  1922,  however,  the  Court  has  found  a  compensable  taking  even  when  the 
government  does  not  engage  in  physical  occupation '^^  and  when  the  property 
involved  is  not  land  or  even  tangible,  corporeal  property,  but  rather  a  legal 
entitlement,'^^  government  benefit,'^^  or  interest  in  continued  employment.'^'  In 
1984,  the  Court  decided  Ruckelshaus  v.  Monsanto  Co.^"^^  which  extended  the 
Fifth  Amendment's  Takings  Clause  to  protect  stored  data. 

The  Supreme  Court's  recognition  of  these  "regulatory  takings" — including 
takings  of  stored  data — suggests  that  privacy  regulations  that  substantially 
interfere  with  a  private  party's  use  of  data  that  she  has  collected  or  processed, 
may  require  compensation  under  the  Fifth  Amendment.  In  Ruckelshaus,  the 
Supreme  Court  found  that  the  Environmental  Protection  Agency's  use  of 
plaintiffs  proprietary  research  data  constituted  a  compensable  taking. '^^  As  in 
all  regulatory  takings  cases,  the  Court  in  Ruckelshaus  faced  two  fundamental 
questions:  whether  there  was  "property"  and,  if  so,  whether  it  was  "taken"  by  the 
government's  action.'^"*  The  first  question  presented  little  difficulty  because  state 
law  recognizes  a  property  right  in  "trade  secrets"  and  other  confidential  business 
information,  and  the  possessors  of  such  data  have  long  been  accorded  property- 
like rights  to  control  access  to,  and  the  use  of,  business  information.'^^  To 
answer  the  second  question,  the  Court  focused  on  Monsanto' s  "reasonable 
investment-backed  expectation  with  respect  to  its  control  over  the  use  and 
dissemination  of  the  data,"'^^  finding  that  Monsanto  had  invested  substantial 
resources  in  creating  the  data  and  reasonably  believed  that  they  would  not  be 
disclosed  by  the  EPA. 

To  be  certain,  not  all  regulations  of  private  property  constitute  takings. 
Although  the  Court  has  put  forward  a  number  of  tests  for  determining  when  a 


186.  See  Loretto  v.  Teleprompter  Manhattan  CATV  Corp.,  458  U.S.  419  (1982)  (involving 
only  1.5  cubic  feet  of  private  property  occupied). 

1 87.  See  First  English  Evangelical  Lutheran  Church  v.  County  of  Los  Angeles,  482  U.S.  304 
(1987)  (ordering  just  compensation  where  plaintiff  was  denied  use  of  its  property  for  six  years). 

1 88.  See  Pennsylvania  Coal  Co.  v.  Mahon,  260  U.S.  393  ( 1 922)  (holding  that  state  abrogated 
right  to  remove  coal  from  property). 

189.  See,  e.g.,  Logan  v.  Zimmerman  Brush  Co.,  455  U.S.  422  (1982)  (holding  that  there  was 
property  interest  in  statutorily  created  cause  of  action  for  discrimination  against  the  disabled); 
United  States  Trust  Co.  v.  New  Jersey,  431  U.S.  1  (1977)  (finding  a  property  interest  in  common 
law  contract  rights). 

1 90.  See,  e.g. ,  Mathews  v.  Eldridge,  424  U.S.  3 1 9  ( 1 976)  (holding  that  there  exists  a  property 
interest  in  Social  Security  benefits). 

191.  See,  e.g..  Perry  v.  Sindermann,  408  U.S.  593  (1 972)  (finding  a  property  interest  exists 
in  continued  employment). 

192.  467  U.S.  986(1984). 

193.  Seeid.dX\OU. 

194.  5ee/V/.  atlOOO. 

195.  Seeid.2ii\mi>. 

196.  /^.  at  1011. 


1999]  PRIVACY  PROTECTION  207 


regulatory  taking  occurs,  the  common  element  in  them  all  is  that  a  taking  occurs 
when  the  government's  regulation  "denies  an  owner  economically  viable  use"  of 
his  property. '^^  In  the  classic  formulation  of  property  rights  as  a  bundle  of  sticks, 
a  taking  may  exist  where  the  government  eliminates  any  one  of  those  sticks,  but 
a  taking  is  certain  to  exist  when  the  government  effectively  seizes  the  entire 
bundle  by  eliminating  all  of  the  sticks. 

Even  when  a  government  regulation  deprives  a  property  owner  of  all  use  of 
his  property,  the  Supreme  Court  has  historically  declined  to  find  a  taking,  and 
therefore  not  required  compensation,  when  the  regulation  merely  abated  a 
"noxious  use"  or  "nuisance-like"  conduct.  Such  a  regulation  does  not  constitute 
a  taking  of  private  property,  because  one  never  has  a  property  right  to  harm 
others. '^^  In  1992,  however,  the  Supreme  Court  backed  away  from  this 
"prevention  of  harmful  use"  exception,  recognizing  that  the  government  could 
virtually  always  claim  that  it  was  regulating  to  prevent  a  harmful  use.'^^  Instead, 
the  Court  now  requires  that  when  a  government  regulation  deprives  property  "of 
all  economically  beneficial  use,"  the  government  must  show  that  the  power  to 
promulgate  the  regulation  inhered  in  the  "background  principles  of  the  State's 
law  of  property  and  nuisance."^^  In  other  words,  the  Court  seems  to  be  asking 
if  the  property  owner's  expectations  were  reasonable  in  light  of  the  government's 
recognized  power  and  past  practice. 

Data  protection  regulation  may  legitimately  prompt  takings  claims.  If  the 
government  prohibits  the  processing  of  personal  data,  it  could  deny  the  owner  all 
or  most  of  the  "economically  viable  use"  use  of  that  data.  Moreover,  if  Congress 
were  to  enact  privacy  protection  along  the  lines  of  the  EU  directive,  that 
legislation  might  very  well  restrict  all  use  of  that  data  and  thereby  constitute  a 
complete  taking.^^^  At  first  glance,  this  may  seem  an  odd  result,  because  the  data 
collected  or  processed,  in  order  to  be  subject  to  privacy  regulation  in  the  first 
place,  must  be  about  another  person.  How  can  one  person  have  a  constitutional 
property  right  to  hold  and  use  data  about  another?  However,  this  result  is  not  that 
surprising  in  light  of  current  law  in  the  United  States,  which  rarely  accords 
individuals  ownership  interests  in  key  information  about  themselves.  As 
Professor  Branscomb  has  demonstrated  in  her  study.  Who  Owns  Information?, 
in  the  United  States,  telephone  numbers,  addresses.  Social  Security  numbers, 
medical  history,  and  similar  personal  identifying  data  are  almost  always  owned 


197.  Lucas  v.  South  Carolina  Coastal  Council,  505  U.S.  1003,  1016  (1992);  see  also  Agins 
V.  City  of  Tiburon,  447  U.S.  255,  260  (1980);  Andrus  v.  Allard,  444  U.S.  51,  64  (1979). 

198.  See  Jan  G.  Laitos,  The  Takings  Clause  in  America 's  Industrial  States  After  Lucas,  24 
U.  TOL.  L.  REV.  281,  288  (1993). 

1 99.  See  Lucas,  505  U.S.  at  1 026. 

200.  Id.  at  1027,  1029. 

201 .  A  legislature  can  effect  a  taking  just  as  a  regulatory  agency  can.  See,  e.g.,  Agins,  447 
U.S.  255.  Both  are  generally  referred  to  as  "regulatory  takings,"  although  the  former  is  actually  a 
"legislative  taking."  See  generally  Parking  Ass'n  of  Ga.,  Inc.  v.  City  of  Atlanta,  515  U.S.  1116 
(1995)  (Thomas,  J.,  dissenting  from  denial  of  cert.). 


208  INDIANA  LAW  REVIEW  [Vol.  33: 173 


by  someone  else — ^the  Post  Office,  the  government,  or  a  physician  or  hospital. ^°^ 
Moreover,  individuals  exercise  few  rights  in  data  about  themselves  which  are 
readily  perceptible,  such  as  gender,  age,  or  skin  color.  A  photographer  who  takes 
a  picture  on  a  public  street  has  the  legal  right  to  use  that  picture  for  a  wide  variety 
of  noncommercial  and  even  commercial  uses  without  the  permission  of  the 
individuals  depicted.  In  fact,  those  individuals  have  no  legal  right  to  market  or 
even  copy  or  publicly  display  the  photograph  which  includes  their  images 
without  the  photographer's  permission.^^^ 

A  data  processor  exercises  property  rights  in  his  data  because  of  his 
investment  in  collecting  and  aggregating  them  with  other  useful  data.  It  is  this 
often  substantial  investment  that  is  necessary  to  make  data  accessible  and  useful, 
as  well  as  the  data's  content,  that  the  law  protects.  In  the  current  regulatory 
environment  in  the  United  States,  discussed  below,  it  is  reasonable  for  an 
information  processor  to  believe  and  to  invest  resources  in  the  belief  that  she  will 
be  able,  within  some  limits,  to  use  the  data  she  collects  and  processes.  In  fact, 
as  Arthur  Miller  has  argued,  the  "expand [ing]  protection  for  commercial 
information  reflects  a  growing  awareness  that  the  legal  system's  recognition  of 
the  property  status  of  such  infonnation  promotes  socially  useful  behavior''^^"*  and 
therefore  encourages  reliance  by  data  processors.  A  legislative,  regulatory,  or 
even  judiciaP^^  determination  that  denies  processors  the  right  to  use  their  data 
could  very  likely  constitute  a  taking  and  require  compensation.  Data  processors 
who  acquire  or  process  data  after  enactment  of  new  privacy  standards  would  be 
on  notice  and  therefore  less  likely  to  succeed  in  claiming  takings.  But  for  the 
billions  of  data  files  currently  possessed  and  used  by  U.S.  individuals  and 
institutions,  a  dramatic  alteration  in  user  rights  makes  a  compelling  case  for  the 
existence  of  a  taking. 

The  determination  of  whether  a  government  action  constitutes  a  taking,  of 
course,  turns  on  the  details  of  the  specific  action  and  property  involved.  It  is 
sufficient  here  to  note  that  the  personal  information  held  by  others  is  likely  the 
subject  of  property  and  related  rights.  Those  rights  are  in  almost  every  case 
possessed  by  the  data  processor,  not  the  persons  to  whom  the  data  pertain.  And 
because  these  data  are  accorded  property- like  protection,  they  are  subject  to 


202.  See  ANNE  WELLS  Branscomb,  Who  Owns  Information?  From  Privacy  to  Public 
Access  (1994). 

203.  See  17  U.S.C.  §§  101-106  (1994  «fe  Supp.  1997). 

204.  Arthur  R.  Miller,  Confidentiality,  Protective  Orders,  and  Public  Access  to  the  Courts, 
105  Harv.  L.  Rev.  427,  469  (1991). 

205.  See  Note,  Trade  Secrets  in  Discovery:   From  First  Amendment  Disclosure  to  Fifth 
Amendment  Protection,  1 04  Harv.  L.  Rev.  1 330  ( 1 99 1 ). 

Courts  are  widely  considered  "state  actors"  for  purposes  of  constitutional  analysis,  and 
the  Supreme  Court  has  recognized  that  the  takings  clause  applies  to  the  courts.  In  a 
1 967  concurrence,  Justice  Stewart  asserted  that  the  fourteenth  amendment  forbids  a  state 
to  take  property  without  compensation  "no  less  through  its  courts  than  through  its 
legislature." 
Id.  at  1336  (quoting  Hughes  v.  Washington,  389  U.S.  290,  298  (1967)  (Stewart,  J.,  concurring)). 


1999]  PRIVACY  PROTECTION  209 


being  taken  by  government  regulation,  thereby  triggering  an  obligation  to 
compensate  the  data  owner. 

Government  efforts  to  protect  privacy  would  have  to  clear  considerable 
constitutional  hurdles,  including  the  First  and  Fifth  Amendments. 

6.  State  Constitutions. — At  least  eight  states  have  adopted  explicit 
constitutional  guarantees  of  personal  privacy.  As  with  federal  constitutional 
protections,  these  rights  virtually  always  impose  restrictions  only  on 
governmental  activities.  Often  these  protections  are  vague  and  aspirational. 
Moreover,  when  state  constitutional  rights  and  federal  law  conflict,  federal  law 
prevails.  Therefore,  state  constitutional  privacy  rights  have  thus  far  been  of  little 
significance  in  the  day-to-day  protection  of  personal  privacy.  Nonetheless,  these 
provisions  are  significant  to  the  extent  that  they  restrict  the  activities  of  state 
governments,  serve  as  a  potential  source  of  future  restraints  on  government 
activities,  and  indicate  a  growing  interest  in  privacy  protection. 

Some  state  constitutional  privacy  protections  merely  repeat  federal 
constitutional  provisions.  For  example,  Minnesota  includes  in  its  constitution  the 
text  of  the  Fourth  Amendment  to  the  Federal  Constitution. ^°^  The  constitutions 
of  Hawaii  and  Louisiana  both  include  Fourth  Amendment-like  provisions,  but 
they  have  been  modified  to  explicitly  prohibit  "invasions  of  privacy.  .  .  ."^^^ 
Some  state  constitutional  protections  for  privacy  incorporate  exceptions  as  broad 
as  the  protection  they  purport  to  afford  privacy.  Arizona's  constitution  provides 
that  "[n]o  person  shall  be  disturbed  in  his  private  affairs,  or  his  home  invaded, 
without  authority  of  law."^^^  Such  a  right  presumably  would  exist  even  without 
this  constitutional  provision.  In  1980,  Florida  amended  its  constitution  to 
provide  that:  "Every  natural  person  has  the  right  to  be  let  alone  and  free  from 
governmental  intrusion  into  the  person's  private  life  except  as  otherwise  provided 
herein.  This  section  shall  not  be  construed  to  limit  the  public's  right  of  access 
to  public  records  and  meetings  as  provided  by  law."^^^ 

Other  states'  provisions  are  less  qualified  or  more  specific.  Alaska  amended 
its  constitution  in  1972  to  provide  that  "[t]he  right  of  the  people  to  privacy  is 
recognized  and  shall  not  be  infringed."^'*^  In  1974,  California  added  privacy  to 
the  "inalienable  rights"  protected  under  its  constitution:  "All  people  .  .  .  have 
inalienable  rights.  Among  these  are  . . .  pursuing  and  obtaining  . . .  privacy."^" 
This  provision  is  particularly  noteworthy,  because  in  1994  the  California 
Supreme  Court  found  that  it  was  applicable  to  private,  as  well  as  governmental, 
actions.^^^  The  Illinois  constitution  provides  that  "[t]he  people  shall  have  the 
right  to  be  secure  .  .  .  against  .  .  .  invasions  of  privacy."^'^   In  1978,  Hawaii 


206.  See  MiNN.  CONST,  art.  I,  §  10. 

207.  Haw.  Const,  art.  I,  §  7;  La.  Const,  art.  I,  §  5. 

208.  Ariz.  Const,  art.  II,  §  8. 

209.  Fla.  Const,  art.  I,  §  23. 

210.  Alaska  Const,  art.  I,  §  22. 

211.  Cal.  Const,  art.  I,  §  1. 

212.  See  Hill  v.  National  Collegiate  Athletic  Ass'n,  865  P.2d  633  (Cal.  1994)  (en  banc). 

213.  ILL.CONST.  art.  1,  §6. 


210  INDIANA  LAW  REVIEW  [Vol.  33:173 


amended  its  constitution  to  add:  "The  right  of  the  people  to  privacy  is 
recognized  and  shall  not  be  infringed  without  the  showing  of  a  compelling  state 
interest."^'"^  This  is  the  most  specific  and  protective  of  any  of  the  state 
constitutional  provisions  guarding  privacy  interests,  in  practice  as  well  as  on 
paper.  At  least  partially  based  on  this  provision,  a  Hawaiian  court  ruled  in 
December  1996  in  favor  of  same-sex  marriages.^'^ 

Even  the  most  protective  state  constitutional  provisions,  however,  have 
yielded  little  protection  for  information  privacy.  For  example,  even  in  the  1994 
case  in  which  the  California  Supreme  Court  extended  the  state  constitutional 
right  to  privacy  to  private  actions,  the  Court  found  that  a  mandatory  drug-testing 
program  for  college  athletes  did  not  violate  that  right.^'^  This  same  result  was 
reached  by  the  U.S.  Supreme  Court  the  following  year  without  the  benefit  of  an 
explicit  constitutional  guarantee  to  privacy.^'^  Moreover,  in  the  context  of  global 
information  networks  and  national  and  multinational  information  users,  state 
protection  is  of  limited  significance. 

B.  Federal  Statutes 

The  laws  and  regulations  governing  the  use  of  personal  information  are  many 
and  varied,  but  as  a  rule  they  each  address  a  specific  government  agency, 
industry,  or  economic  sector  and  often  only  specific  issues.  Even  when  legal 
protection  is  at  its  height,  it  is  still  often  limited  to  certain  activities,  such  as 
disclosure  of  personal  data,  and  qualified  by  exemptions.^'^ 

Privacy-based  controls  on  the  government' scoWtoXxon  and  use  of  data  are  far 
more  extensive  than  those  applicable  to  non-governmental  organizations.  For 
example,  the  federal  Privacy  Act  obligates  government  agencies  to  (1 )  store  only 
relevant  and  necessary  personal  information;  (2)  collect  information  to  the  extent 
possible  for  the  data  subject;  (3)  maintain  records  with  accuracy  and 
completeness;  and  (4)  establish  administrative  and  technical  safeguards  to  protect 
the  security  of  records.^ *^  The  Privacy  Act  also  limits  disclosure  of  individuals' 
records.^^°  However,  the  Act  explicitly  restricts  its  provisions  from  prohibiting 
the  release  of  any  material  for  which  disclosure  is  required  under  the  Freedom 
of  Information  Act  (FOIA).^^'  The  FOIA  permits  "any  person"  to  obtain  access 
to  all  federal  "agency  records,"  subject  to  nine  enumerated  exemptions.^^^  In 


214.  Haw.  Const,  art.  1,  §  6. 

215.  See  Ly le  Denniston,  Judge  OKs  Same-Sex  Marriages,  BALTIMORE  SUN,  Dec.  4,  1 996, 
available  in  1996  WL  6649965. 

2 1 6.  See  Hill,  865  P.2d  at  669. 

217.  See  Vernonia  Sch.  Dist.  v.  Acton,  515  U.S.  646  (1995). 

218.  See  generally  Cate,  supra  note  1 9,  at  76-89. 

219.  See  5  U.S.C.  §§  552a(e)(lH5)  (1994). 

220.  See  id.  §  552a(b). 

221.  See  id  ^  552a{t)i2). 

222.  See  5  U.S.C.  §  552  (1994).  Two  of  the  nine  exemptions  are  designed  to  protect  privacy: 
Exemption  6  precludes  disclosure  of  "personnel  and  medical  files  and  similar  files  the  disclosure 


1 999]  PRIVACY  PROTECTION  2 1 1 


other  words,  any  information  to  which  the  FOIA  applies  and  which  is  not  within 
one  of  the  FOIA's  nine  enumerated  exemptions,  must  be  disclosed  irrespective 
of  the  Privacy  Act.  In  addition,  the  Privacy  Act  provides  twelve  exemptions  that 
permit  disclosure  of  information  to  other  government  agencies.^^^  For  example, 
the  Act  does  not  apply  to  Congress.  It  does  not  restrict  disclosures  to  law 
enforcement  agencies,  and,  under  the  broadest  exemption,  the  Act  does  not  apply 
to  data  requested  by  another  government  agency  for  "routine  use."^^"^ 

There  are  many  other  statutes  and  regulations  which  protect  the  privacy  of 
citizen  information  from  government  disclosure  of  data.  For  example,  federal 
law  prohibits  the  Department  of  Health  and  Human  Services  from  disclosing 
social  security  records,  but  permits  all  disclosures  "otherwise  provided  by 
Federal  law"  or  regulation.^^^  Similarly,  federal  law  prohibits  the  Internal 
Revenue  Service  from  disclosing  information  on  income  tax  retums^^^  and  the 
Census  Bureau  from  disclosing  certain  categories  of  census  data.^^^  Finally, 
many  states  have  adopted  laws  and  regulations  that  mirror  their  federal 
counterparts. 

Congress  has  also  enacted  a  variety  of  laws  addressing  the  protection  of 
personal  information  in  private  industry  sectors,  such  as  in  the  context  of 
financial  transactions.  The  Fair  Credit  Reporting  Act  of  1 970^^^  (the  "Act")  "sets 
forth  rights  for  individuals  and  responsibilities  for  consumer  credit  reporting 
agencies  in  connection  with  the  preparation  and  dissemination  of  personal 
information  in  a  consumer  report  bearing  on  the  individual's  creditworthiness, 
credit  standing,  credit  capacity,  character,  general  reputation,  personal 
characteristics  or  mode  of  living."^^^  The  Act  requires  that  credit  reporting 
agencies  follow  "reasonable  procedures  to  assure  maximum  possible  accuracy"^^° 
of  the  information  in  their  credit  reports  and  implement  a  dispute  resolution 
process  to  investigate  and  correct  errors.^^^  Agencies  also  must  inform 
consumers  about  whom  adverse  decisions  on  credit,  employment,  or  insurance 
are  made  based  on  a  consumer  report,  of  the  use  and  source  of  the  report.  The 


of  which  would  constitute  a  clearly  unwarranted  invasion  of  personal  privacy,"  and  Exemption  7(C) 
bans  release  of  "records  or  information  compiled  for  law  enforcement  purposes  [which] . . .  could 
reasonably  be  expected  to  constitute  an  unwarranted  invasion  of  personal  privacy."  Id.  §  552(b)(6)- 
(7)(C).  Many  states  have  government  disclosure  statutes  with  privacy-based  exemptions  similar 
to  those  provided  in  the  FOIA. 

223.  See  id.  §  552(a)(b)(l)-(12). 

224.  Id  §  552(a)(b)(3). 

225.  42U.S.C.§  1305(1994). 

226.  See  26  U.S.C.  §§  6103,  7431  (1994  &  Supp.  1997). 

227.  See  13  U.S.C.  §§  8-9  (1994  &  Supp.  1997). 

228.  15  U.S.C.  §§  1681-1681t  (1994). 

229.  Joel  R.  Reidenberg,  Privacy  in  the  Information  Economy:  A  Fortress  or  Frontier  for 
Individual  Rights?,  44  FED.  COMM.  L.J.  1 95,  2 1 0  ( 1 992). 

230.  15  U.S.C.  §  1681e(b). 

231.  Seeid^\6W\. 


212  INDIANA  LAW  REVIEW  [Vol.  33:173 


agencies  must  provide  consumers  with  a  copy  of  their  reports  upon  request.^^^ 
Prior  to  being  amended  at  the  end  of  1996,  the  Act's  protections  were 
weakened  by  a  series  of  broad  loopholes.  On  September  30,  1996,  Congress 
passed  the  Consumer  Credit  Reporting  Reform  Act,^^^  which  closed  many  of 
these  loopholes  and  significantly  strengthened  the  protection  for  information 
privacy  provided  by  the  Fair  Credit  Reporting  Act.  For  example,  the  Reform  Act 
narrowed  the  broad  "legitimate  business  need"  purpose  for  which  credit  reports 
could  be  disseminated  without  the  consumer's  authorization  to  permit  the 
distribution  of  credit  reports  only  for  a  "legitimate  business  need  ...  in 
connection  with  a  business  transaction  that  is  initiated  by  the  consumer"  or  "to 
review  an  account  to  determine  whether  the  consumer  continues  to  meet  the 
terms  of  the  account."^^"*  Consumer  credit  reports  may  now  be  furnished  for 
employment  purposes  only  if  the  employer  certifies  that  the  employee  has 
consented.^^^  Medical  information  may  no  longer  be  included  in  a  credit  report 
furnished  in  connection  with  employment,  credit,  insurance,  or  direct  marketing, 
without  the  consent  of  the  consumer.^^^  If  a  credit  reporting  agency  furnishes 
consumer  credit  information  to  be  used  for  marketing  credit  or  insurance 
opportunities  to  consumers,  the  agency  must  establish  and  publish  a  toll-free 
telephone  number  that  consumers  can  call  to  have  their  names  removed  from  lists 
provided  for  such  direct  marketing  purposes. ^^^  Persons  who  acquire  such 
information  from  credit  reporting  agencies  for  marketing  credit  and  insurance 
services  must  inform  consumers  that  credit  information  was  used,  identify  the 
credit  agency  from  which  the  data  were  obtained,  and  provide  information  about 
consumers'  legal  rights.^^* 

The  Act  prohibits  the  dissemination  of  certain  types  of  obsolete  information, 
such  as  bankruptcy  adjudications  more  than  ten  years  prior  to  the  report,  suits 
and  judgments  older  than  seven  years,  paid  tax  liens  older  than  seven  years,  and 
any  other  adverse  information  older  than  seven  years. ^^^  Prior  to  the  1996 
amendments,  the  Act  permitted  even  obsolete  information  to  be  disseminated  if 
requested  in  connection  with  an  employment  application  for  a  position  with  a 
salary  over  $20,000,  a  credit  transaction  over  $50,000,  or  the  underwriting  of  life 
insurance  over  $50,000.^"*^  Although  these  dollar  thresholds  were  set  in  1970, 
they  had  not  been  increased  in  twenty-five  years  to  keep  pace  with  inflation. ^'^^ 


232.  See  id.  ^\6S\m. 

233.  /t^.  §§  1681-1681t(Supp.  1997). 

234.  Id. 

235.  See  id.;  see  also  Consumer  Reporting  Employment  Clarification  Act  of  1998,  Pub.  L. 
No.  105-347,  112  Stat.  3208. 

236.  See  15  U.S.C.  §§  1681-1681t. 

237.  See  id  §  1681b(c)(5). 

238.  See  id  §  1681m(d). 

239.  See  id.  §  1 68 1  c(a);  see  also  Consumer  Reporting  Employment  Clarification  Act  of  1 998, 
Pub.  L.  No.  105-347,  1 12  Stat.  3208. 

240.  See  15  U.S.C.  §  1681c(b)  (1994). 

241 .  See  Reidenberg,  supra  note  229,  at  2 1 3  n.92. 


1 999]  PRIVACY  PROTECTION  2 1 3 


The  1996  Reform  Act  continued  to  permit  the  dissemination  of  obsolete 
information,  but  it  raised  the  dollar  thresholds  to  permit  dissemination  in 
connection  with  an  employment  application  for  a  position  with  a  salary  over 
$75,000,  a  credit  transaction  over  $  1 50,000,  or  the  underwriting  of  life  insurance 
over$150,000.''2 

The  revised  act  specifies  a  number  of  situations  in  which  credit  agencies  and, 
in  some  cases,  the  persons  to  whom  they  supply  information,  must  provide 
information  to  consumers,  including  a  general  requirement  that  agencies  inform 
consumers  of  their  legal  rights  under  the  Fair  Credit  Reporting  Act.^"*^  In  a 
dramatic  extension  of  the  law,  the  Reform  Act  provides  that  credit  reporting 
agencies  must  delete  any  disputed  data  that  they  cannot  verify  within  thirty  days, 
as  well  as  comply  with  a  variety  of  new  procedural  requirements  concerning 
correcting  data  and  notifying  recipients  of  credit  reports  of  disputed  or  inaccurate 
data.^'^'^  No  longer  must  the  consumer  prove  information  false  to  have  it 
excluded.  In  a  second  significant  development,  the  Act  now  requires  anyone  who 
furnishes  data  to  a  credit  reporting  agency  to  correct  inaccurate  data,  to  notify 
any  agency  to  which  it  has  reported  data  if  it  determines  that  those  data  are 
inaccurate,  and  to  disclose  to  any  agency  to  which  it  is  reporting  data  if  those 
data's  accuracy  is  disputed.^"*^  Finally,  the  Reform  Act  directed  the  Federal 
Reserve  Board  to  make  recommendations  to  Congress  within  six  months 
concerning  the  data  processing  activities  of  organizations  not  covered  by  the  Fair 
Credit  Reporting  Act  and  the  extent  to  which  those  activities  "create  undue 
potential  for  fraud  and  risk  of  loss  to  insured  depository  institutions. .  .  ."^'^^ 

After  passage  of  the  Reform  Act's  amendments,  the  Fair  Credit  Reporting 
Act  significantly  restricts  the  content,  disclosure,  and  use  of  credit  information, 
while  not  addressing  the  collection  and  use  of  personal  information  general  ly.^'^^ 

Other  statutes  provide  protection  for  certain  specific  privacy-related  interests. 
For  example,  the  Fair  Credit  Billing  Act  of  1 914,^^^  requires  that  creditors  furnish 
consumers  with  copies  of  their  credit  transaction  records  and  provide  consumers 
with  an  opportunity  to  dispute  errors,  during  which  time  creditors  are  restricted 
from  disclosing  information  about  delinquent  payments.""*^  The  Fair  Debt 
Collection  Practices  Act  of  1977^^^  limits  debt  collectors'  disclosures  to  some 


242.  See  Department  of  Defense  Appropriations  Act,  §  2406(a)(2)  (codified  at  15  U.S.C.  § 
1681c(b)(Supp.  1997)). 

243.  See  15  U.S.C.  §  1681g(a),  (c)  (Supp.  1997). 

244.  See  id.  ^  leSUiSL). 

245.  See  id.  §  16815-2. 

246.  Id.  §  2422.  See  BOARD  OF  GOVERNORS  OF  THE  Federal  Reserve  System,  Report  to 
THE  Congress  Concerning  the  Availability  of  Consumer  Identifying  Information  and 
Financial  Fraud  (1997)  [hereinafter  Report  to  the  Congress]. 

247.  See  15  U.S.C.  §§  1681a(f),  (d)  (1994  &  Supp.  1997). 

248.  M  §  1666(1994). 

249      See  Reidenberg,  supra  note  229,  at  2 1 3. 
250.     15  U.S.C.  §  1692c(b)  (1994). 


214  INDIANA  LAW  REVIEW  [Vol.  33:173 


third  parties  (but  not  credit  reporting  agencies)  of  a  debtor's  financial  situation.^^^ 
The  Electronic  Communications  Privacy  Act  of  1986^"  prohibits  the 
interception  or  disclosure  of  the  contents  of  any  electronic  communication,  such 
as  telephone  conversations  or  e-mail,  or  even  of  any  conversation  in  which  the 
participants  exhibit  "an  expectation  that  such  communication  is  not  subject  to 
interception  under  circumstances  justifying  such  an  expectation."^"  There  are 
a  number  of  exceptions  to  this  apparently  broad  privacy  right,  the  most 
significant  of  which  is  that  the  prohibition  does  not  apply  if  any  one  party  to  the 
communication  consents  to  disclosure.^^"*  The  prohibition  also  does  not  apply  to 
switchboard  operators,  employees  of  telecommunications  service  providers, 
employees  of  the  Federal  Communications  Commission,  or  anyone  assisting  the 
holder  of  a  warrant,  provided  they  are  acting  within  the  scope  of  their  duties.^^^ 
The  prohibition  also  does  not  apply  if  the  communication  intercepted  was  "made 
through  an  electronic  communication  system  that  is  configured  so  that  such 
electronic  communication  is  readily  accessible  to  the  general  public,"  including 
any  marine  or  aeronautical  system,  amateur  and  citizens  band  radio,  or  "general 
mobile  radio  services."^^^ 

Prior  to  1996,  there  was  no  statutory  protection  for  information  about 
telecommunications  transactions,  such  as  telephone  numbers  or  time,  place,  and 
duration  of  call.^^^  The  Electronic  Communications  Privacy  Act  did  not  apply 
to  "transactional"  information,  so  service  providers  faced  no  legal  limits  on 
collecting,  storing,  or  disclosing  such  data.  In  fact,  the  statute  explicitly 
authorizes  the  use  of  "a  pen  register  or  a  trap  and  trace  device"  to  record 
information  about  other  individuals'  conversations  or  transmissions.^^^  On 
February  1,  1996,  however.  Congress  passed  the  Telecommunications  Act  of 
1 996,  which  included  provisions  protecting  the  privacy  of  "Customer  Proprietary 
Network  Infoniiation''^^^  ("CPNI").  The  Act  defines  CPNI  as  "information  that 
relates  to  the  quantity,  technical  configuration,  type,  destination,  and  amount  of 
use  of  a  telecommunications  service  subscribed  to  by  any  customer  of  a 
telecommunications  carrier,  and  that  is  made  available  to  the  carrier  by  the 


251.  See  id 

252.  18  U.S.C.  §§  2510-2520  (1994  &  Supp.  1997). 

253.  /^.  §§2510-1 1(2)  (1994). 

254.  Seeid.^25\\(2)ic). 

255.  See  id  ^  25l\{2). 

256.  Id  §2511(2)(g). 

257.  The  Federal  Communications  Commission  regulated  the  disclosure  of  such  information 
as  a  way  of  promoting  competition  among  telephone  companies.  See  47  C.F.R.  §  64.702(d)(3) 
(1997).  Under  the  Commission's  regulations,  a  regulated  telecommunications  service  provider 
could  not  provide  information  about  telecommunications  transactions  to  its  own  subsidiaries  which 
offered  "enhanced"  services,  unless  it  also  disclosed  that  information  to  competitors.  See  id.  See 
generally  Fred  H.  Cate,  Privacy  and  Telecommunications,  33  WAKE  FOREST  L.  REV.  1,  37-41 
(1998). 

258.  18U.S.C.  §2511(2)(h)(i)(1994). 

259.  Pub.  L.  No.  104-104,  1 1  Stat.  56  §  702  (codified  at  47  U.S.C.  §  222  (Supp.  1996)). 


1 999]  PRIVACY  PROTECTION  2 1 5 


customer  solely  by  virtue  of  the  carrier-customer  relationship."^^^  Under  the  Act, 
service  providers  may  "use,  disclose,  or  permit  access  to  individually 
identifiable"  CPNI  only  as  necessary  to  provide  the  telecommunications  service 
from  which  the  information  is  derived  or  services  necessary  to  that 
telecommunications  service.^^'  Service  providers  are  free  to  use  CPNI  as 
necessary  to  protect  their  own  business  interests.^^^  Although  the  Act  only 
restricts  the  disclosure  of  information  and  the  exemption  for  related  services  such 
as  telephone  directories  is  considerable,  the  new  provision  reflects  Congress' 
growing  attention  to  privacy  concerns. 

The  Cable  Communications  Policy  Act  of  1984^^^  provides  extensive 
privacy-related  regulation  of  cable  television  service  providers.  The  Act  restricts 
the  collection,  storage,  and  disclosure  of  "personally  identifiable  information" 
without  the  subscriber's  consent,^^  and  requires  that  service  providers  provide 
their  subscribers  with  access  to  information  collected  about  them.^^^  The  Act 
also  requires  that  the  cable  service  provider  inform  the  customer  at  least  once  a 
year  of  the  information  it  collects,  the  "nature,  frequency,  and  purpose  of  any 
disclosure"  of  that  information,  the  duration  of  its  storage,  the  times  and  places 
at  which  a  customer  may  have  access  to  that  information,  and  the  terms  of  the 
statute.^^^  The  Act  provides  for  statutory  damages  against  cable  operators  who 
violate  their  customers'  rights  under  the  Act.^^^  It  also  includes  some 
exemptions,  particularly  for  disclosures  of  information  "necessary  to  render,  or 
conduct  a  legitimate  business  activity  related  to"  the  provision  of  cable  service,^^^ 
but  it  nonetheless  constitutes  the  broadest  set  of  privacy  rights  in  any  federal 
statute. 

Federal  law  also  protects  against  the  disclosure  of  video  tape  rental  and  sale 
records.  The  Video  Privacy  Protection  Act  of  1988,^^^  adopted  in  response  to 
congressional  outrage  over  the  disclosure  of  the  list  of  videos  rented  by  Judge 
Robert  Bork  during  his  ill-fated  Supreme  Court  nomination  confirmation 
hearings,  prohibits  the  disclosure  of  titles  of  particular  films  rented  by 
identifiable  customers.  The  statute  also  requires  the  destruction  of  personally 
identifiable  information  not  later  than  one  year  after  the  information  if  no  longer 
necessary  for  the  purpose  for  which  it  was  collected.^^*^  There  are  significant 
exemptions,  for  example,  "if  the  disclosure  is  incident  [sic]  to  the  ordinary  course 


260.  Id.  (codified  at  47  U.S.C.  §  222(f)(1)). 

261.  Id.  (codified  at  47  U.S.C.  §  222(c)(1)). 

262.  See  id  (codified  at  47  U.S.C.  §  222(d)). 

263.  47  U.S.C.  §  551(a)(1)  (1994). 

264.  M§  551(c). 

265.  See  id  §  551(d). 

266.  M§  551(a). 

267.  See  id  ^  55\{f). 

268.  Id  §  551(c)(2). 

269.  18  U.S.C.  §2710(1994). 

270.  See  id  §  2710(e). 


2 1 6  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


of  business  of  the  video  tape  service  provider "^^'  Moreover,  data  about  user 

viewing  habits  may  be  disclosed  for  marketing  purposes  if  the  user  has  been 
given  an  opportunity  to  "opt  out"  of  such  disclosure.^^^  As  a  result,  lists  are 
widely  available  containing  information  on  user  viewing  habits  and  other 
demographic  information,  such  as  median  age  and  income. 

Congress'  most  recent  privacy  law,  the  Children's  Online  Privacy  Protection 
Act,^^^  restricts  the  online  collection  of  information  about  children  under  1 3 .  The 
Act  requires  that  operators  of  commercial  web  sites  which  target  children  or  are 
aware  that  they  are  collecting  information  from  children  provide  notice  of  their 
data  collection  policies  and  seek  parental  consent  before  collecting  information 
from  children.^^'*  The  Act  defers  to  the  Federal  Trade  Commission  most  of  the 
keys  issues  about  the  form  and  substance  of  parental  notification  and  consent. 
The  Commission  adopted  implementing  regulations  on  October  20, 1999,  which 
will  take  effect  on  April  2 1 ,  2000.^^^  The  Act  also  features  a  "safe  harbor"  option 
which  allows  industry  groups  to  submit  self-regulatory  mechanisms  to  the 
Commission  which,  if  approved  would  create  a  presumption  that  persons  in 
compliance  with  these  self-regulatory  mechanisms  are  also  in  compliance  with 
the  Act.^^^ 

C  State  Statutes 

At  least  thirteen  states  have  general  privacy  statutes  applicable  to  government 
activities.  Some  states  also  have  statutory  privacy  rights  that  apply  to  the  private 
sector.  We  can  see  three  approaches  reflected  in  these  state  statutory 
provisions.^^^ 

Two  states,  Massachusetts  and  Wisconsin,  have  adopted  general  rights  of 
privacy,  although  these  statutes  largely  restate  the  common  law  privacy  torts 
which  are  discussed  below.  For  example,  Massachusetts  provides  that  "[a] 
person  shall  have  a  right  against  unreasonable,  substantial  or  serious  interference 
with  his  privacy,"^^^  but  state  courts  largely  limit  this  right  to  the  "public 
disclosure  of  private  facts"  tort  discussed  below.  Similarly,  Wisconsin's  facially 
broad  privacy  statute — "The  right  of  privacy  is  recognized  in  this  state"^^^ — is 
restricted  to  the  torts  of  intrusion,  public  disclosure  of  private  facts,  and 
misappropriation.^^^    Even  in  those  limited  contexts,  the  statute  specifically 


271.  M  §27 1 0(b)(2)(E). 

272.  See  id.  §  2710(b)(2)(D). 

273.  Children's  Online  Privacy  Protection  Act,  Pub.  L.  No.  105-277,  1 12  Stat.  2681  (to  be 
codified  at  15  U.S.C.  §6501). 

274.  See  id. 

275.  See  id. 

276.  See  id. 

111.  See  Reidenberg,  supra  note  229,  at  227-28. 

278.  Mass.  Gen.  Laws  Ann.  ch.  214,  §  IB  (1996)  (West  1989). 

279.  Wis.  Stat.  Ann.  §  895.50  (West  1998). 

280.  See  id. 


1 999]  PRIVACY  PROTECTION  2 1 7 


exempts  from  any  prior  restraint  designed  to  protect  privacy  "constitutionally 
protected  communication  privately  and  through  the  public  media.  . .  ."^^' 

A  number  of  states  have  eschewed  the  appearance  of  broad  privacy 
protection  and  have  instead  codified  one  or  more  of  the  common  law  privacy 
torts  (discussed  below).^^^  Finally,  many  states  have  enacted  industry-specific 
privacy  legislation  in  areas  similar  to  federal  private  sector  statutes.^^^  These 
sectoral  statutes  have  been  the  focus  of  recent  intense  state  legislative  activity, 
with  forty-two  states  enacting  a  total  of  786  bills  in  1998.^^"*  Already  in  1999, 
states  have  considered  an  extraordinary  array  of  privacy  statues  addressing  issues 
ranging  from  direct  marketing  to  medical  records.  New  York  has  adopted 
fourteen  new  privacy  laws  and  is  still  considering  others.^^^  Like  their  federal 
counterparts,  "each  state  law  generally  seeks  to  resolve  a  narrow  problem  within 
a  given  industry  and  does  not  systematically  address  all  the  privacy  concerns 
relating  to  the  acquisition,  storage,  transmission,  use  and  disclosure  of  personal 
information."^^^  The  new  array  of  state  statutes  is  also  focusing  new  attention  on 
issues  surrounding  the  interaction  of  these  laws  with  each  other  and  with  federal 
law,  especially  in  the  context  of  the  Internet  and  electronic  information  transfers. 

D.   Tort  Law 
Following  publication  of  Samuel  Warren's  and  Louis  Brandeis'  article,  "The 


281.  Id.  §  895.50(l)(a). 

282.  See,  e.g.,  Cal.  Civ.  Code  §  3344  (West  1997);  Fla.  Stat.  Ann.  §  540.08  (West  Supp. ' 
1999);  N.Y.  Civ.  Rights  Law  §§  50-51  (McKinney  1992  &  Supp.  1999). 

283.  See,  e.g.,  Cal.  Lab.  Code  §  1 198.5  (West  Supp.  1999)  (employee  personnel  records); 
Conn.  Gen.  Stat.  Ann.  §  31-128f  (West  1997)  (employee  personnel  records);  Del.  Code  Ann. 
tit.  1 1,  §§  1335-36  (1995)  (intrastate  telephone  service);  Mass.  Gen.  Laws  Ann.  ch.  93,  §§  50-68 
(West  1997)  (credit  reporting);  N.J.  Stat.  Ann.  §  48:5 A-54  to  -63  (West  1998)  (cable  subscriber 
information  and  viewing  habits);  N.Y.  Gen.  Bus,  Law  §  380  (McKinney  1996)  (credit  reporting); 
18  Pa.  Cons.  Stat.  Ann.  §§  5701-775  (West  1983  &  Supp.  1999)  (intrastate  telephone  service). 

284.  See  Privacy  Legislation  in  the  States,  Priv.  &  AM.  Bus.,  Nov./Dec.  1 998,  at  1 ,  3. 

285.  See  A.B.  7047,  222nd  Legis.,  1st  Reg.  Sess.  (N.Y.  1999)  (identify  theft);  A.B.  5543, 
222nd  Legis.,  1st  Reg.  Sess.  (N.Y.  1999)  (temporary  state  privacy  commission);  A.B.  137,  222nd 
Legis.,  1st  Reg.  Sess.  (N.Y.  1999)  (limits  credit  card  and  debit  card  issuers'  release  of  customer 
names);  A.B.  467,  222nd  Legis.,  1st  Reg.  Sess.  (N.Y.  1999)  (regulates  personal  identification  of 
a  credit  card  holders);  A.B.  5384,  222nd  Legis.,  1st  Reg.  Sess.  (N.Y.  1999)  (credit  card  fraud 
prevention);  A.B.  5917,  222nd  Legis.,  1st  Reg.  Sess.  (N.Y.  1999)  (telemarketing  and  unsolicited 
advertisements);  A.B.  8110, 222nd  Legis.,  1  st  Reg.  Sess.  (N.Y.  1 999)  (limits  use  of  registration  lists 
and  title  information  made  available  to  contracting  parties);  AB.  8116, 222nd  Legis.,  1  st  Reg.  Sess. 
(N.Y.  1999)  (prohibits  the  disclosure  of  photos  by  state  agencies);  A.B.  1830,  222nd  Legis.,  1st 
Reg.  Sess.  (N.Y.  1999)  (confidentiality  of  electronic  toll  records);  A.B.  7044,  222nd  Legis.,  1st 
Reg.  Sess.  (N.Y.  1 999)  (privacy  of  e-mail  addresses);  A.B.  7045, 222nd  Legis.,  1  st  Reg.  Sess.  (N.Y. 
1999)  (unsolicited  e-mail  advertisements);  A.B.  8130,  222nd  Legis.,  1st  Reg.  Sess.  (N.Y.  1999) 
(Internet  privacy). 

286.  Reidenberg,  supra  note  229,  at  229. 


2 1 8  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


Right  to  Privacy"  in  the  Harvard  Law  Review  in  1 890,^^^  seventy  years  passed 
before  William  Prosser  proposed  a  structure  for  the  common  law  privacy  rights 
that  Warren  and  Brandeis  advocated.^^*  Dean  Prosser  analyzed  the  numerous 
state  court  opinions  recognizing  various  forms  of  a  "right  to  privacy,"  and  then 
categorized  that  right  into  four  distinct  torts:  physical  intrusion, 
misappropriation,  false  light,  and  publication  of  private  facts.^^^  This  structure, 
included  in  the  Restatement  (Second)  of  Torts  (for  which  Dean  Prosser  served  as 
reporter),  replaced  the  single  privacy  right  found  in  the  TxYsi  Restatement  of  Torts . 
The  second  Restatement  provides: 

Section  652A.  General  Principle 

(1 )  One  who  invades  the  right  of  privacy  of  another  is  subject  to  liability 
for  the  resulting  harm  to  the  interests  of  the  other. 

(2)  The  right  of  privacy  is  invaded  by 

(a)  unreasonable  intrusion  upon  the  seclusion  of  another,  as  stated 
in  §  652B;  or 

(b)  appropriation  of  the  other's  name  or  likeness,  as  stated  in  § 
652C;  or 

(c)  unreasonable  publicity  given  to  the  other's  private  life,  as 
stated  in  §  652D;  or 

(d)  publicity  that  unreasonably  places  the  other  in  a  false  light 
before  the  public,  as  stated  in  §  652E.^^^ 

The  tort  of  unreasonable  intrusion  lends  1  ittle  support  to  information  privacy, 
other  than  as  a  potential  restriction  on  the  means  of  gathering  information.  Like 
the  other  three  privacy  torts,  this  one  requires  that  the  intrusion  involve  "solitude 
or  seclusion  of  another  or  his  private  affairs  or  concerns"  and  that  it  be  "highly 
offensive  to  a  reasonable  person. "^^'  This  tort  is  recognized  in  some  form  in  all 
but  six  states. 

The  tort  of  appropriation  only  applies  to  the  "name  or  likeness"  of  an 
individual,^^"  and  therefore  is  of  limited  value  as  a  protection  for  information 
privacy.  Only  about  two-thirds  of  the  states  recognize  this  tort  and  most  of  them 
require  that  the  appropriation  be  for  "commercial  gain,"  such  as  advertising. 

The  tort  of  "unreasonable  publicity  given  to  the  other's  private  life"  applies 


287.  Warren  &  Brandeis,  jwpra  note  127. 

288.  See  William  L.  Prosser,  Privacy,  48  Cal.  L.  Rev.  383  (1960). 

289.  See  id.  at  389. 

290.  Restatement  (Second)  of  Torts  §  652A  ( 1 976). 

291.  M§652B. 

292.  Id.  §  652C. 


1 999]  PRIVACY  PROTECTION  2 1 9 


only  when  there  is  a  disclosure  to  a  large  audience  of  private  information  that 
would  be  "highly  offensive  to  a  reasonable  person  and  is  not  of  legitimate 
concern  to  the  public."^^^  In  addition  to  these  limits,  the  U.S.  Supreme  Court  has 
ruled  that  lawfully  obtained,  truthful  information  on  a  matter  of  public 
significance  can  never  be  the  subject  of  legal  liability,  at  least  not  without 
satisfying  the  requirements  of  strict  scrutiny.^^"*  In  Philadelphia  Newspapers,  Inc. 
V.  Hepps,^^^  the  Court  reaffirmed  that  punishing  true  speech  was  "antithetical  to 
the  First  Amendment's  protection.  .  .  ."^^^  Susan  M.  Gilles  has  noted  that  "[i]f 
the  constitutional  requirement  of  proof  of  falsity  articulated  in  libel  cases  is 
extended  to  privacy  cases,  then  the  private- facts  tort  is  unconstitutional."^^^  This 
tort  is  recognized  in  all  but  six  states,  but  the  number  of  successful  public 
disclosure  actions  has  been  insignificant.^^^ 

The  final  privacy  tort  is  "publicity  that  unreasonably  places  the  other  in  a 
false  light  before  the  public."^^^  To  be  actionable  under  the  false  light  tort,  the 
publication  must  be  both  false  and  highly  offensive  to  a  reasonable  person.^^^  In 
1 967,  in  Time,  Inc.  v.  Hill,^^^  the  Supreme  Court  extended  the  First  Amendment 
privileges  previously  recognized  in  the  context  of  defamation  to  actions  for  false 
light  privacy. ^^^  The  Court  thus  required  plaintiffs  to  show  that  the  defendant 
knew  the  publication  was  false  or  recklessly  disregarded  its  truth  or  falsity.^^^ 
Fewer  than  two-thirds  of  states  recognize  this  tort. 

These  state  tort  actions  are  the  principal  source  today  of  adjudicated  legal 
rights  concerning  privacy.  However,  they  offer  little  protection  for  information 
privacy.  Even  in  their  limited  areas,  only  one  award  to  a  privacy  tort  plaintiff  has 
ever  survived  the  Supreme  Court's  First  Amendment  scrutiny. ^^'^ 

E.   U.S.  Privacy  Principles 

Privacy  protection  in  the  United  States  reflects  four  features  of  American 
society  and  system  of  government.  Understanding  those  four  features  is  critical 
to  recognizing  both  the  level  of  privacy  protection  that  exists  in  the  United  States 


293.  Id.  §  652D.  See  also  id.  §  652D  cmt.  a. 

294.  See  Florida  Star  v.  B.J.F.,  491  U.S.  524  (1989);  Smith  v.  Daily  Mail  Publ'g  Co.,  443 
U.S.  97  (1979);  Cox  Broad.  Corp.  v.  Cohn,  420  U.S.  469  (1975). 

295.  475  U.S.  767  (1986)  (holding  a  private-figure  defamation  plaintiff  could  not  recover 
damages  without  also  showing  that  the  statements  at  issue  were  false). 

296.  Id  at  777. 

297.  Susan  M.  Gilles,  Promises  Betrayed:  Breach  of  Confidence  as  a  Remedy  for  Invasions 
of  Privacy,  43  BUFF.  L.  REV.  1,  8  (1995). 

298.  See  RESTATEMENT  (Second)  of  Torts  §  652E  ( 1 976). 

299.  Id 

300.  See  id. 

301.  385  U.S.  374(1967). 

302.  See  id  at  387-88. 

303.  See  id. 

304.  See  Cantrell  v.  Forest  City  Publ'g  Co.,  419  U.S.  245  (1974). 


220  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


and  the  limits  on  that  protection  and  on  the  means  by  which  it  may  be  achieved. 

1.  Rights  Against  the  Government. — First,  the  U.S.  Constitution  reflects  the 
conviction  that  the  greatest  threat  to  individual  liberty  is  the  government.  As  a 
result,  rights  articulated  in  the  Constitution  generally  are  protected  only  against 
government  actions.  Only  the  Thirteenth  Amendment,  which  prohibits  slavery, 
applies  directly  to  private  parties.^^^  All  other  constitutional  rights — whether  to 
speak  freely,  confront  accusers,  or  be  tried  by  a  jury  of  one's  peers — regulate  the 
public,  but  not  the  private,  sector. 

One  dominant  theme  of  constitutional  rights  is  the  protection  of  citizens  from 
government  intrusion  into  their  privacy.  A  vigorous  First  Amendment,  as  we 
have  seen,  permits  individuals  the  privacy  of  their  own  thoughts,  beliefs,  and 
associations.^^^  The  Third  Amendment  keeps  government  soldiers  from  being 
quartered  in  private  homes.^^^  The  Fourth  Amendment  prohibits  unreasonable 
searches  and  seizures.^^^  The  Fifth  Amendment  restricts  government  from 
interfering  with  private  property,  provides  for  due  process  and  compensation 
when  it  does  so,  and  protects  citizens  from  self-incrimination.^^^  Collectively, 
these  and  other  provisions  of  the  Constitution  impose  extraordinary  limits  on 
government  authority  to  intrude  on  private  property,  compel  testimony,  or 
interfere  with  practices  closely  related  to  individual  beliefs,  such  as  protest, 
marriage,  family  planning,  or  worship. 

Controlling  a  government's  actions  is  an  essential  step  to  protecting  privacy 
not  only  because  of  a  government's  size  and  power,  but  also  because  of  its 
isolation  from  the  market — a  mechanism,  as  is  discussed  in  greater  detail  below, 
that  plays  a  vital  role  in  protecting  individuals  from  private- sector  intrusion. 

The  effect  of  these  constitutional  protections,  however,  is  not  just  to  protect 
privacy  from  government  intrusion.  Legal  respect  for  private  property,  for 
example,  also  allows  individuals  to  separate  themselves  from  each  other,  perhaps 
the  best  guarantee  of  privacy.  The  laws  that  attend  private  property  are  what 
empower  one  person  to  exclude  another  from  her  land,  home,  papers,  and 
possessions,  and  to  call  upon  the  state  to  protect  those  objects  from  physical 
intrusion  and  interference. 

2.  Importance  of  Open  Information  Flows. — ^The  second  feature  of  the  U.S. 
information  society  is  the  extraordinary  importance  placed  in  the  United  States 
on  the  unrestricted  flow  of  information.  As  the  Federal  Reserve  Board  noted  in 
its  report  to  Congress  on  data  protection  in  financial  institutions,  "it  is  the 
freedom  to  speak,  supported  by  the  availability  of  information  and  the  free-flow 
of  data,  that  is  the  cornerstone  of  a  democratic  society  and  market  economy."^ '^ 

The  significance  of  open  data  flows  is  reflected  in  the  constitutional 
provisions  not  only  for  freedom  of  expression,  but  for  copyrights,  to  promote  the 


305.  See  Clyatt  v.  United  States,  197  U.S.  207,  216-220  (1905). 

306.  See  U.S.  CONST,  amend.  I. 

307.  See  id.  amend.  III. 

308.  See  id.  amend.  IV. 

309.  See  id  amend.  V. 

3 1 0.  Report  to  the  Congress,  supra  note  246,  at  2. 


1 999]  PRIVACY  PROTECTION  22 1 


creation  and  dissemination  of  expression,  and  for  a  post  office,  to  deliver  the  mail 
and  the  news.^*'  Federal  regulations  demonstrate  a  sweeping  preference  for 
openness,  reflected  in  the  Freedom  of  Information  Act,  Government  in  the 
Sunshine  Act,  and  dozens  of  other  laws  applicable  to  the  government.  There  are 
even  more  laws  requiring  disclosure  by  private  industry,  such  as  the  regulatory 
disclosures  required  by  securities  and  commodities  laws,  banking  and  insurance 
laws,  and  many  others. 

The  focus  on  openness  both  advances  and  restricts  privacy  interests.  It 
furthers  privacy  by  guaranteeing  that  citizens  have  affordable  access  to  data, 
particularly  about  themselves,  thereby  facilitating  the  identification  and 
correction  of  inaccurate  information.  This  is  a  key  function,  for  example,  of  the 
disclosure  requirements  in  the  FOIA.  It  also  facilitates  privacy  protection  by 
supporting  a  vigorous,  independent  press,  which  has  repeatedly  proved 
invaluable  in  investigating  and  exposing  privacy  intrusions  by  both  government 
and  private  parties.^ '^ 

The  focus  on  openness,  however,  also  reflects  an  understanding  that  in  a 
democracy  and  a  market  economy,  privacy  is  not  an  unmitigated  good.  As  a 
result,  efforts  to  enhance  personal  privacy  are  balanced  against  the  costs  that 
those  efforts  impose  on  the  free  flow  of  information,  the  election  and  supervision 
of  governments,  the  development  of  efficient  markets,  and  the  provision  of 
valuable  services. 

Protecting  the  privacy  of  information  imposes  real  costs  on  individuals  and 
institutions.  Judge  Richard  Posner  has  written: 

Much  of  the  demand  for  privacy  . . .  concerns  discreditable  information, 


311.  See  U.S.  CONST,  art.  I,  §  8. 

312.  In  1991,  Lotus  Development  Corporation  and  Equifax  abandoned  plans  to  sell 
"Households,"  a  CD-ROM  database  containing  names,  addresses,  and  marketing  information  on 
120  million  consumers,  after  receiving  30,000  calls  and  letters  from  individuals  asking  to  be 
removed  from  the  database.  See  Lawrence  M.  Fisher,  New  Data  Base  Ended  by  Lotus  and  Equifax, 
N.Y.  Times,  Jan.  24,  1991,  at  D4.  Cancellation  of  "Households"  led  Lotus  to  abandon  "Lotus 
Marketplace,"  a  similar  CD-ROM  database  with  information  on  seven  million  U.S.  businesses. 
Eight  months  later,  Equifax,  one  of  the  United  States'  largest  credit  bureaus,  decided  to  stop  selling 
consumer  names  and  addresses  to  direct  marketing  firms  altogether,  a  business  that  had  earned  the 
company  $11  million  the  previous  year.  See  Shelby  Gilje,  Credit  Bureau  Won't  Sell  Names, 
Seattle  Times,  Aug.  9, 1 99 1 ,  at  D6. 

More  recently,  Lexis-Nexis,  operator  of  one  of  the  largest  legal  and  general  information 
databases  in  the  world,  has  revamped  plans  for  "P-Track,"  a  service  that  provides  anyone  willing 
to  pay  the  $85-$  100  search  fee  with  personal  information,  including  maiden  names  and  aliases, 
about  "virtually  every  individual  in  America."  Kathy  M.  Kristof,  Deluged  Lexis  Purging  Names 
from  Databases,  L.A.  TIMES,  Nov.  8,  1996,  at  D5.  The  database  reportedly  includes  current  and 
previous  addresses,  birth  dates,  home  telephone  numbers,  maiden  names,  and  aliases.  Initially, 
Lexis  was  also  providing  Social  Security  numbers.  However,  in  response  to  a  storm  of  protest. 
Lexis  stopped  displaying  Social  Security  numbers,  and  it  is  honoring  the  requests  of  anyone  who 
wishes  to  be  deleted  from  the  database.  See  id. 


222  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


often  information  concerning  past  or  present  criminal  activity  or  moral 
conduct  at  variance  with  a  person's  professed  moral  standards.  And 
often  the  motive  for  concealment  is  ...  to  mislead  those  with  whom  he 
transacts.  Other  private  information  that  people  wish  to  conceal,  while 
not  strictly  discreditable,  would  if  revealed  correct  misapprehensions 
that  the  individual  is  trying  to  exploit .  .  .  .^'^ 

Privacy  facilitates  the  dissemination  of  false  information,  protects  the 
withholding  of  relevant  true  information,  and  interferes  with  the  collection, 
organization,  and  storage  of  information  on  which  businesses  and  others  can 
draw  to  make  rapid,  informed  decisions.  The  costs  of  privacy  include  both 
transactional  costs  incurred  by  information  users  seeking  to  determine  the 
accuracy  and  completeness  of  the  information  they  receive,  and  the  risk  of  future 
losses  resulting  from  inaccurate  and  incomplete  information.  Therefore,  privacy 
may  reduce  productivity,  lead  to  higher  prices  for  products  and  services,  and 
make  some  services  untenable  altogether. 

Moreover,  even  when  the  information  disclosed  is  not  inherently  significant, 
or  in  the  context  of  a  relationship  where  health  or  safety  are  at  stake,  there  is 
nonetheless  value  in  curiosity.  As  Judge  Posner  has  noted,  "casual  prying"  is  not 
only  a  common  feature  of  everyday  life,  it  "is  also  motivated,  to  a  greater  extent 
than  we  may  realize,  by  rational  considerations  of  self-interest.  Prying  enables 
one  to  form  a  more  accurate  picture  of  a  friend  or  colleague,  and  the  knowledge 
gained  is  useful  in  one's  social  or  professional  dealings  with  him."^^"*  Even  the 
term  "idle  curiosity,"  according  to  Judge  Posner,  is  "misleading.  People  are  not 
given  to  random,  undifferentiated  curiosity."^ '^  For  example,  "[g]ossip  columns 
recount  the  personal  lives  of  wealthy  and  successful  people  whose  tastes  and 
habits  offer  models — ^that  is,  yield  information — ^to  the  ordinary  person  in  making 
consumption,  career,  and  other  choices.  .  .  .  [They]  open  people's  eyes  to 
opportunities  and  dangers;  they  are  genuinely  informational."^'^  Protection  for 
privacy,  therefore,  not  only  interferes  with  the  acquisition  of  information  that  has 
a  particular,  identified  significance,  it  also  impedes  a  voyeuristic  curiosity  that 
is  widely  shared  and  that  serves  valuable  purposes  for  both  individuals  and 
society. 

The  protection  of  privacy  may  also  interfere  with  other  constitutional  values, 
such  as  the  protection  for  expression  in  the  First  Amendment  and  the  protection 
for  private  property  in  the  Fifth  Amendment. 

The  late  Professor  Anne  Branscomb  wrote:  "Information  is  the  lifeblood  that 
sustains  political,  social,  and  business  decisions."^'^  Although  U.S.  law  offers 
extensive  protection  to  individuals  from  government  collection  and  use  of 


313.  Richard  A.  Posner,  The  Right  of  Privacy,  12  Ga.  L.  Rev.  393,  399  (1978). 

314.  Mat  395-96. 

315.  Mat  396. 

316.  Id. 

3 1 7.  Anne  W.  Branscomb,  Global  Governance  of  Global  Networks:  A  Survey  ofTransborder 
Data  Flow  in  Transition,  36  Vand.  L.  Rev.  985,  987  (1983). 


1999]  PRIVACY  PROTECTION  223 


personal  data,  the  commitment  to  open  information  flows  is  so  great  that  our  laws 
extend  virtually  no  direct  protection  to  data,  other  than  trade  secrets,  in  the 
marketplace. 

3.  Preference  for  Private  Action. — The  third  significant  feature  is  that  the 
United  States  has  historically  depended  heavily  on  private  industry,  private 
property,  and  individual  self-reliance.  Constitutional  rights  are  generally 
"negative";  they  do  not  obligate  the  government  to  do  anything,  but  rather  to 
refrain  from  unnecessarily  interfering  with  individuals'  freedom  to  act.  This  also 
explains  the  very  high  protection  in  U.S.  law  for  private  agreements.  Citizens  do 
not  have  to  make  promises  to  one  another,  but  when  we  do,  the  government 
makes  available  valuable  resources  to  enforce  those  promises. 

The  preference  for  private  action  and  individual  responsibility  is  especially 
clear  when  information  is  involved.  The  U.S.  Supreme  Court  has  repeatedly 
interpreted  the  First  Amendment  to  deny  plaintiffs  aggrieved  by  even  false  and 
harmful  speech  any  remedy,  stressing  instead,  in  the  words  of  Justice  Brandeis, 
"the  remedy  to  be  applied  is  more  speech,  not  enforced  silence."^'^ 

The  focus  on  individual  and  collective  private  action  inevitably  restrains  the 
power  of  the  government  to  pass  sweeping  privacy  laws.  But  it  also  facilitates 
considerable  privacy  protection  through  the  use  of  technologies,  markets, 
industry  self-regulation  and  competitive  behavior,  and  individual  judgment.  For 
example,  technological  innovations  such  as  adjustable  privacy  protection  settings 
in  both  Netscape  and  Microsoft  Explorer,  encryption  software,  anonymous 
remailers,  and,  in  fact,  the  Internet  itself  all  facilitate  privacy  and  individual 
control  over  the  information  we  disclose  about  ourselves. 

Many  companies  are  actively  competing  for  customers  by  promoting  their 
privacy  policies  and  practices.  If  enough  consumers  demand  better  privacy 
protection  and  back  up  that  demand,  if  necessary,  by  withdrawing  their 
patronage,  virtually  all  competitive  industry  sectors  are  certain  to  respond  to  that 
market  demand.  In  fact,  consumer  inquiries  about,  and  response  to,  corporate 
privacy  policies  are  an  excellent  measure  of  how  much  the  society  really  values 
privacy.  ^ 

Considerable  privacy  protection  also  exists  in  private  agreements.  When  a 
company  promotes  its  privacy  policy,  under  U.S.  law  it  is  obligated  to  adhere  to 
that  policy.  The  failure  to  do  so  may  subject  an  institution  to  suits  by  consumers 
and  action  by  the  Federal  Trade  Commission,  which  is  empowered  by  Congress 
to  investigate  "unfair  or  deceptive"  trade  practices.^ '^ 

Industry  organizations  are  increasingly  providing  standards  for  privacy 
protection  and  help  to  consumers  whose  privacy  interests  are  compromised.  The 
Direct  Marketing  Association,  for  example,  operates  the  Mail  Preference  Service 
and  the  Telephone  Preference  Service.  With  a  single  request  to  each,  it  is 
possible  to  be  removed  from  most  DMA-member  company  mailing  and  telephone 


318.  Whitney  v.  California,  274  U.S.  357,  377  (1927)  (Brandeis,  J.,  concurring).  See  44 
Liquormart,  Inc.  v.  Rhode  Island,  517  U.S.  484, 497  (1996);  Texas  v.  Johnson,  491  U.S.  397,  419 
(1989). 

319.  See  15  U.S.C.  §  57b-l(1997). 


224  INDIANA  LAW  REVIEW  [Vol.  33 : 1 73 


solicitation  lists.^^° 

Many  industry  associations  have  adopted  guidelines  and  principles  which 
may  serve  as  models  for  individual  company  policies.  Corporate  compliance 
with  privacy  standards  constitutes  an  increasingly  important  accolade  in 
competitive  markets,  particularly  among  Internet  users.  Moreover,  industry 
associations  can  help  persuade  member  organizations  to  adopt  and  adhere  to 
industry  norms  for  privacy  protection.  The  DMA,  for  example,  has  begun 
issuing  quarterly  reports  on  members  who  are  being  disciplined  for  violating 
DMA  codes  of  conduct. 

A  consortium  of  privacy  advocates  and  software  companies  has  announced 
the  development  of  a  service  to  make  privacy  self-help  easier  on  the  Internet. 
"TRUSTe"  is  a  program  that  rates  Internet  sites  according  to  how  well  they 
protect  individual  privacy.  Internet  sites  that  provide  sufficient  protection  for 
individual  privacy — including  not  collecting  personal  information,  not 
disseminating  information  to  third  parties,  and  not  using  information  for 
secondary  purposes — earn  the  right  to  display  the  "TRUSTe"  logo.^^'  The  Better 
Business  Bureau  has  recently  launched  a  similar  initiative — BBB  Online.^^^ 

The  majority  of  the  individual  reference  services  group  industry  has  agreed 
to  abide  by  the  ISRG  Principles,  which  not  only  establish  data  protection 
standards,  but  also  require  annual  compliance  audits  by  third  parties  and  a 
commitment  not  to  provide  information  to  entities  whose  practices  are 
inconsistent  with  the  ISRG  Principles.^^^ 

These  more  flexible,  more  contextual,  more  specific  tools  offer  better  privacy 
protection  than  an  omnibus  law,  and  at  potentially  lower  cost  to  consumers, 
businesses,  and  the  society  as  a  whole.  These  responses  are  exactly  what  we 
would  expect  from  the  market  if  consumers  value  privacy  protection  in  the 
private  sector. 

4.  Limited  Role  for  Government. — Finally,  the  United  States  has  historically 
recognized  important  roles  for  government  to  keep  markets  open,  to  fill  in  those 
gaps  necessary  to  protect  vulnerable  populations,  such  as  children,  and  to 
respond  to  needs  left  unmet  by  traditional  markets,  such  as  protecting  the 
environment. 

The  same  is  true  for  privacy.  The  government  still  plays  an  important  role 
in  protecting  privacy,  but  the  legal  regulation  of  privacy  in  the  U.S.  private  sector 
is  largely  limited  to  facilitating  individual  action.  For  example,  Congress 
recently  enacted  federal  restrictions  on  collecting  information  from  children 


3  20.  See  Direct  Marketing  Association,  Frequently  Asked  Questions  to  Help  You  Understand 
Direct  Marketing  <http://www.the-dma.org/topframe/index5.html>.  The  DMA  reports  that  these 
service  are  used  by  only  two  percent  of  the  U.S.  adult  population. 

32 1 .  See  How  the  TRUSTe  Program  Works  (visited  Dec.  1 ,  1 999)  <http://www.truste.org>. 

322.  See  BBB  Online  Privacy  Program  (visited  Dec.  1,  1999)  <http://www. 
BBBOnLine.org/>. 

323.  see  federal  trade  commission,  individual  reference  services:  a  report  to 
Congress  (1997). 


1999]  PRIVACY  PROTECTION  225 


online,^^"*  and  has  put  in  place  extensive  data  protection  regulation  applicable  to 
local  telephone  service^^^  and  cable  television  providers,^^^  which  rarely  operate 
in  markets  offering  consumers  real  competitive  choice.  In  those  and  similar 
situations,  the  law  provides  important  but  carefully  circumscribed,  basic  privacy 
rights,  the  purpose  of  which  is  to  facilitate — not  interfere  with — ^the  development 
of  private  mechanisms  and  individual  choice  as  the  preferred  means  of  valuing 
and  protecting  privacy. 

Conclusion 

An  ocean  of  ink  has  been  spilled  comparing  European  and  U.S.  privacy 
protection  and  predicting  the  impact  of  the  EU  data  protection  directive  on  U.S.- 
European relations.  At  its  core,  the  impact  of  the  directive  will  be  measured  by 
the  provisions  of  the  fifteen  member  states'  national  laws  transposing  the 
directive's  requirements.  As  ten  of  those  countries  have  yet  to  be  heard  from, 
and  in  the  face  of  many  and  frequent  political  and  technological  developments, 
predictions  about  the  future  are  not  only  uncertain,  but  also  likely  to  be  unwise. 
With  that  caution  clearly  in  mind,  however,  I  want  to  advance  five  observations 
about  the  changing  face  of  privacy  protection  in  Europe  and  the  United  States. 
While  these  may  strike  many  readers  as  obvious,  I  believe  they  are  important  to 
understanding  and  perhaps  even  anticipating  future  developments. 

A.   The  Value  of  Privacy  and  the  Role  of  the  Government  in  Protecting  It 

First,  while  Europe  and  the  United  States  share  many  values,  the  systems  of 
privacy  protection  reflected  in  the  EU  directive  and  U.S.  law  diverge  most 
sharply  on  how  much  they  value  privacy,  especially  in  competition  with  other 
goals,  and  on  the  appropriate  role  for  the  government  in  protecting  privacy.  The 
directive  is  based  on  the  stated  belief  that  information  privacy  is  a  basic  human 
right,  on  par  with  the  rights  of  self-determination,  freedom  of  thought,  and 
freedom  of  expression.  Article  1  of  the  EU  directive  obligates  member  states  to 
protect  the  "fundamental  rights  and  freedoms  of  natural  persons,  and  in  particular 
their  right  to  privacy  with  respect  to  the  processing  of  personal  data."^^^ 

The  primacy  of  the  right  to  privacy  is  further  reflected  in  the  text  of  the 
directive,  which  permits  member  states  to  carve  out  exceptions  "for  the 
processing  of  personal  data  carried  out  solely  for  journalistic  purposes  or  the 
purposes  of  artistic  or  literary  expressions  which  prove  necessary  to  reconcile  the 
right  to  privacy  with  the  rules  governing  freedom  of  expression,"^^^  but  only  with 
regard  to  two  of  the  directive's  substantive  provisions.  Member  states  may  create 
exceptions  to  the  prohibition  on  processing  sensitive  data,  and  the  requirement 


324.  See  Children's  Online  Privacy  Protection  Act  of  1998,  Pub.  L.  No.  105-277,  1 12  Stat. 
2681  (1998). 

325.  See  18  U.S.C.  §§  2510-2520,  2701-2709  (1997);  47  U.S.C.  §§  222,  1001-10  (1997). 

326.  See  47  U.S.C.  §  551(a)  (1997). 

327.  Directive  95/46/EQ  supra  note  44,  art.  1  ( 1 ). 

328.  Id.  art.  9. 


226  INDIANA  LAW  REVIEW  [Vol.  33: 173 


that  data  subjects  be  notified  of  information  processing  activities.^^^  By  the 
omission  of  any  reference  to  the  other  substantive  rights  from  the  article 
permitting  exceptions  for  expressive  undertakings,  it  is  clear  that  the  directive's 
drafters  believe  that  the  protection  of  privacy  is  paramount  to  freedom  of 
expression  and  the  activities  of  the  press  and  other  authors  and  artists. 

As  a  result  of  the  extraordinary  value,  it  places  on  information  privacy,  the 
EU  data  protection  directive  requires  persons  who  wish  to  collect,  process,  use, 
store,  and  disseminate  personal  information  to  register  with  their  national  data 
protection  supervisory  authority.  This  scheme  is  anathema  to  the  U.S. 
constitutional  system,  which  so  highly  values  freedom  of  expression  and  of  the 
press,  freedom  from  government  intrusion,  and  protection  of  private  property, 
and  which  frankly  places  less  value  on  privacy.  Privacy  protection  in  the  United 
States  is  fundamentally  in  tension  with  other  values.  Even  if  the  law  did  not 
recognize  these  competing  values  and  regard  privacy  as  imposing  both  benefits 
and  costs,  the  nation's  constitutional  commitment  to  a  government  of  limited 
powers,  particularly  when  expression  is  involved,  poses  a  substantial  obstacle  to 
the  creation  of  government  privacy  authority.  This  suggests  a  core  difference 
between  European  and  U.S.  privacy  protection:  the  extent  to  which  the 
government  is  responsible  for  protecting  information  privacy.  According  to  Jane 
Kirtley,  former  Executive  Director  of  the  Reporters  Committee  for  Freedom  of 
the  Press: 

Privacy  advocates  urge  the  adoption  of  the  European  model  for  data 
protection  in  the  name  of  protecting  individual  civil  liberties.  But  in  so 
doing,  they  ignore,  or  repudiate,  an  important  aspect  of  the  American 
democratic  tradition:  distrust  of  powerful  central  government.  .  .  . 
[W]hen  it  comes  to  privacy,  Americans  generally  do  not  assume  that  the 
government  necessarily  has  citizens'  best  interests  at  heart.  .  .  .  The 
European  paradigm  assumes  a  much  higher  comfort  level  with  a  far  more 
authoritarian  government.^^^ 

B.   The  Restriction  on  Transborder  Data  Flow 

Article  25  of  the  EU  directive  only  exacerbates  the  divergence  between  EU 
and  U.S.  law  by  seeking  to  extend  European  privacy  laws  beyond  the  territories 
of  the  nations  enacting  those  laws.  This  effort  is  understandable  in  light  of  the 
directive's  treatment  of  privacy  as  a  human  right,  and  necessary  if  the  privacy  of 
European  nationals  is  to  be  protected  effectively  in  a  global  information 
economy.  However,  Article  25  is  justifiably  criticized  as  an  effort  to  establish 
European  protection  for  information  privacy  as  a  global  standard.  Because  of  the 
difficulty  of  separating  data  collected  within  Europe  from  data  collected 
elsewhere,  the  directive  effectively  requires  multinational  businesses  to  conform 


329.  See  id. 

330.  Jane  E.  Kirtley,  The  EU  Data  Protection  and  the  First  Amendment:    Why  a  "Press 
Exemption  "  Won 't  Work,  80  lOWA  L.  Rev.  639,  648-49  ( 1 995). 


1999]  PRIVACY  PROTECTION  227 


all  of  their  data  processing  activities  to  EU  law  or  to  self-regulatory  or 
contractual  provisions  that  mirror  EU  law.  Even  businesses  that  do  not  operate 
in  Europe  may  run  afoul  of  the  directive  if  they  collect,  process,  or  disseminate 
personal  data  about  European  nations  or  via  multinational  networks. 

As  a  result,  U.S.  businesses  with  interests  in  personal  data  collected,  stored, 
or  processed  in  Europe,  and  particularly  U.S.  businesses  with  operations  in 
Europe,  fear  that  they  will  be  unable  to  move  those  data  legally — even  if  they 
"own"  them — ^to  the  United  States. 

The  concerns  of  non-European  information  users  are  not  misplaced. 
Although  the  directive  only  took  effect  in  1998,  the  British  Data  Protection 
Registrar  has  forbidden,  under  British  law,  a  proposed  sale  of  a  British  mailing 
list  to  a  United  States  direct  mail  organization.^^'  France,  acting  under  French 
domestic  law,  has  prohibited  the  French  subsidiary  of  an  Italian  parent  company 
from  transferring  data  to  Italy  because  Italy  did  not  have  an  omnibus  data 
protection  law.^^^  The  French  Commission  nationale  de  I'informatique  et  des 
libertes  has  required  that  identifying  information  be  removed  from  patient 
records  before  they  could  be  transferred  to  Belgium,^^^  Switzerland,""*  and  the 
United  States."^ 

The  United  States'  fear  about  the  impact  of  the  directive  is  still  further 
exacerbated  by  the  EU  Working  Party's  skepticism  towards  extra-legal 
protections  for  privacy.  In  the  United  States,  industry  self- regulation  and  private 
agreements  are  the  primary  means  of  protecting  privacy.  So  the  Working  Party's 
conclusion  that  these  should  be  the  exception,  not  the  norm,  in  measuring  the 
adequacy  of  privacy  protection  decreases  the  likelihood  that  European  data 
protection  officials  will  find  privacy  protection  in  the  United  States  to  be 
"adequate." 

At  its  heart,  however.  Article  25  is  merely  the  most  recent  evidence  of  an 
expanding  phenomenon:  the  effort  to  use  national  or  regional  law  to  deal  with 
fundamentally  global  issues.  As  we  have  already  seen,  information  is  inherently 
global.  It  is  because  of  its  inherently  global  character  that  information  has  been 
the  subject  of  some  of  the  earliest  multinational  agreements,  treaties,  and 
organizations.  Binational  postal  treaties  were  concluded  as  early  as  1601 
between  France  and  Spain  and  1670  between  France  and  England."^  The  Postal 
Congress     of    Berne     in     1874     established     a     multinational     postal 


33 1 .  See  Office  of  the  [UK]  Data  Protection  Registrar,  Seventh  Annual  Report  33-34(1 990). 

332.  See  Ddliberation  No.  89-78  du  1 1  juillet  1989,  reprinted  in  Commission  nationale  de 
i'informatique  et  des  libertes,  lOe  Rapport  32-34  (1989). 

333.  See  Ddlib^ration  No.  89-98  du  26  sept.  1989,  reprinted  in  Commission  nationale  de 
rinformatique  et  des  libertds,  lOe  Rapport  d'activite  35-37  (1990). 

334.  See  Reidenberg,  supra  note  38,  at  S 1 63  (citing  an  interview  with  Ariane  Mole,  Attachee 
Relations  Internationales,  Direction  juridique  de  la  Commission  nationale  de  I'informatique  et  des 
libertes,  Paris,  France  (Jun.  6,  1991)). 

335.  See  id. 

336.  See  Ludwig  Weber,  Postal  Communications,  International  Regulation,  5  ENCYCLOPEDIA 
OF  Public  Int'l  Law  238  (1983). 


228  INDIANA  LAW  REVIEW  [Vol.  33:173 


regime — administered  today  by  the  Universal  Postal  Union — seventy- four  years 
before  the  General  Agreement  on  Tariffs  and  Trade  was  opened  for  signature.^^^ 

Today,  when  data  processing  is  wholly  dominated  by  networked  computers, 
information  is  difficult  to  pinpoint  and  almost  impossible  to  block,  through  either 
legal  or  technological  means.  Digital  information  not  only  ignores  national 
borders,  but  also  those  of  states,  territories,  and  even  individual  institutions.  Not 
surprisingly,  the  inherently  global  nature  of  digital  information  poses 
extraordinary  challenges  to  the  power  of  national  governments,  and  efforts  to  use 
national  law  to  deal  regulate  information  in  one  jurisdiction  often  pose 
substantial  legal  and  practical  issues  in  another. 

This  is  the  conundrum  that  Article  25  has  come  to  symbolize.  If  the  directive 
did  not  extend  to  data  processing  activities  outside  of  the  EU,  it  would  be  certain 
to  fail,  because  of  the  ease  with  which  those  activities  can  be  moved  off-shore. 
However,  by  extending  its  application  beyond  the  jurisdiction  of  EU  member 
states,  the  directive  presents  a  host  of  international  law  issues,  conflicts  with  the 
information  law  regimes  of  other  nations,  and  is  hardly  more  likely  to  be 
effective.  If  a  regulatory  approach  is  to  be  pursued,  then  global  standards  are 
necessary.  But  the  conflict  between  the  core  values  of  the  European  and  U.S. 
systems  of  privacy  protection  makes  global  consensus  on  effective  privacy 
standards  little  more  than  a  mirage.  In  short,  national  approaches  to  regulating 
information  are  becoming  increasingly  ineffective,  at  the  very  time  that  the 
economic  power  of  information  is  increasing  the  pressure  for  national 
governments  to  pursue  those  approaches. 

C   The  Search  for  Compromise 

Despite  the  profound  differences  in  core  principles  undergirding  U.S.  and 
European  privacy  law,  there  is  likely  to  be  some  accommodation  between  U.S. 
and  European  interests.  Both  European  and  U.S.  officials  have  a  significant 
economic  interest  in  avoiding  such  a  trade  dispute,  and  both  sides  have  thus  far 
worked  diligently  to  do  so.  European  data  protection  officials  have  shown  an 
increasing  willingness  to  at  least  consider  the  privacy  protection  models  offered 
by  the  rest  of  the  world.  The  Working  Party's  later  working  documents,  while 
still  firm  about  the  definition  of  "adequacy,"  are  more  moderate  in  tone  than  were 
earlier  documents. 

United  States'  officials,  for  their  part,  are  growing  more  attentive  to 
European  officials  and  European  concerns.  At  the  same  time,  as  already  noted, 
both  U.S.  federal  and  state  government  officials  are  considering  increased 
legislation  and  regulation  to  protect  information  privacy.  While  U.S.  law  is 
likely  to  satisfy  the  "adequacy"  requirement  of  the  EU  data  protection  directive, 
all  of  this  activity  has  given  U.S.  officials  something  to  talk  about,  and  European 


337.  See  id. ;  General  Agreement  on  Tariffs  and  Trade,  opened  for  signature  Jan.  1 ,  1 948,  6 1 
Stat.  5,  6,  T.I.A.S.  No.  1700,  55  U.N.T.S.  188.  See  generally  Fred  H.  Gate, 
Introduction — Sovereignty  and  the  Globalization  of  Intellectual  Property,  6  IND.  J.  GLOBAL  LEG. 
Stud.  1  (1998). 


1999]  PRIVACY  PROTECTION  229 


officials  some  sign  of  "positive"  movement  to  seize  on,  during  extensive  U.S.-EU 
face-to-face  exchanges  designed  to  avoid  confrontation  over  data  protection. 

Moreover,  European  data  protection  officials  are  interested  in  some  level  of 
compromise  not  only  because  of  their  own  desire  to  avoid  a  trade  war  and  the 
positive  signs  emanating  from  the  U.S.  government,  but  also  because  they  are 
subject  to  considerable  pressure  from  within  Europe.  While  gaining  new  stature 
by  virtue  of  passage  of  the  directive,  European  privacy  regulators  are  nonetheless 
subject  to  pressure  from  European  businesses,  which  do  not  want  their  trading 
relationships  with  U.S.  companies  sacrificed  in  the  interest  of  data  protection; 
European  consumers,  who  do  not  want  to  be  denied  the  services  and  products 
offered  by  non-European  organizations;  and  other  government  officials  in 
European  national  governments  and  in  the  EU  itself,  who  are  anxious  to  avoid 
a  trade  dispute.  And  European  officials  responsible  for  trade,  while  not  ignoring 
privacy  issues,  have  demonstrated  a  broader,  more  optimistic  view  of  EU-United 
States  trade  relations. 

These  trends  are  clearly  in  evidence  in  the  current  efforts  of  the  U.S. 
Department  of  Commerce  and  Directorate  General  XV  of  the  European 
Commission  to  negotiate  a  "safe  harbor"  to  allow  U.S.  companies  to  comply  with 
the  directive,  despite  the  absence  of  "adequate"  data  protection  law  in  the  United 
States.  Under  the  safe  harbor,  "[o]rganizations  within  the  safe  harbor  would  have 
a  presumption  of  adequacy  and  data  transfers  from  the  European  Community  to 
them  would  continue.  Organizations  could  come  within  the  safe  harbor  by  self- 
certifying  that  they  adhere  to  these  privacy  principles.  The  status  quo  ante  would 
exist  for  firms  that  choose  not  to  take  advantage  of  the  safe  harbor."^^^ 

Judging  from  current  drafts,  the  safe  harbor  principles  are  substantially 
meaningless;  they  simply  restate  the  basic  principles  that  undergird  the 
directive.^^^  Moreover,  the  negotiations  appear  to  have  run  aground  in  recent 
weeks  in  the  face  of  widespread  opposition  from  both  Europe  and  the  United 
States.  The  negotiations  do,  however,  reflect  the  efforts  of  U.S.  and  EU  officials 
to  find  some  common  ground  on  data  protection.  A  recent  letter  from 
Ambassador  David  L.  Aaron,  Under  Secretary  of  Commerce  for  International 
Trade  Affairs,  to  U.S.  industry  leaders  signals  the  tone  of  the  discussions: 

We  have  discovered  that,  despite  our  differences  in  approach,  there  is  a 
great  deal  of  overlap  between  U.S.  and  EU  views  on  privacy.  Given  that 
and  to  minimize  the  uncertainty  that  has  arisen  about  the  Directive's 
effect  on  transborder  data  transfers  from  the  European  Community  to  the 
United   States,   the   Department  of  Commerce   and   the   European 


338.  Letter  from  Ambassador  David  L.  Aaron,  Under  Secretary  for  International  Trade 
Affairs,  International  Trade  Administration,  U.S.  Department  of  Commerce,  to  "Industry 
Representatives,"  (Nov.  4,  1998),  available  in  <http://www.ita.doc.gov/ecom/aaronll4.html> 
[hereinafter  Letter  from  Ambassador  Aaron]. 

339.  See  id.  <http://www.ita.doc.gOv/ecom/menu.htm#Safe>;  see  also  Comments  of  Fred  H. 
Cate,  Robert  E.  Litan,  Joel  R.  Reidenberg,  Paul  M.  Schwartz  &  Peter  P.  Swire  on  International  Safe 
Harbor  Principles  <http://www.ita.doc.gOv/ecom/comabc.htm#cate>. 


230  INDIANA  LAW  REVIEW  [Vol.  33: 173 


Commission  have  discussed  creating  a  safe  harbor  for  U.S.  companies 
that  choose  voluntarily  to  adhere  to  certain  privacy  principles.^'*^ 

Moreover,  it  is  also  noteworthy  that  the  negotiations  involve  DG  XV,  which 
deals  with  the  internal  market  and  financial  services  issues  within  the  EU,  rather 
than  the  Article  29  Working  Party,  which  has  responsibility  for  data  protection. 

In  addition  to  governmental  efforts,  many  U.S.  businesses,  individually  and 
as  part  of  industry  associations,  have  engaged  in  a  widespread  campaign  to 
inform  European  regulators  about  data  protection  in  the  United  States,  improve 
their  own  privacy  practices,  and  develop  innovative  extra-legal  guarantees  of 
better  privacy  protection  to  EU  data  protection  officials.  Obviously,  not  all  of 
these  efforts  are  in  response  to  European  developments;  U.S.  businesses  are 
reacting  to  domestic  consumer  and  political  pressure  as  well.  But  the  actions  of 
these  businesses,  however  motivated,  are  expanding  the  room  for  compromise 
and  increasing  the  likelihood  that  at  least  in  some  industry  sectors  in  the  United 
States,  data  protection  will  be  found  to  be  "adequate."^"*' 

Taken  together,  the  efforts  of  the  European  and  U.S.  government  officials, 
internal  European  pressures  and  lack  of  resources  experienced  by  many  European 
data  protection  officials,  and  the  broad-based  actions  of  at  least  some  U.S. 
businesses  seem  likely  to  diminish  the  likelihood  of  a  trade  war  resulting  from 
enforcement  from  Article  25  of  the  EU  data  protection  directive.  Certainly  there 
will  be  at  least  limited  enforcement  of  Article  25,  and  some  U.S. 
businesses — perhaps  many — will  be  caught  unaware.  But  the  possibility  of  an 
outright  trade  war  is  remote.^"*^ 

D.  The  Role  of  the  Internet 

Fourth,  regulatory  approaches  to  protection  privacy  seem  ill-suited  to  the 
Internet.  The  EU  directive  purports  to  create  broad  protection  for  personal 
privacy,  but  it  is  ill-suited  to  a  far-flung,  inherently  global  medium  such  as  the 
Internet,  as  EU  data  protection  officials  have  acknowledged.  Recall  that  the 
directive  was  drafted  before  the  World  Wide  Web  was  even  invented.  In  an 
expansive  information  economy,  centralized  control — based  on  registration  and 
direct  government  oversight — cannot  provide  meaningful  privacy  protection. 
The  directive  was  designed  for  a  world  in  which  data  processing  took  place  in 
comparatively  few,  easily  identifiable  locations,  usually  with  mainframe 
computers.  With  the  power  and  widely  distributed  technologies  of  the  Internet 
and  other  digital  networks,  the  directive's  centralized  approach  to  privacy 
protection  is  outdated.  Moreover,  national  or  regional  controls  are  particularly 
easy  to  circumvent  in  the  Internet  environment,  simply  by  moving  data 
processing  activities  outside  of  the  territory  affected.    Finally,  the  lack  of 


340.  Letter  from  Ambassador  Aaron,  supra  note  338. 

341.  See,  e.g.,  John  F.  Mogg,  Comments  to  the  European-American  Business  Council, 
Washington,  DC  (Mar.  18,  1998). 

342.  See  generally  Fred  H.  Cate,  The  European  Data  Protection  Directive  and  European- 
U.S  Trade,  CURRENTS  vol.  Vii,  no.  1,  at  61  (1998). 


1 999]  PRIVACY  PROTECTION  23 1 


resources  for  government  enforcement,  especially  when  confronted  with  such 
widespread  data  processing,  further  diminishes  the  likely  role  of  the  directive  as 
an  effective  means  of  protecting  privacy  online. 

The  U.S.  legal  system's  protection  for  privacy  online  is  similarly  limited, 
although  in  very  different  ways.  There  is  less  of  a  gap  between  the  level  of 
protection  promised  by  the  law  and  the  level  actually  delivered,  because  the  law 
promises  substantially  less  protection  to  U.S.  citizens.  At  present,  the  law  only 
directly  protects  privacy  online  in  two  settings:  government  collection  and  use 
of  data,  and  the  collection  of  data  from  children.  Otherwise,  individuals  may  use 
contracts,  agreements  with  their  Internet  service  providers,  technological  tools 
in  Internet  browsers  and  other  software,  and  common  sense  to  protect  their 
privacy  online.  The  law  may  be  used  to  enforce  private  promises,  but,  in  all 
areas  other  than  government  data  processing  and  data  collection  from  children, 
the  law  largely  leaves  citizens  to  their  own  devices,  recognizing  that  the 
technologies  of  the  Internet  may  be  unusually  effective  in  protecting  privacy. 

The  technologies  and  current  structure  of  the  Internet  largely  frustrate 
regulation.  That  may  not  always  be  the  case  and  that  certainly  does  not  mean 
that  effective  regulation  is  always  impossible,  but  merely  that  it  is  time- 
consuming,  expensive,  and  seldom  effective  for  long.  In  the  now- famous  words 
of  John  Gilmore,  one  of  the  founders  of  the  Electronic  Frontier  Foundation,  "the 
Net  treats  censorship  as  damage  and  routes  around  it."^"*^  Encryption 
technologies,  anonymous  remailers,  multinational  access,  and  other  features  of 
the  Internet  make  it  comparatively  easy  for  even  unsophisticated  users  to  avoid 
regulation,  and  information  that  is  not  available  from  one  online  source  is  almost 
certain  to  be  obtainable  from  another.  The  effect  of  much  regulation  of  Internet 
content  is  simply  to  discourage  law-abiding  information  providers,  thereby 
leaving  a  gap  that  is  often  filled  by  less  scrupulous  providers. 

These  same  technologies  that  distort  the  application  of  laws  and  facilitate 
their  evasion  also  provide  important  tools  for  protecting  vital  interests.  Digital 
technologies  offer  individuals  enormous  privacy  protection  and  the  ability  to 
access  information  with  disclosing  anything  about  themselves.  This  is  not  to 
suggest  that  technologies  are  a  panacea  or  that  law  is  irrelevant,  but  simply  that 
the  Internet  is  empowering  many  people  to  protect  their  rights  in  a  way  that  the 
law  so  far  has  been  able  to. 

E.  The  Future  of  U.S.  Information  Law 

Finally,  while  the  EU  system  of  data  protection  may  be  well  suited  to  Europe, 
privacy  protection  in  the  United  States  responds  to  core  values  in  this  society  and 
system  of  government.  Certainly,  that  protection  may  be  improved,  but  U.S. 
government  and  business  leaders  should  avoid  imposing  costly  new  privacy 
protection  merely  as  a  sop  to  European  data  protection  officials.  As  noted,  the 
four-part  approach  to  information  privacy  in  the  United  States  highlights 
important  limits  on  that  protection,  reflected   in  U.S.   law,  markets,  and 


343.     JudithLewis,  Why  Johnny  Can't  Surf,  l..\.\^ViL\.,V  do.  2\,  1997,at43. 


232  INDIANA  LAW  REVIEW  [Vol.  33:173 


consumers.  Those  limits  protect  other  important  values,  such  as  free  expression; 
they  avoid  imposing  unnecessary  costs  on  commercial  and  social  interaction  of 
all  forms,  especially  electronic;  and  they  protect  against  creating  the  illusion  of 
government-enforced  privacy  while  in  fact  interfering  with  the  development  and 
use  of  more  practical  means  for  protecting  information  about  individual  citizens. 

At  heart,  the  debate  about  information  privacy  is  fundamentally  one  about 
controlling  information.  Privacy  is  often  confused  with  other  issues — security, 
reliability,  verifiability,  anonymity,  and  so  on — and  to  be  sure  it  relates  to  other 
concepts;  but  at  its  core  privacy  is  about  who  controls  the  collection, 
dissemination,  storage,  and  use  of  information  about  individuals;  under  what 
authority  or  compulsion  do  they  exercise  that  control;  and  what  responsibilities, 
if  any,  attend  that  control. 

In  the  United  States,  the  law  has  historically  prevented  the  government  from 
exercising  control  over  information  collection  and  dissemination  by  private 
individuals  and  institutions.  The  law  may  require  disclosure  of  certain 
information,  especially  to  facilitate  self-governance  and  open  markets,  but  it 
rarely  prohibits  disclosure.  Instead,  U.S.  law  most  often  places  control  over 
information  in  the  hands  of  citizens. 

The  U.S.  approach  to  information  privacy  inevitably  results  in  some  harm  to 
individuals'  privacy,  reputations,  and  sensibilities.  But  it  reflects  a  constitutional 
calculation  that  such  harm  is  less  threatening  to  the  body  politic  than  the  harm 
associated  with  centralized  privacy  protection,  government  interference  with  the 
information  flows  necessary  to  sustain  democracies  and  markets,  and  the  growing 
ineffectiveness  of  omnibus  legal  controls  in  the  face  of  the  widespread 
proliferation  of  powerful  information  technologies.  We  should  be  loathe  to  alter 
that  delicate  constitutional  balance  lightly,  by  granting  to  the  government  new 
authority  to  interfere  with  the  flow  of  information  in  the  search  for  new — but 
often  illusory  and  costly — protection  for  personal  privacy. 


Identity,  Privacy,  and  the  New  Information 
Scalpers:  Recalibrating  the  Rules  of 

THE  ROAD  IN  THE  AGE  OF  THE  INFOBAHN: 

A  Response  to  Fred  H.  Cate 


Ronald  J.  Krotoszynski,  Jr.* 

Bernard:      Oh  Brave  New  World  that  has  such  people  in  it.  Let's  start 

at  once. 
John:  Hadn't  you  better  wait  till  you  actually  see  the  new  world?^ 

Introduction 

Professor  Fred  Cate  makes  a  powerful  and  cogent  argument  against  the 
adoption  of  European-style  privacy  regulations  in  the  United  States.^  To  the 
extent  that  Professor  Cate  rests  his  argument  against  the  adoption  of  privacy 
regulations  modeled  on  the  European  Union's  approach  solely  on  policy-based 
grounds,  he  makes  some  important,  indeed  powerful,  points.  There  is,  as 
Professor  Cate  suggests,  good  cause  to  think  that  the  European  Union's  approach 
overvalues  individual  privacy  interests  at  the  expense  of  facilitating  commerce.^ 
Even  if  this  is  so,  however,  one  might  question  whether  Professor  Cate's 
preferred  approach  to  privacy  protection  in  the  United  States — reliance  on  market 
forces  to  protect  privacy  interests — is  sufficient  to  the  task  at  hand.  Reasonable 
minds  can  and  will  differ  as  to  whether  the  market  predictably  will  vindicate  the 
legitimate  privacy  expectations  of  the  citizenry. 

Recent  events,  such  as  Amazon.com's  "fun"  practice  of  releasing  employer- 
by-employer  information  about  employees'  purchases  from  the  company,'*  or  the 


*  Paul  Beam  Research  Fellow  and  Associate  Professor  of  Law,  Indiana  University  School 
of  Law— Indianapolis.  I  wish  to  thank  Professors  Gary  Spitko,  Michael  Heise,  Dan  Cole,  Betsy 
Wilborn  Malloy,  and  Lyrissa  Lidsky  for  providing  very  helpful  comments  and  suggestions  on  an 
earlier  draft  of  this  Essay.  As  always,  any  errors  or  omissions  are  mine  alone. 

1 .  Aldous  Huxley,  Brave  New  World  165-66  (1946);  cf.  William  Shakespeare,  The 
Tempest,  act  5,  sc.  1,  at  124  (Frank  Kenmode  ed.,  6th  ed..  Harvard  Univ.  Press  1958)  (Miranda 
speaking,  "O,  wonder!/How  many  goodly  creatures  are  there  here!/How  beauteous  mankind  is!  O 
brave  new  world/That  has  such  people  in  it!).  In  my  view,  Huxley's  caution  is  far  more  prudent 
than  Shakespeare's  blind,  unreflective  enthusiasm. 

2.  See  Fred  H.  Cate,  The  Changing  Face  of  Privacy  Protection  in  the  European  Union  and 
the  United  States,  33  IND.  L.  REV.  173  (1999). 

3.  ^ee/flf.  at  180-95,  225-30. 

4.  See  David  Streitfeld,  Who's  Reading  What?  Using  Powerful  "Data  Mining" 
Technology,  Amazon.com  Stirs  an  Internet  Controversy,  WASH.  POST,  Aug.  27,  1999,  at  Al.  This 
is  hardly  innocent.  Suppose  that  employees  were  afficiandos  of  Scott  Adams'  Dilbert  cartoons  or 
were  purchasing  mass  quantities  of  How  to  Spruce  Up  Your  Resume  titles?  All  things  being  equal, 
an  employee  would  probably  prefer  that  her  employer  not  have  ready  access  to  her  reading,  music, 
or  video  tastes.  For  a  discussion  of  the  market's  failure  adequately  to  protect  reasonable  privacy 
expectations,  see  Jerry  Berman  &  Deirdre  Mulligan,  Privacy  in  the  Digital  Age:    A  Work  in 


234  INDIANA  LAW  REVIEW  [Vol.  33:233 


practice  of  telephone  companies  selling  information  about  their  customers  to 
third  parties,^  raise  serious  doubts  about  the  wisdom  of  trusting  privacy 
protection  to  the  invisible  hand's  not-so-tender  mercies.  Moreover,  w^hatever  the 
wisdom  of  federal  or  state  legislation  protecting  individual  privacy  interests,  I 
disagree  quite  strongly  with  Professor  Gate's  assertions  about  the  legal  authority 
of  the  federal  or  state  governments  to  enact  such  laws.^  As  this  Essay  will 
explain  more  fully  below,  the  Bill  of  Rights  should  not  be  read  to  preclude  the 
vindication  of  reasonable  privacy  interests  through  appropriate  legislation,  even 
if  restrictions  protecting  the  confidentiality  of  personal  information  incidentally 
burden  commercial  speech  or  information  gathering  practices  associated  with 
commercial  speech.^ 

In  this  era  of  technological  marvels,  of  virtual  reality  and  e-commerce,  it  is 
all  too  easy  to  become  enamored  of  the  obvious  (and  highly  touted)  benefits  of 
technology,  without  giving  careful  consideration  to  the  costs  associated  with  the 
introduction  of  new  technologies  on  society  generally  and  on  each  of  us 
individually.  Indeed,  the  German  existentialist  philosopher  Martin  Heidegger 
deeply  distrusted  technology  following  the  turn  of  the  last  century.^  Despairing 
of  modernity  and  its  focus  on  the  here  and  now,  he  took  to  wearing  the  garb  of 
a  Bavarian  peasant  and  fled  to  the  hills  (quite  literally  to  a  secluded  cabin  in  the 
depths  of  the  Black  Forest).^ 

Heidegger  warned  that  technology  threatened  what  he  called  the  "Enframing" 
of  "Being." '°  By  this,  he  meant  that  as  technology  increased  the  pace  of 
everyday  life,  people  would  find  less  and  less  time  for  meaningful  reflection; 
individuals  would  live  in  the  world  of  mundane  tasks  (bus  to  be  caught,  report  to 
be  filed)  rather  than  "authentically,"  which  for  Heidegger  meant  living  every 
moment  with  some  consciousness  of  one's  own  mortality. ''  To  the  extent  that 
the  wonders  of  technology  lead  us  to  forget  the  blunt  reality  of  our  mortality, 


Progress,  23  NoVA  L.  Rev.  552,  563-68  (1999). 

5 .  See  Shu  Shin  Luh,  FCC  to  Fight  Ruling  on  Customer  Data,  WASH.  POST,  Sept.  4, 1 999, 
at  E2. 

6.  See  infra  Part  II.A-B. 

7.  See  infra  Part  II.A-B. 

8.  See  Martin  Heidegger,  The  Question  Concerning  Technology,  in  THE  QUESTION 
Concerning  Technology  and  Other  Essays  3-35  (William  Lovitt  trans.,  Garland  1977) 
[hereinafter  The  Question  Concerning  Technology]',  Martin  Heidegger,  The  Turning  Point,  in  id. 
at  38-49  [hereinafter  The  Turning]. 

9.  See  RUDIGER  SAFRANSKI,  MARTIN  HEIDEGGER:  BETWEEN  GOOD  AND  EVIL  131,1 85-86 
(Ewald  Osers  trans.,  Harv.  Univ.  1998). 

1 0.  The  Question  Concerning  Technology,  supra  note  8,  at  25-28;  The  Turning,  supra  note 
8,  at  37-41,  48-49. 

1 1 .  Heidegger  referred  to  this  as  "authentic"  Being — that  is  to  say,  making  choices  and 
living  with  the  consequences  of  these  choices  with  full  and  actualized  knowledge  that  one  has  only 
a  limited  period  of  time  in  which  to  exercise  the  power  of  choice  in  light  of  the  certainty  of  death. 
See  MARTIN  HEIDEGGER,  BEING  AND  TlNlE  78-86,  Ch.  I,  Pt.  2,  §§  12,  293-3 1 1,  Ch.  II,  Pt.  1,  §§  50- 
53  (John  Macquarrie  &  Edward  Robinson  trans.,  1962). 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  23  5 


technology  robs  us  of  our  ability  to  make  good  choices  (that  is  to  say,  choices 
that  we  would  make  if  we  reflected  about  a  particular  matter  in  light  of  our  own 
mortality). 

More  recently,  Theodore  Kaczynski  embraced  a  neo-Heideggerian  world 
view  and  went  about  destroying  the  purveyors  of  technology  with  mail  bombs. 
Kaczynski,  of  course,  is  a  deluded  madman,  who  saw  violence  as  the  only  means 
of  reasserting  human  control  over  a  world  that  seemed  (to  Kaczynski)  to  be 
defined  and  controlled  by  technology.'^  Like  Heidegger,  Kaczynski  feared  that 
society  would  permit  technology  to  define  our  humanity  rather  than  harness 
technology  to  accomplish  tasks  selected  independently  of  technology's  ability  to 
accomplish  them.'^ 

In  Kaczynski's  view,  "[t]he  industrial  revolution  and  its  consequences  have 
been  a  disaster  for  the  human  race,"  and  "[t]he  continued  development  of 
technology  will  worsen  the  situation."'"*  He  goes  on  to  explain  that  "[t]he 
technophiles  are  taking  us  all  on  an  utterly  reckless  ride  into  the  unknown."^^ 
Consistent  with  Heidegger's  philosophy,  Kaczynski  advocates  a  return  to  nature 
because  "[n]ature  makes  a  perfect  counter-ideal  to  technology."'^ 

I  deplore  Kaczynski's  action  plan  and  believe  that,  not  unlike  the  Luddites 
before  him,  he  did  a  great  deal  more  harm  than  good  for  his  cause.  Similarly,  I 
rather  doubt  that  dressing  in  Bavarian  peasant  garb  and  taking  to  the  hills 
represents  an  acceptable  plan  of  action  for  dealing  with  the  new  problems  and 
challenges  that  technology  presents.  If  those  of  us  who  severely  mistrust  the 
Microsofts  of  the  world,  who  inevitably  pop  up  every  few  months  bearing  new 
upgrades,  choose  to  disengage  and  withdraw  from  the  fray,  new  technologies 
simply  will  grow  unchecked  like  weeds.  Moreover,  the  consequences  of  those 
technologies  will  be  considered  systematically  only  after  they  have  altered  the 
basic  chemistry  of  our  society.'^  As  the  saying  goes,  once  released,  it  is  difficult 
to  put  the  genie  back  into  the  bottle. 

It  is  therefore  essential  that  we  ask  hard  questions  of  those  who  would  lead 
us  into  a  brave  new  world  before  agreeing  to  make  the  journey.    Before  we 


1 2.  See  Martin  Gottlieb,  Pattern  Emerges  in  Bombing  Tract,  N.  Y.  TIMES,  Aug.  2,  1 995,  at 
Al;  Robert  D.  McFadden,  Times  and  the  Washington  Post  Grant  Mail  Bomber  Demand,  N.Y. 
Times,  Sept.  19,  1995,  at  Al;  see  also  Theodore  J.  Kaczynski,  Unabomber  Manifesto: 
Industrial  Society  and  Its  Future  (1996). 

1 3 .  See  Kaczynski,  supra  note  1 2.  The  Washington  Post  published  Kaczynski '  s  Manifesto 
in  full  on  Tuesday,  September  19, 1995,  as  a  supplement  to  its  regular  edition.  See  PC,  Industrial 
Society  and  Its  Future,  WASH.  POST,  Sept.  19,  1995.  For  a  more  concise  version  of  Kaczynski's 
position  on  technology,  see  Excerpts  from  Manuscript  Linked  to  Suspect  in  17-Year  Series  of 
Bombings,  N.Y.  TIMES,  Aug.  2,  1995,  at  A 16. 

14.  Kaczynski,  supra  note  12,  at  1  ^  1. 

15.  Id.  at  29,  ^  1 80;  see  also  id.  at  20-22. 

16.  Mat  29,  ^184. 

1 7.  See  Elizabeth  Einstein,  The  Printing  Press  as  an  Agent  of  Change  ( 1 979);  M. 
Ethan  Katsh, /?/g/z/5,  Camera,  Action:  Cyber  spatial  Settings  and  the  First  Amendment,  104  YALE 
L.J.  1681,  1685-92,  1703-17  (1995). 


236  INDIANA  LAW  REVIEW  [Vol.  33:233 


blithely  embrace  the  ostensible  benefits  of  gizmos  and  programs  that  allow  us  to 
do  things  cheaper,  faster,  and  better  (or  so  we  are  supposed  to  believe),  we  must 
first  demand  answers  to  serious  questions  about  the  desirability  of  such  devices 
and  their  potential  social  costs. 

Technology  for  technology's  sake  is  no  virtue,  and  a  healthy  appreciation  for 
the  accomplishments  of  the  past  (and  the  means  used  to  achieve  them)  is  no 
vice.'^  Perhaps  synthesizers  and  computer-assisted  musical  composition  will  lead 
us  into  a  new  and  wonderful  world  in  which  Mozarts,  Beethovens,  and  Verdis 
abound.  You  will  have  to  pardon  me  if  I  express  some  doubts  about  this;  for  it 
seems  that  one  of  the  necessary  consequences  of  technology  is  homogenization 
and  standardization.  A  program  that  assists  a  composer  in  creating  a  bar  of  music 
assists  every  composer  using  the  same  lines  of  code;  it  undoubtedly  makes 
composing  easier,  but  there  is  likely  to  be  a  good  deal  of  sameness  to  the 
resulting  compositions. 

Similarly,  mass  production  and  technology  allow  anyone  with  a  few  hundred 
dollars  to  own  a  perfectly  executed  piece  of  jewelry.  One  wonders,  though,  if 
these  technologies  will  give  us  the  wonders  that  Faberge  wrought  for  the  Tsars? 
At  least  arguably,  the  homogenizing  effects  of  technology  make  it  less  likely  that 
someone  with  the  talent  of  a  Faberge  will  fully  realize  that  talent. 

If  one  looks  to  many  of  the  great  works  of  art  or  literature,  they  are  the 
product  of  great  suffering  and  a  society  that  presented  hardships  and  challenges. 
Michelangelo's  Sistine  Chapel  is  not  the  product  of  Java  graphics — nor  do  I  think 
it  ever  could  be.  Richard  Wright's  Native  Son  could  only  have  been  conceived 
and  executed  by  someone  who  had  lived  through  the  horrors  and  depredations  of 
Mississippi  in  the  Jim  Crow  era.  Make  no  mistake,  I  am  not  arguing  that  we 
should  work  to  create  a  world  in  which  prejudice,  sickness,  and  death  are 
commonplace  because  an  artist's  reaction  to  such  conditions  can  give  rise  to 
works  of  power  and  beauty.  Rather,  I  am  simply  suggesting  that  the  convenience 
and  comfort  that  technology  often  bring  may  entail  greater  difficulty  in  creating 
works  that  are,  for  better  or  worse,  in  part  a  product  of  the  social  conditions 
extant  at  the  time  of  their  creation. 

I.  Drawing  the  Battle  Lines 

It  is  time  to  draw  some  battle  lines — ^to  challenge  the  unquestioned  march  of 
technology  into  our  lives.  To  the  extent  that  technology  helps  us  to  do  things  that 
we  freely  seek  to  accomplish,  it  is  a  powerful  friend.  On  the  other  hand,  to  the 
extent  that  purveyors  of  technology  seek  to  force  us  to  change  the  way  we  go 
about  being  in  the  world  in  order  to  accommodate  a  new  technology,  to  the  extent 
that  we  are  forced  to  change  who  we  are  and  how  we  go  about  our  daily  lives 


18.  See  LoRi  B.  ANDREWS,  THE  CLONE  Age!:  Adventures  in  the  New  World  of 
Reproductive  Technology  (1979)  (discussing  the  potential  social  impact  of  new  medical 
technologies  and  procedures  with  particular  attention  to  cloning);  George  Annas,  Some  Choice: 
Law,  Medicine  and  the  Market  3-79, 249-59  (1998)  (discussing  the  ethical  questions  raised  by 
new  medical  technologies  and  procedures). 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  237 


solely  in  order  to  accommodate  a  new  technology,  we  have  a  legitimate 
complaint  with  the  seemingly  ceaseless  forward  march  of  modernity. 

Privacy  presents  one  of  these  "quo  vadis"  social  questions:  Shall  we  permit 
our  identities  to  be  bundled  and  sold  like  sacks  of  potatoes,  or  rather  shall  we 
demand  some  protection  from  the  power  of  technology  to  collect  and  sell  data 
about  everything  from  where  we  bank,  to  what  we  earn,  to  what  we  watch  on 
cable  television?  As  Professor  Gate  says,  the  need  to  have  such  a  debate  "is 
prompted  largely  by  extraordinary  technological  innovations  that  are 
dramatically  expanding  both  the  practical  ability  to  collect  and  use  personal  data 
and  the  economic  incentive  to  do  so."'^  Moreover,  he  correctly  posits  that  "[t]he 
ramifications  of  such  a  readily  accessible  storehouse  of  electronic  information 
are  astonishing:  others  know  more  about  you — even  things  you  may  not  know 
about  yourself — ^than  ever  before."^^ 

Given  this  state  of  affairs,  it  seems  crucial  that  citizens  demand  protection 
against  the  involuntary  dissemination  of  confidential  information  of  this  sort.^' 
Neither  my  physician  nor  my  banker  should  enjoy  the  legal  right  to  sell 
information  about  my  physical  or  financial  health.  Traditionally,  tort  law  has 
prohibited  the  public  disclosure  of  private  facts.^^  There  is  no  reason  that 
Congress,  state  legislatures,  and  state  supreme  courts  should  not  apply  this 
traditional  common  law  rule  to  prevent  the  unauthorized  transfer  of  highly 
personal  information  from  those  providing  particular  goods  or  services.^^ 

Indeed,  in  a  variety  of  contexts.  Congress  and  state  governments  have  acted 
to  protect  the  privacy  of  personal  information.  The  Buckley  Amendment,  also 
known  as  the  Family  Educational  Rights  and  Privacy  Act  ("FERPA"),  prohibits 
an  educational  institution  from  publicly  releasing  either  academic  or  disciplinary 
records  without  the  consent  of  the  student.^"*  Violations  of  the  Act  are  punishable 
with  the  offending  institution's  loss  of  all  federal  education  funds.^^  Similarly, 


19.  Gate,  supra  note  2,  at  175-76. 

20.  Id.  at  178. 

21.  Cf.  James  Lardner,  I  Know  What  You  Did  Last  Summer—and  Fall,  U.S.  NEWS&  WORLD 
Rep.,  Apr.  19,  1999,  at  55  (reporting  that  "[c]orporate  America  is  mobilizing  against  the  threat  of 
a  broad  federal  privacy-protection  law."). 

22.  See  RESTATEMENT  (SECOND)  OF  TORTS,  §  652D  ( 1 965);  see  also  Lyrissa  Barnett  Lidsky, 
Prying,  Spying,  and  Lying:  Intrusive  Newsgathering  and  What  the  Law  Should  Do  About  It,  73 
TulaneL.  Rev.  173,  198-203  (1998)  (describing  the  nature  and  scope  of  the  "private  facts  tort"). 

23.  It  is  true  that,  as  to  media  disclosures,  the  Supreme  Court  has  severely  limited  the 
potential  applicability  of  the  private  facts  tort.  See  Florida  Star  v.  B.J.F.,  491  U.S.  524  (1989); 
Lidsky,  supra  note  22,  at  200-01.  Of  course,  those  collecting  private  information  of  the  sort  to 
which  Professor  Gate  is  adverting  have  absolutely  no  intention  of  publishing  their  lists — doing  so 
would  destroy  the  economic  value  of  the  database.  Rather,  information  brokers  seem  much  more 
analogous  to  Dun  &  Bradstreet,  a  financial  reporting  service,  which  did  not  generally  make  its 
analyses  available  to  the  general  public.  See  Dun  &  Bradstreet,  Inc.  v.  Greenmoss  Builders,  Inc., 
472  U.S.  749(1985). 

24.  See  20  U.S.G.  §  1232g  (1994). 

25.  5'ee§  1232g(a). 


238  INDIANA  LAW  REVIEW  [Vol.  33:233 


most  states  have  enacted  statutes  protecting  the  identity  of  persons  tested  for  the 
AIDS  virus.^^  One  can  imagine  all  sorts  of  marketing  opportunities  associated 
with  a  such  a  list — everything  from  birth  control  devices  to  viatical  settlement 
plans  might  be  direct-marketed  to  persons  having  taken  an  AIDS  test.  For  better 
or  worse  (in  my  view  for  better),  those  providing  such  test  services  cannot  profit 
by  selling  the  names  of  clients  to  entities  wishing  to  direct-market  to  them,  even 
if  they  maintain  a  database  containing  the  names  of  such  persons. 

Viewed  from  this  perspective,  the  only  real  question  is  whether  Congress, 
state  legislatures,  and  state  supreme  courts  will  act  to  protect  us  from  one  of  the 
more  profoundly  negative  consequences  of  living  in  the  information  age. 
Professor  Gate,  however,  does  not  think  that  such  legislation  could  be  enacted 
and  enforced  constitutionally:  "In  the  United  States,  however,  the  government 
is  constitutionally  prohibited  under  the  First  Amendment  from  interfering  with 
the  flow  of  information,  except  in  the  most  compelling  circumstances."^^  For  the 
reasons  set  forth  below,  I  think  he  is  unduly  pessimistic  about  the  possibility  of 
securing  appropriate  legislation  protecting  private  facts  from  public  disclosure. 
That  said,  I  am  far  from  convinced  that  government  will  act  to  protect  the 
citizenry's  reasonable  expectations  of  privacy.^^ 

II.  Reasonable  Federal  or  State  Legislation  Protecting 
AN  Individual's  Privacy  Would  Be  Constitutional 

Professor  Cate  argues  that  efforts  to  protect  personal  information  are 
somehow  doomed  by  the  First  Amendment  right  of  those  collecting  such 
information  to  disseminate  it,  or  alternatively  that  such  regulation  might  raise 
serious  issues  under  the  Takings  Clause.^^  Notwithstanding  Professor  Cate's 
objections,  with  respect  to  average  citizens  living  average  lives,  the  government 
could,  if  it  wished,  secure  a  great  deal  more  information  against  commodification 
and  sale  than  present  law  protects. 

Moreover,  one  reasonably  could  take  strong  issue  with  Professor  Cate's  view 
that  markets  will  sufficiently  protect  private  information  from  commodification 
and  sale.^^    In  most  instances,  disparities  of  bargaining  power  will  make  it 


26.  See,  e.g..  Doe  v.  Shady  Grove  Adventist  Hosp.,  598  A.2d  507,  514  (Md.  Ct.  Spec.  App. 
1991)  (upholding  request  for  plaintiffs  name  to  remain  under  seal  in  lawsuit  alleging  that  hospital 
breached  a  duty  to  hold  the  results  of  an  AIDS  test  confidential);  Cal.  Health  &  Safety  Code 
§§  120975-121020  (Supp.  1999);  MASS  Gen.  L.  ch.  1 1 1,  §  70F  (1992);  TEX.  HEALTH  &  SAFETY 
Code  Ann.  §  8 1 . 1 03  (Vernon  1 992). 

27.  Cate,  supra  note  2,  at  179-80. 

28.  See  Lardner,  supra  note  21,  at  55  (reporting  that  "corporate  lobbyists  have  sold 
Republican  and  Democratic  leaders  alike  on  the  view  of  the  Internet  economy  as  a  tender,  if  vital, 
young  thing  needing  protection  from,  in  the  words  of  George  Vradenburg,  senior  vice  president  for 
global  and  strategic  policy  of  America  Online,  'the  regulatory  mechanisms  of  the  past.'"). 

29.  See  Cate,  supra  note  2,  at  1 96-225. 

30.  See  id.  at  225  ("In  those  and  similar  situations,  the  law  provides  important  but  carefully 
circumscribed,  basic  privacy  rights,  the  purpose  of  which  is  to  facilitate — not  interfere  with — ^the 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  239 


difficult,  if  not  impossible,  for  individual  citizens  to  demand  that  service 
providers  or  merchants  refrain  from  distributing  highly  personal  information.  As 
one  commentator  has  wryly  observed,  reliance  on  market  mechanisms  and  self- 
regulation  to  protect  privacy  is  tantamount  to  "putting  Count  Dracula  in  charge 
ofthe  blood  bank."'' 

Accordingly,  government  action  is  needed  to  secure  basic  privacy  rights. 
Just  as  the  National  Labor  Relations  Act  was  necessary  to  ensure  parity  of  arms 
in  negotiations  between  workers  and  management,  so  too  legislation  is  needed 
to  secure  parity  of  bargaining  power  between  the  general  public  and  the  new 
information  brokers.  If  left  to  the  market,  working  class  Americans  would  be  at 
a  considerable  disadvantage  in  disputes  with  management  over  the  terms  and 
conditions  of  their  employment,'^  if  left  to  the  market,  basic  expectations  of 
privacy  will  not  be  routinely  honored.''  Just  as  laborers  are  free  to  waive  their 
collective  bargaining  rights,  individuals  might  choose  to  waive  privacy 
protections.  The  existence  of  privacy  protections  should  not,  however,  be  left  to 
the  tender  mercies  of  the  market  (just  as  basic  rights  to  collective  bargaining 
should  not  be,  and  are  not,  left  to  market  forces)."^ 

A,   The  First  Amendment 

Professor  Cate  argues  that  the  Free  Speech  and  Press  Clauses  of  the  First 
Amendment  would  preclude  the  adoption  of  reasonable  privacy  legislation.'^  His 
position  overstates  the  First  Amendment  value  of  facilitating  open  markets  in 
highly  confidential  information  about  non-public  figures  that  does  not  implicate 
matters  of  public  concern.  Simply  put,  the  First  Amendment  value  in  distributing 
highly  personal  information  about  average  citizens  is,  at  best,  very  low.'*^  For 
example,  the  First  Amendment  value  in  permitting  an  insurance  company  to  sell 
an  average  citizen's  medical  records  is  slight.  The  medical  records  of  a  sitting 
President  might  present  a  harder  question;  the  President  is  the  ultimate  "public 
figure,"  and  the  condition  of  his  health  is,  at  least  arguably,  a  matter  of  public 


development  of  private  mechanisms  and  individual  choice  as  the  preferred  means  of  valuing  and 
protecting  privacy.");  cf.  Berman  &  Mulligan,  supra  note  4,  at  563-79  (describing  the  market's 
failure  adequately  to  protect  reasonable  privacy  expectations  and  proposing  legislative  remedies  to 
correct  these  market  failures). 

31.  Lardner,  supra  note  21,  at  56  (quoting  Stephen  Lau,  Hong  Kong's  "privacy 
commissioner"). 

32.  For  an  example  of  how  markets  treated  workers  in  one  sector  of  the  economy  at  the  turn 
of  the  last  century,  see  UPTON  SINCLAIR,  THE  JUNGLE  (1906). 

33.  See,  e.g.,  Streitfeld,  supra  note  4,  at  1,  11  (reporting  on  Amazon.com's  practice  of 
publishing  information  about  customers'  buying  habits  without  the  overt  and  freely-given  consent 
of  its  customers). 

34.  See  Berman  &  Mulligan,  supra  note  4,  at  571-79. 

35.  See  Cate,  supra  note  2,  at  203-05. 

36.  See  Dun  &  Bradstreet,  Inc.  v.  Greenmoss  Builders,  Inc.,  472  U.S.  749,  759  (1985). 


240  INDIANA  LAW  REVIEW  [Vol.  33:233 


concern.^^  In  this  regard,  one  should  keep  in  mind  that  the  Supreme  Court's 
efforts  to  protect  the  free  flow  of  information  generally  have  been  limited  to 
information  about  public  figures  or  matters  of  public  concern.  Purely  private 
matters  relating  to  non-public  figures  are  not  the  subject  of  serious  First 
Amendment  protection.^^  Hence,  if  John  falsely  tells  his  co-workers  that  Jane 
has  syphilis,  John  will  be  liable  in  tort  for  defamation  for  his  slanderous 
statement  about  Jane.  If  Jane  is  a  non-public  figure  and  her  health  status  is  not 
a  matter  of  public  concern,  Jane  need  only  show  that  the  statement  was  false  and 
was  "of  and  concerning"  her.  Indeed,  in  most  states,  stating  that  someone  has  a 
"loathsome"  disease  is  slanderous  per  se,  and  damages  are  presumed  at  law.^^ 

Professor  Gate  is  correct,  of  course,  in  noting  that  vast  areas  of  state  tort  law 
have  been  constitutional ized  by  New  York  Times  Co.'*^  and  its  jurisprudential 
progeny."*^  He  argues  that  "when  information  is  true  and  obtained  lawfully,  the 
Supreme  Court  has  repeatedly  held  that  the  state  may  not  restrict  its  publication 
without  showing  a  very  closely  tailored,  compelling  government  interest."'*^ 
State  tort  law  has  not,  however,  been  entirely  displaced  by  First  Amendment 
values.  Indeed,  Dun  &  Bradstreet's  inaccurate  assertion  that  a  construction 
company  had  filed  for  bankruptcy  led  to  a  judgment  for  damages  against  Dun  and 
Bradstreet.  Predictably,  Dun  &  Bradstreet  argued  that  the  mistake  should  not 
give  rise  to  liability,  except  under  the  "actual  malice"  standard  of  New  York 
Times  Co^^ 

The  Supreme  Court  correctly  rejected  Dun  &  Bradstreet's  First  Amendment 
defense.  Writing  for  the  plurality.  Justice  Powell  explained  that  an  inaccurate 
credit  rating  neither  implicated  a  public  figure  nor  a  matter  of  public  concern.  ^* 
He  also  noted  that  the  Supreme  Court  has  "long  recognized  that  not  all  speech  is 
of  equal  First  Amendment  importance.'"*^  More  specifically,  "speech  on  matters 
of  purely  private  concern  is  of  less  First  Amendment  concern"  than  speech 
related  to  the  project  of  democratic  self-governance.'*^ 

Moreover,  Justice  Powell  emphatically  rejected  Dun  &  Bradstreet's 
argument  that  the  dissemination  of  credit  reports  constituted  an  important 
enterprise  related  to  matters  of  public  concern:   "There  is  simply  no  credible 


37.  See  U.S.  CONST,  amend.  XXV. 

38.  See  Dun  &  Bradstreet,  412  U.S.  at  162-64. 

39.  See  RESTATEMENT  OF  TORTS  §  570  ( 1 938). 

40.  New  York  Times  Co.  v.  Sullivan,  376  U.S.  254  ( 1 964). 

41 .  See  Cate,  supra  note  2,  at  203-05. 

42.  Id.  at  204. 

43.  See  Dun  &  Bradstreet,  472  U.S.  at  75 1 .  This  standard  requires  a  plaintiff  to  show  that 
the  defendant  not  only  published  a  false  and  damaging  statement  about  the  plaintiff,  but  that  it  did 
so  either  with  actual  knowledge  of  its  falsity  or  in  reckless  disregard  of  its  truth  or  falsity.  See  also 
Hustler  Magazine  v.  Falwell,  485  U.S.  46,  52  (1988). 

44.  See  Dun  &  Bradstreet,  472  U.S.  at  760,  762. 

45.  Id  at  758. 

46.  Id.  at  759;  see  ALEXANDER  Meiklejohn,  Free  SPEECH  AND  ITS  Relation  to  Self- 
GOVERNMENT  22-27  (1948). 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  24 1 


argument  that  this  type  of  credit  reporting  requires  special  protection  to  ensure 
that  'debate  on  public  issues  will  be  uninhibited,  robust,  and  wide  open.""*^ 

Justices  Rehnquist  and  O'Connor  joined  Justice  Powell's  opinion,  and  Chief 
Justice  Burger  and  Justice  White  concurred  in  the  judgment — including  Justice 
Powell's  rejection  of  any  special  First  Amendment  protection  for  credit  reports/^ 

The  reasoning  of  Dun  &  Bradstreet  strongly  suggests  that  the  states  are  far 
from  powerless  to  prevent  the  unauthorized  collection  and  distribution  of 
personal  information  when  such  collection  and  distribution  is  potentially  harmful 
to  the  subjects  of  the  information.  Accordingly,  the  state  of  Vermont  was  free 
to  impose  liability  on  any  standard  requiring  a  showing  of  fault. 

Although  one  should  be  cautious  against  reading  too  much  into  Dun  & 
Bradstreet,  the  case  seems  to  support  the  proposition  that  state  legislatures  and 
the  Federal  Congress  could  enact  legislation  that  protects  private  information 
from  collection  and/or  disclosure  without  the  permission  of  the  person  about 
whom  the  information  relates."*^  The  specific  information  in  Dun  &  Bradstreet 


47.  Dun  &  Bradstreet,  472  U.S.  at  762  (quotations  and  citation  omitted);  see  Meiklejohn, 
supra  note  46,  at  24-25. 

48.  See  Dun  &  Bradstreet,  472  U.S.  at  763-64  (Burger,  C.J.,  concurring);  id.  at  765-74 
(White,  J.,  concurring). 

49.  Professor  Gate  correctly  notes  that  the  Supreme  Court  "has  struck  down  laws  restricting 
the  publication  of  confidential  public  reports,  and  the  names  of  judges  under  investigation.  Juvenile 
suspects,  and  rape  victims."  Gate,  supra  note  2,  at  204  (citations  omitted).  These  precedents  may 
not  support  his  broader  argument,  however.  For  example.  New  York  Times  Co.  v.  United  States, 
403  U.S.  7 1 3  ( 1 97 1 ),  a.k.a.  "The  Pentagon  Papers  Gase,"  involved  an  executive  order  (not  a  statute) 
against  publication  of  "information  whose  disclosure  would  endanger  the  national  security,"  based 
on  "the  constitutional  power  of  the  President  over  the  conduct  of  foreign  affairs  and  his  authority 
as  Gommander-in-Ghief  {not  the  imposition  of  liability  after  the  fact,  pursuant  to  statutory  law). 
See  id.  at  718  (Black,  J.,  concurring).  Several  justices  were  quite  careful  to  emphasize  this  very 
point.  See  id.  at  727-31  (Stewart,  J.,  concurring);  id.  at  731-40  (White,  J.,  concurring);  id.  at  743- 
48  (Marshall,  J.,  concurring).  Gases  involving  public  officials  or  matters  of  public  concern  are  also 
inapposite.  See  Dun  &  Bradstreet,  472  U.S.  at  756-63.  This  leaves  Florida  Star,  the  case  involving 
publication  of  a  rape  victim's  name  in  violation  of  a  state  statute.  See  Florida  Star  v.  B.J.F.,  491 
U.S.  524(1989). 

Although  Florida  Star  might  raise  some  questions  regarding  restrictions  on  the  print  media's 
publication  of  such  materials,  in  the  absence  of  publication,  one  reasonably  could  be  skeptical  that 
Florida  Star  would  necessarily  govern.  Indeed,  given  that  Florida  Star  involved  criminal  charges 
in  the  public  courts,  it  would  be  very  easy  to  limit  the  reasoning  of  the  case  and  its  precedential 
value,  given  the  Supreme  Gourt's  consistent  practice  of  requiring  that  the  press  enjoy  reasonable 
access  to  public  court  proceedings  and  the  right  to  report  on  such  proceedings.  See,  e.g. ,  Richmond 
Newspapers,  Inc.  v.  Virginia,  448  U.S.  555  (1980);  Nebraska  Press  Ass'n  v.  Stuart,  427  U.S.  539 
(1976).  The  Supreme  Gourt  has  been  much  less  receptive  to  claims  involving  a  right  to  gather 
information,  when  the  information  gathering  techniques  violate  laws  of  general  applicability.  See 
Seattle  Times  Go.  v.  Rhinehart,  467  U.S.  20  (1984);  Branzburg  v.  Hayes,  408  U.S.  665  (1 972).  The 
Supreme  Gourt  also  has  permitted  the  imposition  of  liability  on  the  press  for  breaching  a  promise 
of  confidentiality  on  general  principles  of  state  tort  and/or  contract  law.   See  Gohen  v.  Gowles 


242  INDIANA  LAW  REVIEW  [Vol.  33:233 


was,  of  course,  false,  and  therefore  outside  Professor  Gate's  assertion  about  the 
nature  of  contemporary  First  Amendment  law.  Nevertheless,  the  states  or 
Congress  could  enact  privacy-protection  laws  that  limit  the  legal  means  of 
obtaining  information  about  non-public  figures  involving  matters  that  are  not  of 
public  concern.^^ 

Take,  for  example,  the  information  associated  with  the  processing  of  health 
insurance  claims.  If  Indiana  wished  to  enact  a  statute  prohibiting  the  transfer  of 
such  information  without  a  patient's  consent,  it  is  difficult  to  believe  that  the 
First  Amendment  would  prevent  the  enforcement  of  such  a  law.^'  That  is  to  say, 
the  state  could  enact  legislation  that  precludes  an  insurance  company  or  HMO 
from  disclosing  such  information  without  a  patient's  or  plan  participant's  prior 
consent. 

In  many  respects,  laws  shielding  the  identity  of  persons  testing  positive  for 
AIDS  are  similar  in  nature.  In  order  to  encourage  persons  to  seek  testing  and 
treatment  for  HIV,  many  communities  have  adopted  privacy  laws  that  prohibit 
the  disclosure  of  test  results  to  anyone  but  the  patient.^^  The  First  Amendment 
does  not  preclude  state  or  local  governments  from  preventing  testing  agencies 
from  selling  lists  of  persons  who  tested  positive  for  the  virus. 

Although  a  privacy  law  protecting  the  confidentiality  of  medical  records 
more  generally  would  be  significantly  broader  in  scope,  such  legislation  would 
not  necessarily  fail  judicial  review.  The  core  concern  of  the  First  Amendment 
is  democratic  self-governance,  not  the  marketing  of  medical  goods  or  services.^^ 

It  also  seems  self-evident  that  protection  of  commercial  speech  does  not 
necessarily  imply  a  right  to  disclose  otherwise  confidential  information.  "Drink 
Coca-Cola"  is  quite  different  from  buying  a  list  of  persons  with  halitosis  and 
mailing  them  information  on  "The  Halitosis  Connection  Dating  Service"  (the 
"HCDS").  Although  HCDS  could  undoubtedly  advertise  its  services  without 
government  censorship,  its  ability  to  collect  and  use  confidential  private 
information  incident  to  such  marketing  efforts  presents  a  very  different  question. 

Let  me  be  clear:  I  am  not  suggesting  that  privacy  rights  exist  independent  of 
particular  statutory  protections.  Thus,  if  Blue  Cross/Blue  Shield  decided  to  sell 
Halitosis  Connection  a  list  of  persons  receiving  reimbursements  or  subsidies  for 
drugs  associated  with  treating  halitosis,  there  would  be  no  impediment  to  the 
transaction  absent  some  positive  legislation.  In  this  sense,  Professor  Cate  is  quite 
correct  to  assert  that,  absent  some  positive  law  delimiting  the  right  to  obtain  or 
distribute  particular  information,  Blue  Cross/Blue  Shield  would  be  perfectly 


Media  Co.,  501  U.S.  663  (1991);  see  also  Lidsky,  supra  note  22,  at  184-93,  200-01. 

50.  See  Lidsky,  supra  note  22,  at  203-26  (arguing  that  legal  limits  on  newsgathering 
techniques  are  consistent  with  the  First  Amendment  and  suggesting  the  tort  of  intrusion  as  an 
appropriate  device  to  limit  intrusive  newsgathering  techniques). 

51.  See  Branzburg  v.  Hayes,  408  U.  S.  665  ( 1 972);  see  also  Cohen  v.  Cowles  Media  Co.,  50 1 
U.S.  663  (1991). 

52.  See  sources  cited  supra  note  25. 

53.  See  Meiklejohn,  supra  note  46,  at  25-27. 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  243 


entitled  to  sell  lists  of  persons  with  halitosis  to  would-be  marketers.^"*  As  against 
purely  private  companies,  privacy  protections  exist  only  by  operation  of 
legislation  creating  privacy  interests.^^  That  said,  a  rational  legislature  could 
conclude  that  certain  information  is  sufficiently  personal  to  warrant  the 
protection  of  legislation  (i.e.,  statutes  protecting  the  identities  of  persons  testing 
positive  for  HIV,  tuberculosis,  or  other  communicable  and  socially  stigmatizing 
diseases).^^ 

With  regard  to  lawyer  solicitations,  the  U.S.  Supreme  Court  has  upheld 
complete  bans  on  in-person  solicitations  and  even  permitted  the  imposition  of 
time  delays  before  written  solicitations  can  be  mailed  to  the  victims  of  accidents 
and  disasters.^^  In  upholding  restrictions  on  truthful,  non-misleading  written 
solicitations,  the  Court  credited  Florida's  interest  in  protecting  accident  victims 
from  the  trauma  of  vulture-like  lawyer  behavior;  the  lawyer's  interest  in 
communicating  truthful  information  to  potential  plaintiffs  was  insufficient  to 
outweigh  a  kind  of  privacy  interest  on  the  part  of  victims.^^ 

The  Florida  Bar  expressly  defended  the  prohibition  on  soliciting  disaster 
victims  on  privacy  grounds:  "The  Florida  Bar  asserts  that  it  has  a  substantial 
interest  in  protecting  the  privacy  and  tranquility  of  personal  injury  victims  and 
their  loved  ones  against  intrusive,  unsolicited  contact  by  lawyers."^^  The 
Supreme  Court  had  "little  trouble  crediting  the  Bar's  interest  as  substantial," 
explaining  that  "[o]ur  precedents  leave  no  room  for  doubt  that  'the  protection  of 
potential  clients'  privacy  is  a  substantial  state  interest. "'^° 

One  should  note  that,  like  Justice  Powell  in  Dun  &  Bradstreet,  Justice 
O'Connor  emphasized  that  the  scope  of  First  Amendment  protection  is 
intrinsically  related  to  the  nature  of  the  speech  at  issue.  Hence,  "[tjhere  are 
circumstances  in  which  we  will  accord  speech  by  attorneys  on  public  issues  and 
matters  of  legal  representation  the  strongest  protection  our  Constitution  has  to 
offer."^'  According  to  the  majority,  direct  mail  solicitations  to  the  victims  of 
disasters  and  their  families  fell  well  outside  this  category  of  speech  activity.  ^^ 
Although  one  might  question  whether  the  trauma  of  receiving  a  lawyer's 
solicitation  letter  is  as  great  as  Justice  O'Connor  seems  to  believe,  the  logic  of 
Went  For  It  should  squarely  apply  to  legislation  aimed  at  protecting  the 


54.  See  Lidsky,  supra  note  22,  at  193-98;  see  also  S.  Elizabeth  Wilborn,  Revisiting  the 
Public/Private  Distinction:  Employee  Monitoring  in  the  Workplace,  32  Ga.  L.  Rev.  825,  832-38, 
862-66,  879-86  (1998)  (describing  the  absence  of  privacy  protections  against  non-governmental 
employees  and  proposing  federal  legislation  to  extend  reasonable  privacy  protections  to  employees 
of  non-governmental  employers). 

55.  5ee  Wilborn,  ^Mpm  note  54,  at  879-87. 

56.  See  id.  at  876-83. 

57.  See  Florida  Bar  v.  Went  for  It,  Inc.,  515  U.S.  618  (1995). 

58.  See  id.  at  624-26,  634-35. 

59.  Mat  624. 

60.  Id  at  625  (quoting  Edenfied  v.  Fane,  507  U.S.  761,  769  (1993)). 

61.  /^.  at  634. 

62.  See  id.  at  635. 


244  INDIANA  LAW  REVIEW  [Vol.  33:233 


confidentiality  of  highly  personal  information. 

Indeed,  if  Professor  Gate  is  correct,  educational  institutions  should  be  free 
to  sell  information  regarding  their  students'  academic  progress.  Undoubtedly, 
Stanley  Kaplan  or  some  other  entity  offering  tutoring  services  would  appreciate 
a  list  of  students  currently  on  the  brink  of  academic  probation.  Of  course,  the 
Buckley  Amendment  would  prevent  Indiana  University  from  selling  such 
information  to  Stanley  Kaplan.  Professor  Gate,  however,  seems  to  be  of  the  view 
that  a  law  largely  identical  to  the  Buckley  Amendment  would  potentially  violate 
the  First  Amendment.^^  I  think  it  very  doubtful  that  a  reviewing  court  would 
absolve  Indiana  University  of  liability  under  the  Buckley  Amendment  if  this 
school's  dean,  Norman  Lefstein,  elected  to  sell  student  academic  records  to 
would-be  marketers.  The  analysis  should  not  be  any  different  just  because  an 
Internet  service  provider  happens  to  be  the  information  broker. 

Professor  Gate  responds  that  the  Supreme  Gourt  has  never  upheld  limits  on 
the  dissemination  of  truthful  speech.^"*  As  he  puts  it,  "all  of  the  cases  [Professor 
Krotoszynski]  puts  forward  as  supporting  government  restraints  on  information 
involve  false  express  ion.  "^^  This  is  simply  not  true:  Went  for  It  upholds 
limitations  on  truthful,  non-misleading  commercial  speech  by  lawyers  in  order 
to  vindicate  important  privacy  interests.^^  Justice  O'Connor's  opinion  in  Went 
for  It  expressly  balances  the  community's  interest  in  privacy  against  the  value  of 
certain  commercial  solicitations  by  lawyers  and  holds  that  the  State  of  Florida 
may  constitutionally  strike  a  balance  in  favor  of  privacy  at  the  expense  of 
commercial  speech  (at  least  in  some  circumstances).^^  Professor  Gate  is  free  to 
lament  this  turn  in  the  Supreme  Gourt' s  free  speech  jurisprudence,  but  it  does  not 
seem  reasonable  simply  to  deny  the  existence  of  the  precedent  Went  For  It 
establishes  in  this  field.^^ 


63.  See  Gate,  supra  note  2,  at  203-05. 

64.  Seeid.'dXM'in*. 

65.  Id. 

66.  See  supra  notes  57-62  and  accompanying  text. 

67.  See  Went  For  It,  515  U.S.  at  634-35. 

68.  Although  one  should  normally  abjure  attempting  to  predict  the  future,  the  Supreme 
Court's  decision  in  Wilson  v.  Layne,  1 19  S.  Ct.  1692  (1999),  has  potential  relevance  to  the  First 
Amendment  questions  that  Professor  Gate's  article  raises.  In  Wilson,  the  Supreme  Gourt  held  that 
local  and  federal  law  enforcement  officers  could  not  constitutionally  invite  media  representatives 
to  participate  in  "ride  along"  activities  that  included  filming  at  the  homes  of  persons  subject  to  a 
lawful  arrest  warrant.  See  id.  at  1697-99.  Ghief  Justice  Rehnquist,  speaking  for  a  unanimous  court 
(at  least  on  this  point),  explained  that  the  Fourth  Amendment's  protection  of  privacy  precludes  law 
enforcement  officials  from  facilitating  the  filming  of  the  execution  of  arrest  warrants  over  the 
objections  of  the  arrestees.  "We  hold  that  it  is  a  violation  of  the  Fourth  Amendment  for  police  to 
bring  members  of  the  media  or  third  parties  into  a  home  during  the  execution  of  a  warrant  when  the 
presence  of  third  parties  in  the  home  was  not  in  aid  of  the  execution  of  the  warrant."  Id.  at  1699. 
Along  the  way,  the  Gourt  rejected  a  First  Amendment  defense  of  the  practice  of  media  ride-alongs, 
explaining  that  "the  Fourth  Amendment  also  protects  a  very  important  right,  and  in  the  present  case 
it  is  in  terms  of  that  right  that  the  media  ride-alongs  must  be  judged."  Id.  at  1698.  On  the  facts  at 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  245 


B.  The  Takings  Clause 

In  the  alternative,  Professor  Gate  argues  that  the  Takings  Glause  would  raise 
serious  constitutional  problems  for  legislation  designed  to  vest  individual  citizens 
with  the  right  to  control  access  to  personal  information  gathered  by  doctors, 
creditors,  or  educational  institutions:  "Data  protection  regulation  may 
legitimately  prompt  takings  claims."^^  According  to  Professor  Gate,  "[a]  data 
processor  exercises  property  rights  in  his  data  because  of  his  investment  in 
collecting  and  aggregating  them  with  other  useful  data."^^  He  concludes  that  "[a] 
legislative,  regulatory,  or  even  judicial  determination  that  denies  processors  the 
right  to  use  their  data  could  very  likely  constitute  a  taking  and  require 
compensation."^^  All  that  said,  whether  or  not  particular  information  belongs  to 
the  entity  that  collects  it  seems  to  be  something  about  which  reasonable 
legislative  minds  might  disagree^^ 

The  Takings  Glause  only  protects  property  interests;  property,  in  turn,  exists 
at  the  sufferance  of  state  governments.  The  Supreme  Gourt  consistently  has 
refused  to  recognize  property  interests  arising  directly  under  the  Constitution.^^ 
This  approach  is  probably  mistaken;  if  liberty  interests  arise  directly  under  the 


issue  in  Wilson,  the  citizen's  interest  in  privacy  simply  outweighed  any  First  Amendment  benefits 
that  the  practice  of  media  ride-alongs  might  provide.  A  similar  analysis  should  govern  in  a  case 
presenting  a  challenge  to  reasonable  privacy  legislation.  See,  e.g. ,  Cable  News  Network  v.  Noriega, 
917  F.2d  1543  (11th  Cir.)  (balancing  CNN's  right  to  broadcast  the  Noriega  tapes  against  General 
Noriega's  Sixth  Amendment  interest  in  a  fair  trial),  cert,  denied,  498  U.S.  976  (1990);  cf.  id.  at  976- 
77  (Marshall,  J.,  dissenting  from  the  denial  of  a  writ  of  certiorari). 

69.  Id  at  207. 

70.  Id  at  208. 

71.  Id 

72.  For  example,  one  might  assume  that  one  owns  her  own  body,  its  parts,  and  the  DNA  that 
controlled  the  creation  of  those  parts.  The  California  Supreme  Court  did  not  so  view  the  matter. 
See  Moore  v.  Regents  of  the  Univ.  of  Cal.,  793  P.2d  479  (Cal.  1990),  cert,  denied,  499  U.S.  936 
( 1 99 1 ).  That  said,  one  could  easily  imagine  a  decision  going  the  other  way  (which  is  precisely  how 
the  intermediate  California  appellate  court  had  ruled).  See  Moore  v.  Regents  of  the  Univ.  of  Cal., 
249  Cal.  Rptr.  494  (Ct.  App.  1988),  rev'd,  793  P.2d  479  (Cal.  1990);  see  also  William  Boulier, 
Note,  Sperm,  Spleens,  and  Other  Valuables:  The  Need  to  Recognize  Property  Rights  in  Human 
Body  Parts,  23  HOFSTRA  L.  REV.  693  (1995);  Michelle  Bourianoff  Bray,  Note,  Personalizing 
Personality:  Toward  a  Property  Right  in  Human  Bodies,  69  TEX.  L.  Rev.  209  (1990).  The 
Takings  Clause  would  not  require  compensation  to  either  losing  party;  the  state  is  free  to  establish 
a  property  right  in  either  the  patient  or  the  hospital,  and  the  creation  of  that  property  right  does  not 
raise  any  serious  Takings  Clause  issue.  It  is  possible  that  the  decision  might  raise  substantive  due 
process  concerns  if  the  court's  (or  legislature's)  decision  seemed  utterly  irrational  or  arbitrary.  See 
Ronald  J.  Krotoszynski,  Jr.,  Fundamental  Property  Rights,  85  GEO.  L.J.  555  (1997). 

73 .  See,  e.g. ,  Board  of  Regents  v.  Roth,  408  U.S.  564  ( 1 972)  (holding  that  property  interests, 
unlike  liberty  interests,  arise  only  by  operation  of  positive  law  and  requiring  a  would-be  plaintiff 
to  establish  a  "legitimate  claim  of  entitlement"  under  existing  state  law  to  demonstrate  a  cognizable 
property  interest  in  a  government  job  or  benefit). 


246  INDIANA  LAW  REVIEW  [Vol.  33:233 


Constitution,  it  stands  to  reason  that  the  Constitution  also  should  limit  the  states' 
ability  to  extinguish  or  define  away  the  existence  of  property  rights.^"^ 
Nevertheless,  the  Supreme  Court,  in  a  variety  of  contexts,  has  made  clear  that 
property  interests  arise  only  by  operation  of  positive  law;  what  the  state  giveth, 
the  state  can  taketh  away  (at  least  prospectively).^^ 

A  state  legislature  could  simply  pass  legislation  declaring  that  no  property 
interest  accrues  from  the  collection  of  personal  data.  Thus,  if  a  Kroger  elects  to 
track  its  customers'  grocery  purchases,  it  would  be  free  to  do  so.^^  If  it  attempted 
to  assert  a  regulatory  takings  claim  in  response  to  state  legislation  prohibiting  it 
from  selling  such  a  list,  the  claim  would  fail  because  the  Takings  Clause  only 
applies  in  instances  where  a  property  interest  has  been  implicated. 

Indiana  is  particularly  instructive  in  this  regard.  For  reasons  that  are  non- 
obvious,  the  state  legislature  passed  a  cap  on  actual  damages  resulting  from 
medical  malpractice.  No  matter  what  the  plaintiffs  actual  damages,  a  plaintiff 
cannot  recover  more  than  $1.25  million.^^  The  Supreme  Court  of  Indiana 
sustained  this  law  on  a  broad-based  constitutional  attack,  including  claims  arising 
under  the  due  process  and  equal  protection  clauses.^^ 

Indiana  has  effectively  revoked  the  property  (or  liberty)  interest  that  one  has 
in  physical  integrity.  The  legislature  snatched  a  stick  from  the  citizen's  bundle 
of  property  rights  (evidently  when  not  many  citizens  were  looking,  or  at  least 
failed  to  appreciate  the  gravamen  of  this  law).^^  If  positive  law  can  deny  a  citizen 
the  ability  to  recover  for  damages  to  her  person  due  to  negligence,  it  seems 
logically  to  follow  that  the  state  could  define  away  Kroger' s  property  interest  in 
its  customer  database. 

Indeed,  a  sufficiently  privacy-loving  legislature  could  go  one  step  further  and 
enact  legislation  creating  an  individual  property  interest  in  one's  confidential 
personal  information  and  authorizing  actions  for  damages  when  such  information 
is  released  without  the  consent  of  the  person  about  whom  the  information  relates. 
It  is  easy  to  imagine  such  a  law. 

Consider  the  parallel  fates  of  Monica  Lewinsky,  Justice  Clarence  Thomas, 
and  Judge  Robert  Bork.  Independent  Counsel  Kenneth  Starr  attempted  to  force 
Kramerbooks  and  Barnes  &  Noble,  two  Washington,  D.C.  bookstores,  to  disclose 


74.  See  Krotoszynski,  supra  note  72,  at  583-90,  6 1 5-25. 

75.  See,  e.g.,  Cleveland  Bd.  of  Educ.  v.  Loudermill,  470  U.S.  532  (1985);  O'Bannon  v. 
Town  Court  Nursing  Ctr.,  447  U.S.  773  (1980);  Arnett  v.  Kennedy,  416  U.S.  134  (1974);  Punikaia 
V.  Clark,  720  F.2d  564,  566  (9th  Cir.  1983),  cert,  denied,  469  U.S.  816  (1984). 

76.  Many  grocery  stores  can  and  do  collect  data  on  their  customers,  most  commonly  through 
"frequent  shopper"  programs  that  involve  identification  cards  that  permit  the  store  to  track  a 
customer's  purchasing  patterns.  See  Lena  H.  Sun,  Checking  Out  the  Customer,  Wash.  Post,  July 
9,  1989,  at  HI. 

77.  See  IND.  CODE  §  34-18-14-3(a)(3)  (1998). 

78.  See  Johnson  v.  St.  Vincent  Hosp.,  Inc.,  404  N.E.2d  585,  598-601  (Ind.  1980);  see  also 
Frank  Cornelius,  Crushed  by  My  Own  Reform,  N.Y.  TIMES,  Oct.  1,  1994,  at  A31;  Krotoszynski, 
supra  note  72,  at  610  n.344. 

79.  See  Cornelius,  supra  note  78. 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  247 


Ms.  Lewinsky's  recent  purchases.^^  Opponents  of  Justice  Thomas's  appointment 
to  the  Supreme  Court  and  Judge  Bork's  nomination  to  the  Supreme  Court  sought 
and  obtained  information  regarding  their  video  rental  habits,^'  which,  in  the  case 
of  Justice  Thomas,  ostensibly  included  some  relatively  racy  titles.**^  A  state 
legislature  could  easily  conclude  that  customers  of  video  rental  establishments 
should  be  able  to  assert  a  privacy  claim  against  the  disclosure  of  their  rental 
records  without  consent.^^  The  Supreme  Court  probably  would  not  strike  down 
such  legislation  on  either  First  Amendment  or  Takings  Clause  grounds. 
Similarly,  an  insurance  company's  claim  to  a  proprietary  interest  in  an  insured 
person's  medical  history  also  is  something  that  a  rational  state  legislature  could 
reject,  probably  without  encountering  serious  constitutional  difficulties. 

Professor  Cate  responds  that  the  Congress  and  state  legislatures  are 
powerless  to  adopt  legislation  that  upsets  "reasonable  investment-backed 
expectations,"  citing  Ruckelshaus  v.  Monsanto  Co}^  in  support  of  this 
proposition.^^  He  fails  to  mention  the  Supreme  Court's  explicit  reliance  on  the 
existence  of  a  pre-existing  property  right  under  Missouri  law  as  a  necessary 
incident  of  invoking  the  Takings  Clause.  As  Justice  Blackmun  explains  in 
Monsanto,  "we  are  mindful  of  the  basic  axiom  that  'property  interests ...  are  not 
created  by  the  Constitution.  Rather,  they  are  created  and  their  dimensions 
defined  by  existing  rules  or  understandings  that  stem  from  an  independent  source 


80.  See  David  Stout,  Lewinsky 's  Bookstore  Purchases  Are  Now  Subject  of  Subpoena,  N.  Y. 
Times,  Mar.  26, 1 998,  at  A 1  (reporting  on  Independent  Counsel  Kenneth  Starr's  efforts  to  force  two 
Washington,  D.C.  bookstores  to  divulge  Monica  Lewinsky's  book  purchases  over  the  previous  28 
months  and  the  bookstores'  decision  to  fight  Starr's  subpoena);  David  Streitfeld  &  Bill  Miller, 
Starr's  Quest  for  Book  Titles  Faces  High  Bar,  WASH.  POST,  Apr.  10,  1998,  at  Bl  (same). 

81.  See  Amitai  Etzioni,  Privacy  Isn  't  Dead  Yet,  N.  Y.  TIMES,  Apr.  6, 1 999,  at  A5  (describing 
how  Judge  Bork's  experience  led  to  adoption  of  the  Video  Privacy  Protection  Act,  18  U.S.C.  § 
27 1 0);  Michael  deCourcy  Hinds,  Personal  But  Not  Confidential:  A  New  Debate  over  Privacy,  N.  Y. 
Times,  Feb.  27,  1988,  at  56  (providing  an  account  of  Judge  Bork's  experience  and  the  uproar  that 
followed);  Jeffery  Yorke,  The  Call-In  People 's  Court,  Wash.  Post,  Oct.  29, 1 99 1 ,  at  C7  (reporting 
on  rumors  that  Justice  Thomas  rented  pornographic  video  tapes  from  Graffiti 's,  a  Washington,  D.C. 
video  rental  store). 

82.  See  Yorke,  supra  note  81. 

83.  Indeed,  Congress  has  already  passed  such  legislation  in  response  to  Judge  Bork's 
experience  of  having  his  viewing  habits  put  on  public  display  incident  to  his  confirmation  hearings. 
See  The  Video  Privacy  Protection  Act,  18  U.S.C.  §  2710  (providing  both  criminal  and  civil 
penalties  for  disclosing  any  "personally  identifiable  information"  about  a  video  rental  store  patron 
absent  the  patron's  prior  written  consent).  Although  case  law  under  the  Video  Privacy  Protection 
Act  is  scant,  at  least  one  civil  suit  has  gone  forward,  without  any  serious  First  Amendment 
challenge  to  the  law.  See  Dirkes  v.  Borough  of  Runnemede,  936  F.  Supp.  235  (D.N.J.  1996) 
(permitting  a  civil  action  pursuant  to  the  Video  Privacy  Protection  Act  to  move  forward  against 
both  a  video  rental  store  and  third  parties  who  distributed  the  Dirkes'  video  rental  records). 

84.  467  U.S.  986  (1984). 

85.  See  Cate,  supra  note  2,  at  173  n.*. 


248  INDIANA  LAW  REVIEW  [Vol.  33:233 


such  as  state  law.'"^^  Thus,  Monsanto's  takings  claim  was  entirely  contingent  on 
Missouri  law  affirmatively  recognizing  a  property  interest  in  trade  secrets, 
including  the  specific  data  at  issue  in  the  case. 

After  examining  the  matter  in  some  detail,  Justice  Blackmun  concludes  that 
"[w]e  therefore  hold  that  to  the  extent  that  Monsanto  has  an  interest  in  its  health, 
safety,  and  environmental  data  cognizable  as  a  trade  secret  property  right  under 
Missouri  law,  that  property  right  is  protected  by  the  Takings  Clause  of  the  Fifth 
Amendment."^^  The  contingent  nature  of  the  takings  claim  on  the  substance  of 
Missouri  state  law  could  not  be  more  clear,  or  more  expressly  stated.  If  Missouri 
modified  its  substantive  law  to  abolish  the  property  interest  in  trade  secrets,  it 
would  preclude  a  takings  claim  identical  to  the  claim  raised  by  Monsanto  for  data 
assembled  after  the  new  law's  effective  date.  The  Monsanto  Court's  subsequent 
discussion  of  "reasonable  investment-backed  expectations"  takes  place  against 
this  backdrop  of  state  positive  law,  and  is  entirely  contingent  on  Missouri's 
decision  to  recognize  a  property  interest  in  the  data  at  issue.^^ 

To  put  the  matter  in  some  context,  consider  Congress's  recent  decision  to 
extend  the  life  of  copyrights  from  the  life  of  the  author  plus  fifty  years  to  the  life 
of  the  author  plus  seventy  years.^^  Simply  put,  in  1998  Congress  enacted 
legislation  extending  by  twenty  years  the  life  of  copyrights.  If  Congress  were  so 
inclined,  it  could  have  reduced  the  term  of  copyrights  to  two  years,  or  set  the 
term  at  any  point  it  deemed  prudent.^°  Even  if  such  legislative  action  upset 
"reasonable  investment-backed  expectations,"  such  a  law  would  not  trigger  the 
Takings  Clause,  at  least  insofar  as  the  law  purported  to  have  merely  prospective 
effect.  Since  1 937,  the  Supreme  Court  has  not  attempted  to  establish  substantive 
limits  on  the  powers  of  the  state  and  federal  governments  to  tinker  prospectively 
with  the  content  or  scope  of  property  rights.  Accordingly,  adoption  of  state  laws 
prospectively  limiting  the  ability  of  information  scalpers  to  collect  and  sell 
personal  information  would  not  exceed  the  meager  limits  imposed  on  such 
policies  by  the  substantive  aspect  of  the  Due  Process  clause.^' 


86.  Monsanto,  467  U.S.  at  1001  (quoting  Webb's  Fabulous  Pharmacies,  Inc.  v.  Beckwith, 
449  U.S.  155,  166  (1980)).  Webb's  Fabulous  Pharmacies,  Inc.,  in  turn,  quoted  language  from 
Board  of  Regents  v.  Roth,  408  U.S.  564,  577  (1972). 

87.  Monsanto,  467  U.S.  at  1003-04. 

88.  See  id.  at  1004-16. 

89.  Compare  the  1976  version  of  17  U.S.C.  §  302(a)  ("Copyright  in  a  work  created  on  or 
after  .January  1,  1978  subsists  from  its  creation  and,  except  as  provided  by  the  following 
subsections,  endures  for  a  term  consisting  of  the  life  of  the  author  and  fifty  years  after  the  author's 
death."),  with  1 7  U.S.C.  §  302(a)  (Supp.  IV  1998)  ("Copyright  in  a  work  created  on  or  after  January 
1,  1978  subsists  from  its  creation  and,  except  as  provided  by  the  following  subsections,  endures  for 
a  term  consisting  of  the  life  of  the  author  and  70  years  after  the  author's  death.") 

90.  See  U.S.  Const,  art.  I,  §  8,  cl.  8  ("The  Congress  shall  have  the  power  .  . .  [t]o  promote 
the  Progress  of  Science  and  useful  Arts,  by  securing  for  limited  Times  to  Authors  and  Inventors  the 
exclusive  Right  to  their  respective  Writings  and  Discoveries."). 

91.  Cf.  Lochner  v.  New  York,  198  U.S.  45  (1905)  (holding  that  economic  liberty 
guaranteed  by  the  Due  Process  clause  precluded  New  York  from  adopting  health  and  safety 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  249 


To  be  sure,  it  is  certainly  possible  that  market  mechanisms  might  incent 
video  rental  stores  or  bookstores  to  promise  confidentiality  in  order  to  attract 
privacy-minded  customers.^^  Nevertheless,  the  citizenry  should  not  be  forced  to 
rely  solely  on  the  market  to  protect  its  privacy  interests.  After  all,  neither  the 
First  Amendment  nor  the  Takings  Clause  is  a  mutual  suicide  pact.  Properly 
understood,  neither  provision  presents  a  serious  impediment  to  the  adoption  of 
reasonable  privacy  legislation.^^ 

C  Conditional  Spending  and  Privacy  Rights 

Let  us  suppose,  for  the  moment,  that  one  would  be  wrong  to  think  that  the 
First  Amendment  and/or  the  Takings  Clause,  properly  construed,  would  permit 
a  state  to  adopt  legislation  protecting  the  privacy  interests  of  its  citizens.  Even 
if  one  supposes  that  the  First  Amendment  and/or  the  Takings  Clause  preclude 
direct  privacy  protections,  a  sufficiently  privacy-loving  state  government  (or  the 
federal  government)  could  nevertheless  prevent  a  good  deal  of  private 
information  from  being  commodified  and  sold  like  bags  of  potatoes. ^"^ 

When  the  government  elects  to  subsidize  the  delivery  of  particular  goods  or 
services,  it  may  condition  its  willingness  to  do  business  with  potential  providers 
of  goods  or  services  on  those  providers  agreeing  to  particular  terms  or  conditions. 
For  example,  the  receipt  of  federal  family  planning  funds  might  be  conditioned 
on  the  recipient  clinic  refusing  to  provide  any  meaningful  information  about 
abortion  services.^^  Similarly,  the  decision  to  fund  particular  kinds  of  art  does 


regulations  governing  maximum  weekly  hours  of  employment  in  a  bakery);  Truax  v.  Corrigan,  257 
U.S.  3 12  (1921)  (invoking  the  Due  Process  clause  to  impose  substantive  limits  on  Arizona's  ability 
to  define  the  scope  of  property  rights  associated  with  ownership  of  a  restaurant). 

92.  Scott  McNealy,  chairman  and  CEO  of  Sun  Microsystems,  has  stated  publicly  that  "[y]ou 
already  have  zero  privacy — get  over  it."  Etzioni,  supra  note  8 1 ,  at  27.  If  Mr.  McNealy 's  approach 
is  representative  of  the  Internet  industry's  attitudes  toward  privacy  issues,  I  seriously  question 
whether  reliance  on  market  mechanisms  will  prove  sufficient  to  protect  reasonable  privacy 
expectations.  See,  e.g.,  ^iXQ\ifQ\d,  supra  noXQ  A. 

93.  Indeed,  the  Clinton  administration  has  recently  issued  proposed  regulations  governing 
access  to  individual  medical  records.  See  Standards  for  Privacy  of  Individually  Identifiable  Health 
Information,  64  Fed.  Reg.  59,91 8  (proposed  Nov.  3, 1 999);  see  also  Robert  Pear,  Clinton  to  Unveil 
Rules  to  Protect  Medical  Privacy,  N.Y.  TIMES,  Oct.  27,  1999,  at  Al  ("The  Proposed  regulations 
would  be  the  first  comprehensive  Federal  standards  specifically  intended  to  protect  the 
confidentiality  of  medical  records.").  The  President  proposed  the  new  rules  because  Congress 
failed  to  meet  a  self-imposed  statutory  deadline  for  enacting  legislation  in  this  area.  See  Pear, 
supra.  The  proposed  rules  have  proven  controversial,  and  their  ultimate  fate  remains  uncertain. 
See  Robert  Pear,  Rules  on  Privacy  of  Patient  Data  Stir  Hot  Debate,  N.Y.  TIMES,  Oct.  30,  1 999,  at 
Al. 

94.  See  generally  Berman  &  Mulligan,  supra  note  4,  at  571-79. 

95.  See  Rust  v.  Sullivan,  500  U.S.  173  (1991);  Kathleen  M.  Sullivan,  Unconstitutional 
Conditions,  1 02  Harv.  L.  Rev.  1412(1 989);  c/  William  W.  Van  Alstyne,  The  Demise  of  the  Right- 
Privilege  Distinction  in  Constitutional  Law,  81  Harv.  L.  Rev.  1439  (1968). 


250  INDIANA  LAW  REVIEW  [Vol.  33:233 


not  imply  that  the  government  must  fund  all  kinds  of  art.^^ 

The  federal  and  state  governments  are  among  the  largest  purchasers  of 
medical  services.  Literally  billions  of  dollars  pass  through  the  Medicare  and 
Medicaid  programs.  Either  the  federal  or  a  state  government  could  condition 
participation  in  the  Medicare  and  Medicaid  programs  on  respecting  the  privacy 
interests  of  plan  participants,  perhaps  by  not  disclosing  patient  information  to 
third  parties  without  prior  patient  consent.  A  health  care  provider  who  wished 
to  create  and  sell  patient  lists  would  remain  free  to  do  so,  provided,  of  course, 
that  it  did  not  take  Medicare  or  Medicaid  funds. 

A  similar  sort  of  arrangement  protects  student  grade  and  disciplinary  records 
from  public  disclosure.  If  I  were  to  locate  and  publish  Dan  and  Marilyn  Quayle's 
transcripts  from  this  law  school,  the  law  school's  continued  participation  in  all 
federal  educational  programs  would  be  jeopardized  (notably  including  student 
loan  programs). 

All  of  this  is  a  rather  round  about  way  of  saying  that,  if  government  has  the 
will  to  protect  confidential  personal  information,  multiple  avenues  of  potential 
relief  exist.  The  failure  of  the  federal  and  state  governments  to  protect  such 
information  adequately  to  date  has  a  great  deal  more  to  do  with  the  lobbying 
power  of  those  who  profit  by  trading  in  such  information  than  with  the  weakness 
of  the  legal  tools  at  the  government's  disposal. 

III.  The  Need  to  Rethink  the  Public/Private  Dichotomy  in 
THE  Context  of  Privacy  Rights 

At  a  more  theoretical  level.  Professor  Gate's  article  raises,  rather  squarely, 
the  age  old  question  of  precisely  where  to  draw  the  line  between  the  government 
and  the  private  sector.  Historically,  the  private  sector  has  been  free  to  disregard 
the  constitutional  limitations  applicable  to  the  government.  Thus,  the  City  of 
Indianapolis  could  not  fire  an  employee  for  subscribing  to  the  political  goals  of 
the  National  Organization  for  the  Reform  of  Marijuana  Laws  ("NORML"), 
whereas  IBM  could  do  so.  The  theory  behind  this  result  is  that  the  state  presents 
a  far  greater  threat  to  liberty  than  does  the  private  sector. 

If  the  Framers  had  foreseen  the  advent  of  Microsoft,  one  might  question 
whether  they  would  have  created  a  system  that  assumes  that  only  the  government 
is  the  enemy  of  liberty. ^^  As  Professor  Owen  Fiss  has  argued  in  various  contexts, 
in  contemporary  times,  the  state  can  be  as  much  the  friend  of  individual  liberty 
as  its  enemy.^^  This  is  doubly  so  when  one  contrasts  government  efforts  to 
enhance  personal  liberty  through  progressive  legislation  with  the  liberty- 
squelching  behavior  of  large  corporate  interests.^^ 

At  least  arguably,  the  creation  of  new  and  vast  capabilities  to  create  and 


96.  See  National  Endowment  for  the  Arts  v.  Finley,  524  U.S.  569  (1998). 

97.  See  Wilborn,  supra  note  54,  at  828-3 1,  864-76. 

98.  See  Owen  M.  Fiss,  Silence  on  the  Street  Corner,  26  SUFFOLK  U.  L.  REV.  1  ( 1 992). 

99.  See  Scott  Edwin  Sundby,  Is  Abandoning  State  Action  Asking  Too  Much  of  the 
Constitution?,  17  HASTINGS  CONST.  L.Q.  139,  144  n.ll  (1989). 


1 999]  RECALIBRATING  THE  RULES  OF  THE  ROAD  25 1 


disseminate  data  make  the  private  sphere  even  more  potentially  threatening  to 
individual  liberty. '^^  If  this  is  so,  legal  academics,  judges,  and  legislators  should 
rethink  the  wisdom  of  limiting  basic  privacy  protections  to  the  government.  Of 
course,  the  extension  of  privacy  protections  to  non-state  actors,  like  Anthem  or 
Blue  Cross/Blue  Shield,  would  require  positive  legislation.  If  the  community 
concludes  that  the  principal  contemporary  threat  to  individual  liberty  is  the 
collection  and  dissemination  of  intensely  personal  information  by  private 
information  brokers,  then  it  would  be  entirely  appropriate  to  rethink  the  wisdom 
of  maintaining  the  public/private  distinction  in  this  particular  area. 


Conclusion 

I  am  not  a  great  fan  of  the  new  information  age — I  am  not  yet  convinced  that 
"faster,  cheaper,  better"  will  mean  that  we  live  qualitatively  better,  more 
fulfilling  lives. '°'  Professor  Cate's  article  presents  a  rather  nightmarish  scenario 
in  which  our  very  souls  can  be  digitized,  commodified,  and  sold  to  the  highest 
bidder.  If  this  is  truly  the  import  of  the  information  age,  one  should  question 
whether  we  are  not  losing  a  great  deal  more  than  we  are  gaining  in  the  bargain. 

Nevertheless,  there  is  no  stopping  the  information  revolution.  China  has 
tried  and  failed. '^^  The  ubiquity  of  technology  means  that,  like  it  or  not,  we  will 
all  have  to  readjust  our  lives  to  accommodate  new  technological  realities.  One 
must  hope,  however,  that  the  federal  courts  resist  the  temptation  to  "Lochner-'izo'' 
the  info-bahn. 

Some  of  the  arguments  contained  in  Professor  Cate's  article  could  be 
deployed  in  an  attempt  to  use  the  First  Amendment  and  Takings  Clause  to  create 
a  kind  of  constitutional  "liberty  of  contract"  for  information  service  brokers.  JUst 
as  industrial  production  and  the  benefits  of  economies  of  scale  led  capitalists  at 
the  turn  of  the  last  century  to  reject  social  welfare  legislation  as  an  untenable 
interference  with  freedom  of  contract,  it  appears  likely  that  similar  arguments 
will  be  mustered  on  behalf  of  the  information  brokers.  Just  as  the  federal  courts 
eventually  came  to  realize  that  laws  protecting  men,  women,  and  children  from 
dangerous  or  unfair  terms  and  conditions  of  employment  were  not 
unconstitutional,  let  us  hope  that  federal  and  state  courts  do  not  interpose  the  Bill 
of  Rights  to  thwart  legislation  and  common  law  precedents  designed  to  check  the 
worst  abuses  of  the  new  information  brokers. 

Markets  failed  to  protect  labor  at  the  turn  of  the  last  century.  There  is  every 
reason  to  believe  that  markets  will  fail  to  protect  privacy  at  the  turn  of  this 


100.  See  Berman  &  Mulligan,  supra  note  4,  at  563-68. 

101.  See  Andrews,  supra  note  18,  at  248-60  (arguing  that  new  biological  technologies, 
including  cloning,  are  not  inherently  beneficial  or  harmful,  but  require  careful  debate  about  ethics 
and  culture  before  they  are  embraced). 

1 02.  See  Scott  E.  Feir,  Comment,  Regulations  Restricting  Internet  Access:  Attempted  Repair 
of  Rupture  in  China 's  Great  Wall  Restraining  the  Free  Exchange  of  Ideas,  6  Pac.  Rim  L.  &  POL'Y 
J.  361  (1997). 


252  INDIANA  LAW  REVIEW  [Vol.  33:233 


century.  History  teaches  that  if  there  is  money  to  be  made  by  collecting  highly 
personal  information  and  selling  it  to  the  highest  bidder,  someone  will  undertake 
to  provide  this  service — absent  some  legal  impediment  to  doing  so.  Let  us  hope 
that  the  federal  and  state  courts  will  take  a  lesson  from  the  past  and  embrace, 
rather  than  reject,  progressive  legislation  aimed  at  securing  a  modicum  of 
personal  privacy  in  the  new  information  age. 


The  Internet  Is  Changing  the  Face  of 
American  Law  Schools 


Henry  H.  Perritt,  Jr.* 


Introduction 

Information  technology,  especially  as  deployed  in  the  Internet's  World  Wide 
Web  ("the  Web"),  is  changing  the  law,  the  ftinctioning  of  legal  institutions  and 
the  roles  of  lawyers.  The  Internet's  potential  for  changing  the  face  of  American 
law  schools  is  especially  profound. 

Legislatures,  courts,  and  statutory  bodies  all  over  the  world  are  discovering 
how  a  $3000  Internet-connected  computer  can  be  a  remarkably  cheap  legal 
printing  press  through  which  new  statutes,  court  decisions  and  administrative 
regulations  can  be  communicated  instantly  to  anyone  in  the  world.  Thus  used, 
the  Internet  is  an  engine  of  legitimacy  for  new  political  and  legal  institutions 
because  they  can  communicate  their  work  and  their  reasoning  to  their  own 
citizens  and  the  international  community. 

Readily  available  court  decisions  are  necessary  components  of  any  rule  of 
law  that  depends  upon  consistent  decisionmaking.  A  low-cost  personal  computer 
("PC")  connected  to  the  Internet  becomes  a  virtual  library  through  which  a  judge, 
legislator  or  government  official  can  consult  the  laws  of  other  jurisdictions  and 
international  bodies  such  as  the  European  Commission,  the  European  Court  of 
Human  Rights  and  the  World  Trade  Organization.  Such  a  virtual  library  makes 
legal  harmonization  possible. 

The  Internet  also  affords  easier  participation  in  political  and  legal  processes. 
Legislatures  and  administrative  agencies  regularly  publish  proposed  laws  and 
regulations  on  the  Web  and  solicit  comment  from  interested  persons. '  Comments 
can  be  submitted  by  e-mail  simply  by  clicking  a  link  on  the  Web  page.  Internet 
connectivity  eases  the  formation  and  maintenance  of  political  action  groups  and 
Non-Governmental  Organizations  ("NGOs").^  However,  the  Internet  not  only 
favors  those  seeking  to  change  governmental  policy  or  incumbent  governments 
but  also  enables  established  governments  to  inform  their  constituencies  of 
policies  and  the  underlying  rationales.  When  disputes  arise,  the  Internet 
facilitates  adjudication  by  making  it  easier  to  find  court  dockets,  exchange 
litigants'  materials^  and  file  papers  with  judicial  officers."* 


*  Dean  and  Professor  of  Law,  Chicago-Kent  College  of  Law,  Illinois  Institute  of 
Technology.  Member  of  the  bar:  Virginia,  Pennsylvania,  District  of  Columbia,  Maryland,  Illinois, 
and  the  U.S.  Supreme  Court. 

1 .  See,  e.g. ,  National  Telecommunications  and  Information  Administration  (last  modified 
June  1,  1999)  <http://www.ntia.doc.gov>  (soliciting  comments  on  several  telecommunication 
policies);  Federal  Communications  Commission  (visited  July  13,  1999)  <http://www.fcc.gov> 
(instructions  on  how  to  submit  electronic  comments). 

2.  See  generally  Henry  H.  Perritt,  Jr.,  Cyberspace  and  State  Sovereignty,  3  J.  INT'L  LEGAL 
Stud.  155(1 997);  Henry  H.  Perritt,  Jr.,  The  Internet  and  the  Sovereign  State:  The  Role  and  Impact 
of  Cyberspace  on  National  and  Global  Governance,  5  IND.  J.  GLOB.  LEG.  STUD.  423  (1998). 

3.  See,  e.g..  The  Center  for  Information  Law  and  Policy  (visited  July   13,   1999) 


254  INDIANA  LAW  REVIEW  [Vol.  33:253 


The  Internet  is  not  only  an  instrument  of  legal  procedure  and  political  action; 
it  is  also  a  means  of  commerce.^  Like  other  means  of  commerce,  e-commerce 
gives  rise  to  disputes  which  must  be  adjudicated.^  Internet  contracts,  like  any 
other  contracts,  sometimes  lead  to  disappointed  expectations  and  to  breach-of- 
contract  lawsuits.  Statements  made  through  Internet  e-mail,  offers  made  to 
consumers  on  Web  sites,  private  data  collected  through  electronic  orders, 
pictures  allegedly  infringing  copyright,  and  symbols  allegedly  infringing 
trademarks  all  give  rise  to  tort  and  statutory  disputes.^  Sometimes  these  disputes 
arising  in  Cyberspace  give  rise  to  suggestions  that  new  legal  principles  should  be 
applied  to  resolve  them  because  of  the  Internet's  unique  characteristics.^  Such 
Cyberlaw  proposals  must  be  evaluated  against  claims  that  the  Internet  is  a 
different  medium  for  commercial  transactions. 

As  commerce  moves  to  the  Web  and  the  Internet,  so  do  criminals.  Fraud, 
forgery,  extortion,  and  theft  of  property  already  are  serious  threats.  To  combat 
this  intrusion  effectively,  law  enforcement  personnel,  and  the  lawyers  who  advise 
and  direct  them,  must  be  able  to  understand  the  details  of  crimes  committed  in 
Cyberspace. 

For  the  potential  of  electronic  legal  publishing,  virtual  legal  libraries  and 
electronic  democracy  to  be  realized,  lawyers  performing  judicial,  parliamentary, 
and  administrative  functions  must  understand  the  Internet's  potential  and  be 
knowledgeable  about  its  use  by  other  legal  institutions  around  the  world. 

For  practicing  lawyers  who  advise  or  represent  clients  and  forjudges  hearing 
Cyberspace  disputes  or  criminal  prosecutions,  some  knowledge  of  the  new 
medium  and  of  the  legal  issues  it  produces  is  necessary  for  professional 
effectiveness.  One  could  go  seriously  astray  in  analyzing  a  judicial  jurisdiction 


<http://www.cilp.org>. 

4.  See  Henry  H.  Perritt,  Jr.,  Video  Depositions,  Transcripts  and  Trials,  43  EMORY  L.J. 
1071  (1994). 

5.  See  Janine  S.  Hiiler  &  Don  Lloyd  Cook,  From  Clipper  Ships  to  Clipper  Chips:  The 
Evolution  of  Payment  Systems  for  Electronic  Commerce,  17  J.L.  &  COM.  53  (1997);  Kerry  Lynn 
Macintosh,  How  to  Encourage  Global  Electronic  Commerce:  The  Case  for  Private  Currencies  on 
the  Internet,  1 1  Harv.  J.L.  &  TECH.  733  (1998);  Henry  H.  Perritt,  Jr.,  Legal  and  Technological 
Infrastructures  for  Electronic  Payment  Systems,  22  RUTGERS  COMPUTER  &  TECH.  L.J.  1  (1996). 

6.  See  generally  HENRY  H.  PERRITT,  JR.,  LAW  AND  THE  INFORMATION  SUPERHIGHWAY 
(1996)  (analyzing  contract,  tort,  intellectual  property,  jurisdictional  and  various  regulatory  issues 
raised  by  the  Internet). 

7.  See  Maureen  A.  O'Rourke,  Fencing  Cyberspace:  Drawing  Borders  in  a  Virtual  World, 
82  Minn.  L.  Rev.  609  (1998)  (considering  appropriate  legal  treatment  of  linking  and  framing); 
Henry  H.  Perritt,  Jr.,  Property  and  Innovation  in  the  Global  Information  Infrastructure,  1996  U. 
Chi.  Legal  F.  261  (1996);  Dan  Thu  Thi  Phan,  Note,  Will  Fair  Use  Function  on  the  Internet?,  98 
COLUM.  L.  Rev.  1 69, 1 73  ( 1 998)  (explaining  why  current  or  expanded  fair-use  concept  is  important 
for  the  Internet). 

8.  See  Henry  H.  Perritt,  Jr.,  Cyberspace  Self-Government:  Town-Hall  Democracy  or 
Rediscovered  Royalism? ,  12  BERKELEY  TECH.  L.J.  413  (1997);  Josh  A.  Goldfoot,  Note,  Antitrust 
Implications  of  Internet  Administration,  84  Va.  L.  Rev.  909  (1998). 


1999]  THE  INTERNET  255 


issue,  for  example,  if  one  believed  that  a  document  requested  from  a  website  is 
necessarily  physically  present  or  necessarily  is  communicated  through  the 
Internet-connected  computer  from  which  it  is  requested.  In  fact,  a  request  for  a 
document,  made  by  clicking  an  icon  displayed  by  a  Web  server,  often  merely 
connects  the  requester's  computer  to  a  third  computer  containing  the  requested 
information.  The  third  computer  may  be  half  way  around  the  world  from  the 
computer  originally  contacted. 

Those  interested  in  developing  a  rule  of  law  and  an  effective  legal  profession 
must  think  about  how  lawyers,  judges,  legislators  and  administrators  will  get  the 
requisite  knowledge. 

It  is  the  Internet,  more  than  information  technology  in  general,  that  offers  the 
potential  to  do  all  these  things.  Focusing  on  frame  relay,  ATM  (Asynchronous 
Transfer  Mode),  proprietary  videoconferencing  techniques,  or  on  any  other 
proprietary  approach  not  closely  linked  to  the  TCP/IP  and  http  protocols  that 
define  the  Internet  and  the  World  Wide  Web  is  a  distraction.  It  is  important  to 
understand  that  what  makes  the  Internet  special  in  regard  to  law,  legal  institutions 
and  legal  education  is  its  modular  character  and  universality. 

Before  the  Internet,  one  could  distribute  or  acquire  information  by  an 
electronic  network,  but  one  had  to  invest  in  establishing  the  network  itself,  invest 
in  software  at  both  ends  of  the  connection,  and  other  infrastructure  features.  By 
using  the  Internet,  one  can  take  the  network  for  granted.  One  can  assume  Web 
server  and  browser  sofl^vare  at  both  ends  of  the  connection.  In  other  words,  one 
can  take  the  infrastructure  and  user  interface  for  granted  and  concentrate  on  the 
particular  value-added  features  that  are  within  one's  own  particular  competence. 

United  States  law  schools  have  an  important  role  to  play  in  connection  with 
these  revolutionary  phenomena.  They  can  and  should  support  electronic 
publishing  and  virtual  library  initiatives  by  public  institutions.  They  must 
continue  to  perform  their  functions  of  generating  intellectual  and  human  capital 
in  the  form  of  scholarship  and  well-educated  graduates,  taking  into  account  the 
new  substantive  legal  issues  presented  by  the  Internet.  It  is  increasingly  clear 
that  the  Internet  provides  a  new  set  of  educational  tools — ^tools  for  "distance 
learning."  More  schools  must  begin  to  understand  how  these  tools  can  be  used 
to  improve  the  quality  of  their  teaching. 

I.  Supporting  Electronic  Publishing  and  the  Virtual  Library 

The  Internet  is  a  means  of  making  existing,  and  mostly  state-based,  public 
institutions  more  effective.^  The  Internet  functions  as  a  virtual  library,  a  medium 
for  electronic  publishing,  and  a  case  manager. '°  The  virtual  library  and  electronic 


9.  "Effective"  signifies  improvements  in  democratization  and  legitimacy  as  well  as 
improvements  in  efficiency.  Often,  efficiency  conflicts  with  democratization  and  legitimacy.  In 
the  short  run,  transparency  usually  impairs  efficiency. 

1 0.  Electronic  publishing  has  multiple  effects:  in  the  first  as  a  technique  for  improving  the 
functioning  of  courts  and  other  existing  institutions;  in  the  second  as  an  example  of  the 
transformation  of  information  markets;  and  in  the  third  as  an  influence  giving  rise  to  new  political 


256  INDIANA  LA W  REVIEW  [Vol.  33:253 


publishing  functions  are  interdependent.  The  extent  of  the  virtual  library 
depends  upon  the  scope  of  relevant  electronic  publishing.  John  Dawson 
explained  how  the  wide  availability  of  legal  tests  promoted  the  unification  of 
legal  systems  in  his  classic,  The  Oracles  of  the  Law}^  The  Internet,  by  making 
it  easier  for  lawyers  in  different  legal  cultures  to  access  information  about  other 
cultures  similarly  promotes  unification.  Constitutionalism  and  human  rights  are 
ripe  for  this  kind  of  unification.  The  restricted  set  of  authoritative  texts,  about 
a  dozen  new  constitutions  and  the  Universal  Declaration  of  Human  Rights,  the 
International  Covenant  of  Civil  and  Political  Rights  and  the  European 
Convention  on  Human  Rights  ("ECHR"),  and  relatively  limited  output  of 
specialized  courts  should  enhance  the  feasibility  of  constructing  a  complete 
electronic  information  system  that  encompasses  all  relevant  precedent.  There  is 
the  possibility  that  these  institutions  will  develop  a  common  case  law,  not 
necessarily  in  the  stare  decisis  sense  that  a  case  from  the  Czech  Republic  will 
bind  a  Slovenian  court,  but  in  the  sense  that  all  of  the  state  decisions  within  the 
United  States  make  up  a  common  case  law.  Such  harmonization  would  make 
constitutionalism  and  human  rights  law  a  truly  international  set  of  norms  rather 
than  a  patchwork  differing  from  state  to  state.  National  courts  and  legislatures 
must  be  tied  to  supranational  ones;  an  ECHR  decision  or  an  Organization  for 
Security  and  Cooperation  in  Europe  ("OSCE")  finding  cannot  influence  a 
national  judge  or  legislator  if  he  does  not  know  about  it.  That  is  where  the 
Internet  enters;  it  enables  him  for  find  such  a  decision  and  use  it  as  justification 
for  his  own. 

A  new  international  court,  or  a  national  one  trying  to  enhance  principled 
decisionmaking  need  not  have  these  aspirations  frustrated  by  a  poor  traditional 
law  library.  The  virtual  library  function  also  enhances  the  legitimacy  of  the 
institutions  using  it.  A  controversial  case  by  the  constitutional  court  in  the  Czech 
Republic  may  be  more  difficult  to  vilify  if  it  is  factually  similar  and  decided 
similarly  as  a  case  decided  by  a  constitutional  court  in  Slovenia,  if  the  analogous 
case  is  known  and  recognized  by  the  Czech  judges. 

A  rich  variety  of  national  materials  from  the  same  country,  national  materials 
from  other  countries  and  international  materials  from  the  ECHR  are  available 
through  the  Web.  Access  to  them  can  be  organized  easily  and  cheaply  by 
constructing  specialized  Web  pages  oriented  toward  the  types  of  cases  in  the 
areas  of  law  most  frequently  of  interest  to  a  particular  tribunal.  The  Venice 
Commission  recognizes  the  potential  of  such  an  information  infrastructure  for  the 


intermediaries. 

1 1 .     John  P.  Dawson,  The  Oracles  of  the  Law  ( 1 968).  Dawson  explains  the  importance 

of  dissemination  of  legal  texts  and  decisions  through  law  reports: 

One  main  theme  that  will  recur  throughout  this  study  is  that  the  reasoned  opinion, 
issued  by  the  judge  as  a  function  of  his  office,  is  modern  product.  I  will  also  contend 
that  the  assumption  by  judges  of  a  duty  to  publish  their  own  official  statements  of 
reasons  has  transformed  their  relationship  to  other  agencies  for  the  declaring  and 
making  of  law. 

Id.  at  xii. 


1999]  THE  INTERNET  257 


constitutional  courts  by  publishing  their  opinions  and  developing  a  conceptual 
topology  or  thesaurus  to  index  opinions  according  to  their  subject  matter.'^ 

Electronic  publishing  is  a  tool  to  promote  compliance  as  well  as  increasing 
efficiency  and  legitimacy.  The  Bosnian  Ombudsman,  a  creature  of  the  Dayton 
Accords,  is  a  feature  of  human  rights  law.  Someone  alleging  a  human  rights 
violation  may  file  a  complaint  with  an  ombudsman,  triggering  the  ombudsman's 
duty  to  investigate.  If  settlement  is  achieved,  the  ombudsman's  job  is  complete. 
If  it  is  not  achieved,  the  ombudsman  may  publicize  the  human  rights  violation, 
seeking  to  mobilize  domestic  and  world  opinion  to  induce  the  offending 
governmental  entity  to  resolve  the  dispute  and  to  mend  its  ways. 

Inherent  in  the  ombudsman  tradition  and  nomenclature  is  the  idea  that 
informal  means,  particularly  public  opinion,  can  be  an  effective  alternative  to 
more  traditional,  formal  court  judgments  and  coercive  enforcement  and  execution 
of  them.  That  is  where  the  Internet  comes  in.  The  Internet  is  a  startlingly 
effective  new  tool  for  mobilizing  public  opinion  through  electronic  publishing. 

Not  only  does  electronic  publishing  on  the  Internet  enhance  the  power  of 
official  judicial  institutions,  the  vast  network  of  interested  nongovernmental 
organizations  and  human  rights  advocates  around  the  world  can  focus  public 
attention  by  adding  their  own  indexes  and  analytical  frameworks  to  raw  material 
developed  and  published  by  the  ombudsman.  The  need  for  translations  into  other 
languages  need  not  delay  publishing.  The  basic  findings  can  be  posted  in  the 
native  language  of  the  ombudsman  with  anyone  else  anywhere  in  the  world 
performing  the  translation  function  through  the  World  Wide  Web. 

Electronic  publishing  is  profoundly  important  in  preserving  a  rule  of  law  and 
enhancing  democracy.  Freedom  of  information  is  an  essential  feature  of 
responsive  government.  In  the  past,  freedom  of  information  meant  a  right  in  the 
press  and  public  to  obtain  information  on  paper  upon  request.  Now,  freedom  of 
information  means  more.  It  means  the  possibility  of  accessing  virtually  the  entire 
stock  of  public  information  generated  by  governments  at  the  click  of  a  mouse 
button.  ^^  This  is  significant  not  only  for  the  convenience  of  citizens  and  their 
representatives  who  can  retrieve  information  quickly  and  cheaply  but  also  for 
governments  who  can  disseminate  information  cheaply.  Now,  even  small 
countries  like  Macedonia  can  expect  their  information  resources  to  be  widely 
available  even  though  the  market  for  government  information  from  such  small 
countries  is  likely  to  be  too  thin  for  traditional  publishing  initiatives.  Because  the 
Internet  reduces  costs,  it  lowers  barriers  to  entry  and  makes  it  easier  for  even 
smaller  bodies  of  information  to  be  made  available. 

The  case  management  function  permits  documents  filed  anywhere  to  be 
available  from  everywhere  the  court  desires.  New  constitutional  courts  need  not 
establish  regional  court  houses  or  be  integrated  with  a  hierarchy  of  trial  courts 
in  order  to  be  accessible  to  individual  claimants.  The  case  management  function 


12.  The  European  Commission  for  Democracy  Through  Law  ("the  Venice  Commission") 
is  an  advisory  body  on  constitutional  law,  organized  within  the  Council  of  Europe. 

13.  See  generally  Henry  H.  Perritt,  Jr.,  Sources  of  Rights  to  Access  Public  Information,  4 
Wm.  &  Mary  Bill  Rts.  J.  179  (1995). 


258  INDIANA  LAW  REVIEW  [Vol.  33:253 


also  permits  confidential  deliberations  among  the  judges  and  conferences  with 
counsel  without  all  of  them  having  to  be  in  the  same  place  at  the  same  time. 

Using  the  Internet  in  this  fashion,  to  automate  adjudication,  and  to  link  it  to 
an  increasingly  unified  body  of  substantive  law,  does  not  require  any  change  in 
the  formal  organic  or  procedural  documents  for  the  potential  institutional  users 
in  Eastern  and  Central  Europe.  Nevertheless,  the  mere  existence  of  technology 
does  not  change  international  law;  people  have  to  use  the  technology  for  certain 
activities. 

The  Internet  is  a  vast  virtual  library.  In  order  for  this  library  to  have  a 
collection,  however,  individuals  and  institutions  possessing  relevant  information 
must  place  it  on  computers  connected  to  the  Internet.  Moreover,  other 
individuals  and  institutions  must  provide  a  value-added  layer  of  bibliographic 
information  pointing  to  primary  documentation.  For  example,  the  full  text  of 
treaties  must  be  placed  on  the  Internet,  and  someone  must  also  organize  a  list  of 
treaties  with  pointers  to  the  text  of  the  treaties,  which  may  be  located  on  a 
multiplicity  of  servers.  Many  of  those  providing  the  bibliographic  information 
may  choose  to  standardize  the  typologies  or  thesauri  for  indexing  documents,  but 
they  need  not  do  so.  One  of  the  Internet's  major  advantages  is  the  diversity  of 
approaches  to  information  retrieval. 

The  rest  of  the  world  is  just  starting  to  take  advantage  of  the  Internet's 
potential  for  electronic  publishing  and  virtual  libraries.  The  United  States  is  far 
ahead  both  in  terms  of  its  electronic  publishing  and  virtual  library  activities,  and 
in  terms  of  its  freedom  of  information  policies.  That  does  not  mean,  however, 
that  there  is  not  much  work  yet  to  be  done  in  the  United  States.  For  one  thing, 
much  state  and  municipal  information  is  hard  to  find  in  paper  formats.  The 
markets  for  such  information  are  not  large  enough  to  induce  private  publishers 
to  distribute  such  materials.  Few  local  governments  have  the  technical  expertise 
or  the  motivation  to  organize  several  Web  sites.  Accordingly,  law  schools, 
especially  those  with  a  local  or  regional  orientation,  can  perform  a  valuable 
service  by  working  with  state  and  local  authorities  and  local  bars  to  get  primary 
material  such  as  municipal  ordinances  and  housing  and  zoning  codes  on  the  Web. 

Law  schools  can  do  more.  To  start,  every  law  school  should  make  sure  that 
its  law  review  is  available  in  full  text  form  on  the  Web.  The  main  purposes  of 
law  reviews  are  to  provide  a  special  educational  opportunity  for  law  students  and 
to  disseminate  new  contributions  to  legal  scholarship.  They  are  not  primarily 
commercial  enterprises.  Thus,  if  placing  the  full  text  of  law  review  articles  on 
the  Web  facilitates  dissemination  and  provides  practical  opportunities  for  law 
review  students  to  learn  about  Web-based  publishing,  the  Web  initiative  will 
fulfill  law  review  purposes — it  is  irrelevant  if  Web  publishing  decreases  "sales" 
of  the  paper  volumes  of  the  law  review.'"* 

Law  schools  and  law  professors  also  play  an  important  role  when  they 
organize  "portals"  and  "one-stop  shopping  centers"  for  legal  content  placed  on 
the  Web  by  somebody  else.  Faculties  and  deans  should  encourage  this  kind  of 


14.     See  Bernard  J.  Hibbets,  Last  Writes?:    Re-assessing  the  Law  Review  in  the  Age  of 
Cyberspace,  71  N.Y.U.  L.  REV.  615  (1996)  (suggesting  web-based  formats  for  law  reviews). 


1999]  THE  INTERNET  259 


publishing  and  enhancement  activity  by  their  faculty  colleagues. 

Both  the  placement  of  primary  information  and  the  publication  of 
bibliographic  aids  is  facilitated  by  the  Internet.  An  Internet  server  can  be 
established  for  a  little  as  $3000.  All  it  takes  to  publish  a  document  on  the  server 
is  to  save  it  in  a  particular  format  (hypertext  markup  language  "html")  from 
either  of  the  two  most  popular  word  processing  programs,  Microsoft  Word  or 
Corel's  WordPerfect,  and  then  to  "publish  it"  to  a  particular  directory  on  the 
server — a  single  step  in  either  of  the  two  most  popular  Internet  Web  browser 
programs,  Microsoft's  Internet  Explorer  or  Netscape's  Communicator.  For  an 
institution  such  as  a  court  that  regularly  generates  textual  judgments  or  opinions, 
the  process  of  web  publishing  can  be  automated  with  a  few  simple  scripts  that 
take  word  processing  files  and  automatically  formats  and  publishes  them  to  an 
appropriate  Web  server  directory,  which  automatically  generates  indexes  and 
tables  of  contents  as  new  opinions  or  judgments  are  added. 

The  preparation  of  bibliographic  aids  also  is  simple.  All  one  needs  is  a 
concept  for  organizing  the  information.  For  simple  content,  one  simply  keys  the 
text  for  the  usually  hierarchical  arrangements  for  organizing  the  information 
resources  and  links  the  entries  on  the  word  processing  documents  to  the  URLs 
for  the  full  documents.  Typically,  the  linking  can  be  done  with  one  mouse  click 
in  popular  word  processing  programs  and  Web  browsers.  The  typology  or 
thesaurus  then  is  published  to  a  Web  server  in  the  same  fashion  used  for  primary 
documents.  The  Web  server  containing  the  bibliographic  information  may  be 
anywhere  in  the  world  and  need  not  have  any  pre-established  relationship  with 
the  Web  server  containing  primary  documents. 

Unfortunately,  not  all  governments  make  their  information  resources 
available  for  electronic  access.  The  reluctance  of  some  foreign  governments 
stems  from  the  Communist  era  in  which  public  access  to  information  about 
government  activities  either  was  unnecessary  or  was  actively  opposed.  In  other 
instances  the  motivation  is  not  to  discourage  public  participation  in  government, 
but  to  make  money.  Many  government  institutions  recognize  the  economic  value 
of  government  information  in  electronic  form  and  also  recognize  that 
monopolists  can  extract  more  revenue  by  maintaining  their  monopolies  and 
discouraging  competition.  Accordingly,  they  set  up  government-run  or 
government-sponsored  monopolies  to  sell  access  to  their  information  resources 
and  block  access  by  others.'^ 

State  sponsored  monopolies  involving  government  information  are 
undesirable  for  a  number  of  reasons.  Monopolies  make  it  easier  for  censorship 
to  occur.  Because  monopolists  have  no  economic  incentive  to  introduce  new 
technologies,  monopolies  usually  perpetuate  older  information  technologies,  thus 
depriving  consumers  of  the  benefits  of  new  technology.  Monopolies  rarely  serve 
the  needs  of  particular  consuming  communities  as  well  as  a  competitive  market 


15.  See  Perritt,  supra  note  13,  at  184  (explaining  and  criticizing  agency  temptations  to  set 
up  state  monopolies  over  government  information);  Henry  H.  Perritt,  Jr.,  Should  Local 
Governments  Sell  Local  Spatial  Databases  Through  State  Monopolies?,  35  JURIMETRICS  J.  449, 
454-55(1995). 


260  INDIANA  LAW  REVIEW  [Vol.  33:253 


structure  can  serve  them  because  no  monopolist  can  understand  and  cater  to  the 
needs  of  specialized  communities  as  well  as  a  designer  and  producer  who 
narrowly  specializes. 

Accordingly,  information  policy  should  commit  to  and  encourage  a  diversity 
of  sources  and  channels  for  government  information.^^  This  policy  is  best 
implemented  by  a  legal  framework  that  grants  anyone  a  right  of  access  to  basic 
government  information  and  also  gives  everyone  a  privilege  to  publish  that 
information  in  electronic  form  or  otherwise.'^ 

There  will  always  be  commercial  and  economic  forces  aimed  at  creating 
information  monopolies.  Law  schools,  their  universities  and  their  faculties  must 
vigilantly  oppose  such  monopolies  at  the  state  or  local  level.  When  appropriate, 
they  should  support  litigation  by  Web-based  publishers  against  those  who  seek 
to  enforce  monopolies. 

Effective  use  of  information  technology  also  needs  technical  support.  The 
Internet  is  easy  to  use,  but  work  is  required  to  make  it  so.  Any  legal  publishing 
or  virtual  library  initiative  must  allocate  sufficient  resources  to  network 
administration,  technical  support  personnel  and  training.  Often,  a  university- 
based  effort  benefits  from  the  availability  of  relatively  low  cost  student  resources 
in  meeting  these  needs. 


1 6.  A  good  example  of  a  commitment  to  a  policy  of  diversity  is  expressed  in  the  Paperwork 
Reduction  Act  Amendments  of  1996,  Pub.  L.  104-13,  109  Stat  163  (May  22,  1995),  which 
amended  44  U.S.C.  §  3506  to  read  as  follows,  in  material  part: 

(d)  With  respect  to  information  dissemination,  each  agency  shall — 

(1)  ensure  that  the  public  has  timely  and  equitable  access  to  the  agency's  public 

information,  including  ensuring  such  access  through — 

(A)  encouraging  a  diversity  of  public  and  private  sources  for  information  based  on 
government  public  information; 

(B)  in  cases  in  which  the  agency  provides  public  information  maintained  in  electronic 
format,  providing  timely  and  equitable  access  to  the  underlying  data  (in  whole  or  in 
part);  and 

(C)  agency  dissemination  of  public  information  in  an  efficient,  effective,  and 
economical  manner .  . . ." 

44  U.S.C.  §  3506(d)(1)  (Supp.  Ill  1997). 

1 7.  See  Henry  H.  Perritt,  Jr.  &  Christopher  J.  Lhulier,  Information  Access  Rights  Based  on 
International  Human  Rights  Law,  45  BUFF.  L.  REV.  899  (1997).  In  the  United  States,  the 
Paperwork  Reduction  Act  amendments  to  44  U.S.C.  §  3506(d)  appropriately  continue: 

(4)  [With  respect  to  information  dissemination,  each  agency  shall]  not,  except  where 
specifically  authorized  by  statute — 

(A)  establish  an  exclusive,  restricted,  or  other  distribution  arrangement  that  interferes 
with  timely  and  equitable  availability  of  public  information  to  the  public; 

(B)  restrict  or  regulate  the  use,  resale,  or  redissemination  of  public  information  by  the 
public; 

(C)  charge  fees  or  royalties  for  resale  or  redissemination  of  public  information;  or 

(D)  establish  user  fees  for  public  information  that  exceed  the  cost  of  dissemination." 
44  U.S.C.  §  3506  (d)(4). 


1999]  THE  INTERNET  261 


A  number  of  American  law  schools,  beginning  with  Chicago-Kent,  Cornell 
and  Villanova,  have  been  pioneers  in  showing  how  the  Internet  can  be  used  to 
facilitate  dissemination  of  primary  legal  information.  Cornell  established  a 
seamless  channel  for  making  Supreme  Court  opinions  available  on  the  Internet. 
The  Center  for  Information  Law  and  Policy  ("CILP"),  which  the  author 
originated  at  Villanova  and  now  directs  from  Chicago-Kent,  established  the 
"Federal  Web  Locator" — a  one-stop  shopping  center  for  access  to  every  federal 
agency  Web  server.  The  CILP  also  led  a  consortium  of  law  schools,  including 
Emory,  Pace,  Texas  and  others,  in  organizing  the  "Federal  Court  Locator,"  a 
distributed  database  of  all  U.S.  appellate  court  opinions,  downloading  them 
automatically  from  court-system  electronic  bulletin  board  computers  to  Web 
servers  maintained  by  these  law  schools.  Now,  dozens  of  law  schools  maintain 
Web  sites  that  facilitate  access  to  specialized  bodies  of  legal  information 
available  through  the  Web. 

The  author  also  led  an  effort,  beginning  with  Project  Bosnia  in  1996,  to 
encourage  foreign  law  schools  and  other  legal  institutions  to  launch  similar 
projects.  One  of  the  most  notable  successes  is  the  Macedonian  Legal  Resource 
Center  ("MLRC"),  maintained  by  the  Skopje  law  faculty  in  Macedonia.  By 
going  to  the  MLRC  website,^^  one  can  get  the  full  text  of  major  Macedonian  legal 
resource  materials.  The  MLRC  is  a  good  example  of  how  a  law  faculty  can  help 
the  profession  embrace  the  possibilities  of  the  new  technologies. 

These  schools  and  others  can  continue  their  leadership  by:  committing  to 
free  availability  of  basic  legal  information  through  the  Web;  allowing  multiple 
publishing  channels;  and  supporting  university-  and  bar  association-based  efforts 
to  educate  judges  and  practicing  lawyers  on  the  new  possibilities  for  legal 
institutions  and  new  legal  issues  likely  to  arise  from  electronic  commerce. 

II.  Developing  Intellectual  and  Human  Capital 

Supporting  the  electronic  printing  press  and  virtual  library  are  not  enough; 
as  legal  issues  arise  from  the  Internet's  use  for  commerce  and  conversation,  we 
must  also  provide  ideas  for  policy  makers  and  educate  lawyers,  in  the  bench  and 
the  bar.  Law  faculties  specialize  in  educating  legal  professionals  and,  in  most 
parts  of  the  world,  law  faculties  recognize  the  need  to  include  in  their  educational 
programs  some  exposure  to  issues  at  the  frontier  of  legal  thinking  and  analysis. 
The  Internet  is  a  source  of  such  issues. 

A.  Developing  Intellectual  Capital 

Increasingly  intellectual  capital  is  beginning  to  be  generated  for  these 
problems.  The  most  ambitious  project  is  the  Internet  Jurisdiction  Project  ("UP") 
of  the  American  Bar  Association.  Begun  by  the  ABA  Business  Law  Section,  it 
now  is  co-sponsored  with  the  International  Law,  Science  and  Technology  and 
Public  Utilities  sections.  Based  at  Chicago-Kent  College  of  Law,  at  the  Illinois 


1 8.     Robertino  Poposki  &  Gjorge  Ivanov,  The  Macedonian  Legal  Resource  Center  (visited 
July  14,  1999)  <www.pf.ukim.edu.mk>. 


262  INDIANA  LAW  REVIEW  [Vol.  33:253 


Institute  of  Technology,  and  led  by  reporter  Margaret  Stewart,  a  professor  at 
Chicago-Kent,  the  project  will  report  at  the  year  2000  Annual  Meeting  of  the 
ABA  in  London.  The  UP  will  analyze  jurisdictional  issues  and  eight  different 
areas  of  law,  including  privacy,  tax,  consumer  protection,  banking  and  financial 
services,  contracts  for  the  sale  of  goods,  contracts  for  services,  and  intellectual 
property. 

Many  different  sections  of  the  ABA  regularly  hold  programs  on  the  legal 
applications  of  the  Internet.  Additionally,  the  National  Academy  of 
Sciences/National  Research  Council  commissioned  a  major  policy  analysis  of 
encryption  policy,  which  was  completed  in  1996.  It  now  has  underway,  in 
cooperation  with  the  German  American  Academic  Committee,  an  investigation 
of  "global  networks  and  local  values."'^ 

Law  review  articles  are  proliferating,  exploring  issues  as  diverse  as 
jurisdiction  in  cyberspace,  electronic  signatures,  appropriate  application  of 
contract  avoidance  rules  when  consumers  are  taken  advantage  of,  and  the  like.^° 

As  often  happens  with  early  scholarly  exploration  of  new  phenomena,  many 
of  the  articles  simply  identify  the  issues  raised  as  commerce  and  political  activity 
moves  to  the  Internet.  Increasingly,  however,  commentators  are  beginning  to 
suggest  specific  ways  of  adapting  or  replacing  traditional  legal  doctrines  to 
handle  these  Internet  disputes  more  appropriately.  Jack  Goldsmith's  proposal, 
that  personality-based  jurisdiction  may  be  the  best  answer  to  jurisdiction 
problems,  is  one  good  example.^'  Peter  Swire's  distinction  between  "elephants" 
and  "mice"  is  another  because  it  focuses  attention  on  the  sharply  different 
problems  associated  with  large  enterprises  doing  business  on  the  Internet,  where 
the  challenge  may  be  to  prevent  overreaching  by  national  law,  and  small 
enterprises  and  individuals  engaging  in  harmful  activity  on  the  Internet,  where 
the  problem  more  likely  is  to  be  underconclusive  and  ineffective  enforcement.^^ 
Larry  Lessig,  David  Johnson,  and  David  Post  explore  possibilities  that  new 


1 9.  The  author  serves  as  a  member  of  the  committee. 

20.  A  January  30, 1 999  Westlaw  search  of  the  "JLR"  database  revealed  772  documents  with 
the  word  "Internet"  included  in  their  title.  See,  e.g.,  James  Garrity  &  Eoghan  Casey,  Internet 
Misuse  in  the  Workplace:  A  Lawyer's  Primer,  72  FLA.  B.J,  22  (Nov.  1998);  Michael  R.  Gottfried 
&  Anthony  J.  Fitzpatrick,  The  Internet  Domain  Name  Landscape  in  the  Wake  of  the  Government 's 
"White  Paper,  "  42  B.  B.J.  8  (Dec.  1998);  Robert  L.  Ullmann  &  David  L.  Ferrera,  Crime  on  the 
Internet,  42  B.  B.J.  4  (Dec.  1998);  Dawn  A.  Edick,  Note,  Regulation  of  Pornography  on  the 
Internet  in  the  United  States  and  the  United  Kingdom:  A  Comparative  Analysis,  21  B.C.  INT'L  & 
COMP.  L.  Rev.  437  ( 1 998);  Christopher  E.  Friel,  Note,  Downloading  a  Defendant:  Is  Categorizing 
Internet  Contacts  a  Departure  from  the  Minimum  Contacts  Test?,  4  ROGER  WILLIAMS  U.  L.  REV. 
293  (1998);  Josh  A.  Goldfoot,  Note,  Antitrust  Implications  of  Internet  Administration,  84  Va.  L. 
Rev.  909  (1998);  Sandi  Owen,  Note,  State  Sales  &  Use  Tax  on  Internet  Transactions,  51  Fed. 
COMM.  L.J.  245(1998). 

21.  See  Jack  L.  Goldsmith,  Against  Cybernarchy,  65  U.  CHI.  L.  Rev.  1 1 99  ( 1 998). 

22.  See  Peter  P.  Swire,  Of  Elephants,  Mice,  and  Privacy:  International  Choice  of  Law  and 
the  Internet,  32  iNT'L  LAW.  99 1 ,  1 0 1 9  ( 1 998)  (defining  elephants  as  large  enterprises  such  as  AOL 
and  mice  as  small  enterprises  and  individuals). 


1999]  THE  INTERNET  263 


forms  of  interaction  popularized  by  the  Internet  might  be  good  guides  for  the 
legal  system  more  generally  .^^  And  the  author  has  explored  how  the  Internet  may 
change  international  law,  and  the  possibilities  for  self- governance.^"* 

Sufficient  momentum  is  underway  with  respect  to  research  and  scholarship, 
and  other  mechanisms  for  generating  intellectual  capital  that  little  need  be  done 
to  stimulate  this  activity.  It  is  inevitable  that  law  school  faculties  will  continue 
to  explore  legal  applications  of  the  Internet  and  related  information  technologies. 

B.  Developing  Human  Capital 

Law  schools  also  must  adapt  legal  education  to  encompass  the  Internet.  In 
doing  so,  they  must  distinguish  between  technology  as  an  educational  tool,  and 
technology  as  a  source  of  legal  problems  that  lawyers  help  solve.  Educating  legal 
professionals  about  information  technology  as  a  tool  sharpens  needed  skills.  All 
law  students  should  know  how  to  use  a  personal  computer  ("PC")  for  word 
processing  and  email,  and  all  should  know  how  to  use  the  Web.  Increasingly, 
law  students  learn  this  on  their  own,  often  before  they  enter  law  school.  Part  of 
a  law  faculty's  responsibility  is  to  reinforce  the  need  for  these  skills,  to  expect 
the  skills  of  their  students  and  to  provide  supplementary  instruction  as  necessary 
for  students  who  lack  the  requisite  skills.  The  same  approach  is  appropriate  for 
newer  skills  such  as  ability  to  publish  a  Web  page,  and  basic  knowledge  of 
database  design  and  use.  A  competent  law  graduate  for  the  2V^  Century  should 
know  how  to  publish  a  Web  page  as  easily  as  sending  an  email  message. 

Educating  legal  professionals  about  the  legal  problems  arising  from  the 
Internet  ultimately  will  occur  in  the  regular  curriculum,  just  as  learning  about 
contract  problems  resulting  from  use  of  the  telephone  and  learning  about  torts 
arising  from  automobile  use  are  covered  in  the  regular  contracts  and  torts  classes 
respectively.  At  present,  however,  there  are  few  teaching  materials  that  cover 
Internet-related  problems,  and  few  faculty  are  sufficiently  familiar  with  how  the 
Internet  is  used  in  commerce  and  how  it  functions  to  generate  their  own. 

Two  initiatives  by  law  schools  and  legal  publishers  thus  are  needed  in  the 
near  term.  First,  they  should  undertake  to  develop  teaching  materials  and  equip 
willing  faculty  with  knowledge  of  Internet  commerce.  Second,  they  should  offer 
courses  such  as  "Computer  Law,"  "Internet  Law"  or  "Cyberlaw."  Such  courses 


23 .  See  David  R.  Johnson  &  David  Post,  Law  and  Borders — The  Rise  of  Law  in  Cyberspace, 
48  Stan.  L.  Rev.  1367,  1370  (1996);  Lawrence  Lessig,  The  Constitution  of  Code:  Limitations  on 
Choice— Based  Critiques  of  Cyberspace  Regulation,  5  CommLaw  CONSPECTUS  181  (1997). 

24.  See  Perritt,  supra  note  8,  at  4 1 7  (suggesting  points  of  tangency  between  cyberspace  and 
other  legal  systems  and  rules  of  thumb  for  sovereign  deference  to  cyberspace  "sovereignty;"  "self- 
governance  may  be  more  efficient;  the  rules  and/or  the  adjudicatory  techniques  for  applying  the 
rules  may  need  to  be  different  from  those  of  the  surrounding  community;  it  may  be  impracticable 
to  apply  the  rules  of  the  surrounding  community;  or  compliance  with  basic  norms  of  the  community 
may  be  higher  when  members  of  the  subcommunity  participate  in  self-governance);  Perritt,  supra 
note  2,  at  425;  Henry  H.  Perritt,  Jr.,  The  Internet  Is  Changing  International  Law,  73  Chi-Kent  L. 
Rev.  997(1998). 


264  INDIANA  LAW  REVIEW  [Vol.  33:253 


should  cover  the  following  subjects: 

( 1 )  Introduction  to  Internet  technology,  stressing  the  function  of  routers 
in  packet-switched  networks,  and  the  architecture  of  http,  ftp,  and 
mail  protocols; 

(2)  Contract  formation  via  electronic  networks; 

(3)  Authentication  and  electronic  payment  systems; 

(4)  Tort  issues  in  the  Internet,  including  standards  for  intermediary 
liability; 

(5)  Jurisdiction  to  prescribe,  to  adjudicate,  and  to  enforce; 

(6)  Intellectual  property  in  the  Internet,  especially  copyright  and 
trademark; 

(7)  Computer  crimes,  with  an  emphasis  on  definition,  detection  and 
apprehension; 

(8)  Consumer  fraud  and  breach  of  Internet  access  service  contracts;  and 

(9)  Relationship  of  the  Internet  to  the  public  switched  telephone  system 
and  its  regulation. 

These  subjects  can  be  covered  adequately  in  a  one-semester  course,  meeting 
three  hours  per  week,  if  students  already  have  sufficient  grounding  in  basic 
contract,  tort,  jurisdiction,  crimes  and  administrative  law,  and  if  the  instructor  is 
appropriately  selective  in  assigning  materials  to  permit  in-depth  analysis  of 
examples  rather  than  a  superficial  description  of  a  multiplicity  of  problems  in 
each  topic. 

For  law  schools  it  is  difficult  to  decide  how  to  approach  Internet-related 
issues  that  eventually  should  be  covered  in  regular  law  school  courses.  Unlike 
the  case  with  primary  and  secondary  public  school  education,  it  is  not  the  legal 
academy's  tradition  to  make  collective  judgments  about  the  content  of  the 
curriculum.  The  challenge  is  to  induce  individual  teachers,  without  interfering 
with  their  academic  freedom  to  design  their  own  courses,  to  teach  their  students 
about  the  legal  issues  which  arise  when  commerce  and  other  human  activity 
moves  to  the  Internet. 

One  way  to  accomplish  this  goal  is  to  ensure  that  Internet  problems  and  cases 
creep  into  the  case  books.  Most  law  professors  structure  their  courses  around 
case  books.  As  interesting  issues  in  contracts,  torts,  procedure  and  property  are 
solved  by  appellate  courts,^^  casebook  authors  no  doubt  will  begin  to  include 
these  cases,  and  the  problem  gradually  will  take  care  of  itself. 

But  the  process  can  be  accelerated.  More  and  more  law  professors  are 
becoming  exposed  to  Internet  issues  through  the  American  Association  of  Law 
Schools  ("A.A.L.S.").  For  example,  the  A.A.L.S.  program  in  January,  1999, 
included  many  sessions  dealing  with  some  aspect  of  the  Internet.  Notably,  the 
sessions  were  not  sponsored  by  the  section  on  Law  and  Computers;  they  were 
sponsored  by  the  mainstream  sections  on  contracts,  conflicts  of  law,  property  and 
civil  procedure.    Programming  of  this  sort,  which  is  likely  to  continue  and 


25.     A  January  30,  1999  search  of  the  Westlaw  "allcases"  database  revealed  168  cases  with 
the  word  "Internet"  in  their  syllabus  or  headnotes. 


1999]  THE  INTERNET  265 


intensify,  will  convince  law  professors  all  around  the  country,  in  the  full  range 
of  law  schools,  that  Internet  issues  define  the  frontier  of  their  subject  areas. 

Motivated  professors  will  expose  their  students  to  these  issues  on  the  frontier 
if  they  can  do  so  at  tolerable  costs.  Two  ways  exist  to  reduce  costs  for  these  law 
professors.  One  way  is  to  make  it  easier  for  them  to  learn  about  the  basic 
technological  features  of  the  Internet  that  matter  in  resolving  legal  disputes. 
Another  way  is  to  make  anthologies  of  legal  commentary,  caselaw  and  statutory 
law  available  to  them  for  a  transitional  period  until  the  regular  case  books  include 
such  materials. 

III.  Using  New  Tools  FOR  Teaching 

The  Internet  can  be  a  tool  for  legal  education  as  well  as  the  subject  of 
scholarship  and  education.  New  Internet-  and  Web-based  technological  tools, 
grouped  generally  under  the  rubric  of  "distance  learning,"  offer  new 
opportunities  to  enhance  legal  education. 

Distance  learning,  as  the  term  is  used  in  this  article,  extends  to  all  uses  of 
computers,  telecommunications,  and  digital  networking  technologies  that  permit 
education  to  occur  outside  a  conventional  classroom.  Thus  defined,  it  includes 
preparation  of  video  tapes  of  lectures,  pre-programmed  Computer  Assisted  Legal 
Instruction  ("CALI")  exercises,  and  use  of  the  Web  to  deliver  these  and  other 
materials.  These  technologies  have  been  around  for  several  decades.  The  more 
interesting  distance  learning  opportunities  focus  on  newer  technologies  and  new 
combinations  of  older  technologies.  In  particular,  digitized  video  and  audio 
presentations  can  be  delivered  through  the  Web,  and  through  appropriately 
designed  Web  pages,  video  and  audio  can  be  combined  with  interactive 
exercises,  assigned  and  supplementary  text  and  graphical  materials,  and 
electronic  discussion  groups. 

In  the  past  five  years  the  interest  in  and  capability  to  deliver  computer- 
supported  education  at  a  distance  has  literally  boomed.  Federal  funding,  the 
emergence  of  the  Internet,  pervasively  available  and  inexpensive  PCs,  and  the 
potential  for  efficiency,  reach  and  pedagogical  improvement,  have  fueled 
growing  interest  and  experimentation  by  universities  in  the  use  of  distance 
education.  Experimentation  with  distance  learning  technologies  has  occurred  at 
Cornell,  Chicago-Kent,  Villanova,  SMU,  and  elsewhere.  Typically,  these 
experiments  involved  specialized  proprietary  videoconferencing  technology  in 
relatively  small  classes.  The  Kaplan  Organization  announced  its  intent  to  offer 
a  J.D.  degree  entirely  through  the  Internet.  Regents  University  received  approval 
from  the  ABA  to  offer  an  L.L.M.  degree  entirely  through  the  Internet.  Florida 
State  University  and  the  Open  University  and  College  of  Law  of  England  and 
Wales  have  announced  their  intention  to  explore  offering  a  variety  of 
undergraduate  legal  courses  remotely,  making  greater  use  of  Internet  technology. 

Meanwhile,  engineering  schools,  including  such  distinguished  ones  as 
Stanford,  and  MBA  programs,  including  such  distinguished  programs  as  to  the 
Sloan  School  of  Management  at  MIT  and  the  Wharton  School  of  Business  at  the 
University  of  Pennsylvania,  are  actively  deploying  distance  learning  alternatives 
to  their  regular  programs,  especially  in  foreign  markets. 


266  INDIANA  LAW  REVIEW  [Vol.  33:253 


Because  distance  learning  can  both  supplement,  and  replace  parts  of  an 
existing  education  process,  it  is  convenient  to  have  in  mind  a  simple  model  of  the 
conventional  process.  Such  a  model  can  unbundle  a  J.D.  course  into  four 
components:  (1)  classroom  instruction;  (2)  class  preparation  through  assigned 
readings;  (3)  occasional  office  visits  in  which  students  and  instructor  discuss 
course  materials  and  deal  with  student  questions;  and  (4)  student- to- student 
discussion  of  materials,  such  as  occurs  in  study  groups. 

Use  of  distance  learning  technologies  is  most  advanced  for  the  second 
component.  Through  one  of  several  available  techniques  for  electronic 
publishing,  authors  and  editors  of  course  materials  can  make  them  available 
cheaply  and  conveniently  to  law  students  who  can  read  assignments  on  the  screen 
or  print  them.  The  electronic  case  books  used  in  Chicago-Kent's  first-year  E- 
Learn  section  focus  directly  on  this  component  of  legal  instruction.  Other 
techniques,  such  as  publishing  all  or  some  of  course  materials  on  a  Website  and 
linking  those  materials  to  entries  on  a  syllabus,  are  similar  examples  of 
automating  this  component.  A  significant  percentage  of  published  law  school 
case  books  are  available  in  electronic  form,  albeit  not  directly  on  the  Web. 

A  growing  number  of  law  schools  are  using  Internet  technologies, 
predominately  e-mail  and  e-mail  listservs,  to  automate  the  third  component. 
Students  send  their  questions  about  points  covered  in  class  or  read  in  assigned 
materials  to  the  instructor  who  either  replies  by  e-mail  or  broadcasts  the  question 
and  answer  to  the  entire  class.  Web-based  discussion  groups  are  another  way  of 
organizing  the  same  kind  of  interaction  between  student  and  instructor.  Most 
users  of  the  technology  find  it  more  efficient  than  office  hours  and  student 
appointments.  However,  the  character  of  the  student- instructor  interaction  is 
qualitatively  different  through  the  newer  medium.  It  is  more  focused,  partially 
because  an  average  typist  finds  extended  exploration  of  related  points 
burdensome  and  inconvenient.  The  use  of  distance  learning  for  this  component 
of  instruction  tends  to  make  student- instructor  interactions  more  succinct,  which 
may  or  may  not  benefit  learning. 

The  same  technology  applications  often  used  for  the  third  component  are 
well  suited  for  the  fourth,  student  study  groups.  For  several  reasons,  this 
technology  has  been  used  sparingly  in  the  past.  First,  students  tend  to  use  the 
discussion  groups  and  listservs  to  present  questions  directly  to  the  instructor,  and 
they  are  likely  to  use  the  application  for  nothing  else  unless  the  instructor 
deflects  these  bilateral  questions  and  answers  into  a  broader  multilateral 
electronic  discussion.  Not  many  instructors  realize  the  need  for  this  purposeful 
intervention. 

Moreover,  the  same  characteristics  of  the  technology  that  discourage 
extensive  exploration  of  collateral  points  and  intellectual  context  in  student- 
instructor  discussions  may  also  discourage  wide  ranging  electronic  study  group 
discussions  among  students.  It  takes  more  work  to  follow  a  group  discussion 
through  a  computer  display  than  simply  to  sit  at  a  conference  table  and 
participate  orally. 

Less  has  been  done  to  use  information  technology  to  complement  or  replace 
what  goes  on  in  the  classroom,  the  first  component.  To  be  sure,  the  Illinois 
Institute  of  Technology  and  other  universities  have  been  using  distance  learning 


1999]  THE  INTERNET  267 


in  the  form  of  remote  television  broadcasts  of  classroom  lectures  for  many  years. 
Closed  circuit  video  of  this  form,  however,  simply  takes  a  piece  of  what  goes  on 
in  the  classroom  and  makes  it  available  remotely;  it  does  not  probe  the  classroom 
experience  deeply  or  select  particular  pieces  for  technological  enhancement.  The 
E-Leam  experiment  at  Chicago-Kent  has  motivated  automation  of  the  classroom 
experience.  Not  only  has  student  use  of  electronic  case  books  on  notebook 
computers  in  class  subtly  altered  the  in-class  interaction  between  student  and 
teacher,  in  class  use  of  Web  pages  and  prepared  electronic  materials  has 
presented  alternatives  to  the  spoken  word,  blackboard  diagrams  and  paper 
handouts. 

Limited  distance  learning  experiments  with  Internet-based  television,  have 
permitted  student-student  and  student- instructor  interaction  in  "classroom" 
environments  encompassing  multiple  law  schools  at  the  same  time.  Chicago- 
Kent  faculty  and  technology  staff  who  have  participated  in  these  experiments 
have  come  away  struck  by  how  much  is  missing  from  a  simple  broadcast  of  a  part 
of  a  law  class.  Much  of  the  ritual,  stress  and  entertainment  aspects  of  a  good 
Socratic  law  class  is  lost.  The  subtle  nonverbal  cues  from  class  to  instructor 
communicating  levels  of  preparation,  degree  of  student  comprehension,  boredom 
and  interest  are  lost.  To  the  extent  that  the  best  law  school  classes  have  these 
elements  in  them,  and  to  the  extent  that  good  law  professors  make  effect  use  of 
pace,  momentum,  theatre  and  overall  group  dynamics  in  their  teaching,  it  is 
important  that  further  technology  development  in  legal  education  explore  these 
phenomena  more  deeply  and  take  advantage  of  the  full  range  of  technological 
tools  that  are  readily  available.  Only  in  such  an  environment  can  choices  of 
techniques  be  driven  by  pedagogical  judgment  rather  than  technological 
convenience. 

In  addition,  several  decades  of  bar  review  teaching,  in  which  video 
broadcasts  are  a  regular  alternative  to  live  classroom  presentation,  provide  a  rich 
source  of  empirical  data  about  the  impact  of  video  technology  on  the  educational 
process.  Little  has  been  done  so  far  to  make  effective  use  of  this  experience. 

The  frontier  for  distance  learning  is  the  classroom.  Use  of  Web  technologies 
for  other  components  of  the  learning  experience  are  proven  and  will  be  used  by 
more  law  faculty  as  they  become  familiar  with  the  techniques  and  gain  access  to 
the  necessary  infrastructure.  As  the  interim  ABA  guidelines  note,  distance 
learning  can  be  useful  not  only  for  regular  law  school  classes  in  J.D.  programs, 
but  also  for  post- J.D.  programs,  for  clinical  instruction  where  maintaining  faculty 
oversight  can  be  difficult,  and  for  foreign  programs.  Chicago-Kent  has  been 
especially  active  in  exploring  distance  learning  techniques  for  managing 
international  Rule  of  Law  externship  programs,  and  in  designing  new 
practitioner-oriented  education  programs  for  China. 

A.   Virtual  Classroom 

The  preceding  section  suggested  that  one  can  think  about  distance  learning 
technologies  in  legal  education  in  two  different  contexts.  The  first  context 
relates  to  using  distance  education  technologies  as  an  enhancement  to  regular 
classroom-based  instruction.  The  second  context  invites  consideration  of  the  use 


268  INDIANA  LAW  REVIEW  [Vol.  33:253 


of  distance  learning  technologies  as  a  way  to  substitute  new  modes  of  education 
for  some  existing  classroom  time.  This  section  considers  the  second  context  and 
poses  some  of  the  questions  that  must  be  resolved  in  designing  useful 
experiments  for  "virtual  classrooms." 

Good  design  of  a  virtual  legal  classroom  begins  by  deconstructing  the  law 
school  classroom  experience.  One  approach  to  such  deconstruction  identifies  the 
following  specific  purposes  for  classroom  instruction  in  law  school,  with  the 
first-year  socratic  class  as  a  paradigm,  including: 

(1)  Modeling  the  behavior  of  judges  and  advocates; 

(2)  Transmitting  information; 

(3)  Quizzing  students  to  give  them  feedback  on  how  they  do; 

(4)  Allowing  students  to  practice  articulating  legal  concepts  and 
developing  argument  and  patience  skills;  and  teaching  students  how 
to  deal  with  stress  in  an  advocacy  situation. 

If  one  accepts  the  above-mentioned  list,  it  is  apparent  that  many  of  these 
purposes  can  be  met  by  the  use  of  information  technology  equally  as  class 
instruction.  The  quizzing  and  the  translating  information  tasks  are  the  clearest 
examples.  Other  goals,  such  as  role-modeling,  might  be  best  met  by  showing  law 
students  actual  instances  of  judging  and  advocacy. 

Using  information  technology  to  relax  the  constraints  of  the  calendar  and  the 
clock  could  improve  what  now  must  occur  in  the  classroom.  For  example,  one 
could  begin  a  semester  with  actual  virtual  observation  of  judging  and  in  court 
advocacy.  Then,  one  could  have  a  period  of  live  discussion  followed  by  a  period 
of  virtual  interaction  shaped  by  specific  professor  questions  and  CALI-type 
exercises.  Toward  the  end  of  the  semester,  one  might  have  a  moot  court  or  mock 
trial  experience  for  all  the  students  followed  by  a  critique.  By  substituting 
information  technology  for  the  classroom  channel  in  instances  where  information 
technology  can  do  the  job  as  well  or  better  than  in-class  activity  by  the  professor, 
the  professor  is  freed  to  do  other  things  that  ordinarily  would  not  be  feasible 
within  manageable  investments  of  time  for  regular  classes. 

However,  designing  appropriate  "virtual  classroom"  tools  and  modules 
requires  answering  a  number  of  mixed  pedagogical  and  technological  questions. 

1.  How  Much  Content  Should  Be  Produced  in  a  Studio  Environment  and 
How  Much  Should  Be  Captured  from  an  Actual  Classroom? — Capturing 
classroom  activity  by  video  and  audio  broadcast  reduces  the  requirements  for 
faculty  time,  and,  therefore,  may  be  more  acceptable  to  some  faculty  members, 
and  may  require  fewer  budgetary  resources.  On  the  other  hand,  costs  for  video 
and  audio  operators  may  be  higher  because  of  the  need  for  cameras  to  follow 
instructor  movement  around  the  classroom  and  to  capture  student  interaction. 
Also,  because  of  the  complexity  and  richness  of  a  good  classroom  interaction,  it 
almost  certainly  requires  a  high  degree  of  artistic  talent  to  capture  the  important 
qualities  of  the  interaction.  It  is  not  clear  whether  law  schools  will  be  able  to 
mobilize  the  requisite  cinematographer,  director  and  video  editing  talent  at 
affordable  costs.  If  they  cannot  do  so,  simply  filming  students  and  professors  in 
a  Socratic  classroom  is  likely  to  be  the  merest  shadow  of  the  reality. 

Studio  production  permits  use  of  technology  to  do  things  that  are  difficult  to 


1999]  THE  INTERNET  269 


do  in  a  live  classroom,  such  as  quizzes  and  programmed  instruction,  scripted 
presentations,  simulations  and  multimedia  techniques  such  as  streaming 
PowerPoint  presentations.  It  also  may  be  easier  to  make  effective  use  of  video 
or  audio  of  actual  real  world  events  when  they  are  edited  into  other  studio- 
produced  materials,  rather  than  being  played  live  in  a  classroom  with  the  entire 
classroom  experience  including  audio  visual  aids  being  taped  or  broadcast.  The 
principal  disadvantage  of  extensive  studio  production  is  greater  expenditure  of 
faculty  time,  probably  much  greater,  and  the  capital  expenditures  necessary  for 
appropriate  production  and  editing  equipment. 

2.  How  Important  Is  a  Group  Setting  for  the  Students? — Regardless  of  the 
nature  of  the  distance  learning  materials,  whether  broadcast  or  recorded  from  a 
classroom  or  produced  in  a  studio,  they  can  be  delivered  to  students  either  in  a 
solo  setting,  such  as  an  individual  student's  home  or  office,  or  they  may  be 
delivered  to  students  in  a  group  setting,  such  as  a  remote  classroom,  or  a 
conference  room  controlled  by  an  institutional  sponsor.  The  common  experience 
of  most  people  suggests  that  there  is  significant  motivational  value  of  being 
scheduled  to  go  to  class  at  a  particular  time  with  other  people.  There  is  a 
combination  of  embarrassment  and  loss  of  self  esteem  when  one  misses  class. 
The  loss  of  self  esteem  is  less  when  one  simply  fails  to  do  an  individual 
computer-based  exercise.  Also,  distractions  are  minimized  in  the  classroom; 
students  are  shielded  from  telephone  calls,  television  in  the  background  and 
requests  from  children  or  spouses. 

On  the  other  hand,  some  of  the  benefits  of  distance  learning  technology  are 
eliminated  when  one  delivers  education  only  into  group  settings.  Actual  or 
imputed  rent  must  be  paid  for  the  classroom  space.  Students  must  travel  to  be 
with  other  group  members.  The  group  must  meet  at  prescribed  times.  There 
must  be  enough  students  within  a  reasonable  distance  to  permit  a  group  to  be 
formed.  Eliminating  the  group  learning  constraint  permits  time  shifting  entirely 
according  to  individual  student  desires  that  eliminates  the  cost  and  time 
associated  with  travel  and  any  sort  of  critical-mass  or  remote-facility 
requirement. 

Technology  requirements  for  group  learning  are  challenging.  It  is  difficult 
with  low-cost,  Internet-based  technology  to  capture  the  group  interaction.  Should 
there  be  one  or  multiple  cameras?  Should  each  student  be  wired,  should  a  staff 
member  carry  a  microphone  around  the  classroom,  or  is  the  group  small  enough 
to  use  a  single,  table-top  microphone?  On  the  other  hand,  equipment  for 
delivering  course  content  to  students  in  groups  is  simpler  than  delivering  it  to 
students  in  solo  settings.  Only  one  appropriately-sized  video  display  device  and 
an  audio  system  is  necessary  for  the  entire  group,  as  opposed  to  one  for  each 
student  that  would  be  necessary  in  a  solo  setting.  Also,  the  students  can  interact 
with  each  other  orally,  eliminating  the  need  for  technology  applications  to  permit 
student  to  student  interaction.  Obviously,  design  decisions  must  be  made  as  to 
how  the  remote  group  communicates  with  the  professor,  but  that  decision  also 
must  be  made  with  respect  to  solo  learners. 

5.  Should  the  Virtual  Classroom  Experience  Be  Synchronous  (Simultaneous) 
or  Asynchronous  (Time  Shifted)? — Asynchrony  (time  shifting)  has  advantages, 
including  accommodation  of  student  and  professor.  Anyone  can  schedule  class 


270  INDIANA  LAW  REVIEW  [Vol.  33:253 


attendance  whenever  it  is  most  convenient,  assuming  solo,  rather  than  group 
reception.  Specific  classes  can  be  defined  by  time  periods,  such  as  twenty-four 
or  forty-eight  hours  or  one  week.  To  attend  that  class  means  to  participate  a 
specified  number  of  times  during  that  extended  period.  Students  can  interact 
with  each  other  and  with  the  professor  by  posting  questions  or  comments  in  the 
form  of  text  messages  or  video  or  audio  clips.  They  also  can  make  changes  to 
Web  pages  to  which  they  all  have  access,  a  kind  of  white  boarding  concept. 
Through  these  processes,  asynchronous  interaction  can  be  fairly  probing. 

On  the  other  hand,  the  lags  between  question  and  answer  and  comment  and 
response  can  reduce  the  quality  of  the  experience.  A  live  interchange  permits 
instant  clarification  of  ambiguities  or  misunderstandings.  Simultaneous 
interaction,  to  be  efficient,  must  involve  audio  and  perhaps  video;  it  is  simply  too 
inefficient  for  multiple  users  to  wait  while  a  poor  typist  laboriously  enters  an  idea 
in  a  coventional  "chat  room." 

4.  How  Much  Does  Video  Add? — The  most  common  form  of  distance 
learning  is  probably  a  "talking  head,"  a  broadcast  or  video  recording  of  a 
professor  teaching  a  class.  It  is  reasonable  to  ask  how  much  richer  such  a  video 
image  is  than  presentation  of  the  same  class  through  audio  alone,  especially  when 
the  video  images  such  as  streaming  video  over  an  Internet  connection  are  not 
"television  quality."  A  related  question  is  what  should  be  shown  on  the  video. 
Under  what  circumstances  is  streaming  PowerPoint  or  edited  video  of  real  world 
events  better  than  a  talking  head?  On  the  other  hand,  talking  heads  are  almost 
certainly  cheaper  to  produce  than  any  other  kind  of  video. 

5.  What  Is  the  Most  Appropriate  Mix  Between  Audio  and  Text? — Should 
some  things  be  delivered  by  streaming  audio  rather  than  text?  Why,  because 
audio  is  easier  and  cheaper  than  text?  What  use  should  be  made  of  voice 
recognition  technology  to  produce  transcripts,  perhaps  imperfect  transcripts,  of 
prerecorded  audio? 

6.  To  What  Extent  Should  Media  Channels  Between  Students  and  Professor 
Be  Symmetrical? — One  can  envision  distance  learning  environments  in  which 
material  is  presented  to  students  through  a  combination  of  full  motion  video, 
audio,  text  and  static  images,  while  students  respond  and  interact  with  each  other 
only  through  text.  This  is  a  typical  Web-based  distance  learning  environment. 
One  can  also  envision  a  setting  in  which  students  receive  video  and  audio,  but 
respond  only  via  audio,  as  in  atypical  remote  classroom  equipped  with  a  speaker 
phone.  How  important  is  it  to  add  video  from  the  students?  What  is  the 
purpose?  Does  it  enhance  the  students'  experience  or  the  professor's,  or  both? 

7.  Does  the  Following  Adequately  Disaggregate  the  Elements  of  a 
Traditional  Class? — Communicating  rules  and  concepts  to  students?  Role 
modeling — exemplifying  problem-solving  behavior  of  practicing  professionals? 
Giving  feedback  to  students  through  quizzes  and  evaluation  of  simulated 
professional  activities?  Allowing  for  student- to- student  interaction? 

8.  What  Technology  Applications  Are  Most  Interesting? — Multi-user  white 
boards?  Multi-user  Internet  Telephony?  Improved  video  streaming  over  the 
Web?  To  be  "interesting,"  an  application  must  be  available  in  easily  deployable 
form  and  must  meet  a  pedagogical  need. 


1 999]  THE  INTERNET  27 1 


B.  Accreditation  Issues 

Aggressive  use  of  distance  learning  raises  significant  problems  under  the 
existing  rules  of  accreditation  for  law  schools  to  the  United  States.  Standard 
304(f)  of  the  ABA  standards  for  approving  law  schools  says,  "a  law  school  will 
not  grant  credit  for  study  by  correspondence."  Almost  everyone  interprets  this 
prohibition  as  including  any  form  of  distance  learning  that  might  be  useful.  In 
1997,  however,  the  Section  on  Legal  Education  of  the  ABA  adopted  interim 
guidelines  to  encourage  experimentation  with  distance  leaming.^^  These 
guidelines  suggest  a  more  favorable  reaction  to  post-J.D.  programming  than  to 
J.D.  programming  and  also  express  a  clear  preference  for  educational  content 
sent  from  one  physical  law  school  to  another  rather  than  programs  that  allow 
students  of  one  law  school  to  receive  credit  at  that  law  school  without  physically 
being  present  for  classes.^^ 

Beyond  that,  the  interim  guidelines  allow  considerable  room  for 
experimentation  with  technology  that  enhances  existing  courses  as  long  as 
students  are  not  relieved  of  the  obligation  for  regular  and  active  physical 
participation  in  classes. 

It  is  important  to  understand  the  relationship  between  Learning  with 
Electronics  at  a  Distance  Program  ("Leam-ED")  experiment  and  accreditation. 
Accreditation  is  a  standardization  and  minimum  quality  control  system.  It  is  not 
meant  to  be  the  source  of  innovation.  It  may  be  that  new  technologies  make 
available  teaching  techniques  that  should  cause  accreditation  rules  to  be  changed. 
The  legal  academy  will  never  know  what  those  are  if  experiments  only  take  place 
within  a  conservative  estimate  of  what  the  accreditation  rules  allow. 
Accordingly,  an  essential  part  of  any  proposal  is  that  it  be  bold  and  essentially 
uninhibited  by  existed  accreditation  standards.  Law  schools  must  be  willing 
testing  grounds.  This  does  not  suggest  defiance  of  accreditation  rules  or  bodies; 
instead,  it  suggests  taking  a  prominent  leadership  position  in  the  current  A.  A. L.S. 
and  ABA  task  forces  which  are  developing  an  understanding  of  the  relationship 
between  distance  learning  technology  and  sound  education. 

C  Specific  Plans 

For  almost  two  decades  the  Chicago-Kent  College  of  Law  has  been 
preeminent  in  the  application  of  computer  technology  to  the  teaching  of  law.  The 
law  school  has  gathered  a  gifted  faculty  of  powerful  intellectuals  who  are  making 
visible  and  important  contributions  to  legal  scholarship.  Its  parent  institution,  the 
Illinois  Institute  of  Technology,  has  been  a  leader  in  the  use  of  analog  television 
for  distance  education. 

Chicago-Kent  intends  to  leverage  its  historical  institutional  strengths  and  the 
recent  societal  developments  to  move  in  a  deliberate  but  concerted  way  towards 


26.  See  Temporary  Distance  Education  Guidelines,  SYLLABUS  (ABA  Sec.  of  Legal  Educ. 
and  Admissions  to  the  Bar),  Fall  1997,  at  12  (encouraging  experimentation). 

27.  See  id.  at  13  ("[DJelivery  of  course  work  to  a  person's  home  or  office  would  generally 
not  be  in  compliance  with  these  principles."). 


272  INDIANA  LAW  REVIEW  [Vol.  33:253 


leadership  in  the  delivery  of  computer-enhanced  legal  education  at  a  distance. 
The  law  school  will  devote  focused  energy  to  enhance  all  of  its  E-leam  sections 
to  enable  professors  and  students  to  use  Internet  tools  as  improvements  to  the 
existing  traditional  classroom  instruction.  E-leam  techniques  will  be  applied  to 
the  second  and  third  year  curriculum  when  targets  of  opportunity  appear,  as  the 
faculty  approves  extensions  of  the  present  initiative. 

Chicago-Kent  will  begin  to  deliver  an  Internet-enhanced  Evening  Division 
curriculum  in  fall  1999.  The  law  school  will  immediately  review  the  pedagogy, 
methodology,  support  structure,  performance  and  student  acceptance  of  its 
pioneering  E-learn  first  year  curriculum.  All  faculty  members  teaching  E-leam 
sections  will  be  offered  additional  resources  to  extend,  improve  and  enhance  the 
use  of  computer-assisted  techniques.  Special  emphasis  will  be  placed  on  the  use 
of  Intemet  tools  that  permit  students  to  learn  collaboratively  and  asynchronously. 
In  early  1999,  faculty  members  were  recruited  to  devote  intense  effort  to  make 
the  Evening  Division  curriculum  a  model  for  electronically  enhanced  education. 
The  school  began  immediately  to  enhance  electronically  all  of  the  courses  taught 
in  the  Evening  Division.  Special  emphasis  was  placed  on  delivering  educational 
experiences  outside  the  classroom  using  distance  education,  including  faculty- 
student  interaction  outside  of  class,  student  study  groups  and  discussions,  clinical 
simulations  and  client  interaction  over  the  Internet.  Classroom  instruction  and 
the  study  of  substantive  material  were  supported  by  use  of  computer  exercises, 
problems  and  interactive  lessons.  This  Learning  with  Electronics  at  a  Distance 
Program  ("Learn-ED")  will  evaluate  and  experiment  with  distance  learning 
technology,  including  e-mail,  discussion  groups,  chat  rooms,  streaming  video  and 
audio,  video  conferencing  and  computer  white  board  tools. 

Upper  level  courses  will  be  enhanced  in  the  same  way,  as  faculty  choose  to 
implement  these  changes.  Enhancing  the  Day  Division  first  year  courses  will 
produce  two  years  of  curriculum  for  the  Evening  Division.  In  2000  the  school 
will  reevaluate  the  progress  in  large  enrollment  upper  level  courses  to  determine 
if  more  directed  efforts  to  encourage  distance  enhancements  are  needed. 

In  addition  to  the  strategic  target  of  a  distance-enhanced  Evening  Division 
beginning  in  fall  1999,  the  law  school  expects  that  the  educational  tools,  lessons, 
simulations  and  exercises  will  be  useful  in  building  a  variety  of  instructional 
programs  for  other  markets.  These  new  markets  will  include  foreign  lawyers 
interested  in  U.S.  law,  undergraduates  seeking  interprofessional  degrees,  business 
executives  and  others  who  will  not  practice  law  but  seek  less-expensive  or  less- 
disruptive  access  to  high  quality  legal  instruction.  The  new  educational  program 
and  materials  will  be  mined  to  leverage  their  usefulness  in  these  new  markets. 
Obvious  examples  include:  the  China-Bridge  initiative.  Building  Businesses  on 
the  Web,  the  Financial  Markets  curriculum  and  a  number  of  opportunities  for 
distance  instruction  in  Europe. 

As  soon  as  possible,  three  core  upper  class  subjects,  such  as  Evidence, 
Federal  Income  Taxation,  Constitutional  Law,  Decedents'  Estates  or  Federal 
Courts  should  be  scheduled  so  that  one  contact  hour  per  week  can  take  place  in 
a  regular  law  school  classroom  and  the  remaining  contact  hours  (typically  two) 
can  occur  through  appropriately-designed  distance  learning  Web  channels. 
Initial  selection  of  courses  should  give  preference  to  subjects  in  which  interactive 


1999]  THE  INTERNET  273 


instructional  materials  already  exist.  The  Web-based  contact  hours  should  be 
designed  to  provide,  as  nearly  as  possible,  the  educational  ingredients  present  in 
the  classroom  and  addressed  by  accreditation  standards,  specifically  including 
instructor  control,  student  eligibility  for  being  "called  on,"  instructor  feedback 
to  student  recitation  and  exposure  of  student  contributions  to  other  students  in  the 
class.  The  Web-based  contact  hours  should  be  packaged  so  that  one  class  session 
can  be  distinguished  from  another  and  linked  with  the  assigned  materials.  In 
other  words,  each  Web-based  class  should  be  a  discrete  event,  although  it  would 
not  necessarily  demand  the  simultaneous  participation  of  all  students  and 
instructor.  Instead,  the  class  might  be  spread  over  a  defined  time  period  to  permit 
the  benefits  of  time  shifting.  Asynchronous  participation  will  extend  student 
scheduling  flexibility  with  important  benefits  to  evening  students. 

The  Web-based  instructional  sessions  should  draw  upon  the  "preceptorial" 
model  of  education  pioneered  for  undergraduate  education  by  Woodrow  Wilson. 
At  the  end  of  the  first  year,  student  performance  on  examination  questions  can 
be  compared  with  student  performance  on  the  same  questions  in  regular  classes 
covering  the  same  subject  matter.  If  this  cannot  be  arranged  politically,  perhaps 
"baby  bar"  questions  could  be  given  to  the  Leam-ED  students.  Upper  class 
experimentation  would  be  done  under  existing  accreditation  ground  rules.  To  the 
extent  it  seems  appropriate,  accreditation  authorities  would  be  notified  of  the 
experiment. 

Eventually,  as  accreditation  rules  are  modified,  the  same  techniques,  refined 
in  light  of  the  first  year  experience,  could  be  extended  to  first  year  students  with 
at  least  two  first  year  courses  taught  in  the  same  fashion.  Similar  assessment 
techniques  would  be  used,  and  the  accreditation  authorities  would  more 
completely  engaged,  perhaps  conducting  onsite  visits. 

D.  Mobilizing  Faculty  Support 

Distance  learning  will  never  become  successful  in  legal  academia  unless 
mainstream  law  professors  lend  it  support.  It  is  not  enough  to  get  the  computer 
aficionados  of  the  faculty  to  experiment  with  distance  learning  tools.  One  must 
enlist  the  respected  Socratic  teachers,  who  teach  large  classes  in  basic  subjects, 
regardless  of  whether  they  like  computer  technology.  Of  course  not  all  such 
people  must  be  enlisted  at  the  same  time.  But  any  serious  strategy  to  experiment 
with  distance  learning  and  to  learn  more  about  the  relationship  between 
technology  and  legal  pedagogy  must  involve,  from  its  earliest  stages,  at  least  one 
large-class  basic-subject  Socratic  instructor. 

One  can  anticipate  that  the  biggest  source  of  faculty  opposition  to  distance 
learning  techniques  will  derive  from  the  professors'  sense  of  independence  and 
tradition.  Most  of  us  honor  Justice  Holmes'  maxim  that  we  should  do  legal 
education  not  only  in  a  competent  matter  but  also  in  the  "Grand  manner."  The 
paradigm  of  a  successful  law  school  class  involves  considerable  theater.  There 
is  great  ego  satisfaction  in  teaching  one  of  these  classes.  To  the  extent  that 
distance  learning  technology  pulls  professors  off  center  stage  in  the  classroom 
and  turns  then  into  video  producers  and  casting  directors,  the  thrill  of  teaching 
law  will  diminish. 


274  INDIANA  LAW  REVIEW  [Vol.  33:253 


As  with  any  innovation,  thought  must  be  given  to  incentives,  favorable  and 
unfavorable,  for  instructors  and  students  who  might  participate.  In  the  long  run, 
Leam-ED  classes  might  be  more  attractive  than  regular  classes  to  law  school 
faculty  because  of  the  advantages  of  time  shifting  and  flexibility  of  location.  In 
the  short  run,  however,  teaching  a  Leam-ED  class  will  mean  considerably  more 
work  for  the  instructor  than  teaching  a  regular  class.  The  educational  experience 
must  be  rethought,  the  components  of  a  traditional  course  unbundled  and 
repackaged  to  take  advantage  of  the  technology,  and  the  anxiety  associated  with 
any  experiment  and  inevitable  difficulties  and  implementation  tolerated.  Because 
of  these  short  run  disincentives,  significant  economic  incentives  must  be  made 
available  to  those  faculty  members  willing  to  participate.  It  is  especially 
important  that  these  incentives  be  available  because,  for  the  experiment  to  be 
successful,  a  broader  range  of  faculty  beyond  those  fascinated  with  technology 
must  be  enlisted.  In  particular,  faculty  who  like  to  teach  Socratically  and  using 
other  interactive  methods  must  participate,  rather  than  those  who  are  inclined  to 
lecture  and  who  find  it  easy  simply  to  prepackage  their  lectures  in  electronic 
media. 


Closing  One  Gap  but  Opening  Another?: 

A  Response  to  Dean  Perritt  and  Comments 

ON  THE  Internet,  Law  Schools, 

AND  Legal  Education 


Michael  Heise* 


Introduction 

Dean  Perritt  is  surely  correct  when  he  writes  that  "The  Internet's  potential 
for  changing  the  face  of  American  law  schools  is  profound."'  Some  might  take 
issue  with  the  implicit  suggestion  that  American  law  schools  share  a  single 
"face."^  Others  might  emphasize  the  Internet's  important  influences  that  are 
already  manifest.^  And  perhaps  some  might  press  Dean  Perritt  for  a  more  precise 
definition  of  what  he  means  by  "profound."  But,  on  balance,  these  points  rise  to 
little  more  than  mere  quibbles  that  take  little  away  from  the  overall  thrust  of 
Dean  Perritt' s  general  observations.  Indeed,  after  examination.  Dean  Perritt' s 
main  premises  remain  standing:  Information  technology — as  deployed  in  the 
Internet's  World  Wide  Web — is  changing  traditional  areas  of  the  law,'*  fueling 
new  law,^  altering  how  legal  institutions  function,  and  transforming  lawyers' 
roles  within  those  institutions.^  Dean  Perritt' s  conclusion — ^that  the  Internet  and 


*  Professor  of  Law,  Case  Western  Reserve  University.  A.B.,  Stanford  University;  J.D., 
University  of  Chicago;  Ph.D.,  Northwestern  University.  I  want  to  thank  participants  in  the  Indiana 
Law  Review 's  A  Symposium  on  Law  and  Technology  in  the  New  Millennium:  Closing  the  Gap, 
especially  Professors  Ronald  J.  Krotoszynski,  Jr.,  Daniel  Cole,  and  Larrie  P.  Wilkins  who  provided 
helpful  comments  on  earlier  drafts  of  this  Article.  Terry  Hall,  a  second-year  student  at  Indiana 
University  School  of  Law-Indianapolis,  provided  outstanding  research  assistance. 

1 .  Henry  H.  Perritt,  Jr.,  The  Internet  Is  Changing  the  Face  of  American  Law  Schools,  33 
IND.L.  Rev.  253,253(1999). 

2.  To  get  some  flavor  of  how  law  schools  might  differ,  see,  e.g..  Inside  the  Law  Schools: 
A  Guide  FOR  Students  by  Students  (Sally  F.  Goldfarb  ed.,  6th  ed.  1993). 

3.  See  infra  Part  I. 

4.  See,  e.g. ,  Saba  Ashraf,  Virtual  Taxation:  State  Taxation  of  Internet  and  On-Line  Sales, 
24  Fla.  St.  U.  L.  Rev.  605  (1997)  (tax);  Stephen  P.  Heymann,  Legislating  Computer  Crime,  34 
Harv.  J.  ON  Legis.  373  (1997)  (criminal  law);  Corey  B.  Ackerman,  Note,  World-Wide 
Volkswagen,  Meet  the  World  Wide  Web:  An  Examination  of  Personal  Jurisdiction  Applied  to  a 
New  World,  71  ST.  JOHN'S  L.  REV.  403  (1997)  (civil  procedure). 

5.  For  example,  President  Clinton  signed  into  law  the  Communications  Decency  Act  of 
1996,  which  constitutes  Title  V  of  the  Telecommunications  Act  of  1996.  See  Communications 
Decency  Act  of  1996,  Pub.  L.  No.  104-104,  §  502, 110  Stat.  56, 133-36  (1996)  [hereinafter  CDA]. 
The  CDA  was  ruled  unconstitutional  by  the  Supreme  Court  in  Reno  v.  Shea  ex  rel.  Am.  Rep.,  117 
S.  Ct  2501  (1997),  aff'g  930  F.  Supp.  916  (S.D.N.Y.  1996). 

6.  See  Richard  A.  Matasar  &  Rosemary  Shiels,  Electronic  Law  Students:  Repercussions 
on  Legal  Education,  29  Val.  U.  L.  Rev.  909, 910  (arguing  that  the  legal  profession  is  pushing  law 
schools  to  embrace  technology  to  a  greater  degree);  Catherine  G.  O' Grady,  Preparing  Students  for 
the  Profession:  Clinical  Education,  Collaborative  Pedagogy,  and  the  Realities  of  Practice  for  the 
New  Lawyer,  4  CLINICAL  L.  REV.  485  (1998). 


276  INDIANA  LAW  REVIEW  [Vol.  33:275 


Internet-related  technology  are  changing  American  law  schools^ — strikes  me  as 
similarly  persuasive.  Indeed,  I  argue  that  his  conclusion  has  already  proved 
accurate.  More  specifically,  to  some  degree  the  Internet  has  already  changed 
American  law  schools. 

However,  even  if  one  assumes  that  Dean  Perritt's  observations  are  basically 
correct,  where  they  lead  us  remains  decidedly  unclear.  What  does  it  mean  to  say 
that  the  Internet's  increased  integration  into  legal  education  fuels  changes  in  how 
law  schools  educate  their  students?  Obviously,  more  specificity  would  assist  this 
inquiry  prompted  by  Dean  Perritt's  Article.  Perhaps  regardless  of  the  precise 
directions  that  the  Internet  will  point  legal  education  or  even  how  one  might 
construe  them,  I  respectfully  suggest  that  the  Internet's  influences  on  legal 
education  make  three  related  but  slightly  distinct  questions  ripe  for  consideration. 

One  question  raised  by  Dean  Perritt's  Article  concerns  the  magnitude  of  the 
changes  to  legal  education  that  will  result  from  the  Internet's  increased 
integration  into  law  schools.  A  second  question  dwells  on  how  the  Internet's 
influence  on  law  schools  will  manifest  itself.  Perhaps  even  more  important  is 
that  the  combination  of  the  first  two  questions  generates  a  third  question. 
Embedded  within  this  third  question  lurks  a  potentially  troubling  paradox.  While 
the  increased  use  of  the  Internet  as  an  educational  tool  may  well  help  close 
technological  gaps,^  at  least  those  suggested  by  the  overarching  theme  of  this 
conference,^  whether  such  gaps  can  be  closed  without  generating  new  gaps 
between  law  schools  and  their  students  and  among  law  students  remains  far  from 
certain  and  warrants^  careful  consideration. 

Criticism  of  Dean  Perritt's  observations  is  not  properly  inferred  from  this 
Article's  focus  on  the  three  questions  described  above.  Indeed,  just  the  opposite 
inference  is  more  appropriate.  The  issues  that  Dean  Perritt  ably  discusses  are 
critical  and  concern  (or  should  concern)  all  legal  educators  as  well  as  law 
students,  particularly  future  law  students.  The  implications  of  Dean  Perritt's 
remarks  are  especially  important  for  those  who  produce  and  consume  legal 
education  services.  Moreover,  his  discussion  of  the  multiple  intersections  of 
technology  and  legal  education  contributes  to  a  welcome  and  much-needed  base 
that  will  support  and  fuel  further  elaboration. 

That  neither  I  nor  anyone  else  that  I  am  aware  of — not  even,  dare  I  say.  Dean 
Perritt — really  knows  the  answers  to  my  questions  is  not  a  reason  to  avoid  them. 
Rather,  the  questions'  difficulty  provides  yet  another  reason  to  pursue  answers 
with  vigor.  This  is  particularly  so  if,  as  Dean  Perritt  suggests,  it  is  inevitable  that 


7.  See  Perritt,  supra  note  1 ,  at  253. 

8.  Dean  Perritt  briefly  notes  that  leading  American  business  schools  already  deploy  Internet 
technology,  especially  through  distance  learning  programs.  One  obvious  thrust  of  Dean  Perritt's 
observation  is  to  illustrate  that  in  relative  terms  American  law  schools  lag  in  their  implementation 
of  Internet  technology.  See  Perritt,  supra  note  1,  at  265;  see  also  Andrea  L.  Johnson,  Distance 
Learning  and  Technology  in  Legal  Education:  A  21st  Century  Experiment,  1  ALB.  L.J.  Sci.  & 
Tech.  213,  227  n.54  (1997). 

9.  A  Symposium  on  Law  and  Technology  in  the  New  Millennium:  Closing  the  Gap,  33 IND. 
L.Rev.  1  (1999). 


1 999]  A  RESPONSE  TO  DEAN  PERRITT  277 


law  schools  will  continue  to  explore  new  ways  to  harness  the  Internet.'^  That  the 
questions  uncover  even  a  small  sector  of  uncertainty  should  give  thoughtful  and 
concerned  people  pause.  However,  pause  should  not  be  confused  with  paralysis, 
at  least  in  this  context.  The  uncertainty  surrounding  the  Internet's  present  and 
future  influence  on  legal  education  is  no  reason  to  shy  away  from  its  continued 
deployment  so  long  as  its  use  is  accompanied  by  the  necessary  care  and 
judiciousness.  Instead,  my  small  point  is  that  as  the  Internet  becomes 
increasingly  integrated  into  legal  education — as  it  in  many  ways  should  and,  like 
it  or  not,  will — legal  educators  need  to  think  through  this  powerful  and 
potentially  useful  educational  tool  as  well  as  its  implications  for  our  students  and 
how  we  go  about  teaching  law. 

I.  The  Internet  Has  Already  Changed  Law  Schools  in  Ways 

Both  Big  and  Small 

Dean  Perritt  correctly  notes  that  the  Internet  "is  changing  the  law,  the 
functioning  of  legal  institutions[,]  and  the  role  of  lawyers."' '  The  implications 
for  the  rule  of  law,  citizenry,  commerce,  and  the  host  of  other  aspects  discussed 
in  Dean  Perritt' s  Article  are  products  of  the  Internet's  "modular  character  and  [ 
]  universality."'^  Indeed,  now  that  the  Internet  is,  essentially,  ubiquitous,  one  can 
take  its  infrastructure — indeed,  its  very  existence — for  granted.'^  Those  who 
endeavor  to  resist  the  Internet  and  Internet-related  changes,  even  if  resistance  was 
feasible,  will  quickly  learn  that  such  efforts  will  largely  fail.  Not  only  is  the 
cyberspace  "genie"  out  of  its  bottle,  but  the  bottle  has  been 
shattered — effectively  precluding  any  chance  that  the  Internet  will  disappear  or 
that  its  influence  might  wane.  As  far  as  legal  education  is  concerned,  the  Internet 
has  arrived  and  it  will  remain  germane  for  the  foreseeable  future. 

From  this.  Dean  Perritt  correctly  concludes  that  the  Internet  is  changing 
American  law  schools.  This  conclusion  safely  follows  for  two  main  reasons. 
First,  the  Internet  has  already  changed  numerous  institutions — political,  legal, 
social,  and  economic  institutions— which  surround  and  influence  law  schools. 
For  example,  as  Dean  Perritt  and  others  note,  the  Internet  influences  political  and 
legal  processes''*  and  commerce.'^  Consequently,  the  Internet's  influence  on 
institutions  that  surround  and  influence  law  schools  indirectly  bears  on  law 
schools  themselves.   This  result  is  hardly  surprising,  especially  to  those  who 


10.     See  Perritt,  supra  note  1,  at  263. 
U.     Mat  253. 

12.  Mat  255. 

13.  See  id. 

14.  See  id.  dX252t  n.l. 

15.  See,  e.g.,  Kerry  L.  Macintosh,  How  to  Encourage  Global  Electronic  Commerce:  The 
Case  for  Private  Currencies  on  the  Internet,  1 1  Harv.  J.L.  &  TECH.  733  (1998);  Henry  H.  Perritt, 
Jr.,  Legal  and  Technological  Infrastructures  for  Electronic  Payment  Systems,  22  RUTGERS 
Computer  &  Tech.  L.J.  1  ( 1 996). 


278  INDIANA  LAW  REVIEW  [Vol.  33 :275 


understand  the  nexus  between  law  schools  and  the  world  around  them.'^  One 
obvious  example  involves  law  firms,  many  of  which  have  turned  increasingly  to 
Internet  technology.  As  law  firms  continue  to  incorporate  Internet  technologies, 
one  will  almost  certainly  find  increased  pressure  brought  to  bear  on  law  schools 
by  law  firms  to  follow  suit.'^ 

Second,  as  Dean  Perritt  notes  in  the  title  of  his  Article  and  discusses 
throughout,  a  second  set  of  changes  implicates  law  schools  directly.  Notable  is 
Dean  Perritt' s  bold  point  about  law  schools'  role  in  fueling  the  "revolutionary 
phenomena"  ushered  in  by  the  Internet. ^^  Thus,  in  Dean  Perritt' s  view,  law 
schools  not  only  respond  to  the  Internet's  influence,  but  are  well  positioned  and 
structured  as  institutions  to  help  shape  the  Internet's  development. 

It  is  on  the  second  set  of  changes  that  I  take  small  issue  with  Dean  Perritt. 
My  issue  relates  to  his  choice  of  verb  tense.  I  argue  below  that  Dean  Perritt  is 
simultaneously  correct,  but  too  timid  and  cautious.  A  small  adjustment  to  Dean 
Perritt' s  title  would  address  my  point  and  result  in  a  more  accurate 
characterization.  Specifically,  I  argue  that  the  Internet  has  already  changed  the 
face  of  American  law  schools,  albeit  in  modest  ways.  Moreover,  the  changes  that 
have  already  arrived — however  small  or  subtle — provide  important  clues  to  even 
greater  changes  that  lie  ahead. 

A.  Scholarly  Resources 

While  it  is  certainly  much  more,  the  Internet  is  already  among  the  world's 
most  powerful  and  rich  sources  of  information.  As  such,  it  can  serve  as  the 
world's  virtual  library.  Just  as  the  law  library  serves  as  an  integral  part  of  a  law 
student's  legal  education,  the  Internet  is  now  likewise  an  integral  part  of  the  law 
library.  It  is  already  difficult  to  imagine  a  law  library  without  Internet  access. 
Indeed,  by  as  early  as  1996  some  argued  that  the  migration  to  electronic 
information  and  technology  in  all  aspects  of  legal  education,  particularly  law 
libraries,  was  a  "fait  accompli."'^  In  time,  the  Internet  might  rank 
among — perhaps  even  be — ^the  most  important  component  of  a  law  library. 

The  implications  of  increased  Internet  accessibility  as  a  scholarly  resource 
for  law  schools,  principally  through  law  libraries,  are  large.   As  the  principal 


16.  See  Michael  A.  Geist,  Where  Can  You  Go  Today?:  The  Computerization  of  Legal 
Educationfrom  Workbooks  to  the  Web,  1 1  Harv.  J.L.&Tech.  141, 182  (1997)  (arguing  that  "[t]he 
development  of  the  Internet  is  likely  to  mark  a  turning  point  in  the  computerization  of  legal 
education"). 

1 7.  See  Matasar  &  Shiels,  supra  note  6,  at  9 1 0. 

1 8.  See  Perritt,  supra  note  1 ,  at  255  (arguing  that  law  schools  have  an  important  role  to  play 
in  connection  with  the  Internet's  development).  But  see  Geist,  supra  note  16,  at  161  (downplaying 
law  schools'  contribution  to  the  development  of  web  materials  for  law  students). 

19.  Richard  A.  Danner,  Facing  the  Millennium:  Law  Schools,  Law  Librarians,  and 
Information  Technology,  46  J.  LEGAL  Educ.  43, 43  ( 1 996)  (quoting  Robert  C.  Berring,  The  Current 
State  of  Networked  Information  in  the  United  States  and  Why  You  Should  Care  About  It,  26  LAW 
LiBR.  246,  246(1995)). 


1 999]  A  RESPONSE  TO  DEAN  PERRITT  279 


engine  of  new  legal  knowledge,  law  schools  have  a  special  responsibility  and  role 
to  play  in  virtual  law  libraries'  development.  Not  only  do  legal  scholars  need  to 
generate  new  legal  knowledge  with  an  eye  towards  the  Internet,  but  they  must 
also  think  through  how  this  new  medium  can  be  best  deployed  within  the  context 
of  a  law  library's  system  of  services.  If  law  libraries  continue  down  the  path 
already  embarked  upon,  it  is  difficult  to  overstate  their  potential  for  generating 
social  change  flowing  from  the  increased  availability  of  information.  The 
Internet  is  our  generation's  vehicle  to  vastly  increase  information's  reach.  The 
Internet  and  its  capability  to  construct  a  virtual  library  pose  a  serious  threat  to 
many  information  monopolies,  public  and  private.^^  With  greater  access  to 
information  comes,  as  the  saying  goes,  greater  power.  Greater  power,  more 
widely  dispersed,  reaffirms  Madison's  insight  into  the  structural  benefits  of  off- 
setting competing  political  factions.^' 

^'  B.  Scholarship 

A  second  example  of  how  the  Internet  has  already  influenced  legal  education 
relates  to  scholarship,  particularly  its  production  and  distribution.  On  the 
production  side,  many^ — if  not  most — legal  scholars  avail  themselves  of  Internet- 
driven  listservs,  websites,  and  e-mail.  Access  to  information  now  available  on 
the  Internet  enables  legal  scholars  to  blunt  challenges  to  research  posed  by 
geography.  One  consequence  is  the  greatly  increased  potential  for  scholars  to 
interact  with  one  another.  Scholars  now  collaborate  more  easily  and  effectively 
with  colleagues  whom  they  might  otherwise  not  collaborate  but  for  the  Internet. 
Increased  interaction  and  collaboration  among  scholars  increases  the  flow  of 
information  among  them.  On  balance  and  over  time  this  should  contribute  to 
increases  in  scholarly  productivity  and  quality. 

The  Internet  has  already  influenced  the  distribution  side  of  legal  scholarship. 
For  example,  scholarly  outlets,  what  we  traditionally  have  come  to  know  as  law 
reviews  or  journals,  no  longer  appear  exclusively  in  a  form  that  can  be  touched 
by  the  human  hand.  On  April  10,  1995,  the  University  of  Richmond's  T.C. 
Williams  School  of  Law  launched  the  Richmond  Journal  of  Law  and  Technology, 
purportedly  the  world's  first  student-edited,  scholarly  legal  journal  published 
exclusively  on-line.^^  Setting  aside  the  perennial  debate  among  legal  academics 
about  the  merits  of  student-edited  law  reviews,^^  the  development  of  an  entirely 


20.  One  interesting  example  of  public  and  private  information  monopoly  is  the  functional 
control  over  documents  generated  by  the  federal  government.  Traditionally,  Washington  D.C.- 
based  lobbying  firms  levered  their  physical  location  to  gain  economically  by  influencing  the 
legislative  processes.  The  advent  of  the  Thomas  website,  however,  blunts  some  of  the  comparative 
advantage  flowing  from  geography.  Now  any  individual  with  access  to  the  Internet  can  benefit 
from  current  access  to  governmental  documents  and  information.  See  <http://thomas.loc.gov>. 

21.  See  The  Federalist  No.  10,  at  122-28  (James  Madison)  (Isaac  Kramnick  ed..  Penguin 
1987). 

22.  See  <http://law.richmond.edu/general/student.htm>. 

23.  In  the  world  of  scholarly  journals,  typical  law  reviews  stand  in  stark  contrast  to  blind 


280  INDIANA  LAW  REVIEW  [Vol.  33 :275 


on-line  law  review  raises  interesting  questions  of  its  own.^"*  On  the  one  hand,  an 
electronic  journal  possesses  the  distinct  advantages  of  timeliness  and  mass 
distribution  or  circulation.  Although  it  might  not  yet  be  realized,  electronic 
journals  have  the  potential  for  speedier  turn-around  time  as  their  production  time 
should  be  less  than  that  of  their  traditional  paper  counterparts.  In  fast-moving 
areas  of  the  law,  this  might  yield  strategic  and  comparative  advantages.  It  also 
might  placate  some  law  professors  who  tire  of  waiting  for  law  review  printing 
companies  to  generate  and  ship  their  Article  reprints.  Also,  electronic  journals 
typically  are  distributed  free  to  those  who  can  access  cyberspace.  Such  a 
potentially  broad  and  low-cost  distribution  system  might  further  disseminate 
legal  scholarship  to  a  wider  audience.  Of  course,  even  paper  law  reviews  can 
blunt  this  potential  comparative  disadvantage  by  placing  their  volumes  on-line. 
Finally,  the  notion  that  a  professor  can  "publish"  a  scholarly  article  in  a  medium 
that  exists  only  in  cyberspace  might  generate  interesting  questions  for  promotion 
and  tenure  committees. 

The  Internet's  influence  on  scholarship  extends  far  beyond  its  own  medium. 
The  Internet  has  been  the  subject  of  much  scholarly  focus  recently  and  shows  no 
sign  of  abating.^^  The  subject  of  this  symposium  is  yet  another  example  that  the 
intersection  of  the  Internet  and  legal  scholarship  is  rich,  and  its  surface  has  only 
been  scratched  thus  far.^^  Although  I  am  not  aware  of  any  journal  devoted 
exclusively  to  Internet  law  issues,^^  many  journals  and  reviews  specialize  in  law 
and  technology  topics  that  frequently  include  Internet  and  Internet-related 
issues. 

C  Law  School  Teaching 

Few  law  professors  today  can  walk  into  a  law  school  classroom  and  not  find 
a  sizable,  though  varying,  number  of  students  using  laptop  computers  equipped 


peer-reviewed  journals.  For  a  discussion  of  related  issues,  see,  e.g..  Symposium,  Law  Review 
Conference,  47  STAN.  L.  REV.  1 1 17  (1995)  (discussing  various  issues  relating  to  student-edited  law 
reviews). 

24.  See  generally  Bernard  J.  Hibbitts,  Last  Writes?:  Reassessing  the  Law  Review  in  the  Age 
of  Cyberspace,  71  N.Y.U.  L.  REV.  615  (1996)  (arguing  that  the  Internet  reduces  the  usefulness  of 
current,  more  traditional  law  reviews). 

25.  As  one  crude  proxy,  Dean  Perritt  points  to  the  number  of  sessions  at  the  most  recent 
American  Association  of  Law  Schools  annual  conference  devoted  to  some  aspect  of  the  Internet. 
See  Perritt,  supra  note  1,  at  264. 

26.  In  a  footnote.  Dean  Perritt  notes  that  as  of  January  30,  1999,  a  search  of  the  "JLR" 
database  in  Westlaw  revealed  772  documents  with  the  word  "Internet"  in  their  title.  See  id.  at  262 
n.20.  My  identical  search  conducted  just  eight  months  later  revealed  953  such  documents, 
reflecting  a  23%  increase. 

27.  Given  the  recent  and  sustained  proliferation  of  law  reviews  and  journals,  such  a 
specialization  is  not  beyond  the  pale. 

28.  See.  e.g.,  JURIMETRICS:  J.  L.  SCI.  &  TECH.;  BERKELEY  Tech.  L.J.;  Harv.  J.L.  &  TECH.; 
IDEA:  ;  J.  L.  &  TECH.;  RICHMOND  J.L.  &  TECH. 


1999]  A  RESPONSE  TO  DEAN  PERRITT  28 1 


with  Internet  access  and  web  browsers.  Many  schools  are  examining  the 
feasibility  of  direct  Internet  access  availability  at  each  student  station  in  law 
school  classrooms.  This  is  particularly  true  at  the  small  but  growing  number  of 
law  schools  that  require  students  to  possess  computers  upon  matriculation.^^  An 
already  sizable  number  of  faculty  regularly  interacts  with  those  students 
technologically  equipped  and  inclined  on-line  through  e-mail  and  websites. ^°  A 
related  development  involves  on-line  class  discussion  through  moderated  or 
unmoderated  listservs.^'  Such  developments  parallel  movement  outside  law 
schools'  walls.  Increasing  litigation  over  such  questions  as  whether  employers 
can  "snoop"  or  "eavesdrop"  on  employees'  e-mail  "conversations"^^  and  whether 
archived  or  stored  e-mail  is  discoverable  material  hints  at  the  proposition  that  e- 
mail  is  fast  becoming  increasingly  woven  into  the  fabric  of  how  people 


29.  For  example,  the  University  of  Oregon  School  of  Law  requires  all  students  to  possess 
laptop  computers  upon  matriculation.  Notably,  because  the  University  of  Oregon  requires  its  law 
students  to  have  laptops,  their  cost  is  included  in  a  law  student's  financial  aid  package.  See 
<http://www.law.uoregon.edu/support/comprec/compreq.shtml>.  At  Dean  Perritt's  Chicago-Kent 
College  of  Law,  only  those  students  who  elect  to  participate  in  that  law  school's  E-Learn  program 
are  required  to  own  laptops.  Similar  to  the  University  of  Oregon,  Chicago-Kent  includes  the  cost 
of  laptops  into  a  student's  financial  aid  package.  See  <http://www.kentlaw.edu/academics/ 
elearn.html>.  Presumably,  given  Chicago-Kent's  progressive  posture  on  law  and  technology,  it 
actively  encourages  its  other  students  to  possess  computers. 

30.  A  reliable  number  eludes.  Common  sense  and  experience  suggest  to  me,  at  least,  that 
it  is  far  from  the  exception  anymore.  For  a  related  discussion  about  the  importance  of  students' 
active  engagement  in  the  law  school  process,  see,  e.g.,  Steven  L  Friedland,  How  We  Teach:  A 
Survey  of  Teaching  Techniques  in  American  Law  Schools,  20  SEATTLE  U.  L.  Rev.  1  (1996); 
Michael  L.  Richmond,  Teaching  Law  to  Passive  Learners:  The  Contemporary  Dilemma  of  Legal 
Education,  26  CUMB.  L.  REV.  943  ( 1 995-96). 

Presumably,  many — if  not  most — law  schools  provide  students  with  access  to  terminals 
equipped  with  Internet  access  browsers.  Most  universities  equip  their  students  for  little  or  no  cost 
with  e-mail  accounts.  This  provides  those  students  who  do  not  own  the  necessary  hardware  or 
software  with  access  to  the  Internet  and,  as  a  consequence,  access  to  classroom  listservs  along  with 
e-mail  capabilities. 

3 1 .  See  Geist,  supra  note  1 6,  at  1 69-7 1 .  It  is  notable  that  concurrent  with  increased  use  of 
moderated  listservs  by  law  professors  for  courses  (deploying  university-owned  and  operated 
servers)  is  increased  litigation  on  issues  surrounding  an  array  of  liability  questions  that  arise  out  of 
the  Internet  technology.  See,  e.g.,  Kevin  F.  O'Shea,  The  First  Amendment:  A  Review  of  the  1997 
Judicial  Decisions,  25  J.C.  &  U.L.  201  (assessing  the  implications  of  the  case,  Reno  v.  American 
Civil  Liberties  Union,  117  S.  Ct.  2329  (1997),  on  college  and  university's  exposure  to  criminal 
sanctions  for  obscene  material  that  finds  its  way  onto  college  and  university  computers);  Joseph  R. 
Price,  Colleges  and  Universities  as  Internet  Service  Providers:  Determining  and  Limiting  Liability 
for  Copyright  Infringement,  23  J.C.  &  U.L.  183  (1996)  (discussing  possible  university  copyright 
liability  exposure  due  to  their  status  as  Internet  service  providers). 

32.  See,  e.g.,  Bohach  v.  Reno,  932  F.  Supp.  1232  (D.  Nev.  1996);  see  also  Scott  A. 
Sundstrom,  You  've  Got  Mail!  (and  the  Government  Knows  It):  Applying  the  Fourth  Amendment 
to  Workplace  E-Mail  Monitoring,  73  N.Y.U.  L.  Rev.  2064  (1998). 


282  INDIANA  LAW  REVIEW  [Vol.  33:275 


communicate." 

Some  students  enjoy  the  ready  access  to  faculty  that  the  Internet  provides. 
Perhaps  these  students,  for  an  array  of  reasons,  prefer  to  interact  with  law 
professors  or  classmates  with  the  distance  provided  over  the  Internet.^'*  As  a  law 
professor  I  have  come  to  appreciate  the  benefits  of  a  medium  that  requires 
students  to  commit  their  queries  to  writing  before  posing  them.  I  often  fmd  that 
the  discipline  of  reducing  a  question  to  writing  helps  students  focus,  fuels  clarity, 
and  more  quickly  identifies  related  or  collateral  points  requiring  explication. 

However,  it  is  important  to  note  that  not  all  commentators  agree  on  the  utility 
of  Internet  interaction  with  law  students.^^  Internet  proponents  point  out  that  e- 
mail  communication  between  professors  and  students  has  the  potential  to 
overcome  some  constraints  presented  by  time  and  distance  and,  as  a  result, 
complement  the  educative  processes  by  increasing  student  access  to  professors. ^^ 
On  balance,  such  a  development — increased  student  and  faculty  interaction — is 
positive  and  should  be  encouraged  as  it  can  enhance  the  law  school  experience 
for  many  law  students,  administrators,  and  professors.  On  the  other  hand,  some 
skeptics  point  out  that  this  newly  emerging  electronic  mode  of  communication 
may  displace  some  "one-to-one"  student- faculty  conferences  and  discussions.^^ 
That  is,  rather  than  supplement  important  face- to- face  contact  between  student 
and  faculty,  e-mail  or  electronic  communication  may  supplant  such  contact.  If 
so,  the  development  of  e-mail  may  increase  one  form  of  communication  at  the 
expense  of  another.  The  true  threat  posed  by  increased  reliance  on  e-mail 
interaction,  at  least  to  one  commentator,  "lies  in  an  almost  insidious  loss  of  the 
sense  of  community. "^^  The  comparatively  depersonalized  Internet  (or  e-mail) 
communication  threatens  to  further  isolate  law  students,  particularly  the  less 
experienced  first-year  law  students.^^ 


33.  See  Uniden  America  Corp.  v.  Ericsson,  Inc.,  181  F.R.D.  302  (M.D.N.C.  1998)  (civil 
case);  New  York  v.  Jovanovic,  676  N.Y.S.2d  392  (Sup.  Ct,  N.Y.  County  1997)  (rape  defendant 
sought  to  discover  victim's  e-mail  to  evidence  past  sexual  conduct). 

34.  Some  commentators  advance  another  benefit,  arguing  that  Internet  listserv  discussion 
groups  "help  counteract  the  unfortunate  tendency  for  classroom  discussion  to  be  dominated  by  only 
a  few  students."  Richard  Warner  et  al.,  Teaching  Law  with  Computers,  24  RUTGERS  COMPUTER 
&  TECH  L.J.  107,  150(1998). 

35.  Compare  Geist,  supra  note  16,  at  143  (speaking  positively  of  the  Internet's  role  in  law 
schools),  with  Robert  H.  Thomas,  "Hey,  Did  You  Get  My  E-Mail?  "  Reflections  of  a  Retro-Grouch 
in  the  Computer  Age  of  Legal  Education,  44  J.  LEGAL  Educ.  233  (1994)  (presenting  a  dissenting 
view  about  the  benefits  of  increased  technology  in  legal  education). 

36.  See  Geist,  supra  note  16,  at  160  (extolling  the  speed  and  convenience  of  e-mail). 

37.  See  Thomas,  supra  note  35,  at  238. 

38.  Id.  at  242. 

39.  See  id.  at  244-45  (arguing  that  "being  a  lawyer,  thinking  like  a  lawyer,  is  an  intensely 
human  enterprise"  and  that  over-reliance  on  impersonal  modes  of  communication  erodes  the  human 
dimension.). 


1999]  A  RESPONSE  TO  DEAN  PERRITT  283 


D.  Law  School  Building  Architecture 

The  influence  of  emerging  technology  in  general  and  the  Internet  in 
particular  becomes  quite  evident  for  those  charged  with  the  task  of  helping 
design  new  law  school  facilities  or  re-model  existing  physical  facilities/^ 
Assigned  the  daunting  task  of  designing  a  new  law  school  facility,  a  faculty  or, 
more  likely,  a  faculty  committee  can  spend  numerous  hours  thinking  and  re- 
thinking assumptions  about  what  a  law  school  building  should  look  like  and  how 
it  should  function.  Faculty  members'  perceptions  about  what  legal  education 
should  look  like  inform  their  opinions  of  what  designs  for  new  law  school 
buildings  should  look  like.  The  stakes  are  exceptionally  high  as  the  opportunity 
to  design  new  law  school  buildings  comes  around,  if  a  law  professor  is  lucky, 
perhaps  once  during  a  career. 

Paramount  to  law  school  building  design  are  questions  concerning  what 
directions  existing,  emerging,  and  wholly  unforeseen  technological  forces  will 
take  legal  education.  The  magnitude  of  the  influence  technology  exerts  on  the 
physical  and  conceptual  design  of  a  law  school  building  will  likely  surprise  those 
who  have  not  had  occasion  to  consider  the  issue  directly.  To  take  one  extreme 
hypothetical,  suppose  "technocrats"  argue  that  in  the  not-too-distant  future  virtual 
libraries  will  render  obsolete  libraries  as  we  now  know  them.  What  is  a 
responsible  response  to  such  an  argument  by  a  law  faculty  building  committee? 
After  all,  many  law  schools  are  built  with  a  desired  or  contemplated  useful  life 
of,  say,  thirty  years.  Most  American  law  school  libraries  occupy,  on  average, 
anywhere  between  thirty-three  to  fifty  percent  of  a  law  school's  total  square 
footage."^'  Obviously,  it  is  difficult  to  overstate  the  importance  of  decisions 
concerning  a  law  library  to  a  law  school.  Should  law  schools  simply  forego 
constructing  a  library  on  the  hunch  that  the  technocrats'  prediction  proves 
correct?  If  the  collective  hunch  is  correct,  the  faculty  looks  like  a  collection  of 
geniuses;  if  wrong,  the  faculty  looks  beyond  foolish.  It  would  have  either 
constructed  a  "dinosaur"  of  a  law  school  building  perhaps  even  before  the 
concrete  dries  or  it  would  have  constructed  a  building  without  an  essential 
part — a  library.  Neither  alternative  is  particularly  attractive. 

E.  Bluebook 

Another  small  but  significant  mark  of  the  Internet's  growing  influence  in  the 
legal  academy  is  that  even  the  venerable  Bluebook,  the  bane  of  all  too  many  first- 
year  and  law  review  students,  now  formally  recognizes  the  Internet's  influence. 
Specifically,  Rule  17.3.3  ("Internet  Sources")  in  the  current  edition  of  the 
Bluebook  provides  citation  form  guidance  for  Internet  sources."^^  Moreover,  the 


40.  By  way  of  full  disclosure,  I  had  the  good  fortune  of  serving  for  two  years  on  a  law 
school  building  committee. 

41.  I  am  grateful  to  James  F.  Bailey,  III,  Director  of  Law  Library,  Indiana  University  School 
of  Law — Indianapolis,  for  his  assistance  in  formulating  this  rough  estimate. 

42.  See  THE  BLUEBOOK,  Rule  17.3.3,  at  124  (16th  ed.  1996).  It  is  perhaps  notable  that  the 
Bluebook  expressly  discourages  citation  to  Internet  sources  because  of  their  "transient  nature."  Id. 


284  INDIANA  LAW  REVIEW  [Vol.  33 :275 


Bluebook  now  includes  citation  form  guidance  for  journals  that  appear  only  on 
the  Internet."*^ 

F.  How  to  Assess  These  Changes 

Having  briefly  described  a  few  examples  of  how  the  Internet  has  already 
influenced  law  schools,  it  is  useful  to  return  to  my  original  queries.  Is  it  possible 
to  fairly  characterize  the  magnitude  or  degree  of  change  to  legal  education 
traceable  to  the  Internet?  Moreover,  how  have  these  changes  altered  the 
production  and  delivery  of  legal  education?  Finally,  has  legal  education's 
dabbling  in  the  brave  new  world  of  Internet  and  cyberspace  generated  new  gaps 
between  law  schools  and  their  students  and  among  law  students? 

Firm  answers  to  these  questions,  if  they  exist,  are  elusive.  On  the  other  hand, 
opinions  are  plentiful.  What  follows  are  the  latter.  Despite  fast-moving  changes 
surrounding  law  schools,  commentators  note  that  the  degree  to  which  such 
changes  have  penetrated  law  schools  and  legal  education  is  not  yet  sufficient  to 
define  a  "Web  culture.'"^  That  is  not  to  say  that  law  schools,  students, 
professors,  and  legal  education  have  not  been  influenced  by  the  Internet. 
However,  the  magnitude  of  influence  at  most  law  schools  does  not  yet  appear  to 
have  reached  a  level  sufficient  to  dislodge  the  general  character  of  law  schools 
or  legal  education.  The  core  of  legal  education  appears  to  have  proceeded 
through  much  of  the  Twentieth  Century  remarkably  intact.  Consequently, 
because  the  Internet's  overall  influence  thus  far  on  law  schools  and  legal 
education  cannot  fairly  be  described  as  major,  distributional  or  equity  concerns 
for  students  lacking  Internet  capability  or  access  flowing  from  the  increased 
deployment  of  Internet  technology  appear  neither  significant  nor  systemic,  at 
least  at  this  juncture.  Of  course,  the  lack  of  any  significant  distributional  or 
equity  problems  may  only  reflect  the  reality  that  Internet  technology  has  not  yet 
penetrated  into  the  core  of  law  students'  daily  lives.  However,  the  Internet's  role 
in  legal  education  will  certainly  increase  over  time.  Consequently,  the  relative 
absence  of  distributional  or  equity  problems  today  is  no  guarantee  that  such 
problems  will  not  emerge  in  the  future. 

Hindsight  provides  some  assistance  in  assessing  the  Internet's  past  and 
present  roles  in  legal  education.  However,  hindsight  falls  short  with  respect  to 
important  aspects  in  this  context.  It  does  not  answer  the  counterfactual  question 
of  what  law  schools  and  legal  education  would  look  like  today  but  for  the 
Internet.  Finally,  hindsight  does  not  reflect  changes  already  in  place  but  not  yet 
noticeable,  nor  does  it  reveal  influences  on  legal  education  that  have  not  yet 
emerged.  Despite  these  imperfections,  a  quick  glance  backward  illuminates 
discernable  changes  to  legal  education,  however  small  or  large,  that  have  already 
manifested.  This  glance  backward  also  provides  some  insight  into  future  changes 
to  legal  education  flowing  from  increased  deployment  of  the  Internet. 


43.  See  supra  note  22  and  accompanying  text. 

44.  Geist,  supra  note  16,  at  159-60  (arguing  that  a  Web  culture  for  law  schools  is  still  at 
least  "several  years"  from  fruition). 


1 999]  A  RESPONSE  TO  DEAN  PERRITT  285 


II.  Changes  Likely  to  Be  Important  in  the  Future 

By  figuratively  turning  one's  gaze  from  legal  education's  past  and  present  to 
its  future,  particularly  how  that  future  might  be  further  shaped  by  the  Internet, 
two  immediate  points  quickly  emerge.  First,  existing  changes,  including  the  few 
I  have  identified  above,  will  continue  to  evolve.  Second,  new  changes  and 
influences  will  emerge.  Among  the  potentially  vast  number  of  possible  changes, 
one  stands  out  starkly — distance  learning.  The  Internet  makes  distance  learning 
a  much  more  viable  proposition  for  law  schools.  Because  of  its  potential  import 
to  legal  education,  I  will  limit  my  discussion  of  future  changes  to  distance 
learning's  potential  influence  on  legal  education. 

A.  Distance  Learning 

It  is  important  to  realize  that  the  term  "distance  learning,"  at  least  as  it  is 
bandied  about  within  the  context  of  legal  education,  can  mean  vastly  different 
things  to  different  people.  Distance  learning  includes  continuing  legal  education 
programs,  such  as  those  in  states  where  Continuing  Legal  Education  is  required, 
that  involve  satellite  transmission  of  instruction  generated  from  one  site  and 
delivered  to  (potentially)  many  others.  Distance  learning  is  also  used  to  describe 
nascent  programs  such  as  these  at  Chicago-Kent  College  of  Law  ("Chicago- 
Kent"),  ably  described  by  its  dean  in  his  Article.  Chicago-Kent  proposes  to 
begin  with  an  Internet  "enhanced"  evening  division  program  in  the  fall  of  1 999. '^^ 
From  what  Dean  Perritt  describes,  however,  Chicago-Kent  intends  to  enhance  the 
traditional  legal  education  paradigm  with  Internet  technology.  Regardless,  it  is 
axiomatic  that  in  virtually  all  conceptions  of  "distance  learning"  the  Internet  will 
serve  as  an  integral  component. 

Distance  learning  can  also  mean  much  more,  and  recent  announcements  offer 
a  glimpse  at  potentially  how  much  more.  For  example,  the  Regent  University 
School  of  Law  recently  petitioned  the  American  Bar  Association's  ("ABA") 
Section  of  Legal  Education,  the  office  that  performs  many  of  the  law  school 
accreditation  tasks,  for  recognition  of  a  graduate  level  international  taxation 
degree  to  be  completed  entirely  on-line."*^  Bolder  still,  Kaplan  Educational 
Centers,  a  for-profit  corporation,  recently  announced  plans  to  launch  a  new  law 
school  that  will  provide  instruction  exclusively  over  the  Internet."*^ 

At  this  juncture  how  the  legal  education  establishment  will  respond  to  the 
forces  of  technology  is  anyone's  guess.  Accreditation  will  be  one  early  vehicle 
for  the  ABA  and  law  schools  to  shape,  traject,  or  re-traject  legal  education's 
present  and  future  course. 

One  preliminary  sign — a  memorandum  from  James  P.  White,  the  ABA's 
Consultant    on    Legal    Education    to    the    deans    of   ABA-approved    law 


45.  See  Perritt,  supra  note  1,  at  272. 

46.  See  generally  Randall  T.  Shepard,  Our  Evolving  Policy  on  Distance  Learning, 
Syllabus  (ABA  Sec.  Legal  Educ.  and  Admissions  to  the  Bar)  Winter  1999,  at  5. 

47.  See  id. 


286  INDIANA  LAW  REVIEW  [Vol.  33:275 


schools — evidences  caution  with  respect  to  distance  education's  application  to 
the  legal  education  setting/^  The  memorandum  contains  a  brief  discussion  of  the 
underlying  principles  for  distance  legal  education  as  well  as  a  set  of  temporary 
guidelines/^ 

B.   Will  "  Virtual "  or  Distance  Legal  Education  Be  Good  for  Students? 

To  some,  perhaps  many,  the  value  of  the  Internet  in  law  school  classrooms 
in  general  and  distance  education  in  particular  seems  self-evident.^^  Further 
expansion  of  distance  learning  into  the  legal  education  market  will  certainly 
benefit  some  interests.  Whose  interests  will  be  advanced  is  not  entirely  clear. 
One  clear  winner  would  be  the  Internet  industry.  No  doubt  the  Internet  industry 
salivates  at  the  prospect  of  formal  or  "traditional"  legal  education  migrating  onto 
the  Internet.  Rather  than  endeavor  to  assess  the  array  of  possible  "winners"  and 
"losers,"  the  focus  of  this  Article  is  to  consider  whether  the  Internet  will  be  good 
for  law  schools  and  legal  education.  My  even  narrower  focus  dwells  on  the 
interests  of  law  students. 

Good  reasons  support  the  optimism  that  flows  from  Dean  Perritt's  Article 
about  the  Internet's  potential  for  influencing  and  changing  how  legal  education 
is  delivered.  On  a  purely  visceral  level,  it  is  difficult  to  imagine  how  law 
students  and  law  schools  would  not  be  assisted  by  a  well-crafted  integration  of 
the  Internet.  Indeed,  it  is  already  difficult  to  imagine  a  law  library  at  any 
accredited  American  law  school  that  lacks  Internet  access.  The  Internet  and 
access  to  it  by  law  students  and  professors  are  already  indispensable.  Because 
the  Internet  has  become  the  world's  information  highway,  legal  educators  need 
to  understand  how  it  can  be  used  to  improve  legal  education.  Even  if  it  does  not 
fulfill  its  current  promise,  the  medium  is  already  important  enough  to  warrant 
greater  integration  into  the  various  aspects  that  comprise  legal  education.  Also, 
as  Dean  Perritt  makes  clear,  the  Internet  is  changing  how  lawyers  function  as 
professionals  and  how  they  serve  clients.  Law  schools  need  to  be  aware  of  and, 
ideally,  ahead  of  such  changes.  As  a  result,  all  law  students,  but  particularly 
those  preparing  to  enter  the  constantly  evolving  legal  market  as  attorneys,  would 
be  well  served  to  acquaint  themselves  as  much  as  possible  with  the  Internet  and 
related  technology.  Law  students  who  actively  ignore  the  Internet  during  law 
school  risk  handicapping  themselves  as  newly-minted  attorneys.^'  Law  firms  will 
soon  come  to  expect  new  associates  to  be  as  familiar  with  e-mail  as  they  are  with 


48.  See  Memorandum  from  James  P.  White,  Consultant  on  Legal  Education  to  the  American 
Bar  Association,  to  Deans  of  ABA  Approved  Law  Schools  (May  6,  1 997)  (on  file  with  the  Indiana 
Law  Review  or  available  on-line  at:  <http://www.abanet.org/legaled/distance.html>). 

49.  See  id. 

50.  Dean  Perritt's  teaching  is  one  prime  example.  But,  as  he  makes  perfectly  clear  in  his 
Article,  Dean  Perritt  views  distance  learning  as  one  of  an  array  of  possible  tools  to  train  law 
students.  See  Perritt,  supra  note  1,  at  266-67. 

5 1 .  For  a  discussion  about  how  law  practices  now  incorporate  Internet  technology,  see,  e.g., 
Mark  Pruner,  The  Internet  and  the  Practice  of  Law,  19  PACE  L.  REV.  69  (1998). 


1 999]  A  RESPONSE  TO  DEAN  PERRITT  287 


Shepherds.  Consequently,  the  belief  that  the  Internet  will  change  legal  education 
should  surprise  few. 

1.  Pedagogical  Issues. — ^As  important  as  the  Internet  may  prove  to  be  in  the 
future,  at  least  two  issues  warrant  careful  thought.  First,  legal  educators  need  to 
get  a  better  sense  about  whether  the  Internet  will  assist  law  students  to  learn  and, 
if  so,  how.  Those  who  study  technology's  role  in  education  (not  legal  education 
per  se,  but  rather  education  generally)  readily  acknowledge  that  no  one  really 
knows  whether  the  technology  deployed  in  today's  classrooms  help  students 
learn  better  or  more.^^  Empirical  evidence  on  the  efficacy  of  virtual  classrooms 
is  sketchy,  at  best,  and  severely  limited  by  a  paucity  of  data. 

One  prominent  example  involves  Professor  Andrea  Johnson  who  taught,  on 
a  pilot  study  basis,  an  advanced  telecommunications  course  simultaneously  to 
students  at  the  California  Western  School  of  Law  in  San  Diego  and  the 
Cleveland-Marshall  College  of  Law  in  Cleveland.  The  course  enrolled  eight  law 
students  from  both  schools  and  incorporated  Internet,  teleconferencing  and 
videoconferencing,  e-mail,  and  an  electronic  casebook.  Notably,  Professor 
Johnson,  acutely  aware  of  the  pedagogical  ground  she  was  breaking,  employed 
a  "control"  telecommunications  course,  which  met  in  a  regular  law  school  setting 
in  the  conventional  manner.  On  the  basis  of  her  experience.  Professor  Johnson 
concluded  that  enhanced  technology  served  as  a  significant  supplement  to  the 
student  learning  processes,  with  students  in  the  Internet  section  of 
telecommunications  law  exhibiting  the  same  or  deeper  understanding  of  the 
covered  material. ^^  Clearly,  a  single  case  study  with  the  potential  for  self- 
selection  bias  limits  substantially  what  can  properly  be  inferred.  But  it  will  be 
from  such  experiments  that,  over  time,  a  helpful  empirical  base  will  emerge. 

2.  Distributional  and  Equity  Issues. — A  second  set  of  concerns  relates  to 
distributional  and  equity  concerns  stemming  from  increased  use  of  distance 
learning  in  legal  education.  How  differences  between  "traditional"  law  school 
instruction  and  instruction  provided  through  distance  learning  technologies  will 
be  distributed  among  law  students  is  not  entirely  clear.  One  crucial,  potential 
difference  is  in  instructional  quality.  For  purposes  of  this  discussion,  I  will 
construe  instructional  quality  wholly  in  terms  of  the  efficacy  of  student  learning 
and  comprehension  of  the  material  presented.  Justice  Ginsburg  recently  offered 
her  perceptions  of  instructional  quality  differences  distinguishing  traditional  and 
distance  learning  in  legal  education.^"^  Because  Justice  Ginsburg  feels  that  so 


52.  For  a  fuller  articulation  of  this  point,  see,  e.g.,  David  Skinner,  Computers:  Good  for 
Education?,  128  PUB.  INTEREST  98  (1997)  (discussing  evidence  of  computers'  efficacy  in  the  K-12 
educational  setting). 

53.  For  a  fuller  description  of  this  experiment,  see  Johnson,  supra  note  8,  at  245. 
Interestingly,  Professor  Johnson,  one  who  is  clearly  in  the  vanguard  of  incorporating  the  Internet 
into  legal  education,  concludes  that  "[djistance  learning  and  technology  will  never  replace 
professors  or  negate  traditional  teaching  methods.  The  dynamics  of  human  interaction  and  feedback 
are  too  critical  to  the  development  of  legal  skills  and  problem-solving."  Id.  See  also  Geist,  supra 
note  16,  at  177  nn.  174-77. 

54.  See  Katherine  S.  Mangan,  Justice  Ginsburg  Raises  Questions  About  Internet-Only  Law 


288  INDIANA  LAW  REVIEW  [Vol.  33:275 


much  of  legal  education  and  practice  is  a  shared,  genuinely  interactive  endeavor, 
she  feels  that  instructional  quality  is  threatened  for  law  students  exposed  only  to 
distance  learning  methodologies.^^ 

Cost  might  be  another  variable  distinguishing  traditional  learning  from 
distance  legal  instruction.  Indeed,  one  of  distance  learning's  key  selling  points 
pivots  on  its  relative  cost-effectiveness.^^  It  will  be  interesting  to  see  how  law 
schools  price  distance  learning  credit  hours,  especially  in  relation  to  traditionally 
taught  credit  hours.  Given  limitations  imposed  by  classroom  size  and  faculty 
fatigue,  ceilings  exist  that  effectively  cap  how  many  students  a  law  professor  can 
teach  in  the  traditional  classroom  format.  No  analogous  limitation  exists  for 
distance  learning. 

The  quality  and  cost  variables  may  well  interact.  That  is,  should  the  quality 
of  instruction  delivered  through  distance  learning  programs  fall  short  of  the 
quality  level  achieved  by  the  traditional  classroom  format,  whether  quality 
differential  is  rooted  in  reality  or  merely  perception,  the  distance  learning 
program  might  be  priced  lower  to  reflect  the  quality  differential.  Lower  price  for 
lower  quality  legal  education  may  result  in  the  calcification  of  law  school  "tiers." 
Such  tiers,  should  their  roots  deepen,  may  manifest  in  terms  of  student  self- 
selection.  What  may  culminate  is  a  law  school  within  a  law  school  with  less  (or 
more,  depending  on  one's  perspective)  desirable  distance  learning  program 
serving  a  certain  student  profile  and  the  traditional  law  school  program  serving 
yet  another. 

It  is  certainly  conceivable  that  such  differentiation  might  generate  net 
educational  gains.  Some  students  might  benefit  from  an  alternative  to  today's 
law  school  environment.  It  is  assuredly  true  that  the  pool  of  potential  law 
students  increases  when  geographic  barriers  to  legal  education  fall.  The 
questions  are  provocative  enough  to  generate  excitement  and  anticipation  about 
novel  programs  such  as  the  one  that  Dean  Perritt  describes. 

Possible  distributional  and  equity  issues  also  flow  from  law  schools'  more 
general  increased  deployment  of  the  Internet  and  related  technology.  Ethical 
considerations  flow  from  access  issues  relating  to  the  requisite  technology, 
especially  hardware.  What  affirmative  steps,  if  any,  should  law  schools  take  to 
maximize  access  to  Internet  technology  for  all  students  and  thereby  blunt 
possible  advantages  enjoyed  by  some  students  over  others?  Ideally,  law  schools 
would  take  steps  to  ensure  that  their  students  do  riot  artificially  organize  into  the 
technological  "haves"  and  "have  nots."  Moreover,  it  is  obvious  that  even  among 
students  comfortable  and  fluent  in  cyberspace  some  will  simply  take  a  greater 
interest  in  it  than  others.    That,  of  course,  is  fine  and  raises  no  structural 


5'c/zoo/5  (visited  Sept.  16,  1999)  <http://chronicle.com/free/99/09/99091302t.htm>. 

55.  See  id. 

56.  See,  e.g.,  Johnson,  supra  note  8,  at  227  n.53  (arguing  that  law  schools  will  soon  follow 
the  lead  taken  by  colleges  and  universities  in  exploring  distance  education  programs  partly  in 
response  to  enduring  pressures  to  contain  costs).  For  a  related  argument  about  the  cost- 
effectiveness  of  incorporating  Internet  technologies  into  traditional  law  firms,  see,  e.g.,  Pruner, 
supra  note  5 1 ,  at  79. 


1999]  A  RESPONSE  TO  DEAN  PERRITT  289 


problems.  Potential  problems  do  arise,  however,  if  it  turns  out  that  some  students 
are  structurally  advantaged  over  others  due  solely  to  matters  relating  to  access  to 
the  Internet  and  related  technologies.  If  some  of  the  Internet's  strongest 
supporters  are  correct — and  the  Internet  stands  ready  to  revolutionize  the  way 
law  is  taught — ^then  those  without  access  to  the  Internet  might  be  harmed. 

In  many  ways,  the  personal  computer  market  may  help  minimize  potential 
distributional  issues.  As  the  cost  of  personal  computers — hardware  and 
software — continues  to  fall,  law  students'  economic  barriers  to  the  Internet 
similarly  fall.^^  Perhaps  those  law  students  lucky  enough  to  grow  up  in  well-to- 
do  households  with  easy  and  early  access  to  computers  and  Internet  technology 
might  benefit  from  a  slight,  initial  advantage  over  law  students  not  as  fortunate. 
But  the  skills  necessary  to  successfully  avail  oneself  of  the  Internet  are  ones  that 
can  be  picked  up  with  relative  ease  and  speed.  Also,  as  some  law  schools  are 
already  doing,  personal  computer  costs  can  be  folded  into  a  student's  overall  loan 
package.^^  Many  of  the  needs  of  students  whose  financial  situations  preclude 
them  from  owning  their  own  Internet  accessible  personal  computer  can  be  met 
through  law  school-owned  computers  placed  in  public  locations  throughout  a  law 
school,  especially  in  a  law  library.  Finally,  for  those  students  who  might  lack  the 
background  or  familiarity  with  Internet  software  or  hardware,  law  schools  can 
organize  training  sessions  to  equip  such  students,  or  at  least  those  students 
desiring  such  training.  While  important  equity  issues  linger,  clear  thinking  and 
strategic  planning  by  a  law  school  can  adequately  and  responsibly  address  many 
of  these  issues. 

In  some  ways  the  nub  of  the  larger  issue  concerning  distance  learning 
education  delivered  over  the  Internet  might  resemble  a  burden  placement 
question.  Do  legal  educators  need  to  affirmatively  persuade  that  the  Internet 
should  not  be  an  integral  part  of  American  legal  education  because  distributional 
and  equity  issues  will  arise?  Or,  rather,  should  those  promoting  the  Internet  bear 
the  initial  burden  of  demonstrating  why  and  how  it  can  assist  the  legal  education 
processes  through  such  programs  as  distance  learning.  Given  the  uncertainty  of 
our  current  knowledge  base,  the  burden  placement  may  well  be  determinative. 
In  time,  and  with  some  effort  and  foresight,  however,  the  placement  issue  can 
become  less  important. 

Conclusion 

As  Dean  Perritt  correctly  notes,  the  Internet  is  changing  American  law 
schools  and,  consequently,  how  we  educate  and  train  law  students.  Internet 
technology  has  already  seeped  into  law  school  classrooms  as  well  as  law 
libraries.  Most  law  students  now  arrive  at  law  school  already  Internet  savvy  and 
possessing  relatively  sophisticated  cyberspace  navigational  skills.  Increasingly, 
they  lever  these  skills  in  their  efforts  to  learn  the  law,  particularly  as  the  skills 


57.  See  Marc  Friedman  &  Kenneth  R.  Buys,  'Infojacking: '  Crimes  on  the  Information 
Superhighway,  13  COMPUTER  L.  1,  2  (noting  computers'  lower  cost  and  increased  availability). 

58.  See  supra  note  29. 


290  INDIANA  LAW  REVIEW  [Vol.  33:275 


relate  to  manipulating  vast  sources  of  information.  The  Internet's  influence 
within  law  schools  will  assuredly  increase  over  time. 

The  Internet's  increased  influence  on  law  schools  and  legal  education  also 
is  assured  in  part  by  forces  surrounding  the  legal  academy.  Notably,  the  Internet 
continues  to  fuel  explosive  growth  in  electronic  commerce.  Information  is 
becoming  increasingly  Internet  friendly.  As  a  result,  many  economic,  political, 
and  social  institutions  now  routinely  harness  Internet  technology.  Moreover,  law 
firms  that  serve  such  clients  or  find  a  need  to  access  information  sources  realize 
the  need  to  tap  into  the  Internet  simply  to  remain  competitive.  Many  of  the 
attorneys  working  in  law  firms  today — especially  the  younger  ones — enter  law 
firms  already  comfortable  working  with  various  Internet  technologies.  Those  not 
yet  comfortable  with  Internet  technology  might  find  themselves  at  a  distinct 
disadvantage.  With  all  such  changes  occurring  around  law  schools  it  is 
inevitable  that  law  schools  and  legal  education  will  adjust  to  a  newly  emerging 
environment. 

Consequently,  I  find  little  with  which  to  quarrel  in  Dean  Perritt's  Article. 
One  not-so-subtle  thrust  of  his  Article  is  that  American  law  schools  need  to  catch 
up  with  the  fast-moving  Internet  technologies  and  find  ways  to  use  them  that  will 
enhance  legal  education.  Because  I  am  largely  persuaded  by  Dean  Perritt's 
arguments,  my  Article  dwells  on  questions  that  flow  from  a  world  of  law  schools 
that  increasingly  uses  Internet  technologies.  Assuming  that  Dean  Perritt's 
observations  about  the  Internet  are  correct,  the  implications  for  legal  education 
in  the  future  are  important  and  warrant  careful  consideration.  The  pedagogical 
value  created  by  Internet-related  law  teaching  tools  and  how  law  schools  will 
incorporate  these  new  tools  generate  important  questions.  Distance  learning  is 
one  obvious  avenue  {hat  will  receive  increased  attention  from  legal  educators  in 
the  future.  Finally,  while  greater  use  of  Internet  technologies  may  succeed  in 
helping  law  schools  close  technological  gaps,  whether  such  gaps  can  be  closed 
in  a  manner  that  avoids  creating  new  gaps  endures  as  a  possibly  important  issue. 
The  trick,  of  course,  will  be  for  law  schools  to  lever  the  Internet's  desirable 
attributes  in  a  way  that  minimizes  the  costs,  both  direct  and  collateral.  I  remain 
optimistic  that  a  successful  balance  can  be  achieved.  However,  my  optimism 
does  not  dislodge  my  concerns  over  a  potential  set  of  distributional  and  equity 
issues.  These  issues  certainly  can  be  addressed  in  a  responsible  manner.  The 
Internet  has  spawned  issues  that  will  warrant  attention  from  legal  educators,  but 
has  also  helped  thrust  law  schools  into  the  new  millennium. 


Indiana  Law  Review 

Volume  33  1999  Number  1 


NOTES 


inrelindseyi  a  needless  void  in  the  government 
Attorney-Client  Privilege 


Amanda  J.  DicKMANN* 

/ 

Introduction 
"I  did  not  have  sexual  relations  with  that  woman — Miss  Lewinsky.  "^ 

When  President  Clinton  looked  straight  into  the  camera  and  spoke  these 
infamous  words  in  January  1998,  perhaps  the  only  other  person  who  knew  the 
misleading  nature  of  this  statement  was  Bruce  Lindsey,  Deputy  White  House 
Counsel  and  Assistant  to  the  President.  If  President  Clinton  had  not  admitted  to 
an  "inappropriate"  relationship  with  Monica  Lewinsky  in  August  1998,^  prior  to 
In  re  Lindsey^  the  government  attorney-client  privilege  would  have  protected 
Bruce  Lindsey 's  knowledge  of  this  relationship,  despite  the  fact  that  Independent 
Counsel  Kenneth  Starr  issued  a  subpoena  to  Bruce  Lindsey  in  the  course  of  a 
criminal  investigation.  However,  as  this  Note  will  demonstrate,  In  re  Lindsey  has 
changed  the  status  of  the  government  attorney-client  privilege. 

The  President,  members  of  Congress,  and  legal  clients  have 
consistently  enjoyed  protection  for  their  confidential  communications  via 
the  Executive  Privilege,"^  Speech  and  Debate  Clause,^  and  attorney-client 


♦  J.D.  Candidate,  2000,  Indiana  University  School  of  Law— Indianapolis;  B.A.,  1997, 
Indiana  University— Bloomington. 

1.  President  Clinton  denied  he  had  a  sexual  relationship  with  Monica  Lewinsky  on 
Monday,  January  26,  1998.  See  'I  Never  Told  Anybody  to  Lie. '  Ottawa  Sun,  Mar.  29,  1998,  at 
26. 

2.  President  Clinton  admitted  he  had  an  "inappropriate"  relationship  with  Monica 
Lewinsky  on  Monday,  August  17, 1998.  See  'I  Misled  People,  Even  My  Wife, '  Ottawa  SUN,  Aug. 
18,  1998,  at  4. 

3.  158  F.3d  1263  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of  President  v.  Office  of 
Indep.  Counsel,  1 19  S.  Ct.  466  (1998)  (mem.). 

4.  The  executive  privilege  is  a  "broad,  constitutionally  derived  privilege  that  protects  frank 
debate  between  President  and  advisers."  Id.  at  1285  (Tatel,  J.,  dissenting)  (citing  United  States  v. 
Nixon,  418  U.S.  683,  708  (1974)). 

5.  The  Speech  and  Debate  Clause  states  that  Senators  and  Representatives  shall  be 
privileged  for  "[a]ny  Speech  or  Debate  in  either  House,  [and]  they  shall  not  be  questioned  in  any 
other  Place."  U.S.  CONST,  art.  I,  §  6. 


292  INDIANA  LAW  REVIEW  [Vol.  33:291 


privilege;^  however,  government  attorneys  and  officials  have  only 
periodically  received  protection  for  their  confidential  communications.^ 
This  inequality  has  primarily  derived  from  the  special  duty  of  government 
attorneys  to  uphold  the  public  trust  reposed  in  them,  and  has  produced  the 
government  attorney-client  privilege,  a  creature  of  common  law  that  grew 
out  of  the  traditional  attorney-client  privilege.^  Courts  have  sporadically 
applied  this  privilege,  and  until  In  re  Liudsey,  many  commentators 
questioned  the  viability  of  the  government  attorney-client  privilege  in  a 
court  of  law.^  In  re  Lindsey  acknowledged  the  privilege's  existence; 
however,  it  restricted  the  privilege  by  dissolving  protection  for  confidential 
communications  between  government  attorneys  and  officials  in  the  context 
of  a  criminal  investigation. '° 

Commentators  have  mixed  reactions  to  In  re  Lindsey.  Some  support  an 
absolute  government  attorney-client  privilege  that  would  protect  candor  and 
frank  communications  that  the  attorney-client  privilege  embodies  in  every  other 
context.*'  Others  support  a  qualified  government  attorney-client  privilege  that 
stresses  the  public's  interest  in  uncovering  illegality  among  its  elected  and 
appointed  officials.  In  re  Lindsey  chooses  the  qualified  government  attorney- 
client  privilege.  Similar  to  the  executive  privilege,  the  government  attorney- 
client  privilege  evaporates  when  a  criminal  investigation  ensues.  Unlike  the 
executive  privilege,  absolute  protection  does  not  extend  when  the  subject  matter 
sought  to  be  exposed  relates  to  military,  diplomatic,  or  sensitive  national  security 
secrets.  The  court's  failure  to  address  the  possibility  of  revealing  military, 
diplomatic,  or  sensitive  national  security  secrets  has  left  a  void  in  the  In  re 
Lindsey  decision  that  needs  to  be  filled. 

Part  I  of  this  Note  outlines  the  attorney-client  privilege,  distinguishes  it  from 
the  principle  of  confidentiality  and  the  executive  privilege,  and  provides  the 
derivation  and  scope  of  the  government  attorney-client  privilege.  Part  II  of  this 
Note  analyzes  In  re  Lindsey  and  the  cases  leading  up  to  it.  In  re  Grand  Jury 


6.  See  Fed.  R.  Evid.  501.  "[T]he  privilege  of  a  witness,  person,  government.  State,  or 
political  subdivision  thereof  shall  be  governed  by  the  principles  of  the  common  law  as  they  may  be 
interpreted  by  the  courts  of  the  United  States  in  the  light  of  reason  and  experience."  Id. 

7.  See  News  &  Observer  Publ'g  Co.  v.  Poole,  412  S.E.2d  7,  17  (N.C.  1992)  ("So  far  this 
Court  has  not  recognized  an  attorney-client  privilege  for  public  entity  clients,  and  it  is  unclear 
whether  the  traditional  privilege  should  be  so  extended.  Most  courts  that  have  applied  such  a 
privilege  have  not  considered  its  origin  but  have  merely  assumed  it  exists.")  (citation  omitted). 

8.  See  In  re  Lindsey,  1 58  F.3d  at  1 273. 

9.  See  Loser:  Attorney-Client  Privilege,  LEGAL  TIMES,  Dec.  22/29,  1997,  at  1 5  (quoting 
former  White  House  Counsel  C.  Boyden  Gray,  "I'm  not  sure  there  is  any  such  thing  as  [a] 
governmental  attorney-client  privilege  now."). 

10.  See  In  re  Lindsey,  158  F.3d  at  1278. 

11.  See  Ruth  Marcus,  Court  Rejects  Privilege  Claim,  WASH.  POST,  July  28,  1998,  at  Al . 


1 999]  IN  RE  LINDSEY  293 


Subpoena  Duces  Tecum^^  and  In  re  Grand  Jury  Proceedings.  '^  Part  III  visits  the 
aftermath  of /«  re  Lindsey,  particularly  the  legal  commentary  and  the  alleged 
repercussions  this  decision  may  produce  for  government  attorneys  and  officials. 
Part  IV  addresses  a  proposed  alteration  to  In  re  Lindsey  and  offers  its  own 
modification  to  the  government  attorney-client  privilege — extension  of  absolute 
protection  to  confidential  communications  containing  military,  diplomatic,  or 
sensitive  national  security  secrets.  Finally,  this  Note  concludes  with 
recommendations  for  government  attorneys  and  officials  in  light  of  the 
restrictions  In  re  Lindsey  has  placed  on  the  government  attorney-client  privilege. 

I.  Evolution  of  the  Government  Attorney-Client  Privilege 

A .   The  A ttorney-Client  Privilege 

Federal  Rule  of  Evidence  501,  the  foundation  for  the  attorney-client 
privilege,''*  states  that  "the  privilege  of  a  witness,  person,  government,  State,  or 
political  subdivision  thereof  shall  be  governed  by  the  principles  of  the  common 
law  as  they  may  be  interpreted  by  the  courts  of  the  United  States  in  the  light  of 
reason  and  experience."'^  The  attorney-client  privilege,  the  oldest  privilege  for 
confidential  communications  at  common  law,  furnishes  protection  to 
communications  made  between  client  and  attorney  by  forbidding  disclosure.'^ 
By  utilizing  the  attorney-client  privilege,  a  client  may  refuse  to  disclose 
confidential  communications  and  may  also  prevent  his  attorney  from  disclosing 
confidential  communications  that  were  made  for  the  purpose  of  obtaining  legal 
guidance.'^      The   identity   of  a  client,   underlying   facts,   and   incidental 


12.  112  F.3d  910  (8th  Cir.),  cert,  denied.  Office  of  President  v.  Office  of  Indep.  Counsel, 
521  U.S.  1105(1997). 

13.  5  F.  Supp.2d  21  (D.D.C.),  aff din  part,  rev  'din  part  sub  nom.  In  re  Lindsey,  158  F.3d 
1263  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of  President  v.  Office  of  Indep.  Counsel,  1 19  S. 
Ct.  466  (1998)  (mem.). 

14.  The  elements  of  the  attorney-client  privilege  are:  (1)  The  asserted  holder  is  or  sought 
to  become  a  client;  (2)  the  person  to  whom  the  communication  was  made  is  a  member  of  the  bar, 
or  his  subordinate,  and,  in  connection  with  the  communication,  is  acting  as  a  lawyer;  (3)  the 
communication  relates  to  a  fact  of  which  the  attorney  was  informed  by  the  client,  without  the 
presence  of  strangers,  and  for  the  purpose  of  securing  primarily  either  a  legal  opinion,  legal 
services,  or  assistance  in  some  legal  proceeding;  (4)  the  communication  was  not  for  the  purpose  of 
committing  a  crime  or  tort;  and  (5)  the  privilege  has  been  claimed  and  not  waived  by  the  client.  See 
United  States  v.  United  Shoe  Mach.  Corp.,  89  F.  Supp.  357,  358-59  (D.  Mass.  1950). 

15.  FED.R.EVID.  501. 

1 6.  See  Michael  J.  Chepiga,  Federal  A  ttorney-Client  Privilege  and  Work  Product  Doctrine, 
in  Current  Developments  IN  Federal  Civil  Practice  1998,  at  473, 476  (PLI  Litig.  &  Admin. 
Practice  Course  Handbook  Series  No.  583,  1998). 

17.  See  Proposed  Fed.  R.  Evid.  503(b).  Although  this  rule  has  not  been  enacted,  it  has 
been  recognized  as  "a  powerful  and  complete  summary  of  black-letter  principles  of  lawyer-client 
privilege."  3  Weinstein's  Federal  Evidence  §  503.02,  at  503-10  (McLaughlin  2d  ed.  1997). 


294  INDIANA  LAW  REVIEW  [Vol.  33:291 


communications  are  generally  not  protected  by  the  attorney-client  privilege,^^  but 
an  exception  applies  when  the  person  asserting  the  privilege  can  show  the 
possibility  that  disclosure  would  implicate  the  client  in  the  very  criminal  activity 
for  which  the  client  sought  legal  advice.*^ 

Although  privileges  generally  are  in  "derogation  of  the  search  for  truth"^^  and 
contravene  the  fundamental  maxim  that  the  "public . . .  has  a  right  to  every  man's 
evidence,"^'  the  attorney-client  privilege  "promotes  the  attorney-client 
relationship,  and,  indirectly,  the  functioning  of  our  legal  system,  by  protecting 
the  confidentiality  of  communications  between  clients  and  their  attorneys."^^  As 
a  consequence,  the  attorney-client  privilege  promotes  the  "broader  public 
interests  in  the  observance  of  law  and  administration  of  justice."^^  As  a  result  of 
the  conflicting  principles  inherent  in  seeking  out  the  truth  and  protecting 
confidential  communications  between  attorneys  and  clients,  courts  have 
determined  that  the  attorney-client  privilege  is  not  absolute  and  must  be  strictly 
construed.  Therefore,  the  privilege  is  recognized  "only  to  the  very  limited  extent 
that  permitting  a  refusal  to  testify  .  .  .  has  a  public  good  transcending  the 
normally  predominant  principle  of  utilizing  all  rational  means  for  ascertaining 
truth."^"^  This  public  good  must  be  shown  "with  a  high  degree  of  clarity  and 
certainty"  in  order  to  apply  the  attorney-client  privilege.^^ 

In  addition  to  the  public  good  requirement,  other  limitations  exist  in  asserting 
the  attorney-client  privilege.  The  crime-fraud  exception  exempts  from  the 
attorney-client  privilege  communications  made  in  furtherance  of  future  or 
ongoing  criminal  or  fraudulent  conduct,  including  other  wrongful  conduct  such 
as  intentional  torts.^^  Another  example  is  the  at-issue  exception,  which  provides 
that  a  party  may  have  effectively  waived  the  attorney-client  privilege  through  an 


1 8.  See  Chepiga,  supra  note  16,  at  479. 

19.  See  id.  (citing  In  re  Grand  Jury,  631  F.2d  17,  19  (3d.  Cir.  1980)). 

20.  United  States  V.Nixon,  418  U.S.  683,  710  (1974). 

21.  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 1 2  F.3d  91 0, 91 7-1 8  (8th  Cir.),  cert,  denied. 
Office  of  President  v.  Office  of  Indep.  Counsel,  521  U.S.  1 105  (1997). 

22.  Westinghouse  Elec.  Corp.  v.  Republic  of  the  Philippines,  95 1  F.2d  1 4 1 4, 1 428  (3d.  Cir. 
1991). 

23.  Upjohn  Co.  v.  United  States,  449  U.S.  383,  389  (1981). 

24.  In  re  Grand  Jury  Proceedings,  5  F.  Supp.2d  21,30  (D.D.C.)  (emphasis  added),  aff'd  in 
part,  rev 'd  in  part  sub  nom.  In  re  Lindsey,  158  F.3d  1263  (D.C.  Cir.)  (per  curiam),  cert,  denied. 
Office  of  President  v.  Office  of  Indep.  Counsel,  1 19  S.  Ct.  466(1998)  (mem.)  (quoting  Trammel 
V.  United  States,  445  U.S.  40,  50  (1980)).  See  also  In  re  Lindsey,  158  F.3d  at  1268  ("[FJederal 
courts  do  not  recognize  evidentiary  privileges  unless  doing  so  'promotes  sufficiently  important 
interests  to  outweigh  the  need  for  probative  evidence.'")  (citation  omitted). 

25.  In  re  Sealed  Case,  148  F.3d  1073, 1076  (D.C.  Cir.),  cert,  denied,  Rubin  v.  United  States, 
119S.Ct.  461(1998). 

26.  See  Chepiga,  supra  note  16,  at  485;  see  also  United  States  v.  Zolin,  491  U.S.  554,  561 
(1989)  (holding  that  the  general  policy  for  the  crime-fraud  exception  is  "to  assure  that  the  'seal  of 
secrecy'  between  lawyer  and  client  does  not  extend  to  communications  made  for  [the]  purpose  of 
getting  advice  for  [the]  commission  of  a  fraud  or  a  crime")  (citations  omitted). 


1 999]  IN  RE  LINDSEY  295 


affirmative  act,  such  as  filing  suit,  that  puts  protected  information  at  issue  by 
making  it  relevant  to  the  case.^^  Finally,  the  self-defense  exception  allows  an 
attorney  to  override  the  client's  privilege  in  order  to  defend  himself  against 
accusations  of  wrongful  conduct.^*  These  exceptions  ensure  that  the  truth  is 
revealed  in  situations  where  a  compelling  public  good  outweighs  a  refusal  to 
testify. 

B.   The  Principle  of  Confidentiality  and  the  Executive  Privilege 

The  principle  of  confidentiality  is  often  entangled  with  the  attorney-client 
privilege.^^  The  principle  of  confidentiality  is  rooted  in  professional  ethics  while 
the  attorney-client  privilege  is  rooted  in  the  law  of  evidence.^^  As  to  the  principle 
of  confidentiality.  Model  Rule  of  Professional  Conduct  1.6  states: 

A  lawyer  shall  not  reveal  information  relating  to  representation  of  a 
client  unless  the  client  consents  after  consultation  ....  A  lawyer  may 
reveal  such  information  to  the  extent  the  lawyer  reasonably  believes 
necessary  to  prevent  the  client  from  committing  a  criminal  act  that  the 
lawyer  believes  is  likely  to  result  in  imminent  death  or  substantial  bodily 
harm;  or  to  establish  a  claim  or  defense  on  behalf  of  the  lawyer  . .  .  ?^ 

The  critical  difference  between  the  attorney-client  privilege  and  the  principle 
of  confidentiality  is  that  the  attorney-client  privilege  applies  injudicial  and  other 
proceedings  in  which  a  lawyer  may  be  called  as  a  witness  while  the  principle  of 
confidentiality  applies  in  situations  other  than  those  where  evidence  is  sought 
from  the  lawyer  through  compulsion  of  law.^^  Furthermore,  the  principle  of 
confidentiality  applies  not  only  to  matters  communicated  in  confidence  by  the 
client,  but  also  to  all  information  relating  to  the  representation,  whatever  its 


27.  See  Chepiga,  supra  note  16,  at  488;  see  also  Heam  v.  Rhay,  68  F.R.D.  574,  581  (E.D. 
Wash.  1975)  (holding  that  the  at-issue  exception  provides  that  a  party  may  have  waived  the 
privilege  when  (1)  the  assertion  of  the  privilege  was  a  resuh  of  some  affirmative  act,  such  as  filing 
suit;  (2)  through  this  affirmative  act,  the  asserting  party  put  protected  information  at  issue  by 
making  it  relevant  to  the  case;  and  (3)  application  of  the  privilege  would  deny  the  opposing  party 
access  to  information  vital  to  its  defense). 

28.  See  Chepiga,  supra  note  1 6,  at  490;  see  also  Meyerhofer  v.  Empire  Fire  &  Marine  Ins., 
497  F.2d  1190,  1194-96  (2d  Cir.  1974)  (holding  that  an  attorney  who  had  been  named  as  a 
defendant  in  a  class  action  brought  by  the  purchasers  of  the  securities  who  claimed  that  the 
prospectus  contained  misrepresentations  had  the  right  to  make  an  appropriate  disclosure  to  counsel 
representing  the  stockholders  as  to  his  role  in  the  public  offering). 

29.  See  MODEL  RULES  OF  PROFESSIONAL  CONDUCT  Rule  1 .6  cmt.  5  ( 1 995)  ("The  principle 
of  confidentiality  is  given  effect  in  two  related  bodies  of  law,  the  attorney  client  privilege  . . .  and 
the  rule  of  confidentiality  . . . .")  (emphasis  added). 

30.  See  id 

3 1 .  MODEL  Rules  of  Professional  Conduct  Rule  1.6(1 995). 

32.  See  id  at  cmt.  5  (1995). 


296  INDIANA  LAW  REVIEW  [Vol.  33:291 


source.^^ 


The  executive  privilege  is  also  confused  with  the  attorney-client  privilege. 
The  executive  privilege  is  a  "broad,  constitutionally  derived  privilege  that 
protects  frank  debate  between  President  and  advisers"^"^  while  the  attorney-client 
privilege  is  a  much  narrower  privilege  that  emanates  from  the  common  law. 
Although  the  President  may  utilize  the  attorney-client  privilege,  the  executive 
privilege  is  exclusive  to  the  President. 

The  landmark  case  United  States  v.  Nixon^^  carved  out  the  executive 
privilege  from  the  U.S.  Constitution.  The  Court  created  the  executive  privilege 
in  part  to  equip  the  President  with  a  comparable  protection  that  members  of  the 
House  and  Senate  are  afforded  under  the  Speech  and  Debate  Clause^^  in  the  U.S. 
Constitution.^^  In  creating  this  privilege,  the  Court  reasoned  that  the  "President's 
need  for  complete  candor  and  objectivity  from  advisers  calls  for  great  deference 
from  the  courts."^^  However,  the  Court  fashioned  an  exception  to  the  executive 
privilege  by  holding  that  the  executive  privilege  is  not  absolute  and  must 
ultimately  yield  to  the  specific  need  for  evidence  in  a  criminal  investigation, 
unless  the  investigation  encompasses  military,  diplomatic,  or  sensitive  national 
security  secrets. 

C  Derivation  and  Scope  of  the  Government  Attorney-Client  Privilege 

In  addition  to  the  attorney-client  privilege,  many  other  privileges  have  been 
recognized,  such  as  the  psychotherapist-patient  privilege,"*^  husband-wife 
privilege,"*'  and  corporate  attorney-client  privilege."*^  A  more  recent  addition  to 
this  list  is  the  government  attorney-client  privilege.  "Courts,  commentators,  and 
government  lawyers  have  long  recognized  a  government  attorney-client  privilege 


33.  See  id. 

34.  In  re  Lindsey,  158  F.3d  1263,  1285  (D.C.  Cir.)  (Tatel,  J.,  dissenting),  cert,  denied. 
Office  of  President  v.  Office  of  Indep.  Counsel,  1 19  S.  Ct.  466  (1998)  (mem.)  (citing  United  States 
V.  Nixon,  418  U.S.  683,  708  (1974)). 

35.  418  U.S.  683  (1974). 

36.  The  Speech  and  Debate  Clause  states  that  Senators  and  Representatives  shall  be 
privileged  for  "[ajny  Speech  or  Debate  in  either  House,  [and]  they  shall  not  be  questioned  in  any 
other  Place."  U.S.  CONST,  art.  1,  §  6. 

37.  5'eeMjco/2,  418U.S.  at704. 

38.  Id  at  706. 

39.  See  id 

40.  5ee  Jaffee  V.  Redmond,  518  U.S.  1  (1996)  (observing  that  this  privilege  would  serve  the 
public  interest  by  facilitating  the  provision  of  appropriate  treatment  for  individuals  who  suffer  from 
mental  or  emotional  problems);  PROPOSED  FED.  R.  EviD.  504. 

41.  See  Trammel  v.  United  States,  445  U.S.  40  (1980)  (recognizing  two  distinct  spousal 
privileges:  testimonial  and  communications);  Proposed  Fed.  R.  Evid.  505. 

42.  See  Upjohn  Co.  v.  United  States,  449  U.S.  383  (1981)  (extending  the  attorney-client 
privilege  to  communications  made  between  corporate  counsel  and  all-level  corporate  employees, 
as  long  as  the  communications  concern  matters  within  the  scope  of  employment). 


1 999]  IN  RE  LINDSEY  297 


in  several  contexts.'"*^  Although  this  privilege  was  not  universal  and  guaranteed 
prior  to  In  re  Lindsey^^"^  case  law,  litigation  concerning  the  Freedom  of 
Information  Act,  and  secondary  authority  did  endorse  a  comprehensive 
government  attorney-client  privilege. 

Although  there  are  no  Federal  Rules  of  Evidence  that  acknowledge  a 
government  attorney-client  privilege,  precedent  on  this  subject  exists  in  both 
federal'*^  and  state"^^  case  law.  An  example  of  a  federal  case  recognizing  the 
government  attorney-client  privilege  is  Green  v.  Internal  Revenue  Service. ^^  The 
district  court,  reiterating  the  Seventh  Circuit,  recognized  the  privilege  on  the 
basis  of  important  underlying  policy  considerations."*^  The  Seventh  Circuit  had 
stressed    that    the    government    attorney-client    privilege    promotes    frank 


43.  In  re  Lindsey,  158  F.3d  1263,  1268  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of 
President  v.  Office  of  Indep.  Counsel,  1 19  S.  Ct.  466  (1998)  (mem.). 

44.  See  24  CHARLES  ALAN  WRIGHT  &  KENNETH  W.  GRAHAM,  JR.,  FEDERAL  PRACTICE  AND 

Procedure  §  5475,  at  128  (1986)  ("Whatever  the  merits  of  the  arguments  for  and  against  the 
governmental  privilege,  it  seems  likely  thdX  some  form  of  privilege  for  governmental  clients  will  be 
recognized  by  federal  courts  . . . .")  (emphasis  added), 

45.  See,  e.g..  Reed  v.  Baxter,  134  F.3d  351,  356  (6th  Cir.  1998)  (assuming  the  government 
attorney-client  privilege  exists,  but  never  explicitly  deciding);  In  re  Grand  Jury  Subpoena,  886  F.2d 
135  (6th  Cir.  1989)  (assuming  that  a  governmental  entity,  such  as  a  municipal  corporation,  may 
invoke  the  attorney-client  privilege);  Coastal  States  Gas  Corp.  v.  Department  of  Energy,  617  F.2d 
854, 863  (D.C.  Cir.  1 980)  (dicta);  In  re  Polypropylene  Carpet  Antitrust  Litig.,  1 8 1  F.R.D.  680, 694 
(N.D.  Ga.  1998)  (holding  that  the  attorney-client  privilege  applies  to  a  governmental  entity  when 
it  seeks  advice  to  protect  personal  interests  and  needs  the  same  assurance  of  confidentiality  so  it  will 
not  be  deterred  from  full  and  frank  communications);  Scott  Paper  Co.  v.  United  States,  943  F.  Supp. 
489, 499  (E.D.  Pa.),  aff'd,  943  F.  Supp.  501  (E.D.  Pa.  1 996)  ("In  claims  of  attorney-client  privilege 
by  an  organization,  such  as  a  governmental  agency  or  corporation,  the  privilege  extends  to  those 
communications  between  the  attorney  and  all  agents  or  employees  of  the  organization  who  are 
authorized  to  act  or  speak  for  the  organization  in  relation  to  the  subject  matter  of  the 
communication."). 

46.  See,  e.g..  People  ex  rel.  Dep't  of  Pub.  Works  v.  Glen  Arms  Estate,  Inc.,  41  Cal.  Rptr. 
303, 310  (Cal.  Ct.  App.  1964)  (holding  that  the  privilege  for  governmental  agencies  is  determined 
in  the  same  way  as  the  privilege  for  private  corporations);  City  of  Orlando  v.  Desjardins,  493  So. 2d 
1027,  1029  (Fla.  1986)  (finding  an  exception  under  state  open-files  statute);  District  Attorney  v. 
Board  of  Selectmen,  481  N.E.2d  1128,  1130  (Mass.  1985)  (finding  an  exception  to  the  open- 
meeting  law,  but  refusing  to  recognize  an  implicit  exception  for  non-litigation  consultation); 
Minneapolis  Star  &  Tribune  v.  Housing  &  Redevelopment  Auth.,  25 1  N.  W.2d  620, 624-25  (Minn. 
1 976)  (holding  that  state  open-meeting  laws  implicitly  exempt  meetings  between  agency  and  lawyer 
for  purposes  of  discussing  pending  litigation);  Matter  of  Grand  Jury  Subpoenas  Duces  Tecum 
Served  by  Sussex  County  Grand  Jury  on  Farber,  574  A.2d  449,  455  (N.J.  Super.  Ct.  App.  Div. 
1989)  ("[W]e  are  convinced  that  many  of  the  considerations  which  underlie  application  of  the 
attorney-client  privilege  to  corporations  militate  strongly  in  favor  of  its  extension  to  public 
entities."). 

47.  556  F.  Supp.  79  (N.D.  Ind.  1982),  aff'd,  734  F.2d  18  (7th  Cir.  1984). 

48.  See  id  at  84. 


298  INDIANA  LAW  REVIEW  [Vol.  33:291 


communications  among  those  who  make  meaningful  decisions  regarding 
governmental  functions/^  The  Seventh  Circuit  had  also  recognized  that  the 
privilege  was  designed  to  shield  from  disclosure  the  mental  processes  of 
executive  and  administrative  personnel. ^° 

An  example  of  a  state  case  upholding  the  government  attorney-client 
privilege  is  Markowski  v.  City  of  Marlin.^^  The  Texas  court  extended  the 
privilege  to  governmental  entities  because  "a  governmental  body  has  as  much 
right  as  an  individual  to  consult  with  its  attorney  without  risking  the  disclosure 
of  important  confidential  information."^^  The  Texas  court  reasoned  that  because 
a  governing  body  may  consult  privately  with  its  attorney,  logic  prescribes  that  the 
information  disclosed  should  be  protected.^^  However,  the  Texas  court  mandated 
that  a  "checking"  mechanism  be  applied  to  claims  of  the  government  attorney- 
client  privilege.^"*  In  order  to  justify  the  privilege,  the  Texas  court  required  the 
proponents  to  submit  the  alleged  privileged  documents  or  communications  to  an 
in  camera  inspection. ^^ 

Although  a  great  deal  of  general  case  law  exists,  most  of  the  law  on  the 
government  attorney-client  privilege  has  primarily  developed  from  litigation^^ 
concerning  exemption  five  of  the  Freedom  of  Information  Act^^  ("FOIA"). 
Under  this  exemption,  "inter-agency  or  intra-agency  memorandums  or  letters 
which  would  not  be  available  by  law  to  a  party  other  than  an  agency  in  litigation 
with  the  agency"^^  are  excused  from  mandatory  disclosure  to  the  public. 
"Exemption  five  does  not  itself  create  a  government  attorney-client  privilege."^^ 
Rather,  it  creates  an  effective  government  attorney-client  privilege  only  "when 
the  Government  is  dealing  with  its  attorneys  as  would  any  private  party  seeking 
advice  to  protect  personal  interests,  and  needs  the  same  assurance  of 
confidentiality  so  it  will  not  be  deterred  from  full  and  frank  communications  with 
its  counselors."^*^ 


49.  See  id. 

50.  See  id. 

51.  940  S.W.2d  720  (Tex.  App.  1997). 

52.  Id  at  726. 

53.  See  id  dX  121. 

54.  Id 

55.  See  id. 

56.  See,  e.g.,  NLRB  v.  Sears,  Roebuck  &  Co.,  421  U.S.  132,  154  (1975);  Mead  Data  Ctr., 
Inc.  V.  United  States  Dep't  of  Air  Force,  566  F.2d  242,  252-53  (D,C.  Cir.  1977);  Porter  County 
Chapter  of  Izaak  Walton  League  v.  United  States  Atomic  Energy  Comm'n,  380  F.  Supp.  630,  637 
(N.D.  Ind.  1974). 

57.  5  U.S.C.  §  552  (1994).  The  Freedom  of  Information  Act  is  a  "broadly  conceived  statute 
which  seeks  to  permit  public  access  to  much  previously  withheld  official  information."  Izaak 
Walton  League,  380  F.  Supp.  at  636. 

58.  5  U.S.C.  §  552(b)(5). 

59.  In  re  Lindsey,  158  F.3d  1263,  1269  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of 
President  v.  Office  of  Indep.  Counsel,  1 19  S.  Ct.  466  (1998)  (mem.). 

60.  Id  (quoting  Coastal  States  Gas  Corp.  v.  Department  of  Energy ,  6 1 7  F.2d  854, 863  (D.C. 


1 999]  IN  RE  LINDSEY  299 


The  proposed,  but  never  enacted.  Federal  Rule  of  Evidence  503  lends 
additional  support  for  the  government  attorney-client  privilege,  and  courts  have 
often  turned  to  it  as  evidence  of  the  black-letter  law.^'  Proposed  Federal  Rule 
503  defines  "client"  for  the  purposes  of  the  attorney-client  privilege  as  a  "person, 
public  officer,  or  corporation,  association,  or  other  organization  or  entity,  either 
public  or  private."^^  The  advisory  committee's  notes  to  the  proposed  rule  clarify 
that  the  attorney-client  privilege  extends  to  communications  of  governmental 
organizations.^^ 

Finally,  the  Restatement  (Third)  of  the  Law  Governing  Lawyers  advocates 
support  for  the  government  attorney-client  privilege.^  However,  the  commentary 
emphasizes  that  the  privilege  for  governmental  clients  is  much  narrower  than  the 
attorney-client  privilege  due  to  statutory  formulations,  such  as  open-meeting  and 
open-file  statutes,  that  reflect  a  public  policy  against  secrecy  in  many  areas  of 
governmental  activity .^^ 

As  the  above-mentioned  authority  reflects,  the  scope  of  the  government 
attorney-client  privilege  was  broad  prior  to  In  re  Lindsey.  It  protected  the 
processes  by  which  a  decision  was  reached,  extraneous  matters  considered, 
contributing  factors,  and  the  role  played  by  the  work  of  others.^^  The  government 
attorney-client  privilege  also  protected  "government  documents  reflecting 
advisory  opinions,  recommendations,  and  deliberations  comprising  part  of  a 
process  by  which  governmental  decisions  and  policies  are  formulated."^^  In 
certain  circumstances,  the  government  could  even  invoke  this  privilege  with 
regard  to  state  and  military  secrets.^* 

Although  this  privilege  was  broad,  no  legal  precedent  existed  determining 


Cir.  1980));  see  also  Confidentiality  of  the  Attorney  General's  Communications  in  Counseling  the 
President,  6  Op.  Off.  Legal  Counsel  481,  495  (1982)  ("[T]he  privilege  also  functions  to  protect 
communications  between  government  attorneys  and  client  agencies  or  departments,  as  evidenced 
by  its  inclusion  in  the  FOIA."). 

61.  See,  e.g..  In  re  Lindsey,  158  F.3d  at  1269. 

62.  Proposed  Fed.  R.  Evid.  503  (a)(  1 ). 

63.  See  PROPOSED  FED.  R.  EviD.  503  advisory  committee's  note. 

64.  See  RESTATEMENT  (Third)  of  the  Law  Governing  Lawyers  §  1 24  (Proposed  Final 
Draft  No.  1 , 1 996)  ("[T]he  attorney-client  privilege  extends  to  a  communication  of  a  governmental 

organization ").  The  American  Law  Institute  has  approved  the  chapter  of  Proposed  Final  Draft 

No.  1  of  the  Restatement  governing  the  attorney-client  privilege.  See  In  re  Grand  Jury  Subpoena 
Duces  Tecum,  1 12  F.3d  910,  916  n.4  (8th  Cir.),  cert,  denied.  Office  of  the  President  v.  Office  of 
Indep.  Counsel,  521  U.S.  1 105  (1997)  (citing  64  U.S.L.W.  2739  (1996)). 

65 .  See  RESTATEMENT  (Third)  of  the  Law  Governing  Lawyers  §  1 24  cmt.  b  (Proposed 
Final  Draft  No.  1,  1996). 

66.  See  Green  v.  IRS,  556  F.  Supp.  79,  84  (N.D.  Ind.  1982),  affd,  734  F.2d  18  (7th  Cir. 
1984)  (citing  Carl  Zeiss  Stiftung  v.  V.E.B.  Carl  Zeiss,  Jena,  40  F.R.D.  318  (D.D.C.  1966)). 

67.  Jacob  Mertens,  Jr.,  The  Law  of  Federal  Income  Taxation  §  58  A.34  ( 1 997)  (citing 
Machin  v.  Zuckert,  316  F.2d  336  (D.C.  Cir.  1963)). 

68.  See  id.  (citing  E.W.  Bliss  Co.  v.  United  States,  203  F.  Supp.  175  (N.D.  Ohio  1961)). 


300  INDIANA  LAW  REVIEW  [Vol.  33:291 


whether  this  privilege  applied  in  a  criminal  investigation.^^  The  logical 
assumption,  however,  was  that  the  government  attorney-client  privilege  applied 
in  criminal  investigations  because  a  court  had  never  carved  out  an  exception  to 
the  attorney-client  privilege  based  solely  on  the  type  of  proceeding  in  which  a 
party  claimed  the  privilege.^^  In  re  Lindsey  marked  a  fundamental  change  in  this 
assumption  as  it  created  an  exception  applicable  only  to  government  entities:  no 
attorney-client  privilege  for  criminal  investigations. 

II.  In  RE  Lindsey  AND  Its  Companion  Cases 

While  the  world's  focus  was  on  Monica  Lewinsky  and  President  Clinton, 
Independent  Counsel  Kenneth  Starr,  in  his  extended  Whitewater  investigation, 
was  attempting  to  pierce  the  government  attorney-client  privilege.  Although 
the  cases  discussed  below  are  from  the  Eighth  and  D.C.  Circuits,  they  have 
borrowed  from  each  other  and  were  ultimately  combined  to  produce  the 
holding  in  In  re  Lindsey:  the  government  attorney-client  privilege  evaporates 
in  the  face  of  a  federal  grand  jury  subpoena. 

A.  In  re  Grand  Jury  Subpoena  Duces  Tecum 

In  re  Grand  Jury  Subpoena  Duces  Tecum^^  decided  by  the  Eighth  Circuit  on 
February  13,  1997,  paved  the  way  for  In  re  Lindsey.  In  this  case,  the  Special 
Division  of  the  United  States  Court  of  Appeals  for  the  District  of  Columbia, 
pursuant  to  the  Independent  Counsel  statute,^^  ordered  Kenneth  Starr  to 
investigate  and  prosecute  matters  "relating  in  any  way  to  James  B.  McDougal's, 
President  William  Jefferson  Clinton's,  or  Mrs.  Hillary  Rodham  Clinton's 
relationships  with  Madison  Guaranty  Savings  &  Loan  Association,  Whitewater 
Development  Corporation,  or  Capital  Management  Services,  Inc."^^  The  Special 
Division  also  assigned  Kenneth  Starr  to  pursue  evidence  of  "other  violations  of 
the  law  developed  during  and  connected  with  or  arising  out  of  his  primary 
investigation,  known  generally  as  'Whitewater.'"^'*  Pursuant  to  its  investigation. 


69.  See  Lisa  E.  Toporek,  "Bad  Politics  Makes  Bad  Law:  "   A  Comment  on  the  Eighth 
Circuit 's  Approach  to  the  Governmental  Attorney-Client  Privilege,  86  GEO.  L.J.  242 1 ,  2433  ( 1 998). 

70.  See  id. 

71.  112  F.3d  910  (8th  Cir.),  cert,  denied.  Office  of  President  v.  Office  of  Indep.  Counsel, 
521  U.S.  1105(1997). 

72.  28  U.S.C.  §  592  (1994).  An  investigation  pursuant  to  this  statute  shall  be  made  of  such 
matters  as  the  "Attorney  General  considers  appropriate  in  order  to  make  a  determination  ...  on 
whether  further  investigation  is  warranted,  with  respect  to  each  potential  violation,  or  allegation  of 
a  violation,  of  criminal  law."  Id.  §  592  (a)(1).  The  Independent  Counsel  statute  expired  on  June 
30,  1999.  See  Independent  Counsel  Law  Expires  Today:  Statute  Started  During  Watergate,  Fla. 
Times  Union,  June  30,  1999,  at  A4  (reporting  the  reasons  for  enacting  the  Independent  Counsel 
statute  as  well  as  the  reasons  for  letting  it  lapse). 

73.  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 1 2  F.3d  at  91 3  (quoting  In  re  Madison  Guar. 
Sav.  &  Loan  Ass'n,  Div.  No.  94-1,  Order  at  1-2  (D.C.  Cir.  Sp.  Div.  Aug.  5,  1994)). 

74.  Id 


1999]  INRELINDSEY  301 


the  Office  of  Independent  Counsel  delivered  a  grand  jury  subpoena  duces  tecum 
to  the  White  House  that  required  production  of  "all  documents  created  during 
meetings  attended  by  any  attorney  from  the  Office  of  Counsel  to  the  President 
and  Hillary  Rodham  Clinton."^^  The  White  House  identified  nine  sets  of  notes 
in  response  to  this  subpoena,  but  ultimately  refused  to  produce  them,  claiming, 
among  other  things,  the  attorney-client  privilege/^ 

The  district  court  addressed  the  White  House's  refusal,  but  found  it 
unnecessary  to  decide  the  broad  question  presented  by  the  Office  of  Independent 
Counsel  of  whether  a  federal  governmental  entity  may  assert  the  attorney-client 
privilege  in  response  to  a  subpoena  by  a  federal  grand  jury 7^  Rather,  the  court 
concluded  that  because  Mrs.  Clinton  and  the  White  House  had  a  genuine  and 
reasonable,  albeit  mistaken,  belief  that  the  conversations  at  issue  were  privileged, 
the  attorney-client  privilege  indeed  applied/^  The  Office  of  Independent  Counsel 
appealed,  and  the  Eighth  Circuit  granted  an  expedited  review 7^ 

On  appeal,  the  Eighth  Circuit  refused  to  decide  whether  the  government 
attorney-client  privilege  applies  in  civil  litigation  pitting  the  federal  government 
against  private  parties.^^  Furthermore,  the  Eighth  Circuit  rejected  the  dissent's 
approach  of  recognizing  a  qualified  government  attorney-client  privilege  that 
would  be  subject  to  theMjcow^'  test  for  the  executive  privilege  which  balances  the 
grand  jury's  need  for  the  subpoenaed  material  against  the  White  House's  need  for 
confidentiality.^^  The  Eighth  Circuit  ultimately  held  that  "the  criminal  context 
of  the  instant  case,  in  which  an  entity  of  the  federal  government  seeks  to  withhold 
information  from  a  federal  criminal  investigation,  presents  a  rather  different 
issue"^^  and  found  that  the  government  attorney-client  privilege  indeed 
evaporates  during  a  criminal  investigation.^"*  In  re  Grand  Jury  Subpoena  Duces 
Tecum  was  the  first  federal  court  of  appeals  case  that  actually  decided  whether 
a  government  attorney-client  privilege  exists  in  a  federal  grand  jury  setting.^^ 

In  holding  that  the  attorney-client  privilege  does  not  apply,  the  court  relied 
primarily  on  the  nature  of  public  service,  stating  that  "the  general  duty  of  public 
service  calls  upon  government  employees  and  agencies  to  favor  disclosure  over 
concealment."^^  Additionally,  the  court  found  significant  the  fact  that  executive 


75.  Id.  (citation  omitted). 

76.  See  id. 

11.  Seeidai9\4. 

78.  See  id. 

79.  See  id. 

80.  Seeida.t9\l-\9. 

81.  United  States  v.  Nixon,  418  U.S.  683,  712-13  (1974). 

82.  See  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 12  F.3d  at  917-19. 

83.  /^.  at  917-18. 

84.  See  id 

85.  See  In  re  Grand  Jury  Proceedings,  5  F.  Supp.2d  21,31  (D.D.C.),  aff'd  in  part,  rev  'd  in 
part  sub  nom.  In  re  Lindsey,  158  F.3d  1263  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of 
President  v.  Office  of  Indep.  Counsel,  1 19  S.  Ct.  466  (1998)  (mem.). 

86.  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 12  F.3d  at  920  (emphasis  added). 


302  INDIANA  LAW  REVIEW  [Vol.  33:291 


branch  employees,  including  attorneys,  are  under  a  statutory  duty^^  to  report 
criminal  wrongdoing  by  other  employees  to  the  Attorney  General.^*  Although  the 
court  acknowledged  the  White  House's  concern  that  "[a]n  uncertain  privilege  . 
.  .  is  little  better  than  no  privilege  at  all,"^^  the  court  pointed  out  that 
confidentiality  will  suffer  only  in  those  situations  that  involve  criminal 
violations.^^  The  court's  practical  advice  concerning  this  possibility  was  that,  "an 
official  who  fears  he  or  she  may  have  violated  the  criminal  law  and  wishes  to 
speak  with  an  attorney  in  confidence  should  speak  with  a  private  attorney,  not  a 
government  attorney."^' 

B.  In  re  Grand  Jury  Proceedings 

The  D.C.  District  Court  decided  In  re  Grand  Jury  Proceedings^^  on  May  27, 
1998,  just  prior  to  In  re  Lindsey.  Before  In  re  Grand  Jury  Proceedings,  the 
Special  Division  of  the  United  States  Court  of  Appeals  for  the  District  of 
Columbia  expanded  Kenneth  Starr's  prosecutorial  jurisdiction  and  ordered  him 
to  conduct  investigations  concerning  "whether  Monica  Lewinsky  or  others 
suborned  perjury,  obstructed  justice,  intimidated  witnesses,  or  otherwise  violated 
federal  law."^^  The  Office  of  Independent  Counsel  then  moved  to  compel  the 
testimony  of  Bruce  Lindsey,  Deputy  White  House  Counsel  and  Assistant  to  the 
President.^"*  Lindsey  refused  to  answer  certain  questions,  citing  the  government 
attorney-client  privilege.^^  In  seeking  to  compel  Lindsey  to  testify,  the  Office  of 
Independent  Counsel  urged  the  court  to  follow  In  re  Grand  Jury  Subpoena  Duces 
Tecum  from  the  Eighth  Circuit,  by  holding  that  the  government  attorney-client 
privilege  disintegrates  in  a  criminal  context.  The  White  House  insisted  that  the 
majority '  s  reasoning  in  In  re  Grand  Jury  Subpoena  Duces  Tecum  was  flawed  and 
that  the  D.C.  Circuit  clearly  recognizes  an  absolute  government  attorney-client 
privilege  that  applies  equally  to  civil  a«<i  criminal  matters.^^ 

The  D.C.  District  Court  partially  agreed  with  the  White  House's  view  and 
confirmed  the  existence  of  an  absolute  government  attorney-client  privilege  that 


87.  See  28  U.S.C.  §  535(b)  (1994). 

88.  See  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 12  F.3d  at  920. 

89.  Mat  921. 

90.  See  id. 

91.  Id 

92.  5  F.  Supp.2d  21  (D.D.C.),  affdinpart,  rev 'din  part  sub  nom.  In  re  Lindsey,  158  F.3d 
1263  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of  President  v.  Office  of  Indep.  Counsel,  1 19  S. 
Ct.  466  (1998)  (mem.). 

93.  In  re  Lindsey,  1 58  F.3d  at  1267  (citation  omitted). 

94.  See  In  re  Grand  Jury  Proceedings,  5  F.  Supp.2d  at  24. 

95.  See  id. 

96.  See  id.  at  31-32.  The  Attorney  General  filed  an  amicus  brief  in  which  she  asked  the 
court  to  recognize  a  qualified  government  attorney-client  privilege  that  would  "balance  the  demands 
of  criminal  law  enforcement  against  the  asserted  need  for  confidentiality."  Id.  at  32  (quoting  Brief 
Amicus  Curiae  for  the  United  States,  Acting  Through  the  Attorney  General  at  7-8). 


1999]  INRELINDSEY  303 


applies  to  Freedom  of  Information  Act  cases  and  other  civil  cases  in  which 
government  attorneys  represent  government  agencies  or  employees  against 
private  litigants  in  matters  encompassing  official  government  conduct.^^  The 
court  reasoned  that  the  "President's  need  for  confidential  legal  advice  from  the 
White  House  Counsel's  Office  . . .  [is]  as  legitimate  as  his  need  for  confidential 
political  advice  from  his  top  advisers."^^  The  court  then  held  that  this 
"compelling  need  supports  recognition  of  a  governmental  attorney-client 
privilege  even  in  the  context  of  a  federal  grand  jury  subpoena."^^ 

Although  this  initial  holding  clearly  contradicts  the  decision  of  the  Eighth 
Circuit  in  In  re  Grand  Jury  Subpoena  Duces  Tecum,  the  court  illustrated  its 
unwillingness  to  recognize  an  absolute  government  attorney- client  privilege. '°° 
The  court  agreed  with  the  Eighth  Circuit  that  the  criminal/civil  distinction  is 
significant  and  that  "[m]ore  particularized  rules  may  be  necessary  where  one 
agency  of  government  claims  the  privilege  in  resisting  a  demand  for  information 
by  another."'^'  Finally,  the  court  held  that  in  the  context  of  a  grand  jury 
investigation,  where  one  government  agency  requires  information  from  another 
to  determine  whether  a  crime  has  been  committed,  the  government  attorney-client 
privilege  must  be  qualified  "in  order  to  balance  the  needs  of  the  criminal  justice 
system  against  the  government  agency's  need  for  confidential  legal  advice."'^^ 
This  is  essentially  the  same  test  proposed  by  the  dissent  in  In  re  Grand  Jury 
Subpoena  Duces  Tecum }^^ 

To  accomplish  this  balancing  test,  the  court  established  that  the  government 
attorney-client  privilege  dissipates  if  the  subpoena  proponent  can  show  "first,  that 
each  discrete  group  of  the  subpoenaed  materials  (or  testimony)  likely  contains 
important  evidence;  and  second  that  this  evidence  is  not  available  with  due 
diligence  elsewhere." '^'^  Upon  application  of  this  test,  the  court  found  that  the 
Office  of  Independent  Counsel's  submissions'^^  detailing  its  need  for  the 
conversations  between  Lindsey  and  President  Clinton  were  likely  to  elicit 
evidence  that  was  important  and  relevant  to  the  grand  jury's  investigation  and 


97.  See  id.  at  32. 

98.  Id. 

99.  Id 

100.  See  id. 

101.  Id.  (quoting  In  re  Grand  Jury  Subpoena  Duces  Tecum,  112  F.3d  910,  916  (8th  Cir. 
1997)). 

102.  In  re  Grand  Jury  Proceedings,  5  F.  Supp.2d  at  32-33. 

103.  See  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 12  F.3d  at  935  (Kopf,  J.,  dissenting), 
("A  careful  balancing  of  the  interests  of  the  White  House  and  the  IC  [is  required]  to  preserve  and 
protect  the  public  interest  that  both  governmental  entities  seek  to  promote."). 

104.  In  re  Grand  Jury  Proceedings,  5  F.  Supp.2d  at  37-38  (quoting  In  re  Sealed  Case,  121 
F.3d  729,  754  (D.C.  Cir.  1997)). 

105.  The  details  of  the  submissions  cannot  be  revealed  because  the  submissions  were  viewed 
in  camera  and  involve  matters  subject  to  Federal  Rule  of  Criminal  Procedure  6(e)(2).  See  In  re 
Grand  Jury  Proceedings,  5  F.  Supp.2d  at  38. 


304  INDIANA  LAW  REVIEW  [Vol.  33:291 


were  not  available  with  due  diligence  elsewhere.  ^°^  Therefore,  the  District  Court 
granted  the  Office  of  Independent  Counsel's  motion  to  compel  the  testimony  of 
Bruce  Lindsey.'^^ 

C  In  re  Lindsey 

In  re  Lindsey,  decided  by  the  D.C.  Circuit  on  July  27,  1998,  commenced 
when  the  Office  of  President  appealed  the  D.C.  District  Court's  compulsion  of 
Bruce  Lindsey's  testimony.'^^  In  response,  the  Office  of  Independent  Counsel 
immediately  petitioned  the  Supreme  Court  for  review  of  the  district  court's 
decision,  hoping  to  prevent  a  future  delay  resulting  from  a  possible  appeal  from 
the  D.C.  Circuit  Court.  The  Supreme  Court,  however,  denied  certiorari  from  the 
district  court  and  indicated  its  expectation  that  the  D.C.  Circuit  Court  would 
proceed  expeditiously  to  decide  this  case.*^^ 

After  exploring  the  foundation  for  the  attorney-client  privilege  and  tracking 
the  evolution  of  the  government  attorney-client  privilege,  the  D.C.  Circuit  Court 
concluded  that  the  "issue  whether  the  government  attorney-client  privilege  could 
be  invoked  [in  response  to  a  grand  jury  subpoena]  is  therefore  ripe  for 
decision.""^  In  deciding  this  issue  of  first  impression  for  the  D.C.  Circuit,  the 
court  held  that  "[w]hen  government  attorneys  learn,  through  communications 
with  their  clients,  of  information  related  to  criminal  misconduct,  they  may  not 
rely  on  the  government  attorney-client  privilege  to  shield  such  information  from 
disclosure  to  a  grand  jury."'" 

In  route  to  its  holding,  the  court  discussed  numerous  policy  considerations. 
The  court  relied  heavily  on  the  basic  duties  of  government  attorneys  and  officials 
when  defining  the  contours  of  the  government  attorney-client  privilege  in  the 
context  of  a  criminal  investigation: 

When  an  executive  branch  attorney  is  called  before  a  federal  grand  jury 
to  give  evidence  about  alleged  crimes  within  the  executive  branch, 
reason  and  experience,  duty,  and  tradition  dictate  that  the  attorney  shall 
provide  that  evidence.  With  respect  to  investigations  of  federal  criminal 
offenses,  and  especially  offenses  committed  by  those  in  government, 
government  attorneys  stand  in  a  far  different  position  from  members  of 
the  private  bar.  Their  duty  is  not  to  defend  clients  against  criminal 
charges  and  it  is  not  to  protect  wrongdoers  from  public  exposure."^ 


106.  See  id. 

107.  Seeid.z!tZ9. 

1 08.  See  in  re  Lindsey,  1 58  F.3d  1 263, 1 267  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of 
President  v.  Office  of  Indep.  Counsel,  1 19  S.  Ct.  466  (1998)  (mem.). 

1 09.  See  Office  of  President,  1 1 9  S.  Ct.  at  466. 

110.  In  re  Lindsey,  1 58  F.3d  at  1 27 1 . 

111.  /c^.  at  1278. 

112.  Id.  at  1272  (emphasis  added). 


1999]  INRELINDSEY  305 


Furthermore,  borrowing  from  Judge  Weinstein,"^  the  court  stated,  "If  there  is 
wrongdoing  in  the  government,  it  must  be  exposed  ....  [The  government 
attorney's]  duty  to  the  people,  the  law  and  his  own  conscience  requires  disclosure 
and  prosecution."*'"*  The  court  then  complimented  these  governmental  duties 
with  the  public's  interest  in  exposing  illegality  among  its  elected  and  appointed 
officials. ''^  "Openness  in  government  has  always  been  thought  crucial  to 
ensuring  that  the  people  remain  in  control  of  their  government."*'^ 

As  a  supplement  to  these  rudimentary  duties,  the  court  looked  to  several 
provisions  in  the  U.S.  Constitution  involving  oaths  in  order  to  formulate  the 
confines  of  the  government  attorney-client  privilege.  First,  the  President  and  all 
members  of  the  executive  branch  have  a  constitutional  responsibility  to  "take 
Care  that  the  Laws  be  faithfully  executed.""^  Furthermore,  the  President  swears 
that  he  "will  faithfully  execute  the  Office  of  President  of  the  United  States,  and 
will  to  the  best  of  [his]  [a]bility,  preserve,  protect  and  defend  the  Constitution  of 
the  United  States.""^  Lastly,  each  officer  of  the  executive  branch  is  bound  by 
oath  or  affirmation  to  uphold  the  U.S.  Constitution."^  Although  Judge  Tatel 
pointed  out  in  his  dissent  that  every  attorney  must  take  an  oath  to  uphold  the  U.S. 
Constitution  in  order  to  enter  the  bar  of  any  court,  the  majority  responded  that  a 
government  attorney  must  take  an  additional  oath  to  enter  into  government 
service  and  stated,  "[T]hat  in  itself  shows  the  separate  meaning  of  the  government 
attorney's  oath."'^° 

Additionally,  the  court  noted  that  the  executive  branch  adheres  to  the 
precepts  of  28  U.S.C.  section  535(b),  which  provides  that  "[a]ny  information  . . 
.  received  in  a  department  or  agency  of  the  executive  branch  of  the  Government 
relating  to  violations  of  title  1 8  [the  federal  criminal  code]  involving  Government 
officers  and  employees  shall  be  expeditiously  reported  to  the  Attorney 
General."*^*  The  court  concluded  that  this  provision  suggests  that  government 
attorneys  and  officials  have  a  duty  to  reveal  evidence  of  possible  commissions  of 
federal  crimes.  *^^ 

After  evaluating  these  policy  concerns,  the  majority  concluded  that  the 
government  attorney-client  privilege  dissolves  in  the  context  of  a  criminal 
investigation  and  is  therefore  qualified.  The  dissent  proposed  some  problems 


113.  The  Hon.  Jack  B.  Weinstein  is  a  Senior  Judge  for  the  United  States  District  Court  for 
the  Eastern  District  of  New  York. 

1 14.  In  re  Lindsey,  158  F.3d  at  1273  (emphasis  added)  (quoting  Jack  B.  Weinstein,  Some 
Ethical  and  Political  Problems  of  a  Government  Attorney,  18  ME.  L.  REV.  155,  160  (1966)). 

115.  See  id  at  1266. 

1 16.  Id  at  1274  (quoting  In  re  Sealed  Case,  121  F.3d  729,  749  (D.C.  Cir  1997)). 

1 17.  U.S.  Const,  art.  II,  §  1,  cl.  8. 

118.  Id 

119.  See  id  an.  Wlcl  2. 

120.  In  re  Lindsey,  158  F.3d  at  1273  n.3. 

121.  Id  at  1274  (quoting  28  U.S.C.  §  535(b)  (1994)). 

122.  See  id 


306  INDIANA  LAW  REVIEW  [Vol.  33:291 


with  this  holding,  particularly  that  government  officials  will  avoid  confiding  in 
government  attorneys  because  they  will  never  know  at  the  time  of  disclosure 
whether  the  information  they  share,  no  matter  how  innocent  it  appears,  may  some 
day  become  pertinent  to  possible  criminal  violations. '^^  Therefore,  the  dissent 
predicted  that  government  officials  will  shift  their  trust  on  all  but  the  most  routine 
legal  matters  from  White  House  counsel  to  private  counsel.'^'*  The  majority 
conceded  that  this  qualified  application  of  the  government  attorney-client 
privilege  may  indeed  "chill  some  communications  between  government  officials 
and  government  lawyers."^^^  However,  the  majority  ultimately  concluded  that 
government  attorneys  and  officials  will  still  enjoy  the  benefit  of  fully  confidential 
communications  between  them  unless  the  communications  reveal  information 
about  possible  criminal  wrongdoing. '^^  Moreover,  the  majority  pointed  out  that 
nothing  prevents  government  officials  who  seek  totally  confidential 
communications  from  seeking  a  private  attorney. '^^ 

In  response  to  the  D.C.  Circuit  Court's  holding,  the  Office  of  President  filed 
a  petition  for  certiorari;  however,  the  Supreme  Court  denied  certiorari.  ^^^  Justice 
Stevens,  while  respecting  the  denial  of  certiorari,  stated,  "I  believe  that  this 
Court,  not  the  Court  of  Appeals,  should  establish  controlling  legal  principle  in 
this  disputed  matter  of  law,  of  importance  to  our  Nation's  govemance."'^^ 

III.  The  Aftermath  OF/// 7^ Z/A^D5'£r 

Commentators  have  mixed  reactions  to  In  re  Lindsey.  Proponents  of /«  re 
Lindsey  have  hailed  the  outcome  because  they  believe  that  government  attorneys 
and  officials  should  answer  directly  to  the  American  public. '^°  The  opponents  of 
In  re  Lindsey  have  criticized  it,  citing  detrimental  consequences,  such  as  "chilling 
effects,"  outsourcing  of  governmental  legal  work,  revelation  of  military, 
diplomatic,  or  sensitive  national  security  secrets,  and  slippery  slope  concerns. '^^ 
Some  critics  have  been  more  extreme  with  their  remarks,  stating  that  "this  is  a 


123.  See  id.  at  1284  (Tatel,  J.,  dissenting)  (citation  omitted). 

124.  5ee /<^.  (Tatel,  J.,  dissenting). 

125.  Id.  at  1276. 

1 26.  See  id. 

127.  See  id 

128.  Office  of  President  v.  Office  of  Indep.  Counsel,  1 19  S.  Ct.  466  (1998)  (mem.). 

129.  M  (Stevens,  J.,  respecting  denial  of  certiorari). 

130.  See,  e.g. ,  Bob  Barr,  Barr  Hails  Clinton  Attorney-Client  Decision  "Government  Assets 
Not  for  Private  C/ye  "  (visited  Nov.  1,  1998)  <http://www.house.gov/barr/p_starr3.htm>. 

131.  See  Harvey  Berkman,  Lindsey  Ruling  Impact:  Outsourcing,  Nat'l  L.  J.,  Aug.  1 0, 1 998, 
at  A 12;  Marcia  Coyle,  In  the  8th  Circuit-Privilege  Ruling  Could  Touch  All  Government 
Attorneys-Whitewater  Case  Withholds  Right  That  Corporate  Clients  Have  Long  Enjoyed,  Nat'L 
L.  J.,  May  1 9,  1 997,  at  A 1 ;  Marcus,  supra  note  1 1 ,  at  A 1 ;  Walter  Pincus,  Past  Attorney-Client  Issue 
Resonates  White  House  Lawyers  Invoked  Privilege  in  Iran-Contra  Investigation,  WASH.  POST,  June 
7,  1997,  at  A3. 


1999]  INRELINDSEY  307 


mess  that  needs  fixing.'"^^  Although  the  Supreme  Court  denied  certiorari,  the 
potential  repercussions  this  decision  may  have  on  government  attorneys  and 
officials  is  still  unsettled.  Therefore,  these  consequences  would  benefit  from 
further  analysis. 

Supporters  of  a  qualified  government  attorney-client  privilege  rely  mostly  on 
the  nature  of  government  employment  as  their  arsenal.  Congressman  and  former 
U.S.  Attorney  Bob  Barr  commented,  "Taxpayer- funded  government  attorneys  do 
not  work  for  individuals  under  investigation  for  private  conduct.  They  work  for, 
and  serve,  the  taxpaying  citizens  of  this  country. "'^^  Furthermore,  recognizing 
an  absolute  privilege  for  attorney-client  communications  in  the  government 
context  would  "compromise[]  .  .  .  the  important  public  policy  of  openness  in 
government  affairs.'"^"*  While  the  majority  of  the  judicial  community  appears  to 
agree  with  the  basic  rationale  that  the  public  policy  of  open  government 
outweighs  the  public  policy  of  confidential  communications  involving  a  possible 
criminal  violation  by  a  government  official,  vehement  opposition  exists  in  the 
legal  community.  This  opposition  falls  into  these  basic  categories:  "chilling 
effects"  on  communications  between  government  attorneys  and  officials, 
outsourcing  burdens,  omission  of  protection  for  military,  diplomatic,  or  sensitive 
national  security  secrets,  and  slippery  slope  concerns. 

A.    'Vhilling Effects" 

Opponents  of  the  qualified  government  attorney-client  privilege  are  primarily 
concerned  with  the  "chilling  effects"  this  ruling  may  have  on  communications 
between  government  attorneys  and  officials.  Commentators,  expanding  upon 
Judge  Tatel's  dissent  in  In  re  Lindsey,^^^  have  responded  that  the  "chilling 
effects"  this  holding  may  induce  are  in  direct  conflict  with  the  primary  purpose 
of  the  attorney-client  privilege:  promoting  full  and  frank  communications.'^^ 
White  House  counsel  Charles  F.C.  Ruff,  in  response  to  the  Supreme  Court's 
denial  of  certiorari  in  In  re  Lindsey,  pronounced  that  "[w]e  continue  to  believe 
that  the  attorney-client  privilege  should  protect  conversations  between 
Government  officials  and  Government  attorneys.  The  American  people  benefit 


1 32.  Fix-up  Time,  Nat'l  L. J.,  Aug.  1 0,  1 998,  at  A20. 

133.  Barr,  supra  note  130;  see  also  Appendix  to  the  Hearings  of  the  Select  Committee  on 
Presidential  Campaign  Activities,  reprinted  in  THOMAS  D.  MORGAN  &  RONALD  D.  ROTUNDA, 
Professional  Responsibility  105  (6th  ed.  1995)  ("It  is  the  people  who  not  only  pay  the 
Government  lawyer's  salary  but  who  are  supposed  to  be  the  beneficiaries  of  his  legal  work  and  his 
true  client."). 

1 34.  Lory  A.  Barsdate,  Note,  Attorney-Client  Privilege  for  the  Government  Entity,  97  Yale 
L.J.  1725,  1744(1988). 

135.  Judge  Tatel  forecasted  that  the  ruling  essentially  would  deter  government  clients  from 
confiding  in  government  attorneys.  See  In  re  Lindsey,  158  F.3d  1263,  1284  (D.C.  Cir.)  (Tatel,  J., 
dissenting),  cert,  denied.  Office  of  President  v.  Office  of  Indep.  Counsel,  119  S.  Ct.  466  (1998) 
(mem.). 

1 36.  See  Marcus,  supra  note  1 1 ,  at  A 1 . 


308  INDIANA  LAW  REVIEW  [Vol.  33:291 


from  decisions  made  by  Government  officials  ...  on  the  basis  of  full  and  frank 
information  and  discussion."'^^ 

"Chilling  effects"  on  full  and  frank  communications  will  inevitably  occur 
because  potential  criminal  wrongdoing  is  not  always  conspicuous  at  the  time  of 
disclosure;  "[f]ear  of  a  future  investigation,  even  a  meritless  one,  will  make 
government  officials  practice  a  better-safe-than-sorry  approach" '^^  and  err  on  the 
side  of  nondisclosure.  The  In  re  Lindsey  majority's  rebuttal  states  that 
government  officials  will  still  enjoy  the  benefit  of  fully  confidential 
communications  with  their  attorneys,  unless  the  communications  expose 
information  relating  to  possible  criminal  wrongdoing.  '^^  While  this  lessens  the 
concern  about  "chilling  effects,"  the  practical  effect  is  that  government  officials 
will  more  likely  seek  private  counsel  if  they  even  remotely  suspect  that  a  criminal 
investigation  may  ensue. 

B.  Outsourcing  of  Governmental  Legal  Work 

The  practice  of  government  officials  seeking  private  counsel,  known  as 
outsourcing, ''^^  is  an  additional  concern  of  those  opposed  to  the  qualified 
government  attorney-client  privilege.  However,  attorneys  have  already  been 
advising  government  attorneys  and  officials  to  retain  a  private  attorney.  For 
example,  G.  Jerry  Shaw,  a  partner  in  a  D.C.  law  firm  that  represents  federal 
employees,  has  confirmed  that  "[ajttomeys  who  work  for  the  government  have 
always  known,  and  it  has  always  been  taught  to  them,  that  their  client  is  the 
government  or  agency  and  not  the  individual."'"^*  However,  even  when 
government  officials  heed  this  advice  and  hire  a  private  attorney,  they  incur  a 
tremendous  monetary  burden. '''^  Furthermore,  it  essentially  deprives  the 
government  of  critical  information  because  government  officials  will  be  less 
likely  to  give  information  freely  to  government  attorneys  based  on  the  advice  of 
their  private  attorneys, '"^^ 

In  an  effort  to  abate  this  burden  on  government  officials,  an  insurance  policy, 
which  has  been  "selling  like  hotcakes,"  has  recently  been  made  available  and 
provides  $1  million  in  liability  coverage  for  suits  arising  out  of  government 
officials'  jobs  and  pays  up  to  $100,000  for  legal  services."*"*  Furthermore, 
Congress  has  proposed  a  bill  that  reimburses  government  supervisors  and 
management  officials  for  up  to  fifty  percent  of  the  costs  incurred  by  such 


137.  Stephen  Labaton,  Administration  Loses  Two  Legal  Battles  Against  Starr,  N.  Y.  TIMES, 
Nov.  10,  1998,  at  A 19. 

138.  Toporek,  supra  note  69,  at  2436-37. 

1 39.  See  In  re  Lindsey,  1 58  F.3d  at  1 276. 

140.  See  generally  Patricia  M.  Wald,  Looking  Forward  to  the  Next  Millennium:  Social 
Previews  to  Legal  Change,  70  TEMP.  L.  REV.  1085,  1096  (1997). 

141.  Berkman,  supra  note  1 3 1 ,  at  A 1 2  (emphasis  added). 

142.  See  Toporek,  supra  note  69,  at  2438. 

143.  See  id 

1 44.  See  Berkman,  supra  note  1 3 1 ,  at  A 1 2. 


1999]  INRELINDSEY  309 


employees  for  this  professional  liability  insurance.'"*^  Although  the  availability 
of  liability  insurance  and  the  reimbursement  of  premiums  will  not  prevent 
outsourcing  of  legal  work  to  the  private  sector,  it  does  curb  the  monetary  burden 
for  government  officials,  and  therefore  weakens  the  opposition's  argument. 

C  Omission  of  Protection  for  Military,  Diplomatic,  or 
Sensitive  National  Security  Secrets 

Seeking  a  private  attorney  may  involve  a  more  potent  and  clandestine 
concern  than  mere  "chilling  effects"  and  outsourcing  burdens:  the  possibility  of 
revealing  military,  diplomatic,  or  sensitive  national  security  secrets.  This  is  the 
third  concern  opponents  of  the  qualified  government  attorney-client  privilege 
raise.  This  possibility  is  particularly  worrisome  in  a  situation  involving  a  high- 
ranking  government  official,  such  as  the  President,  Vice  President,  or  a  cabinet 
member,  because  the  communications  exchanged  often  involve  matters  that  are 
of  vital  importance  to  the  security  and  prosperity  of  the  nation.'"*^  Even 
supporters  of  a  qualified  government  attorney-client  privilege  shun  its 
applicability  to  national  security  matters.  For  example,  C.  Boyden  Gray,  White 
House  counsel  during  the  Bush  administration,  believes  that  an  absolute 
government  attorney-client  privilege  should  extend  to  communications  involving 
national  security  matters,  such  as  Iran-Contra,''*^  that  may  involve  possible 
violations  of  law.'"*^  C.  Boyden  Gray's  rationale  for  this  absolute  protection  is 
that  government  officials  will  not  have  to  acquire  two  sets  of  attorneys,  one 
government  and  one  private,  in  order  to  clear  a  top  secret.'"*^  Second,  C.  Boyden 
Gray  believes  that  absolute  protection  will  eliminate  the  inherent  riskiness  in 
relying  on  outside  attorneys  because  of  the  sensitivity,  and  consequent  exposition 
to  a  non-government  attorney,  of  the  top-secret  information  involved. '^° 
Although  Gray  supports  this  view,  he  does  not  believe  that  government  attorneys 
should  be  representing  government  officials  who  face  possible  involvement  in 


145.  See  H.R.  4278,  104th  Cong.  §  636  (1996).  This  liability  insurance  covers  any  tortious 
act,  error,  or  omission  while  in  the  performance  of  such  individual's  official  duties,  as  well  as  the 
ensuing  litigation  and  settlement  expenses.  See  id. 

1 46.  See  United  States:  Government  Lawyers  Can 't  Invoke  Privilege  when  Called  to  Testify 
Before  Grand  Jury,  1 998  U.S.L.  W.D.  (BNA),  Aug.  3,  1 998,  at  D3;  see  also  Stanley  Brand,  A  Blow 
Is  Struck  Against  Attorney-Client  Privilege  for  Government  Lawyers  in  the  Whitewater  Independent 
Counsel  Case,  44-JUN  FED.  LAW.  9  (1997)  ("[Outsourcing]  may  spark  more  government  officials 
to  seek  advice  from  private  lawyers  in  sensitive  ethics  cases  or  internal  agency  investigations  that 
have  the  potential  to  turn  into  criminal  probes.")  (emphasis  added). 

147.  In  1986,  two  secret  U.S.  Government  operations  were  publicly  exposed  in  which  the 
United  States  sold  arms  to  Iran  in  exchange  for  American  hostages  in  contravention  of  stated  U.S. 
policy  and  in  possible  violation  of  arms-export  controls.  See  1  Lawrence  E.  Walsh,  Final 
Report  of  the  Independent  Counsel  for  Iran/Contra  Matters  1-2(1 993). 

1 48.  See  Pincus,  supra  note  1 3 1 ,  at  A3. 

149.  See  id 

1 50.  See  Coy le,  supra  note  1 3 1 ,  at  A 1 . 


310  INDIANA  LAW  REVIEW  [Vol.  33:291 

criminal  matters,  even  if  the  information  involves  issues  of  national  security.'^' 

D.  Slippery  Slope  Concerns 

Less  worrisome  than  the  revelation  of  national  security  matters  is  the  slippery 
slope  problem.  Even  before  the  D.C.  Circuit  decided  In  re  Lindsey, 
commentators  cautioned  to  "[b]e  prepared  to  see  [the  Eighth  Circuit's  ruling  in 
In  re  Grand  Jury  Subpoena  Duces  Tecum]  flower  because  of  the  number  and 
breadth  of  government  investigations  that  become  criminal.  And  be  prepared  for 
the  extension  of  this  decision  .  .  .  from  criminal  to  civil  proceedings."'^^ 
Furthermore,  the  increasing  number  of  investigations  conducted  by  the  Office  of 
Independent  Counsel  also  causes  concern  for  an  over-inclusive  extension  of  this 
ruling. '^^  Although  In  re  Lindsey  will  clearly  place  restrictions  on  the 
relationship  between  government  attorneys  and  officials,  the  effects  of  these 
restrictions  are  yet  to  be  known. 

In  re  Lindsey  will  indeed  have  repercussions  for  government  attorneys  and 
officials.  However,  the  nature  of  public  service  validates  most  of  the  effects  this 
decision  will  create.  While  the  "chilling  effects,"  outsourcing  burdens,  and 
slippery  slope  concerns  can  be  minimized,  the  possibility  of  revealing  military, 
diplomatic,  or  sensitive  national  security  secrets  based  on  this  qualified 
government  attorney-client  privilege  must  be  thwarted. 

IV.  Proposed  ALTERATIONS  TO /A^i^^Z/yvD^-Er 

Many  suggestions  have  been  made  to  lessen  the  impact  that  In  re  Lindsey 
may  have  on  government  attorneys  and  officials.  Most  of  these  proposed 
solutions  incorporate  balancing  the  need  for  confidentiality  against  the  need  for 
evidence  in  criminal  cases.  However,  the  Supreme  Court  has  explicitly  rejected 
this  concept  of  applying  balancing  tests  to  the  attorney-client  privilege.'^"* 
Furthermore,  using  a  balancing  test  will  likely  compromise  the  public's  interest 
in  unmasking  illegality  among  its  elected  and  appointed  officials.  In  light  of  this 
concern,  there  still  remains  a  void  in  the  In  re  Lindsey  decision  that  must  be 
addressed  before  hindsight  regrets  its  omission  from  the  government  attorney- 
client  privilege.  This  void  can  be  filled  by  establishing  an  exception  to  the 
government  attorney-client  privilege  that  applies  when  the  information  disclosed 
deals  with  military,  diplomatic,  or  sensitive  national  security  secrets.  This  can 
be  accomplished  by  using  an  in  camera  inspection. 


151.  See  Pincus,  supra  note  1 3 1 ,  at  A3 . 

152.  Coyle,  supra  note  131,  at  Al;  see  also  Brand,  supra  note  146,  at  9  ("The  court  of 
appeals  decision  will  certainly  encourage  litigants  to  seek  to  expand  the  rationale  to  civil  cases."). 

153.  See  Coyle,  supra  note  131,  at  A 1  ("Given  the  proliferation  of  independent  counsel  .  . 
.  similar  requests  by  other  independent  counsel  for  attorney-client  materials  will  be  made  against 
numerous  government  agencies."). 

154.  See  Swidler  &  Berlin  v.  United  States,  1 18  S.  Ct.  2081,  2087  (1998). 


1 999]  IN  RE  LINDSEY  3 1 1 


A.  Balancing  Test 

One  example  of  a  balancing  test,  borrowed  from  Judge  Kopfs  dissent'^^  in 
In  re  Grand  Jury  Subpoena  Duces  Tecum,  is  to  require  a  showing  of  need  and  an 
in  camera  inspection  by  a  federal  judge  of  the  subpoenaed  materials  in  order  to 
determine  relevance  and  admissibility.'^^  The  benefit  of  using  this  approach  is 
that  every  privileged  communication  subpoenaed  in  a  criminal  investigation  will 
not  be  automatically  disclosed. '^^  Instead,  the  "judge  would  carefully  weigh  the 
importance  of  the  communication  to  the  criminal  investigation  against  the 
importance  of  confidentiality  to  encourage  full  and  frank  communications  with 
government  attorneys." '^^ 

Although  this  balancing  test  appears  "fair,"  it  must  ultimately  fail.  The  first 
reason  is  the  context  in  which  the  government  attorney-client  privilege  initially 
will  be  claimed — ^the  grand  jury.  The  grand  jury,  a  constitutional  body 
established  in  the  Bill  of  Rights,'^^  "belongs  to  no  branch  of  the  institutional 
Government,  serving  as  a  kind  of  buffer  or  referee  between  the  Government  and 
the  people."'^"  Allowing  a  government  attorney  to  withhold  relevant  criminal 
evidence  in  some  instances  would  essentially  disparage  the  grand  jury's  function 
as  a  buffer  between  the  government  and  the  people.  Furthermore,  not  only  does 
a  grand  jury  have  broad  investigatory  powers,'^'  but  government  attorneys  also 
have  a  duty  to  provide  testimony  to  the  grand  jury. '^^ 

Second,  the  Supreme  Court  has  criticized  the  practice  of  applying  a  balancing 
test  to  the  attorney-client  privilege. '^^  This  criticism  has  resulted  because  of  the 


155.  Judge  Kopf  would  require  the  special  prosecutor  to  make  an  initial  threshold  showing 
before  the  district  court  that  the  documents  are  specifically  needed,  relevant,  and  admissible. 
Furthermore,  assuming  the  prosecutor  met  this  showing.  Judge  Kopf  would  require  the  documents 
to  be  examined  in  chambers  in  order  to  determine  whether  in  fact  the  documents  are  relevant  and 
admissible.  See  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 12  F.3d  910, 926-27  (8th  Cir.)  (Kopf, 
J.,  dissenting),  cert,  denied.  Office  of  President  v.  Office  of  Indep.  Counsel,  521  U.S.  1 105  (1997); 
see  also  In  re  Grand  Jury  Proceedings,  5  F.  Supp.2d  21, 32  (D.D.C.),  aff  din  part,  rev  'din  part  sub 
nom.  In  re  Lindsey,  158  F.Bd  1263  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of  President  v. 
Office  of  Indep.  Counsel,  1 1 9  S.  Ct.  466  ( 1 998)  (mem.)  (stating  that  the  government  attorney-client 
privilege  must  be  qualified  "in  order  to  balance  the  needs  of  the  criminal  justice  system  against  the 
government  agency's  need  for  confidential  legal  advice"). 

1 56.  See  Toporek,  supra  note  69,  at  2439. 

157.  SeeiddXlAAQ. 

158.  Id 

159.  See  U.S.  CONST,  amend.  V  ("No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indictment  of  a  Grand  Jury  . . . ."). 

160.  In  re  Lindsey,  158  F.3d  at  1271. 

161.  See  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 12  F.3d  at  918.  Furthermore,  "[t]he 
principle  that  the  public  is  entitled  to  'every  man's  evidence'  is  'particularly  applicable  to  grand 
jury  proceedings.'"  Id.  at  919  (quoting  Branzburg  v.  Hayes,  408  U.S.  665,  688  (1972)). 

1 62.  See  Marcus,  supra  note  1 1 ,  at  A 1 . 

163.  See  In  re  Lindsey,  158  F.3d  at  1268. 


312  INDIANA  LAW  REVIEW  [Vol.  33:291 


uncertainty  a  client  may  have  at  the  time  of  disclosure  as  to  whether  the 
information  will  later  become  relevant  to  a  civil  or  criminal  matter,  let  alone 
whether  it  will  be  of  substantial  importance.  ^^  Balancing  the  importance  of  the 
information  against  client  interests  introduces  substantial  uncertainty  into  the 
privilege's  application;  therefore,  the  use  of  a  balancing  test  is  not  applicable 
when  defining  the  contours  of  the  attorney-client  privilege.'^^ 

B.  In  Camera  Inspection 

Although  good  grounds  exist  for  not  employing  a  balancing  test,  the  issue  of 
disclosing  military,  diplomatic,  or  sensitive  national  security  secrets,  which  In  re 
Lindsey  left  open,  is  still  not  resolved.  The  possibility  of  disclosure,  which  Part 
III  of  this  Note  addresses,  is  a  realistic  concern  that  the  Supreme  Court  addressed 
United  States  v.  Nixon}^^ 

In  determining  whether  President  Nixon  must  disclose  audiotapes  concerning 
the  break-in  at  Watergate,  the  Court  held  that  the  assertion  of  the  executive 
privilege  must  ultimately  yield  to  the  specific  need  for  evidence  in  a  criminal 
investigation,  unless  the  investigation  encompasses  military,  diplomatic,  or 
sensitive  national  security  secrets. '^^  The  basis  of  this  sensitive  information 
exception  is  rooted  in  the  nature  of  the  President's  work.  "The  President,  both 
as  Commander-in-Chief  and  as  the  nation's  organ  for  foreign  affairs,  has 
available  intelligence  services  whose  reports  are  not  and  ought  not  to  be 
published  to  the  world."'^^  Furthermore,  "[i]t  may  be  possible  to  satisfy  the 
court,  from  all  the  circumstances  of  the  case,  that  there  is  a  reasonable  danger  that 
compulsion  of  the  evidence  will  expose  military  matters  which,  in  the  interest  of 
national  security,  should  not  be  divulged."'^^ 

Although  the  government  attorney-client  privilege  does  not  necessarily 
involve  information  exchanged  between  the  President  and  his  advisors,  it  does 
involve  information  exchanged  between  government  officials  and  government 
attorneys.  High-ranking  government  officials,  such  as  the  Secretary  of  Defense, 


1 64.  See  Swidler  &  Berlin  v.  United  States,  1 1 8  S.  Ct.  208 1 ,  2087  ( 1 998). 

1 65.  See  id. ;  see  also  Jaffee  v.  Redmond,  5 1 8  U.S.  1  ( 1 996).  The  Court  in  Jaffee  stated 
if  the  purpose  of  the  privilege  is  to  be  served,  the  participants  in  the  confidential 
conversation  must  be  able  to  predict  with  some  degree  of  certainty  whether  particular 
discussions  will  be  protected"  because  "an  uncertain  privilege,  or  one  which  purports 
to  be  certain  but  results  in  widely  varying  applications  by  the  courts,  is  little  better  than 
no  privilege  at  all. 

Id.  at  17-18.  See  also  Upjohn  Co.  v.  United  States,  449  U.S.  383,  393  (1981)  ("[T]he  attorney  and 
client  must  be  able  to  predict  with  some  degree  of  certainty  whether  particular  discussions  will  be 
protected."). 

166.  418  U.S.  683(1974). 

167.  See  id  at  706. 

168.  Id  at  710  (quoting  Chicago  &  S.  Air  Lines  v.  Waterman  S.S.  Corp.,  333  U.S.  103,  1 1 1 
(1948)). 

169.  Id  at  71 1  (quoting  United  States  v.  Reynolds,  345  U.S.  1,  10  (1953)). 


1999]  INRELINDSEY  313 


Joint  Chiefs  of  Staff,  Secretary  of  State,  or  National  Security  Advisor,  often  have 
unrestricted  access  to  top-secret  information  concerning  the  military,  foreign 
affairs,  or  national  security.  Therefore,  it  is  reasonable  that  if  such  officials  are 
called  upon  to  testify  in  a  criminal  investigation,  they  should  also  be  extended  the 
protection  that  the  President  is  afforded  under  the  executive  privilege.'^^ 

Furthermore,  the  In  re  Lindsey  court  affirmatively  borrowed  the  concept  of 
evaporating  the  attorney-client  privilege  in  a  criminal  context  from  the  Supreme 
Court's  formulation  of  the  executive  privilege  in  United  States  v.  Nixon,^^^  but 
neglected,  without  apparent  explanation,  to  adopt  the  other  important  facet  of  the 
executive  privilege — absolute  protection  for  military,  diplomatic,  and  sensitive 
national  security  secrets.  The  In  re  Lindsey  court  gave  no  reason  why  it  only 
adopted  one-half  of  the  executive  privilege  formula.  Whether  by  oversight  or 
intent,  divulgence  of  secret  matters  is  a  realistic  possibility  that  the  court  in  In  re 
Lindsey  should  have  discussed. 

This  concept  of  extending  absolute  protection  to  communications  involving 
secret  matters  is  not  distinctive  to  the  executive  privilege.  "In  certain 
circumstances,  the  Government  may  invoke  its  governmental  privilege  with 
regard  to  the  discovery  of  informants  and  state  and  military  secrets."'^"  Other 
courts  have  also  acknowledged  that  disclosing  secrecy  matters  could  be  harmful 
to  the  government  and  consequently  have  devised  methods  to  prevent  this  from 
occurring. '^^ 

In  order  to  extend  this  needed  protection  to  matters  concerning  military, 
diplomatic,  or  sensitive  national  security  secrets,  a  method  should  be  utilized 
which  will  not  compromise  the  public's  right  to  unveil  wrongdoing  among 
government  officials.  Several  courts  have  held  that,  given  the  strong  competing 
interests  to  be  balanced,  the  government  attorney-client  privilege  should  require 
examination  of  the  subpoenaed  documents  in  camera.''"^  "The  court  must  give  . 
. .  consideration  to  an  appropriate  method  by  that  which  is  legitimately  privileged, 
such  as  . . .  intragovernmental  policy  discussions,  [which]  may  be  shielded  while 
the  relevant  factual  data  is  disclosed.  In  this  connection,  the  court  may  want  to 
use  the  in  camera  examination  device."'^^    Therefore,  whenever  information 


1 70.  C.  Boyden  Gray,  White  House  counsel  during  the  Bush  administration,  believes  that  an 
absolute  government  attorney-client  privilege  should  be  extended  to  communications  that  involve 
national  security  matters.  See  Pincus,  ^wpra  note  131,  at  A3. 

171.  See  In  re  Lindsey,  1 58  F.3d  at  1 266. 

1 72.  Mertens,  supra  note  67,  at  §  58A.34  (citing  E.W.  Bliss  Co.  v.  United  States,  203  F. 
Supp.  175  (N.D.Ohio  1961)). 

173.  See,  e.g..  United  States  v.  Reynolds,  345  U.S.  1,  6-7  (1953)  (holding  that  there  is  a 
governmental  privilege  for  state  and  military  secrets);  People  ex  rel.  Dep't  of  Pub.  Works  v.  Glen 
Arms  Estate,  Inc.,  41  Cal.  Rptr.  303  (Cal.  Ct.  App.  1964)  (applying  an  in  camera  inspection  to  state 
secrets  and  official  communications). 

1 74.  See,  e.g.,  Scott  Paper  v.  United  States,  943  F.  Supp.  489,  498  n.8  (E.D.  Pa.),  aff'd,  943 
F.  Supp.  501  (E.D.  Pa.  1996). 

175.  Id.  (quoting  United  States  V.  O'Neill,  619  F.2d  222, 230  (3d.  Cir.  \9^Q)),seealso  Inre 
Franklin  Nat'l  Bank  Sec.  Litig.,  478  F.  Supp.  577, 582  (E.D.N.  Y.  1 980)  ("Given  the  clash  of  strong 


314  INDIANA  LAW  REVIEW  [Vol.  33:291 


potentially  contains  military,  diplomatic,  or  sensitive  national  security  secrets,  the 
judge  would  determine  what  exactly  should  be  disclosed,  such  as  basic  facts, 
without  compromising  the  sensitivity  of  the  information,  but  nevertheless 
satiating  the  public's  right  to  unveil  illegality  among  government  officials. 

Using  a  balancing  test  to  eradicate  the  negative  effects  of /«  re  Lindsey  may 
not  be  a  viable  alternative  for  two  primary  reasons:  the  specialized  function  of 
the  grand  jury  and  the  criticism  by  the  Supreme  Court  concerning  application  of 
balancing  tests  to  the  attorney-client  privilege.  However,  by  holding  that  the 
government  attorney-client  privilege  evaporates  in  the  context  of  a  criminal 
investigation,  the  In  re  Lindsey  court  left  open  a  possibility  that  has  been 
criticized  before — revelation  of  diplomatic,  military,  or  sensitive  national  security 
secrets. '^^  The  possibility  of  revealing  such  information  needs  to  be  addressed 
before  hindsight  regrets  its  omission  from  the  government  attorney-client 
privilege.  In  order  to  accomplish  this,  whenever  the  government  attorney-client 
privilege  is  claimed  in  a  response  to  a  criminal  investigation  involving 
diplomatic,  military,  or  sensitive  national  security  secrets,  the  courts  should 
create  an  exception  to  the  government  attorney-client  privilege  that  requires 
judges  to  conduct  an  in  camera  review.  An  in  camera  review  will  ensure  that  the 
sensitivity  of  the  information  is  not  compromised  because  judges  will  censor 
what  should  be  disclosed. 

Conclusion 

Regardless  of  the  proposed  alterations  to  the  government  attorney-client 
privilege,  there  will  be  consequences  to  the  relationship  between  government 
attorneys  and  officials.  In  order  to  alleviate  these  ensuing  changes,  a  few  simple 
procedures  should  be  followed.  First,  government  attorneys  should  establish  a 
plan  for  identifying  and  reporting  to  senior  attorneys  any  legal  matters  that 
involve  a  criminal  inquiry.'^''  Those  matters,  and  the  work  of  government 
attorneys  in  connection  with  them,  can  then  be  monitored  with  the  understanding 
that  the  government  attorney-client  privilege  may  not  be  available. '^^  Second, 
government  attorneys  should  warn  government  officials  from  the  outset  that  they 
represent  the  governmental  entity,  not  the  individual  official;  therefore, 
government  attorneys  can  steer  individuals  toward  private  counsel  if  needed. '^^ 
If  government  attorneys  follow  this  approach,  it  may  sometimes  make  it  more 
difficult  to  obtain  information  from  government  officials;  however,  it  should  then 
minimize  the  risk  that  a  government  attorney  could  be  criticized  for  not  putting 
an  official  on  notice  that  his  discussion  with  the  government  attorney  was  not 


competing  interests,  the  official  information  privileged  usually  requires  examination  of  the 
documents  in  camera."). 

1 76.  See  supra  text  accompanying  notes  1 68-75. 

1 77.  See  Lance  Cole,  The  Government-Client  Privilege  After  Office  of  the  President  v.  Office 
of  the  Independent  Counsel,  22  J.  LEGAL  PROF.  15,  26  (1998). 

178.  See  id. 

179.  See  id.  2X2%. 


1999]  INRELINDSEY  315 


privileged  J^°  As  far  as  government  officials  are  concerned,  they  should  heed  the 
advice  of  the  Eighth  Circuit,  "An  official  who  fears  he  or  she  may  have  violated 
the  criminal  law  and  wishes  to  speak  with  an  attorney  in  confidence  should  speak 
with  a  private  attorney."'^'  Following  these  simple  recommendations  will  not 
entirely  eradicate  the  proposed  effects  of  the  qualified  government  attorney-client 
privilege,  but  it  will  ease  the  transition  to  limited  protection  for  communications 
between  government  attorneys  and  officials  that  encompass  criminal  wrongdoing. 

In  conclusion,  although  the  government  attorney-client  privilege  contains  an 
exception,  dissolution  of  the  privilege  in  the  face  of  a  criminal  investigation,  that 
the  attorney-client  privilege  does  not  contain,  the  differences  between  the  two 
privileges  are  ultimately  dispositive.  The  bottom  line  is  that  taxpayer-funded 
government  attorneys  and  officials  work  for,  and  serve,  the  taxpaying  citizens  of 
this  country.  Therefore,  a  qualified  government  attorney-client  privilege  in  a 
criminal  context,  which  In  re  Lindsey  establishes,  is  warranted  because  of  the 
public's  right  to  uncover  illegality  among  its  elected  and  appointed  government 
officials. 

Although  there  has  been  much  opposition  to  In  re  Lindsey,  much  of  the 
criticism,  such  as  "chilling  effects"  and  outsourcing  burdens,  can  be  tempered. 
The  major  solutions  proposed  to  eradicate  these  potential  effects,  such  as 
balancing  tests  that  weigh  the  grand  jury's  need  for  the  evidence  against  the  need 
to  protect  full  communications  between  government  attorneys  and  officials,  are 
equally  problematic.  However,  this  does  not  resolve  the  issue.  The  In  re  Lindsey 
court  notably  left  out  an  important  possibility  in  its  construction  of  the  qualified 
government  attorney-client  privilege — revelation  of  military,  diplomatic,  or 
sensitive  national  security  secrets.  This  oversight  has  a  left  a  void  in  the  In  re 
Lindsey  decision  that  needs  to  be  filled.  To  fill  this  void,  courts  should  create  an 
exception  to  the  government  attorney-client  privilege  that  will  protect  military, 
diplomatic,  and  sensitive  national  security  secrets  by  requiring  judges  to  employ 
an  in  camera  inspection.  An  in  camera  inspection  will  safeguard  the  sensitivity 
of  such  information  because  judges  can  censor  it  before  disclosure. 
Unfortunately,  because  Monica  Lewinsky  is  not  a  military,  diplomatic,  or 
sensitive  national  security  secret,  even  this  formulation  of  the  government 
attorney-client  privilege  would  not  have  prevented  Bruce  Lindsey  from  testifying 
about  the  "inappropriate"  relationship  between  President  Clinton  and  Monica 
Lewinsky  had  President  Clinton  not  admitted  to  it. 


180.  See  id.  at  28-29. 

181.  In  re  Grand  Jury  Subpoena  Duces  Tecum,  1 12  F.3d  910,  921  (8th  Cir.),  cert,  denied, 
OfficeofPresidentv.Officeoflndep.  Counsel,  521  U.S.  1105(1997).  SeealsoInreUn(\sQy,  158 
F.3d  1263,  1276  (D.C.  Cir.)  (per  curiam),  cert,  denied.  Office  of  President  v.  Office  of  Indep. 
Counsel,  119  S.  Ct.  466  (1998)  (mem.)  ("[Njothing  prevents  government  officials  who  seek 
completely  confidential  communications  with  attorneys  from  consulting  personal  counsel."). 


RocKiN'  Down  the  Highway:  Forging  a  Path 
FOR  THE  Lawful  Use  of  MP3  Digital  Music  Files 


Mary  Jane  Frisby* 


Only  the  Beginning:  An  Introduction 

Since  the  late  1990s  there  has  been  an  uproar,  widely  reported  in  the  popular 
media,  over  the  widespread  copying  and  transmission  of  pre-recorded  music  onto 
high-quality  computer  files  known  as  MP3  files.  With  angry  representatives  of 
the  music  industry  on  one  side  and  defiant  copyright  infringers  on  the  other,  the 
law  that  pertains  to  digital  music  has  been  misunderstood  and  sometimes  ignored. 
The  purpose  of  this  Note  is  to  provide  some  guidance  to  MPS  users  on  what  is 
required  for  lawfully  copying  and  transmitting  MPS  music  files  by  applying  the 
current  law  to  digital  recordings  and  analyzing  how  recent  acts  of  Congress  have 
further  sharpened  the  issues  surrounding  the  use  of  MPS  files  on  the  Internet.  An 
underlying  theme  throughout  the  paper  will  be  the  continuing  importance  of 
preserving  opportunities  for  the  fair  use  of  digital  music. 

This  Note  is  organized  into  eight  Parts.  Part  I  briefly  introduces  MPS  files, 
including  how  they  are  made,  acquired,  and  played.  The  controversy  in  both  the 
music  industry  and  in  the  popular  media  is  also  described.  Part  II  provides  a 
short  primer  on  the  music  industry  and  outlines  the  relationship  between  the 
industry's  two  principal  players,  music  publishers  and  record  companies. 

Part  III  provides  a  somewhat  longer  primer  on  the  complicated  law  of 
copyrights  for  music  recordings.  Even  attorneys  who  have  a  basic  familiarity 
with  the  Copyright  Act  are  frequently  confused  by  the  distinctions  the  Act  makes 
between  the  rights  that  accompany  musical  works  and  those  that  accompany 
sound  recordings;  this  distinction  only  grows  more  confusing  as  the  law 
endeavors  to  enter  the  realm  of  digital  audio  recordings.  This  Part  begins  by 
attempting  to  sort  out  and  explain  the  rights  of  the  two  principal  players.  Next 
is  a  simplified  description  of  the  complex  system  of  voluntary  and  compulsory 
licenses  used  by  the  music  publishing  industry,  followed  by  a  brief  definition  of 
infringements  Finally,  an  introduction  to  the  doctrine  of  fair  use  is  provided. 

Part  IV  demonstrates  how  common  uses  of  MPS  files,  particularly  the 
transmission  of  MPS  files  over  the  Internet,  fit  into  the  framework  of  copyrights 
and  licensing.  More  specifically,  the  licensing  provisions  of  the  Digital 
Performance  Rights  in  Sound  Recordings  Act  of  1 995  is  used  to  demonstrate  the 
licensing  framework  in  which  non- infringing  transmissions  of  MPS  files  can 
occur.  Part  V  turns  to  infringing  uses  of  MPS  files  and  assesses  the  potential 
liabilities  of  various  entities  in  the  online  world,  including  the  owners  of  web 
sites,  Internet  Service  Providers,  and  home  users.  The  difficulty  of  using 
traditional  enforcement  methods  in  the  online  environment  is  emphasized.  Part 
VI  briefly  recounts  how  the  music  industry  is  turning  to  technology  to  prevent 
future  copyright  infringement  rather  than  focusing  on  finding  remedies  for  past 
infringements. 


*     J.D.  Candidate,  2000,  Indiana  University  School  of  Law— Indianapolis;  B.A.,  1994, 
Indiana  University.  This  Note  is  dedicated  to  my  music  muse,  Yun  Hui. 


3 1 8  INDIANA  LAW  REVIEW  [Vol.  33:317 


Part  VII  introduces,  somewhat  skeptically,  the  latest  salvo  in  the  war  to 
prevent  the  piracy  of  digital  sound  recordings:  the  Digital  Millennium  Copyright 
Act  (DMCA),  which  was  enacted  in  November  1998  and  will  become  effective 
in  October  2000.  The  basic  provisions  of  the  DMCA  relevant  to  MP3  users  are 
described,  including  sections  that  shield  Internet  Service  Providers  in  certain 
circumstances  from  liability  for  infringing  web  sites,  the  creation  of  an  additional 
statutory  license  for  certain  transmissions  of  digital  recordings,  and  how  the 
circumvention  of  copyright  protection  devices  has  been  criminalized.  The 
DMCA  also  purports  to  accomplish  these  protections  while  still  protecting 
traditional  notions  of  fair  use. 

Part  VIII  assesses  the  impact  of  the  DMCA  on  the  fair  use  of  MP3 -formatted 
sound  recordings.  The  dilemma  faced  by  Congress  is  how  to  balance  a  locked-up 
"pay-per-use"  Internet,  which  was  envisioned  by  some  as  the  likely  future  of  the 
World  Wide  Web,  with  the  need  to  protect  fair  use.  A  danger  exists  that  fair  use 
in  such  a  system  would  require  a  narrow,  regulated,  status-based  regime  that 
would  have  to  determine  who  would  be  "eligible"  to  make  fair  use  of  copyrighted 
works. 

The  conclusion  contains  the  hope  that  during  the  time  before  the  DMCA  goes 
into  effect  Congress  will  formulate  a  policy  able  to  amply  protect  the  rights  of 
copyright  owners  while  still  permitting  individuals  to  make  fair  use  of  digital 
materials  without  undue  regulation  or  a  "locked  up"  Internet.  There  may  be  other 
ways  to  compensate  copyright  owners  while  preventing  a  pay-per-view  Internet. 
In  fact,  the  best  solution  may  be  for  the  recording  industry  to  accept  the  MP3 
format  and  begin  to  exploit  it  itself.  The  appendix  contains  a  table  outlining  the 
respective  licensing  regimes  of  the  two  different  types  of  copyright  owners  in 
sound  recordings. 

I.  ANEW  Sensation:  Introducing  MP3  Files 

A  powerful  new  computer  file  format  for  digitally  storing  music  has  swept 
through  the  online  community,  captured  the  attention  of  the  popular  culture,  and 
in  the  process,  raised  the  ire  of  many  leaders  in  the  recording  industry.^  This  file 
format  is  being  used  to  create  super-compressed  digital  copies  of  pre-recorded 
works  that  have  the  same  sound  quality  as  tracks  found  on  compact  discs 
("CDs").  These  files  are  known  as  MP3  files. 

MP3  stands  for  MPEG  1  layer  3,  which  is  an  abbreviation  of  "Motion  Picture 
Experts  Group  Layer  3  Compression  Format."^  It  is  a  file  format  for  digitally 
storing  music  in  computer  files,  which  as  a  result  are  named  with  the  extension 


1 .  See,  e.g..  Blame  It  on  Rio,  NEWSWEEK,  Nov.  9,  1998,  at  8;  David  Bowie,  Bowie  Wants 
to  Rock  Music  World  with  World  Wide  Web,  INDPLS.  STAR,  Jan.  24,  1999,  at  13;  Ron  Harris,  Tech 
Advances  May  Reform  Shopping  for  Music,  iNDPLS.  STAR,  Dec.  1 2, 1 998,  at  C 1 ;  John  Pareles,  With 
a  Click,  a  New  Era  of  Music  Dawns,  N.Y.  TIMES,  Nov.  15,  1998,  at  ARl. 

2 .  See  T.  R.  Reid,  Record  Company  Execs  Infuriated  by  the  Newest  PC  Buzzword:  'MP 3. ' 
The  Daily  Record  (Baltimore),  May  19,  1998,  at  2B,  available  in  1998  WL  9507824;  MPS  for 
Beginners  (visited  July  28,  1999)  <http://www.mp3.com/faq/general.html>. 


1 999]  MP3  DIGITAL  MUSIC  FILES  3 1 9 


".mp3."  MP3  files  have  an  advantage  over  the  standard  WAV^  music  files 
because  the  quality  of  sound  they  contain  is  near  perfect,  and  since  they  are 
compressed,  take  up  very  little  space — a  ratio  of  twelve  WAV  files  to  one  MP3 
file. 

MP3  files  are  easy  to  make.  Provided  one  has  a  computer  with  a  suitable 
CD-ROM  drive,  MP3  files  can  be  made  by  transforming  tracks  from  an  ordinary 
CD  into  WAV  files  (a  process  called  "ripping"  that  uses  CD  ripper  software, 
such  as  WinDac32),  and  then  using  MP3  encoder  software  to  compress  the  WAV 
files  into  MP3  files.  Alternatively,  MP3  files  can  be  encoded  directly  from  a  CD 
with  MP3  compressor  software."^  The  process  can  also  be  reversed.  MP3  files 
can  be  transferred  into  WAV  files,  or  even  written  onto  a  regular  audio  CD.^ 

In  addition  to  making  MP3  files  by  ripping  tracks  from  CDs,  MP3  files  can 
be  acquired  directly  over  the  Internet.  For  instance  MP3.com  offers  a  complete 
catalog  of  MP3  music,  organized  both  by  song  titles  and  artists  and  by  genre  and 
region.^  Plenty  of  other  MP3  files  can  be  found  posted  on  other  web  sites, 
including  "renegade"  sites  with  bootlegged  music,  legitimate  sites  such  as 
MP3.com  and  e-music.com  and  those  sponsored  by  recording  artists  or  record 
companies.  Some  music  has  had  its  first  release  in  the  MP3  file  format, 
including  a  recent  album  released  online  by  Public  Enemy  and  an  electronic 
label.  Atomic  Pop.^ 

To  play  an  MP3  file  on  a  computer  requires  a  simple  player  that  can  be 
downloaded  as  shareware  (such  as  WinAmp)  to  uncompress  files.^  MP3s  do  not 
require  a  computer  to  play  them,  however.  Recently,  Diamond  Multimedia 
Systems,  Inc.  has  released  a  small  portable  MP3  player,  named  the  Rio.^ 
Creative  has  introduced  an  even  smaller  portable  player  called  the  Nomad. '° 

In  a  brief  time,  MP3  has  become  a  household  word  and  is  among  the  top 
terms  searched  on  the  World  Wide  Web.''  The  magazine  Entertainment  Weekly 


3.  WAV  is  "[t]he  format  for  storing  sound  in  files  developed  jointly  by  Microsoft  and  IBM. 
. . .  WAV  sound  files  . . .  can  be  played  by  nearly  all  Windows  applications  that  support  sound." 
<http://webopedia.intemet.com/TERM/WAVAV.html>. 

4.  See  Making  MPSs  (visited  July  28,  1999)  <http://www.mp3.com/faq/making.html>. 

5.  See  id. 

6.  See  Find  Music  (visited  July  28,  1999)  <http://www.mp3.com/faq/findmusic.html> 

7.  See  Zack  Stentz,  Net  Effect,  NEWSWEEK,  May  14,  1999,  at  24.  Even  a  comic  strip 
character — Doonesbury's  aging  rock  star  Jimmy  Thudpucker — released  music  on  the  web  in  a 
series  of  strips  during  the  summer  of  1999.  See  Garry  Trudeau,  Doonesbury,  INDPLS.  Star,  July 
5,  1999,  at  E8. 

8.  See  MPS  Player  Setup  (visited  July  28, 1 999)  <http://www.mp3  .com/faq/gettingstarted 
html> 

9.  See  Harris,  supra  note  1 ,  at  C 1 . 

10.  See  Join  the  Happy  Wanderers,  NEWSWEEK,  July  26,  1999,  at  16.  An  MP3  player  is 
even  available  for  cars  from  a  British  company  called  Empeg  at  www.empeg.com. 
<http://www.empeg.com>. 

1 1 .  "To  the  surprise  of  nearly  everyone  connected  to  the  Web,  MP3  has  replaced  sex  as  the 
most  frequently  searched  term  on  the  Internet,  according  to  market  researcher  Searchterms.com." 


320  INDIANA  LAW  REVIEW  [Vol.  33:3 17 


now  devotes  regular  coverage  of  the  MP3  worldJ^  According  to  its  enthusiasts, 
the  MP3  format  has  become  the  dominant  form  of  digital  music  file  found  on  the 
Internet: 

MP3  is  an  open  standard,  meaning  no  one  organization  controls  it.  On 
the  Internet,  open  standards  win  and  this  is  why  even  without  any 
significant  corporate  backing,  MP3  is  already  the  de  facto  [music  file 
format].  There  are  more  MP3  listeners,  software  programs,  and 
hardware  devices  than  any  other  CD  quality  audio  format  in  the  world. 
Microsoft  has  also  built  MP3  support  into  Windows  98.'^ 

Naturally,  multiple  legal  ramifications  accompany  this  success.  The  high- 
quality  sound,  the  compressed  format,  and  the  ease  and  speed  with  which  MP3 
files  can  be  reproduced  and  distributed  around  the  globe  via  the  Internet  poses 
a  significant  threat  to  the  copyright  owners  of  songs  and  sound  recordings.  The 
Recording  Industry  Association  of  America  (RIAA)  has  cracked  down  on  web 
sites  that  post  MP3  versions  of  copyrighted  songs  by  getting  temporary 
restraining  orders.''*  But  RIAA  also  recognizes  that  online  distribution  is  the 
future  of  the  business.'^  Nevertheless,  the  threat  of  infringement  is  growing. 
Until  recently,  the  danger  of  computer  piracy  seemed  confined  to  a  relatively 
small  niche  of  advanced  computer  users  and  web  surfers.  In  the  near  future, 
however,  creating  and  playing  MP3  files  will  become  as  easy,  and  possibly  as 
commonplace  as  the  making  of  a  cassette  tape  from  a  CD.  An  example  of  this 
technology  reaching  the  everyday  music  listener  is  the  recent  public  release  of 
the  Rio,  a  tiny  three-ounce  portable  digital  music  player,  by  Diamond  Multimedia 
Systems,  Inc.,  a  California-based  electronics  company.  '^  Resembling  a  miniature 
palm-sized  Sony  Walkman,  the  Rio  is  able  to  store  and  play  up  to  sixty  minutes 
of  digitally-recorded  music. '^  Alarmed  at  the  prospect  of  mass-market  copying 
of  music,  RIAA  asked  the  U.S.  District  Court  for  the  Central  District  of 
California  to  enjoin  Diamond  from  releasing  the  Rio.'^  Although  a  temporary 


Warren  Cohen,  They  Want  Their  MP3,  U.S.  NEWS  ONLINE,  July  26,  1999  (visited  Jan.  7,  2000) 
<http://www.usnews.com/usnews/issue/990726/mp3.htm>. 

12.  See,  e.g.,  Chris  Willman,  A  New  Format  Lets  Any  Dorm-room  Netnik  Download  and 
Duplicate  Music,  ENTERTAINMENT  Wkly.,  Nov.  27,  1998,  at  92  (the  magazine's  first  article  on 
MP3).  The  magazine  now  routinely  covers  MP3  news  in  its  Internet  section.  See,  e.g.,  several 
mentions  in  the  Nov.  5,  1999  issue  at  89. 

13.  Michael  Robertson,  Top  10  Things  Everyone  Should  Know  About  MPS  (visited  July  28, 
1 999)  <http://www.mp3.com/news/070.html>. 

14.  See  John  F.  Delaney  &  Adam  Lichstein,  The  Law  of  the  Internet:  A  Summary  of  U.S. 
Internet  Caselaw  and  Legal  Developments,  505  PLI/PAT  79,  104  (1998). 

1 5.  See  Jason  Chervokas,  New  CD-Copying  Trend  Threatens  Record  Industry,  Chi.  Trib., 
Apr.  17,  1998,  at  70,  available  in  1998  WL  2846958. 

16.  See  Michael  S.  Mensik  &  Jeffrey  C.  Groulx,  From  the  Lightweight  'Rio'  Flows 
Heavyweight  Battle,  Nat'L  L.J.,  Dec.  14,  1998,  at  B5. 

1 7.  See  id. 

18.  See  id.;  Recording  Indus.  Ass'n  of  Am.,  Inc.  v.  Diamond  Multimedia  Sys.  Inc.,  29  F. 


1999]  MPS  DIGITAL  MUSIC  FILES  321 


restraining  order  was  granted,  at  the  full  liearing  for  a  preliminary  injunction,  the 
court  denied  the  relief  the  recording  industry  sought  on  the  grounds  that  the  Rio 
is  a  neutral  recording  and  playback  device,  not  a  device  for  making  downstream 
copies.*^  This  interpretation  was  upheld  by  the  Ninth  Circuit  in  June  1999.^° 
Although  RIAA  did  not  yet  prevail  against  the  Rio,  this  case  will  likely  be  one 
skirmish  in  a  long  battle  between  the  recording  industry  and  the  consumer 
electronics  industry  over  the  future  use  of  MP3  files. 

It  is  important  to  recognize  that  the  MP3  format  is  itself  legally  neutral.  For 
instance,  the  use  of  MIDI  technology  to  record  music  played  on  electronic 
instruments  directly  into  a  computer  file  is  a  method  of  creating  original  music 
as  an  MP3-formatted  recording.  Similarly,  copyrighted  music  can  be  reproduced 
as  an  MP3  file  by  the  copyright  owner  or  with  the  owner's  permission,  and 
recordings  in  the  public  domain  can  also  be  MP3-formatted.  This  Note  is 
concerned  with  the  reproduction,  performance,  and  distribution  of  MP3  files 
created  from  copyrighted  works  by  non-owners.  Before  launching  into  the  place 
of  the  MP3  storm  in  the  context  of  our  current  copyright  law  system,  broad 
summaries  of  both  the  music  industry  and  of  copyright  law  as  it  relates  to  music 
are  needed  to  provide  a  framework  for  understanding  the  problem. 

II.  ROCKIN'  IN  THE  FREE  WORLD:  A  PRIMER  ON  OWNERSHIP 

IN  THE  Music  Industry 

The  ownership  of  a  piece  of  music  and  any  accompanying  lyrics  (a  "song" 
for  our  purposes)  can  be  divided  among  a  variety  of  personages.  The  songwriter 
(the  "composer")  is  generally  the  original  owner  of  the  song.^'  As  is  frequently 
the  case  in  today's  popular  music,  the  composer  is  also  the  artist  who  will 
eventually  perform  or  record  the  song.  Thus  the  owner  of  a  song  may 
simultaneously  be  its  composer,  lyricist,  and  artist.  Composers  ordinarily  enter 
into  a  contract  with  a  music  publisher  ("publisher")  in  which  the  composer 
licenses  to  the  publisher  hi?  ownership  of  the  song  in  exchange  for  a  share  of  the 
song's  revenues.  The  publisher's  job  is  to  market  the  song  commercially,  which 
includes  contracting  with  record  companies  to  record  the  song  in  exchange  for 
royalties,  a  share  of  which  is  then  passed  on  to  the  composer.^^  Because 
traditionally  song  composers  were  not  themselves  performing  artists,  publishers 
also  contracted  with  selected  artists  who  would  perform  and  record  the  song. 
These  days,  however,  the  role  of  the  traditional  independent  publisher  has 


Supp.2d  624  (CD.  Calif.  1998),  affd,  180  F.3d  1072  (9th  Cir.  1999). 

19.  See  Recording  Indus.  Ass  'n  of  Am.,  Inc.,  29  F.  Supp.2d  at  632. 

20.  See  Recording  Indus.  Ass'n  of  Am.,  Inc.  v.  Diamond  Multimedia  Sys.  Inc.,  180  F.3d 
1072,  1080  (9th  Cir.  1999). 

21 .  If  the  song  is  comprised  of  music  written  by  one  person  and  lyrics  written  by  someone 
else  (as  in  the  famed  collaborations  of  George  and  Ira  Gershwin  or,  more  recently,  Elton  John  and 
Bemie  Taupin),  then  ownership  in  the  song  may  be  divided  between  both  authors  jointly. 

22.  See  Donald  S.  Passman,  All  You  Need  to  Know  About  the  Music  Business  2 1 3- 
35  (1997)  for  a  good  summary  of  the  role  of  music  publishers. 


322  INDIANA  LAW  REVIEW  [Vol.  33:317 


diminished.  Many  composers  are  themselves  the  performers,  and  now  often 
serve  as  their  own  publishers  as  well.  Moreover,  record  companies  now  also 
have  publishing  divisions.  For  the  sake  of  simplicity,  I  shall  always  refer  to  a 
song's  owner  as  the  "publisher."  Still,  it  is  important  to  keep  in  mind  that  in 
many  contractual  arrangements  the  "publisher"  may  actually  be  the  composer, 
who  may  also  be  the  artist.^^ 

Publishers  enter  into  contracts  with  record  companies  (the  ever-elusive 
"record  deal")  for  their  songs.  Although  the  terms  of  these  contracts  can  vary 
widely,  the  standard  agreement  requires  the  record  company  to  produce  and 
manufacture  a  sound  recording  ("record")  of  the  publisher's  song(s).^'*  The 
recording  company  gets  to  keep  the  bulk  of  the  revenues  from  sales  of  the  record 
while  passing  on  a  percentage  to  the  publisher  in  the  form  of  royalties.  The  artist 
who  performs  on  the  record  will  also  be  given  either  a  royalty  share  or  a  flat 
stipend.  Thus,  when  the  publisher  and  artist  are  the  same  person,  the 
publisher/artist  contracts  upon  two  bases  for  payment  from  the  record  company. 
The  record  company  must  also  arrange  for  the  distribution  and  marketing  of  the 
record  (including  advertising  and  soliciting  radio  play),  and  in  some  cases 
support  the  artist's  promotional  activities  on  behalf  of  the  record  (such  as 
concerts  and  tours).^^  While  in  most  agreements  the  publisher  maintains 
ownership  of  the  songs,  the  record  company  has  complete  ownership  of  the 
record  itself. ^^  Therefore,  when  discussing  a  particular  recording,  at  least  two 
sets  of  rights  are  generally  involved:  those  of  the  owner  of  the  song,  and  those 
of  the  owner  of  the  recording  of  the  song. 


23.  A  song  in  which  the  recording  artist  has  an  ownership  interest  is  termed  a  "controlled 
composition,"  which  entitles  the  artist  to  receive  publisher's  royalties  as  well  as  royalties  for 
performing  on  the  record.  See  id.  at  22 1  -30  for  a  detailed  account  of  the  complex  negotiations  that 
occur  to  set  royalty  rates  in  recording  contracts  for  controlled  compositions. 

24.  These  are  also  known  as  phonographs.  A  "record"  here  is  intended  to  be  the  same  as 
what  the  Copyright  Act  refers  to  as  "sound  recordings"  in  section  101 ,  including  MP3  files  and  all 
the  formats  currently  being  manufactured  by  record  companies,  such  as  CDs/Enhanced  CDs/mini 
discs,  audio  cassettes.  Digital  Audio  Tapes  (DATs),  and  LPs.  See  17  U.S.C.  §  101  (1994). 

25.  As  this  is  a  very  simple  example,  complicating  factors  such  as  music  videos  (often  paid 
for  by  the  artists  themselves)  and  the  selection  and  compensation  of  producers  (sometimes  the 
artists  pay  producers  out  of  their  own  pockets)  are  not  considered. 

26.  Although  a  variety  of  entities  may  own  copyrights  to  a  sound  recording,  the  term  "record 
company"  will  be  used  synonymously  with  the  owner  of  a  sound  recording.  A  single  song  may  be 
recorded  several  times  by  the  same  record  company  or  by  different  record  companies,  as  in  a  studio 
version,  a  live  version,  various  "re-mixed"  versions,  "cover"  versions  by  different  artists,  or  a  re- 
mastering of  original  recordings.  It  is  important  to  note  that  a  record  company  has  ownership  rights 
only  to  its  own  recordings  of  the  song,  not  to  any  recording  of  the  song.  This  is  amplified  in  the 
discussion  of  compulsory  licenses  in  Part  III.B  of  this  Note.  See,  e.g.,  17  U.S.C.  §  1 14(b)  (Supp. 
IV  1998). 


1999]  MP3  DIGITAL  MUSIC  FILES  323 


iii.  where  it's  at:  the  current  state  of  copyright  protection  for 

Music  Recordings 

A.   The  Nature  of  Copyrights 

Copyright  law  today  is  governed  almost  entirely  by  federal  statute.^^ 
According  to  the  Copyright  Act  of  1976,  copyright  protection  extends  for  a 
limited  period  of  time  to  original  works,  including  songs,  as  soon  as  they  are 
expressed  in  a  "tangible  medium  of  expression."^^  For  a  composer,  this  means 
that  automatic  copyrights  are  granted  to  a  song  once  it  is  reduced  to  written 
music  notation  or  when  a  simple  recording  of  the  song  is  made.  The  copyrights 
are  the  ownership  interests  that  are  then  licensed  to  the  publisher.  For  a  record 
company,  the  record  is  copyrighted  once  it  has  been  reduced  to  a  tangible  form 
such  as  a  master  tape,  and  the  copyright  extends  to  all  reproductions  of  the 
master  tape  that  are  made  by  the  record  company  (such  as  CDs,  audio  cassettes, 
and  of  course  MP3  files).^^ 

Publishers  of  songs  have,  subject  to  certain  exceptions,  exclusive  rights  in 
the  form  of  a  temporary  monopoly  to  do  or  authorize  all  reproductions  and 
distributions  of  songs  in  the  form  of  phonorecords  (or  sound  recordings),  the 
preparation  of  all  derivative  works  based  on  the  songs,  and  every  public 
performance  of  the  songs.^° 

Record  companies  traditionally  only  own  the  rights  to  reproduce  and 
distribute  their  sound  recordings  and  to  prepare  derivative  works  based  on  them; 
no  display  or  performance  rights  to  sound  recordings  were  granted.^'  However, 
in  1995,  a  performance  right  was  provided  for  sound  recordings  in  limited 
circumstances.^^  A  brief  examination  of  each  of  the  relevant  rights  belonging  to 
publishers  and  to  record  companies  is  useful. 

1.  The  Reproduction  Right. — ^The  exclusive  right  to  reproduce  one's  works 
includes  both  partial  and  complete  copying  and  exists  regardless  of  whether  the 


27.  For  the  sake  of  simplicity,  this  Note  considers  only  the  1976  Copyright  Act  and  its 
subsequent  amendments;  however,  songs  published  before  1978  are  still  governed  by  the  1909 
Copyright  Act  until  their  copyrights  expire,  at  which  point  the  works  enter  the  public  domain.  State 
common  law  may  also  still  protect  certain  rights  not  preempted  by  the  1976  Copyright  Act.  See  id. 
§301(1994). 

28.  Id.  §  102(a).  The  duration  of  copyright  protection  is  defined  in  id.  §§  303-305. 

29.  See  Passman,  supra  note  22,  at  206  for  further  examples  of  tangible  expressions  of 
music. 

30.  See  17U.S.C.  §  1 06(1 994  &Supp.  IV  1998).  Although  as  the  discussion  above  details, 
the  reproduction  and  distribution  rights  are  the  main  rights  that  are  sold  or  licensed  to  the  record 
company  in  the  record  deal. 

31.  See  id  §  1 1 4(a)  (Supp.  IV  1 998). 

32.  See  The  Digital  Performance  Right  in  Sound  Recordings  Act  (1995),  codified  at  17 
U.S.C.  §§  106(6),  1 14(b),  1 15(c)(3)(A)  (1994  8l  Supp.  IV  1998).  See  infra  Part  IV  for  a  closer 
look  at  the  Digital  Performance  Right  in  Sound  Recordings  Act. 


324  INDIANA  LAW  REVIEW  [Vol.  33:317 


copies  are  made  for  private  or  public  use.^^  For  publishers,  the  right  to  reproduce 
their  songs  means  they  have  the  right  to  make  copies  of  the  tangible  forms  of 
their  songs,  including  sheet  music  to  the  song  or  even  recordings  of  the  song 
made  by  the  publisher.  If  a  contract  has  been  made  between  the  publisher  and 
a  record  company,  the  publisher  has  licensed,  in  exchange  for  royalties,  the 
reproduction  right  for  that  particular  recording  of  its  song  since  v^^henever  the 
record  is  reproduced,  the  song  is  reproduced  too.  However,  the  Copyright  Act 
provides  a  limit  to  the  otherwise  "exclusive"  reproduction  right  of  music 
publishers:  once  a  publisher  has  allowed  a  song  to  be  recorded,  that  song  can 
then  be  recorded  by  anyone  else.^"*  Thus,  a  record  company  does  not  necessarily 
have  to  negotiate  a  contract  with  a  publisher  in  order  for  it  to  be  able  to  make 
recordings  of  the  publisher's  previously  recorded  songs.  While  publishers  are 
free  to  arrange  for  multiple  recordings  of  their  songs,  they  cannot  prevent  anyone 
else  from  making  a  recording  of  their  songs.  A  record  company  does  not  need 
the  publisher's  permission  to  record  that  publisher's  music;  the  company  only 
pays  a  statutory  license  fee  to  the  publisher.^^  For  other  forms  of  reproduction, 
like  sheet  music,  the  publisher  retains  full  exclusive  rights. 

Record  companies  acquire  the  exclusive  right  to  reproduce  copies  of  their 
products.  This  applies  to  the  words  and  graphics  found  on  the  label  and  other 
packaging  material  accompanying  the  recording,  and  to  the  sequence  of  sounds 
contained  in  the  recording — usually  originating  in  a  master  tape — as  reproduced 
in  the  form  of  mass-produced  CDs,  audio  cassettes,  or  even  MP3  files  posted  on 
the  company's  web  page.  "Reproduction"  is  understood  to  mean  producing  a 
"material  object  in  which  the  work  is  duplicated,  transcribed,  imitated,  or 
simulated  in  a  fixed  form  from  which  it  can  be  'perceived,  reproduced,  or 
otherwise  communicated,  either  directly  or  with  the  aid  of  a  machine  or 
device. '"^^  In  the  case  of  sound  recordings,  only  the  actual  recorded  sounds  from 
the  sound  recording  are  protected;  the  right  does  not  protect  against 
reproductions  that  merely  simulate  or  imitate  the  sounds  in  the  sound  recording.^^ 

In  the  digital  age,  records  are  increasingly  being  transmitted  digitally  over 
telephone  lines  and  cable  lines,  both  directly  and  on  the  Internet.  The  expansion 
of  the  ways  to  acquire  music  adds  complexity  to  the  understanding  of  record 
reproduction  and  distribution.  The  recent  Digital  Performance  Right  in  Sound 
Recordings  Act  (1995)  amended  section  1 15  of  the  Copyright  Act  to  recognize 
the  nascent  digital  reproduction  and  distribution  of  music.^^  This  means  that 
when  a  record  of  a  musical  work  is  created  and  digitally  transmitted  to  a  receiver, 
for  the  intended  purpose  that  the  receiver  making  a  copy  of  the  record  as  it  is 
received,  then  both  a  reproduction  and  a  distribution  have  occurred,  and  a 


33.  See  17  U.S.C.  §  106(1)  (1994).  This  is  true  by  inference  from  the  language  of  section 
106,  because  the  performance  and  display  rights  are  qualified  with  the  adjective  "public." 

34.  See  id.  §  115(a)(1). 

35.  See  infra  Part  III.B  for  a  discussion  of  these  "compulsory"  or  "mechanical"  licenses. 

36.  H.R.  Rep.  No.  94-1476,  reprinted  in  1976  U.S.C.C.A.N.  5659,  5675. 

37.  See  17  U.S.C.  §  1 14(b)  (1994  &  Supp.  IV  1998). 

38.  See  id  §  1 15(c)(3)(A)  (Supp.  IV  1998). 


1999]  MP3  DIGITAL  MUSIC  FILES  325 


compulsory  fee  must  be  paid.  These  types  of  transmissions  are  called  "digital 
phonorecord  deliveries."^^ 

2.  The  Distribution  Right. — As  in  the  reproduction  right,  publ  ishers  have  the 
right  to  distribute  copies  of  their  songs  to  the  public,  although  those  rights  are 
also  typically  sold  or  licensed  to  record  companies  with  respect  to  particular 
recordings  of  songs/^  As  noted  above,  publishers  may  maintain  the  right  to 
distribute  other  forms  of  their  songs  such  as  the  sheet  music.  Similarly,  record 
companies  acquire  the  exclusive  right  to  distribute  to  the  public  the  records  they 
produce.  However,  the  right  to  distribute  is  limited  to  the  first  sale  of  each  copy, 
according  to  a  concept  known  as  the  First  Sale  Doctrine.  In  other  words,  a  record 
company  has  the  exclusive  right  to  make  the  initial  sale  of  each  record  it 
manufactures,  but  once  someone  has  lawfully  acquired  a  copy  of  a  copyrighted 
work,  that  person  is  entitled  to  re-sell  that  particular  copy  to  someone  else,  even 
at  a  profit,  without  the  record  company's  permission.'*' 

3.  The  Right  to  Prepare  Derivative  Works. — A  derivative  work  is  defined 
as  a  work  that  is  based  upon  a  preexisting  work  (as  in  a  song  or  a  recording  of  a 
song)  which  consists  of  "editorial  revisions,  annotations,  elaborations,  or  other 
modifications  [that]  as  a  whole  represent  [the]  original  work.'"^^  That  is,  an 
actual  part  of  the  original  work  must  be  incorporated  into  the  new  work  for  it  to 
be  considered  a  derivative  work."*^  The  derivative  work  itself  is  also  copyright 
protected,  just  like  any  other  work,  as  soon  as  it  is  reduced  to  a  "tangible  medium 
of  expression.'"*'*  Owners  of  rights  to  songs  or  recordings  of  songs  also  have 
copyrights  to  works  derived  from  those  songs  or  recordings.  For  instance,  a 
recording  that  is  based  on  "samples"  taken  from  an  earlier  recording  may  be  a 
derivative  work  of  both  the  original  recording  and  the  original  song."*^ 


39.  Id.  Note  that  the  distribution  may  also  be  a  protected  public  performance  of  the  record, 
with  implications  for  those  with  performance  rights,  namely  publishers. 

40.  See  id.  §  106(3)  (1994). 

41.  See  id.  §  1 09(a).  For  a  further  twist  to  distribution  rights,  see  id.  §  1 09(b)(  1  )(A).  The 
music  and  software  industries,  wielding  their  considerable  political  muscle,  lobbied  for  and  received 
an  amendment  to  section  109  that  prohibits  the  lending,  rental,  or  leasing  for  profit  of  records  or 
computer  software  without  the  permission  of  those  who,  in  the  case  of  records,  own  the  copyrights 
in  both  the  sound  recording  and  the  underlying  music.  Hence  there  are  no  music  or  software 
"Blockbuster"  stores. 

42.  Id  §  101. 

43.  A  song  based  on  a  story  in  a  novel  would  not  be  a  derivative  work  of  that  novel  unless 
the  song's  lyrics  come  from  the  actual  text  of  the  novel,  thereby  incorporating  portions  of  it  into  the 
song.  See  id.  §  1 14(b)  (limiting  the  scope  of  the  right  to  derivative  works  in  sound  recordings  to 
those  derivative  works  that  reproduce  actual  sounds  from  the  original  sound  recording). 

44.  Id 

45.  A  recent  example  of  this  phenomenon  is  the  royalty  settlement  arranged  between  the 
British  rock  group  The  Verve  and  the  Rolling  Stones'  publisher — The  Verve's  1998  hit 
"Bittersweet  Symphony"  was  based  on  a  sampled  guitar  riff  from  the  Rolling  Stones'  song  "The 
Last  Time."  See  Paul  Sexton,  Bittersweet  Synergy,  Adweek  E.  EDITION,  Oct.  26,  1998,  available 
in  1998  WL  10549389. 


326  INDIANA  LAW  REVIEW  [Vol.  33:317 


4.  Performance  Rights. — The  publisher  maintains  the  exclusive  right  to 
perform  its  songs  in  public/^  This  encompasses  live  performances  of  the  song 
in  public,  including  "covers"  of  songs  by  other  artists  and  the  broadcasting  of 
songs  over  the  radio/^  Understandably,  it  is  virtually  impossible  for  an 
individual  publisher  to  enforce  the  performance  right  for  every  song,  given  the 
enormous  number  of  ways  that  songs  can  be  performed.  Everyday  examples 
include  the  local  bands  who  play  throughout  the  country  in  bars,  restaurants  and 
other  venues  for  live  music,  and  the  large  variety  of  radio  broadcasts,  such  as 
low-frequency  college  and  high  school  radio  broadcasts.  Publishers  handle  this 
problem  by  contracting  with  performance  rights  societies.  These  nonprofit 
organizations  serve  as  agents  for  securing  performance  fees  for  the  publishers' 
material.'*^  The  two  dominant  societies  are  American  Society  of  Composers, 
Authors,  and  Publishers  (ASCAP)  and  Broadcast  Music,  Incorporated  (BMI). 
These  societies  negotiate  "blanket  licenses"  with  users  such  as  radio  stations  and 
nightclubs.'*^  Blanket  licenses  give  the  users  a  license  to  perform  all  of  the  songs 
owned  by  all  of  the  publishers  who  have  contracted  with  the  performance  right 
society,  in  exchange  for  one  fee.^°  The  society  then  pays  a  share  of  the  fees  to 
the  publishers.^'  Thus,  for  example,  radio  stations  pay  fees  to  performance  rights 
societies  for  the  songs  they  broadcast;  the  performance  rights  societies  pay  the 
publishers,  who  in  turn  pay  the  composers. 

Performance  rights  in  recordings,  until  recently,  fared  differently.  For  most 
of  the  history  of  copyright  law  no  copyright  was  available  for  the  public 
performance  of  sound  recordings.^^  Thus,  following  the  radio  example,  record 
companies  receive  nothing  when  a  song  is  broadcast  on  the  radio  (although  they 
do  arguably  still  benefit  from  the  record  sales  that  accrue  from  radio  play). 
However,  in  response  to  the  technological  changes  brought  by  digital  audio  files 
and  Internet  radio  broadcasting,  foreshadowing  the  eventual  digital  distribution 
of  music  over  telephone  and  cable  lines,  the  1995  Digital  Performance  Right  in 


46.  See  17  U.S.C.  §  106(4)  (1994  &  Supp.  Ill  1997). 

47.  See  id. 

48.  See  PASSMAN,  supra  note  22,  at  230-35.  Over  $800  million  has  been  generated  by 
performance  rights  societies  for  their  members,  constituting  the  main  source  of  income  for  music 
publishers.  See  Nancy  A.  Bloom,  Protecting  Copyright  Owners  of  Digital  Music:  No  More  Free 
Access  to  Cyber  Tunes,  45  J.  COPYRIGHT  Soc'Y  U.S.A.  at  179,  197  (1997). 

49.  Even  though  the  nightclub  owners  themselves  are  not  the  performers  of  the  songs,  they 
could  still  be  liable  for  infringing  performances  under  a  theory  of  vicarious  infringement.  Thus  it 
behooves  them  to  protect  themselves  through  blanket  licensing  with  performance  rights  societies. 

50.  The  use  of  these  blanket  licenses  may  give  the  impression  that  these  licenses  are 
somehow  compulsory — that  is,  that  the  publisher  has  no  choice  or  control  over  who  may  or  may 
not  "cover"  their  songs.  While  practically  speaking  this  may  be  true,  in  fact  these  licenses  are 
voluntary.  Publishers  maintain  the  exclusive  right  under  the  Copyright  Act  to  control  the  public 
performances  of  their  songs  and  therefore,  theoretically  could  choose  to  deny  permission  to  perform 
its  songs  in  public.  For  comparison,  see  infra  Part  III.B.  for  a  discussion  of  compulsory  licenses. 

51.  See  Passman,  supra  note  22,  at  23 1  -32. 

52.  See  17  U.S.C.  §  114(a)  (1994). 


1999]  MPS  DIGITAL  MUSIC  FILES  327 


Sound  Recordings  Act  recognized  that  certain  digital  audio  transmissions  of 
sound  recordings  constitute  a  public  performance."  The  Act  further  provides  a 
compulsory  license  for  publishers  and  record  companies  for  these  transmissions 
under  certain  conditions.^"*  Thus  in  limited  circumstances  record  companies  join 
music  publishers  in  receiving  royalties  for  licensing  performance  rights. 

B.  Compulsory  Licenses 

It  would  seem  that  an  implication  of  a  copyright  being  "exclusive"  is  that  the 
copyright  owner  can  choose  to  withhold  permission  for  the  copying  of  the  work 
by  another,  or  that  the  owner  is  the  one  who  has  the  privilege  of  deciding  who 
gets  to  exercise  the  copyrights  to  the  work,  for  example  by  licensing  the  use  of 
the  copyrighted  work  for  a  negotiated  fee  (known  as  a  "voluntary  license"). 
Nevertheless,  for  the  reproduction  and  distribution  rights  to  songs.  Congress  has 
limited  music  publishers'  "exclusive"  reproduction  rights  to  only  a  right  to 
collect  compulsory  license  fees.  A  compulsory  license  is  a  license  that  is 
mandated  by  statute  to  permit  otherwise  infringing  uses  of  a  copyrighted  work 
in  exchange  for  the  payment  by  the  user  of  statutorily  determined  royalties  to  the 
copyright  owner. ^^  They  are  "compulsory"  because  the  permission  by  the 
copyright  owner  for  these  uses  cannot  be  denied  and  the  formula  for  determining 
the  license  is  set  by  statute. 

Congress,  fearing  monopolies  by  music  publishers  over  the  recording  of 
songs,  enacted  compulsory  (also  known  as  "mechanical")  licenses  to  permit 
others  to  make  new  recordings  of  previously-recorded  songs.^^  Section  1 15  of 
the  Copyright  Act  provides  that  once  a  song  has  been  recorded  and  publicly 
distributed,  the  publisher  is  required  to  license  the  song,  in  exchange  for  a  fee, 
to  anyone  else  who  wants  to  record  and  distribute  the  song.^^  Thus  anyone  is 
entitled  to  make  and  sell  a  recording  of  a  previously  recorded  song,  provided  the 
requisite  license  fee  is  paid  to  the  song's  owner,  the  publisher. 

Just  as  nonprofit  organizations  like  ASCAP  assist  publishers  in  collecting 


53.  See  17  U.S.C  §  101  (1994  &  Supp.  Ill  1997). 

54.  See  id.  §106(6).  The  Act  requires  that  the  performances  be  digital  (as  opposed  to 
analog),  that  it  be  audio-only,  and  that  the  transmission  be  a  part  of  a  subscription  transmission  in 
which  the  listener  has  paid  the  provider  to  receive  the  transmission.  For  the  specific  requirements 
for  entitlement  to  compulsory  licenses  for  these  transmissions,  see  id.  §  1 14(d). 

55.  See  Passman,  supra  note  22,  at  208- 1 2  for  a  helpful  summary  of  compulsory  licenses. 

56.  For  the  rationales  behind  compulsory  licensing,  see  H.R.  Rep.  No.  94- 1 476, 94th  Cong., 
2d  Sess.  107  (1976),  reprinted  in  1976  U.S.C.C.A.N.  5659,  5722;  H.R.  REP.  No.  83,  90th  Cong. 
Sqss.,  reprinted  in  1 1  CopyrighTRevisionLegislativeHistory  (George  S.  Grossman  ed.,  1976). 

57.  See  17  U.S.C.  §  115.  Additional  compulsory  licenses  are  paid  by  the  Public 
Broadcasting  System  (§  118),  owners  of  jukeboxes  (§  116),  and  cable  and  satellite  television 
companies  for  the  copying  and  rebroadcasting  of  programs  in  areas  with  weak  television  reception 
(§  119).  Certain  digital  performances  and  the  digital  distribution  of  records  are  also  subject  to 
compulsory  licenses  under  the  Digital  Performance  Right  in  Sound  Recordings  Act,  as  discussed 
infra  Part  IV.  See  also  17  U.S.C.  §  106(6). 


328  INDIANA  LAW  REVIEW  [Vol.  33:317 


license  fees  for  the  public  performances  of  their  songs,  organizations  are  also 
available  to  help  publishers  collect  the  compulsory  license  fees  for  the  recording 
and  distribution  of  their  songs.  The  Harry  Fox  Agency  is  the  most  prominent 
organization  that  is  dedicated  to  collecting  license  fees  from  record  companies 
on  behalf  of  publishers.^^ 

C  Infringement  of  Copyrights 

The  use  of  a  copyrighted  work  by  a  non-owner,  that  conflicts  with  any  of  its 
copyrights  and  that  fails  to  qualify  as  an  exception  (such  as  fair  use),  is  an 
infringement  of  the  copyright.^^  Only  one  right  need  be  infringed  to  constitute 
an  infringement;  conversely,  a  single  act  can  infringe  on  multiple  rights.^^  The 
Copyright  Act  confers  a  private  right  of  action  for  copyright  owners  against 
infringers.^' 

Infringement  can  also  be  a  federal  crime.^^  At  one  time  the  law  required  that 
in  order  to  bring  criminal  charges  against  an  infringer,  the  infringer  had  to  have 
made  a  profit  from  the  infringing  activities.^^  Because  of  piracy  on  the  Internet 
by  individuals  who  are  not  interested  in  benefitting  financially  from  their 
exploits,  this  is  no  longer  the  case.  Now,  infringers  who  reproduce  and  distribute 
more  than  $1000  worth  of  copies  of  copyrighted  works,  even  if  with  no  financial 
gain,  will  face  criminal  charges.^ 

Infringement  can  also  be  vicarious.  A  third  party  can  incur  liability  by 
enabling  infringement  by  someone  else  providing  the  third  party  had  control  over 
the  infringement  and  derived  profit  from  it.^^  As  will  be  discussed  below,  this 


58.  See  PASSMAN,  supra  note  22,  at  21 1 .  These  compulsory  licenses  are  now  widely  used 
as  merely  a  benchmark  in  negotiations  for  royalties  owed  to  publishers  from  sales  of  records.  See 
also  Bob  Kohn,  A  Primer  on  the  Law  of  Webcasting  and  Digital  Music  Delivery,  20  No.  4 
Entertainment  Law  Rep.,  Sept.  1998,  at  6-7,  for  an  introduction  to  the  Harry  Fox  Agency. 

59.  See  17  U.S.C.  §  501  (1994)  (providing  remedies  for  copyright  infringement). 
Infringement  need  not  be  intentional.  See  also  Pinkam  v.  Sara  Lee  Corp.,  983  F.2d  824,  829  (8th 
Cir.  1992)  ("The  defendant's  intent  is  simply  not  relevant:  The  defendant  is  liable  even  for 
'innocent'  or  'accidental'  infringements."). 

60.  5eel7U.S.C.  §501  (1994). 

61.  See  id.  ^  50\{b). 

62.  See  id  §  506  (1994  &  Supp.  Ill  1997). 

63.  The  old  version  of  §  506(a)  read  as  follows:  "Any  person  who  infringes  a  copyright 
willfully  and  for  purposes  of  commercial  advantage  or  private  financial  gain  shall  be  punished  as 
provided  in  section  2319  of  title  18."  Id  §  506(a)  (1994). 

64.  See  id  §§  10 1, 506(a),  as  amended  by  the  No  Electronic  Theft  Act  ("NET")  (1997).  The 
NET  Act  amended  §  101  ("financial  gain"  definition)  and  §  506(a).  The  legislation  was  enacted 
in  response  to  a  Massachusetts  case  that  had  been  dismissed  because  the  defendant  had  not 
benefitted  financially  from  his  practice  of  encouraging  users  to  download  unauthorized  copies  of 
computer  games  from  his  bulletin  board  service.  See  United  States  v.  LaMacchia,  871  F.  Supp.  535 
(D.  Mass.  1994). 

65.  See  Dreamland  Ball  Room,  Inc.  v.  Shapiro,  Bernstein  &  Co.,  36  F.  2d  354  (7th  Cir. 


1999]  MP3  DIGITAL  MUSIC  FILES  329 


potential  liability  is  particularly  salient  for  web  site  owners  and  Internet  service 
providers  who  may  find  themselves  liable  for  the  infringing  actions  of  their  users. 
Civil  remedies  for  infringement  include  injunctive  relief,  the  impounding  and 
destruction  of  unlawful  copies,  actual  damages,  or  potentially  large  statutory 
damages,  costs,  and  attorneys  fees.^^  The  criminal  penalties  range  from  fines  to 
up  to  five  years  in  prison.^^ 

D.  A  Limit  to  Copyright  Protection:  The  Fair  Use  Exception 

Despite  the  broad  and  overlapping  rights  accorded  to  songs  and  records,  as 
well  as  the  extensive  system  of  compulsory  licenses  to  compensate  music 
publishers,  copyrights  are  not  absolute.  In  fact,  exceptions  are  built  in  to  the 
granting  of  the  rights.  In  section  106  of  the  Copyright  Act,  included  with  the 
enumeration  of  the  rights  of  copyright  owners,  fifteen  exceptions  are 
referenced — corresponding  to  sections  107-121.^^  These  exceptions  include 
certain  reproductions  by  libraries  and  archives,  the  First  Sale  Doctrine,  and 
certain  performances  and  displays  in  front  of  students.^^  Perhaps  the  most 
important  of  these  exceptions  is  the  fair  use  exception. 

Section  107  permits  some  uses  of  copyrighted  w6rks  that  would  otherwise 
be  infringing  by  recognizing  them  as  "fair  uses,"  thereby  providing  an  affirmative 
defense  to  copyright  infringement.^^  As  the  preamble  to  section  1 07  states,  fair 
uses  generally  serve  the  public  interest  through  such  endeavors  as  scholarship, 
teaching,  criticism,  commentary,  research,  and  news  reporting.^' 

To  help  courts  determine  whether  a  particular  use  is  fair  (and  assuming  of 
course  that  it  would  be  otherwise  an  infringement),  section  1 07  provides  four 
factors: 

(1)  the  purpose  and  character  of  the  use,  including  whether  such  use  is 
of  a  commercial  nature  or  is  for  nonprofit  educational  purposes; 

(2)  the  nature  of  the  copyrighted  work; 

(3)  the  amount  and  substantiality  of  the  portion  used  in  relation  to  the 
copyrighted  work  as  a  whole;  and 

(4)  the  effect  of  the  use  upon  the  potential  market  for  or  value  of  the 


1929). 

66.  See  17  U.S.C.  §§  502-505  (1994).  An  owner's  entitlement  to  some  of  these  remedies 
depends  on  whether  the  work  was  formally  registered  with  the  Copyright  Office  prior  to  the 
infringement.  The  details  concerning  registration  are  important  for  copyright  owners,  but  are 
beyond  the  scope  of  this  Note. 

67.  See  id  §  506  (Supp.  IV  1998);  18  U.S.C.  §  2319  (1994  &  Supp.  IV  1998). 

68.  See  17  U.S.C.  §  106-121  (1994  &  Supp.  IV  1998).  The  grounds  for  reading  the 
exceptions  of  sections  107-121  as  being  incorporated  into  section  106  by  reference  came  recently 
from  the  United  States  Supreme  Court  in  Quality  King  Distributors,  Inc.  v.  L  'Anza  Research 
International,  Inc.,  523  U.S.  135  (1998). 

69.  See  17  U.S.C.  §  106-121  (1994  &  Supp.  IV  1998). 

70.  See  id.  ^  \^1  {\99A). 
1 1 .     See  id. 


330  INDIANA  LAW  REVIEW  [Vol.  33:317 


copyrighted  work/^ 

These  factors  have  not  been  interpreted  as  exclusive.^^  What  they  have  in 
common  is  a  focus  on  the  conduct  of  the  alleged  infringer  and  the  nature  of  the 
thing  used  and  not  the  status  of  the  user.  Thus,  in  addition  to  the  scholars, 
teachers,  journalists,  and  others  who  serve  the  public  interest,  home  users  have 
also  been  allowed  the  fair  use  of  copyrighted  works  in  certain  circumstances.  In 
Sony  Corp.  of  America  v.  Universal  City  Studios,  Inc.^^  the  Supreme  Court  held 
that  the  time-delayed  video  taping  of  television  programs  by  home  consumers 
constituted  fair  use.^^  Similarly,  and  relevant  to  the  world  of  music,  the  Audio 
Home  Recording  Act  of  1992  finds  certain  non-commercial  copying  of  digital 
audio  recordings  non-infringing.^^ 

There  is  no  question  of  the  fundamental  importance  in  the  United  States  of 
protecting  copyrights,  particularly  since  protecting  these  rights  is  a  specifically 
enumerated  power  of  Congress  in  the  U.S.  Constitution.^^  Some  theorists  claim 
that  the  primary  goal  of  securing  copyrights  is  to  reward  a  private  benefit  to 
authors  and  inventors  in  the  form  of  a  temporary  monopoly  in  their  works  since 
authors  have  a  "natural  right"  to  the  fruits  of  their  labor;  any  benefit  to  society 
ensuing  from  these  works  is  secondary  and  incidental. ^^  However,  in  recognition 
of  the  constitutional  function  of  fair  use,  the  U.S.  Supreme  Court  has  determined 
that  the  founding  fathers'  intention  was  to  place  the  benefit  to  the  public  that 
accrues  from  authorship  at  the  forefront,  and  the  private  reward  received  by  the 
author  is  secondary. ^^  In  Sony,  Justice  Stevens,  quoting  Chief  Justice  Hughes, 
noted  that  "[t]he  sole  interest  of  the  United  States  and  the  primary  object  in 
conferring  the  monopoly  lie  in  the  general  benefits  derived  by  the  public  from  the 
labors  of  authors."^^  The  relation  between  rewarding  authorship  and  benefitting 


72.  Id. 

73.  See,  e.g.,  Maxtone-Graham  v.  Burtchaell,  803  F.2d  1253,  1260  (2d  Cir.  1986)  (stating 
that  "the  doctrine  is  an  equitable  rule  of  reason  . . .  each  case  raising  the  question  must  be  decided 
on  its  own  facts"),  cert,  denied,  481  U.S.  1059  (1987).  The  Second  Circuit  has  also  analyzed  the 
denial  of  permission  by  the  copyright  owner  and  the  commission  of  errors  by  the  alleged  infringer. 
See  id  at  1260-61,  1264. 

74.  464  U.S.  417(1984). 

75.  See  id.  at  449-50. 

76.  See  17  U.S.C.  §  1008  (1994). 

77.  See  U.S.  CONST,  art.  I,  §  8:  "The  Congress  shall  have  Power  ...  to  Promote  the 
Progress  of  Science  and  useful  Arts,  by  securing  for  limited  Times  to  Authors  and  Inventors  the 
exclusive  Right  to  their  respective  Writings  and  Discoveries." 

78.  For  a  discussion  of  the  author-centered  approach  to  the  justification  of  copyrights,  see 
Marshall  A.  Leaffer,  Understanding  Copyright  Law  12-17  (1995). 

79.  See  Feist  Publications,  Inc.  v.  Rural  Tel.  Serv.  Co.,  499  U.S.  340,  349  (1991)  ("[T]he 
primary  objective  of  copyright  is  not  to  reward  the  labor  of  authors,  but  to  'promote  the  Progress 
of  Science  and  the  Useful  Arts.'"). 

80.  Sony  Corp.  of  Am.,  464  U.S.  at  429  (quoting  Fox  Film  Corp.  v.  Doyal,  286  U.S.  123, 
127(1932)). 


1 999]  MP3  DIGITAL  MUSIC  FILES  33 1 


society  exists  in  a  type  of  balance — "the  rights  of  owners  to  control  and  exploit 
their  works,  and  society's  demand  to  use,  to  learn  from,  and  to  build  upon  the 
same  materials."^' 

Acting  consistently  with  its  desire  to  nurture  the  development  of  the  "useful 
arts"  for  the  benefit  of  the  public,  Congress  codified  in  section  1 07  the  traditional 
common  law  privilege  of  fair  use.^^  The  fair  use  exception  is  a  long-standing 
recognition  of  the  worthiness  of  tipping  the  balance  in  favor  of  society's 
"demand  to  use"  in  certain  circumstances,  permitting  certain  otherwise  infringing 
uses  of  copyrighted  works.  Since  fair  use  is  justified  by  tying  it  to  the  very 
purpose  of  copyright  protection — ^to  benefit  the  public — it  should  be  viewed  as 
indispensable.  Although  our  emergent  digital,  online  society  is  making  it  more 
and  more  difficult  for  copyright  owners  to  maintain  control  over  their  works,  it 
should  be  an  imperative  of  those  attempting  to  adapt  the  law  to  new  technology 
that  the  devices  of  the  information  age  not  preclude  opportunities  for  fair  use. 
As  the  conflict  rages  over  digital  music  recordings,  particularly  those 
surrounding  MP3  files,  fair  use  risks  getting  lost  in  the  maelstrom. 

IV.  Ball  of  Confusion:  Fitting  MP3  into  the  Copyright  Framework 

Now  that  the  nature  of  copyrights  and  the  fair  use  exception  has  been 
outlined,  a  framework  exists  to  analyze  where  the  use  of  MP3  music  files  fits 
under  the  Copyright  Act.  Users  of  MP3  files  will  need  to  know  which  uses  are 
infringing,  whether  permission  for  their  uses  (i.e.,  a  voluntary  license)  is  required 
or  whether  the  mere  payment  of  a  compulsory  license  will  suffice,  and,  perhaps 
most  important,  who  gets  paid  the  fee — ^the  publisher,  the  record  company,  or 
both?  Further,  when  might  an  otherwise  infringing  use  constitute  fair  use? 

The  key  to  answering  these  questions  emerges  from  an  analysis  of  the  thorny 
and  controversial  problems  of  whether  the  manner  in  which  these  files  are  made 
and  used  constitutes  a  performance,  a  reproduction,  a  distribution,  or  perhaps 
even  simultaneous  uses.  This  analysis  is  particularly  necessary  for  understanding 
the  implications  of  the  transmission  of  MP3  files  over  the  Internet. 

A.  MPS  Transmissions  as  Performance 

"Performance"  is  defined  in  the  Copyright  Act.  Section  101  states  that  "[t]o 
'perform'  a  work  means  to  recite,  render,  play,  dance,  or  act  it,  either  directly  or 
by  any  means  of  any  device  or  process  ...  in  its  images  in  any  sequence  or  to 
make  the  sounds  accompanying  it  audible."^^ 

"Performance"  becomes  relevant  to  the  use  of  MP3  files  when  they  are 
transmitted  over  the  Internet  via  web  sites  that  operate  like  conventional  radio 
stations  in  a  medium  known  as  "webcasting."  However,  it  is  important  to  make 
a  distinction  between  two  types  of  transmissions.      Some  digital   audio 


8 1 .  Kenneth  D.  Crews,  Copyright,  Fair  Use,  and  the  Challenge  for  Universities  3 
(1993). 

82.  See\lV.S.C.§\07(\994). 

83.  Id  §  101. 


332  INDIANA  LAW  REVIEW  [Vol.  33:317 


transmissions  are  only  transmissions  and  nothing  else.  That  is,  the  MP3  files  are 
"broadcast"  out  to  Internet  users  much  like  songs  are  broadcast  out  into  the  air 
by  radio.  These  can  be  thought  of  as  "pure  transmissions."  Other  transmissions, 
however,  result  in  an  identifiable  copy  of  the  song  being  received  by  the  recipient 
of  the  transmission,  as  in  the  actual  downloading  of  the  song  as  an  MP3  file. 
These  transmissions  are  called  "digital  phonorecord  deliveries."^'*  The  former 
type  of  transmission  is  relevant  here,  for  the  purposes  of  figuring  out 
performance  rights;  digital  phonorecord  deliveries  will  be  discussed  in  the 
context  of  reproduction  rights.^^ 

When  a  webcaster  broadcasts  music  in  the  form  of  MP3  files  (or  any  other 
digital  format)  in  a  manner  analogous  to  a  radio  broadcast,  the  songs  are  being 
publicly  "performed"  by  the  means  or  process  of  the  data's  streaming  from  one 
site  to  another,  in  that  the  transmissions  are  potentially  available  to  Internet  users 
generally.  As  discussed  above,  publishers  have  under  section  106(4)  an 
exclusive  right  to  the  public  performance  of  their  songs.  Thus,  like  radio 
broadcasters,  webcasters  of  MP3  files  should  negotiate  a  blanket  license 
arrangement  with  the  performance  rights  societies  such  as  ASCAP  and  BMI  for 
songs  that  are  transmitted.^^  This  is  generally  true  for  all  types  of  digital  audio 
transmissions.^^ 

A  more  difficult  question  is  whether  the  record  companies  should  also  get  a 
performance  royalty  from  pure  transmissions  of  digital  audio  files.  Remember, 
no  general  right  exists  in  the  public  performance  of  sound  recordings.^^ 
However,  a  performance  right  to  sound  recordings  has  been  provided  for  certain 
types  of  digital  audio  transmissions  under  the  Digital  Performance  Rights  in 
Sound  Recordings  Act  ("DPRSRA").^^  To  qualify  as  a  "digital  audio 
transmission"  there  must  be  a  transmission  that  is  digital  (not  analog)  and  audio 
only  (since  audiovisual  works  are  already  covered  in  section  106(4)).^^  A 
transmission  is  the  communication  of  a  work  "by  any  device  or  process  whereby 
images  or  sounds  are  received  beyond  the  place  from  which  they  are  sent."^' 
Under  this  definition,  webcasting  MP3  files  would  seem  to  constitute  a  digital 


84.  Kohn,  supra  note  58,  at  7.  Digital  audio  transmissions  are  addressed  in  1 7  U.S.C.  §  1 14 
(1994  &  Supp.  Ill  1997);  digital  phonorecord  deliveries  are  addressed  in  id.  §  1 15. 

85.  However,  the  performance  rights  societies  (BMI,  ASCAP,  SESAC)  may  be  taking  the 
controversial  position  that  a  digital  phonograph  delivery  is  both  a  reproduction  which  entitles 
publishers  to  a  receive  a  mechanical  license  AND  a  performance  which  entitles  them  to  their 
negotiable  blanket  licenses.  See  Kohn,  supra  note  58,  at  9.  The  language  of  section  1 15(c)(3)(A) 
is  sufficiently  vague  to  provide  support  for  this  position. 

86.  See  Kohn,  supra  note  58,  at  9.  Several  web  sites  have  already  entered  into  blanket 
license  agreements  with  ASCAP  and/or  BMI.  See  Bloom,  supra  note  48,  at  197-98. 

87.  In  fact.  Bloom  suggests  that  the  mere  posting  of  an  MP3  file  may  still  be  considered  a 
public  performance,  even  if  no  one  accesses  it.  See  Bloom,  supra  note  48,  at  195. 

88.  See  discussion  supra  Part  III.B.4;  see  also  Kohn,  supra  note  58,  at  5. 

89.  17  U.S.C.  §  106(6)  (1994  8l  Supp.  IV  1998). 

90.  See  Kohn,  supra  note  58,  at  3. 

91.  17U.S.C.§  101(1994). 


1999]  MPS  DIGITAL  MUSIC  FILES  333 


audio  transmission.  On  this  basis,  RIAA  has  independently  contacted  MP3 
webcasters  requesting  that  they  pay  performance  license  fees  to  record 
companies  for  all  of  the  pure  transmissions  of  MP3  versions  of  their  recordings.^^ 

RIAA  may  be  overreaching,  however.  Identifying  the  webcasting  of  MP3 
files  as  a  pure  transmission  does  not  end  the  question.  The  scope  of  the 
DPRSRA  is  limited  by  certain  conditions  and  exemptions  enumerated  in  section 
1 14.^^  Further,  pure  transmissions  consist  of  two  types:  one  type  of  transmission 
occurs  at  the  request  of  the  recipient  as  part  of  an  interactive  service,  and  the 
other  does  not.  An  interactive  service  is  defined  as  a  service  that  "enables  a 
member  of  the  public  to  receive,  on  request,  a  transmission  of  a  particular  sound 
recording  chosen  by  or  on  behalf  of  the  recipient."^"*  The  ability  merely  to 
request  a  recording  is  not  enough  to  make  the  service  interactive;  to  be 
interactive  the  user  must  also  be  able  to  receive  the  transmission  on  request.^^ 
Since  users  will  thus  be  able  to  receive  music  upon  request  and  at  will  (with  a  fee 
paid  to  the  interactive  service),  these  services  will  likely  be  used  to  bypass  the 
purchase  of  the  recording.  These  are  the  sort  of  transmissions  that  are 
contemplated  by  section  106(6),  and  therefore  record  companies  are  entitled  to 
licensing  fees  from  the  "performance"  via  these  types  of  transmissions.^^  The 
fees  for  the  license  are  not  defined  by  the  statute,  but  are  negotiable  between  the 
record  company  and  the  webcaster  who  provides  the  interactive  service. 
Implicitly  as  well,  the  license  is  itself  voluntary— it  can  be  denied  by  the  record 
company. 

Pure  transmissions  that  are  not  part  of  an  interactive  service  also  come  in  two 
types,  subscription  and  non-subscription  transmissions.^^  A  subscription 
transmission  is  defined  as  one  that  is  "controlled  and  limited  to  particular 
recipients,  and  for  which  consideration  is  required  to  be  paid  or  otherwise  given 
by  or  on  behalf  of  the  recipient  to  receive  the  transmission."^^  A  common 
example  of  a  subscription  transmission  is  an  online  bulletin  board  service  for 
which  users  pay  a  fee  to  gain  access  to  data  posted  on  the  electronic  bulletin 
board.  For  the  same  reasons  that  were  articulated  for  interactive  services, 
subscription  transmissions  require  licenses  for  both  the  performance  of  the  song 
(from  the  publisher)  and  for  the  performance  of  the  sound  recording  (from  the 
record  company)  under  section  1 14(d).^^ 


92.  SeeKohn,  supra  notcSS,  at  3. 

93.  See  17  U.S.C.  §  1 14(d)  (Supp.  IV  1998). 

94.  M§114(j)(4). 

95.  See  id. 

96.  See  id.  §  1 1 4(d)(  1 )( 1 994  &  1 996  Supp.  II). 

97.  See  Kohn,  supra  note  58,  at  1 2. 

98.  17  U.S.C.  §  1 14(j)(8)  (1994  &  Supp.  Ill  1997). 

99.  Section  1 14  is  actually  more  complicated:  for  some  transmissions  in  which  there  is  a 
greater  risk  of  loss  of  record  sales,  the  statute  provides  for  voluntary  licensing,  meaning  the  record 
company  can  negotiate  the  fees  or  even  withhold  permission  for  the  license;  other  types  of 
subscription  transmissions  only  require  the  familiar  compulsory  licenses,  which  the  record 
companies  are  required  to  give  in  exchange  for  statutory  fees.  See  id.  §  1 14(d). 


334  INDIANA  LAW  REVIEW  [Vol.  33:3 17 


Non-subscription  transmissions,  which  most  closely  resemble  traditional 
radio  broadcasts,  should  not  require  a  license  to  the  record  company.  However, 
it  is  precisely  these  sorts  of  transmissions  that  the  recording  industry  claims  are 
subject  to  voluntary  licensing. '°^  Yet  section  1 14(d)  clearly  intends  to  exempt 
transmissions  that  are  non- interactive  and  non-subscription,  in  other  words, 
transmissions  that  resemble  today's  radio  broadcasts: 

The  greater  part  of  Section  1 14(d)  is  intended  to  make  it  clear  that  public 
performances  of  sound  recordings  over  the  radio  continue  to  be  free  of 
any  requirement  of  a  license  from  the  owners  of  the  sound  recordings, 
even  though  such  performances  are  by  means  of  digital  audio 
transmissions,  provided  they  are  not  part  of  an  interactive  service,  and 
are  made  on  a  non-subscription  basis. '°' 

In  summary,  MP3  webcasters  must  first  receive  permission  from  music 
publishers  for  all  pure  digital  transmissions  of  copyrighted  songs.  Webcasters 
can  contract  with  performance  rights  societies  to  receive  blanket  licenses. 
Second,  while  there  remains  no  general  performance  right  for  sound  recordings, 
there  is  a  specific  delineated  performance  right  in  certain  digital  audio 
transmissions  for  which  record  companies  may  choose  to  grant  licenses  for 
negotiated  fees.  These  "performances"  are  the  types  of  transmissions  that  are 
most  likely  to  affect  the  actual  market  for  the  record  companies'  records,  such  as 
interactive  transmissions  and  certain  non- interactive  subscription  transmissions. 
Other  types  of  non- interactive  subscription  transmissions  may  only  require 
compulsory  licenses.  Non- interactive,  non-subscription  pure  transmissions, 
however,  are  currently  exempted  from  any  licensing  from  record  companies. 

B.  Reproduction  and  Distribution  of  MPS  Files 

Grounds  may  exist  for  recognizing  a  reproduction/distribution  mechanical 
license  for  publishers  from  a  pure  transmission  received  from  an  interactive 
service,  even  though  no  actual  "copy"  was  made  by  the  recipient.  The  ease  of 
access  to  songs  by  request  from  interactive  services  could  conceivably  replace 
the  need  to  purchase  an  actual  physical  copy  of  the  record  or  even  to  purchase  a 
digital  phonorecord  delivery  of  the  song.  Therefore,  some  organizations, 
including  the  Harry  Fox  Agency,  argue  that  these  transmissions  should  be  subject 
to  the  same  compulsory  mechanical  licenses  that  record  companies  pay  to 
publishers. '^^  Conceptually,  it  has  already  been  asserted  that  such  a  transmission 


100.  See  Kohn,  supra  note  58,  at  18. 

101.  Id 

102.  See  id.  at  12.  This  raises  a  troubling  issue  of  "double-dipping"  by  music  publishers. 
From  a  single  transmission  by  an  interactive  service,  a  publisher  would  claim  entitlement  to  fees 
from  the  public  performance  of  the  transmission,  paid  to  ASCAP  or  BMI  on  their  behalf  (as  if  it 
were  a  radio  broadcast)  and  claim  entitlement  to  a  mechanical  license  fee  as  if  it  were  equivalent 
to  a  phonorecord  delivery,  paid  to  Harry  Fox  on  their  behalf  (as  if  it  were  a  royalty  from  the  sale 
of  a  record).  There  is  language  in  the  statute  to  support  such  a  proposition.  Section  1 1 5,  addressing 


1999]  MP3  DIGITAL  MUSIC  FILES  335 


can  be  both  a  public  performance  and  a  reproduction/distribution  of  a  record.  ^^^ 
In  contrast  to  the  "pure"  transmission  of  digital  recordings,  some 
transmissions  result  in  the  recipient  actually  receiving  a  fixable  copy  of  the 
record.  These  transmissions  are  called  digital  phonorecord  deliveries. '^'^  A 
commercial  purchase  of  an  MP3  file  from  a  web  site  is  an  example  of  a  digital 
audio  transmission  that  results  in  a  digital  phonorecord  delivery.  For  each  copy, 
publishers  are  entitled  to  the  compulsory  mechanical  license  fees  provided  in 
section  115  and  usually  collected  by  the  Harry  Fox  Agency  on  the  publishers' 
behalf,  just  as  in  other  reproduction/distribution  licenses. '^^ 

Record  companies  are  in  the  same  position  they  would  be  in  for  any  other 
reproduction  of  their  sound  recordings — ^the  position  to  grant  voluntary  licenses. 
Web  sites  that  seek  to  make  digital  phonorecord  deliveries  of  records  therefore 
must  receive  the  permission  of  the  record  company  and  pay  the  negotiated  fee. 

V.  Here,  There,  AND  Everywhere:  Who  Is  Liable  for 
Infringing  Uses  of  MP3  Files? 

Despite,  or  perhaps  due  to,  the  complex  framework  for  voluntary  and 
compulsory  licensing  for  digital  recordings,  ample  opportunities  remain  for 
copyright  infringement  with  the  use  of  MP3  files.  The  infringement  can  range 
from  an  innocent  misunderstanding  of  the  law  to  willful  piracy  designed  to 
separate  publishers  and  record  companies  from  their  profits.  A  common  example 
of  infringement  would  be  fly-by-night  web  sites  posting  MP3  files  and 
encouraging  visitors  to  listen  to  and/or  download  (and  keep  or  redistribute) 
copies  of  the  files,  either  for  free  or  after  payment  to  the  web  site  owner,  who 
neither  compensates  nor  has  permission  from  the  record  company  or  the 
publisher. 

There  is  currently  no  authority  that  regulates  the  Internet  to  police  copyright 
infringements. '^^  Thus,  copyright  owners  are  essentially  responsible  for  their 
own  enforcement.  Publishers  and  record  companies  have  conceptually  three 
potential  targets  when  enforcing  their  copyrights  in  this  scenario:   those  who 


licenses  for  phonorecord  deliveries,  says  its  provisions  do  not  apply  to  exempt  transmissions  under 
section  114(d)(1).  17  U.S.C.  §  115(c)(3)(L)  (1994  &  Supp.  Ill  1997).  Because  interactive 
transmissions  are  not  exempt,  arguably  section  115  would  apply  to  them  as  well.  However,  the 
whole  purpose  in  recognizing  a  performance  right  in  these  particular  sound  recordings  is  to  address 
the  problem  of  their  equivalency  to  reproduction/distribution. 

1 03.  The  White  Paper  from  the  Working  Group  on  Intellectual  Property  Rights  (September 
1995)  has  stated  that  transmissions  of  phonorecords  are  both  a  distribution  and  a  public 
performance.  See  Delaney  &  Lichstein,  supra  note  14,  at  113-14. 

104.  5ee  Kohn,  ^wpra  note  58,  at  8. 

105.  See  17  U.S.C.  §  1 15  (1994  &  Supp.  Ill  1997).  In  addition,  publishers  are  asking  for 
performance  fees  (via  ASCAP  and  BMI)  for  each  digital  phonorecord  delivery,  on  the  basis  that 
section  1 1 5  implies  that  a  digital  phonorecord  delivery  can  also  be  a  public  performance.  See 
Kohn,  supra  note  58,  at  9,  10. 

106.  See  Bloom,  supra  note  48,  at  180. 


336  INDIANA  LAW  REVIEW  [Vol.  33:3 17 


create  the  web  sites,  the  consumer  who  appropriates  the  copyrighted  material,  or 
the  Internet  Service  Providers  (ISPs)  who  provide  the  server  for  the  web  site. 

A.   Web  Site  Owners 

Renegade  web  site  owners  are  a  logical  choice  for  copyright  owners' 
enforcement  activities  since  they  are  the  direct  infringers  in  the  scenario 
described  above.  Unfortunately,  the  ubiquity  of  web  sites  maintained  by  ordinary 
people,  the  ease  with  which  MP3  files  can  be  made,  posted,  copied,  and  played, 
and  the  online  community's  growing  appreciation  for  the  quality  and  efficiency 
of  the  MP3  file  format  all  make  catching,  not  to  mention  preventing, 
infringement  very  unlikely.  Moreover,  even  when  an  infringing  site  is  found,  it 
is  very  difficult  to  pin  down  the  people  responsible  for  the  site.  Recent  lawsuits 
directly  addressing  MP3  postings  have  been  stymied  when  the  web  sites  simply 
disappear  after  restraining  orders  have  been  issued. '^^  These  web  sites  may 
reappear  in  a  different  location.  If  damages  are  sought  in  addition  to  an 
injunction,  another  consideration  is  the  fact  that  most  of  the  smaller  web  sites 
(who  are  likely  to  be  the  most  flagrant  infringers)  are  likely  to  be  judgement- 
proof. 

B.  Home  Users 

Ordinarily,  the  exposure  of  home  users  to  liability  for  copying  MP3  files 
stems  from  the  principle  that  a  fixed  copy  of  a  file  is  made  when  it  is  downloaded 
from  an  online  source  to  a  disk  drive.  In  fact,  a  fixed  copy  is  made  even  when 
a  file  is  uploaded  from  a  disk  drive  into  random  access  memory  (RAM),  even 
though  its  existence  is  only  temporary. '^^ 

However,  the  Audio  Home  Recording  Act  of  1992,  codified  as  Chapter  10 
of  the  Copyright  Act,'°^  may  protect  some  consumers.  Section  1008  permits 
noncommercial  consumer  copying  of  both  digital  and  analog  material.' '° 
Therefore  "ripping"  songs  from  one's  own  CDs  for  the  purpose  of  creating  MP3 
files  for  playing  on  a  computer  (or  on  the  new  portable  Rio)  should  be  considered 
the  equivalent  of  making  an  audio  cassette  of  a  CD  for  one's  own  home  use. 
Although  the  impetus  for  enacting  the  Audio  Home  Recording  Act  was  the 
development  of  digital  audio  tape  (DAT)  technology  that  allowed  people  to 
create  CD-quality  cassette  tapes  of  their  CDs  in  their  homes,  there  are  reasons  to 
believe  that  section  1008  may  also  be  applicable  to  MP3  files  received  from 
Internet  transmissions.'"  The  act  defines  a  "digital  audio  copied  recording"  as 


107.  See.  e.g.,  A&M  Records,  Inc.  v.  Internet  Site  Known  as  Fresh  Kutz,  No.  97-CV-1099 
H  (S.D.  Cal.  filed  June  10, 1997).  It  and  a  similar  case  are  discussed  in  Delaney  &  Lichstein,  supra 
note  14,  at  104. 

108.  See  MAI  Sys.  Corp.  v.  Peak  Computer,  Inc.,  991  F.2d  511,518  (9th  Cir.  1993). 

109.  17  U.S.C.  §§  1001-10  (1994);  other  provisions  of  the  Audio  Home  Recording  Act 
protect  copyright  owners.  These  other  provisions  are  discussed  in  the  Conclusion  of  this  Note. 

110.  See  id.  §  lOOS. 

111.  See  the  discussion  in  Bloom,  supra  note  48,  at  1 92. 


1999]  MP3  DIGITAL  MUSIC  FILES  337 


"a  reproduction  in  a  digital  recording  format  of  a  digital  musical  recording, 
whether  that  reproduction  is  made  directly  from  another  digital  musical  recording 
or  indirectly  from  a  transmission. ""^^^  Thus,  the  reasonable  "recording"  of  a  song 
from  a  webcast  in  the  privacy  of  the  home  for  one's  own  use  may  be  recognized 
as  the  equivalent  of  making  a  digital  cassette  recording  of  a  CD. 

C  Internet  Service  Providers 

ISPs  presented  at  one  time  an  enticing  target  for  copyright  owners  who  were 
seeking  to  redress  infringements  on  the  Internet,  on  theories  of  either  direct, 
contributory,  or  vicarious  infringement.  Compared  to  the  number  of  individual 
web  sites,  there  are  relatively  few  ISPs.  The  ISAs  are  easier  to  target  and  are 
more  likely  to  have  sufficient  resources  to  make  lawsuits  worthwhile.  However, 
the  recent  Digital  Millennium  Copyright  Act  has  clarified  and  limited  the  liability 
oflSPs.'^' 

ISPs  may  be  liable  for  direct  infringement  to  the  extent  that  they  are  directly 
responsible  for  infringing  sites,  for  instance  by  providing  subscription  services 
in  which  MP3  files  are  transmitted  upon  request  or  by  hosting  bulletin  boards  in 
which  MP3  files  are  posted  and  directly  downloaded  by  visitors.  As  the 
discussion  of  sections  1 1 4  and  1 1 5  above  suggested,  the  operators  of  subscription 
services  are  publicly  performing  the  music  and  thus  are  subject  to  paying 
compulsory  licenses  to  the  copyright  holders  of  sound  recordings  and  voluntary 
licenses  to  music  publishers.  Conversely,  operators  of  bulletin  boards  that  allow 
visitors  to  download  fixed  copies  of  records  are  subject  to  paying  voluntary 
licenses  for  the  sound  recordings  and  compulsory  licenses  for  the  songs.""* 

ISPs  are  therefore  required  to  obtain  licenses  only  to  the  extent  that  they 
provide  subscription  services  or  are  directly  responsible  for  infringing  sites  and 
not  because  they  provide  space  on  the  Internet  to  others'  infringing  subscription 
services  or  web  sites. "^ 


112.  17  U.S.C.  §  1001(1)  (1994)  (emphasis  added). 

113.  See  H.R.  2281,  105th  Cong.,  144  CONG.  Rec.  H7074-03  (1998).  The  Digital 
Millennium  Copyright  Act  is  discussed  infra  Part  VII. 

114.  The  stage  was  also  set  for  ISPs  to  be  responsible  for  the  payment  of  mechanical 
licenses — that  is,  the  compulsory  license  that  is  paid  to  music  publishers  for  the  reproduction  of 
their  songs — before  the  passage  of  the  1 995  Performance  Right  in  Sound  Recordings  Act.  In  1 993, 
Frank  Music  Corporation,  acting  on  behalf  of  the  Harry  Fox  Agency,  filed  suit  against  CompuServe 
in  the  U.S.  District  Court  in  Manhattan.  Frank  Music  claimed  that  CompuServe's  bulletin  board 
service  infringed  their  copyrights  by  providing  a  database  of  copyrighted  musical  works  for  its 
subscribers  to  download.  The  case  reached  a  settlement  before  trial,  in  which  in  addition  to  paying 
damages,  CompuServe  agreed  to  a  license  agreement  to  provide  future  mechanical  fees  to  Harry 
Fox.  See  Frank  Music  Corp.  v.  CompuServe  Inc.,  No.  93  Civ.  8153  (S.D.N. Y.  filed  Nov.  29, 
1993);  Bloom,  supra  note  48,  at  192-94;  see  also  Delaney  &  Lichstein,  supra  note  14,  at  97-98 
(providing  more  details  of  the  Frank  Music  case). 

115.  To  be  liable  for  direct  infringement,  it  would  have  to  be  shown  that  the  ISP  actually 
engaged  in  infringing  activity;  "[m]erely  encouraging  or  facilitating  [infringing]  activities  is  not 


338  INDIANA  LAW  REVIEW  [Vol.  33:317 


An  ISP,  however,  may  be  liable  for  contributory  infringement,  if,  having 
knowledge  of  an  infringing  site,  it  '"induces,  causes  or  materially  contributes  to 
the  infringing  conduct'  of  the  primary  infringer.""^  Even  if  contributory 
infringement  is  not  found,  the  ISP  may  still  be  liable  for  vicarious  infringement, 
where  the  ISP  "(0  has  the  right  and  ability  to  control  the  infringer's  acts  and  (2) 
receives  a  direct  financial  benefit  from  the  infringement."''^  ISPs  should  not  be 
allowed  to  ignore  and  allow  infringement  by  those  who  make  use  of  their  space, 
particularly  when  they  also  profit  from  the  infringement.  However,  for  practical 
and  policy  reasons,  ISPs  should  also  not  be  pressured  to  censor  or  otherwise  exert 
prior  restraint  on  the  activities  of  their  members. 

VI.  Paranoid  Androids:  The  Industry's  Use  of  Technology 

TO  Protect  Copyrights 

Because  enforcement  of  copyrights  on  the  Internet  is  so  difficult,  the  music 
industry  has  turned  to  technological  innovations  with  the  aim  of  preventing 
infringement  from  occurring.  Although  these  innovations  may  be  successful, 
there  are  also  troubling  implications  for  the  use  of  works  in  the  public  domain  or 
for  the  fair  use  of  copyrighted  works,  particularly  if  these  innovations  become 
mandatory. 

Technology  exists  that  can  be  included  in  the  MP3  file  compression  process 
that  would  make  the  format  more  secure  from  the  moment  an  MP3  file  is  made. 
Encryption  technology  that  prevents  the  saving  of  MP3  files  received  from  digital 
broadcasts,  watermarks  that  embed  the  computer  source  of  an  MP3  file  in  the  file 
itself,  and  the  restriction  of  the  playback  of  an  MP3  file  to  one  computer  are  all 
possible  and  in  use  in  MP3  applications  today. "^ 

Congress  has  taken  an  interest  in  mandating  the  use  of  security  technology. 
The  Audio  Home  Recording  Act  of  1992  implements  a  Serial  Copyright 
Management  System  for  DAT  devices."^  DATs  are  audio  cassette  tapes  that 
make  CD-quality  digital  recordings.  As  a  response  to  the  danger  of  the  mass 
production  of  CD-quality  DATs  copied  from  CDs,  a  Serial  Copyright 
Management  System  is  incorporated  into  DAT  devices  so  that  the  device  can 
make  a  copy  of  a  CD  onto  a  DAT,  but  it  will  not  be  able  to  make  a  copy  from  the 


proscribed  by  the  statute."  Playboy  Enter.,  Inc.  v.  Russ  Hardenburgh,  982  F.  Supp.  503,  512  (N.D. 
Ohio  1997).  Indeed,  ISPs  have  been  resistant  to  entering  into  blanket  license  agreements  because 
they  are  not  the  ones  directly  purveying  the  audio  files  found  on  web  sites  or  on  bulletin  board 
services  operated  by  private  individuals  on  the  Internet.  See  Bloom,  supra  note  48,  at  198.  For 
another  example  of  a  subscription  bulletin  board  service,  and  not  the  ISP,  being  found  liable  for 
infringement,  see  Sega  Enterprises,  Ltd.  v.  Maphia,  948  F.  Supp.  923  (N.D.  Cal.  1996). 

116.  Religious  Tech.  Ctr.  v.  Netcom  On-Line  Communication  Servs.,  Inc.,  907  F.  Supp. 
1361,  1375  (N.D.  Cal.  1995)  (citations  omitted). 

1 17.  Id.  Much  of  the  holding  of  this  case  was  codified  in  the  safe  harbor  provisions  of  the 
Digital  Millennium  Copyright  Act,  discussed  infra  Part  VII. 

1 18.  See  Robertson,  supra  note  13. 

1 19.  See  17  U.S.C.  §  1002  (1994). 


1999]  MPS  DIGITAL  MUSIC  FILES  339 


copy.  Thus  while  unlimited  copies  may  be  made  from  the  original  recording, 
copying  a  copy  is  always  prevented. '^^  Furthermore,  Microsoft  has  also  recently 
released  MS  Audio  4.0  which  prevents  the  copying  of  music  files  that  have  been 
downloaded  from  the  Internet.'^* 

These  are  potentially  very  effective  methods  to  prevent  rampant  piracy  of 
digital  sound  recordings.  They  may,  however,  prove  to  be  too  effective  if  they 
also  prevent  justifiable  copying,  such  as  when  the  copyright  owner  seeks  to  make 
copies,  the  copying  is  fair  use,  or  when  the  recording  eventually  enters  the  public 
domain.  The  problem  with  using  mandatory  technological  measures  to  address 
infringement  is  that  it  impacts  all  devices  indiscriminately.  Copy  protection 
devices  on  MPS  players  and  recorders  are  legally  neutral  entities  that  function 
whether  the  material  is  copyrighted  or  in  the  public  domain,  or  whether 
permission  to  use  a  copyrighted  work  has  been  granted  or  not. 

Nevertheless,  Congress,  apparently  undaunted  by  such  concerns,  recently 
enacted  new  legislation  that  expands  the  Serial  Copyright  Management  System 
requirements  to  cover  other  kinds  of  digital  recordings,  including  MPS  files. 

VIL  The  Shape  OF  Things  TO  Come:  The  Digital 
Millennium  Copyright  Act 

In  October  2000,  the  recently  passed  Digital  Millennium  Copyright  Act'^^ 
(DMCA)  will  go  into  effect,  and  the  copyright  framework  depicted  above  will 
change.  Passed  in  November  of  1998,  the  DMCA  (H.R.  2281)  creates  Chapter 
12  of  the  Copyright  Act  (titled  "Copyright  Protection  Systems  and  Copyright 
Management  Information")  and  implements  both  the  World  Intellectual  Property 
Organization  (WIPO)  Copyright  Treaty  and  the  Performances  and  Phonograms 
Treaty.  *^^  The  DMCA  came  as  a  response  to  the  "ease  with  which  flawless 
copies  of  copyrighted  materials  can  both  be  made  and  transmitted  in  the  digital 
network  environment,"'^"*  of  which  MPS  formatting  is  the  obvious  example.  It 
has  been  interpreted  as  creating  a  "paradigm  shift"  in  copyright  law  that  reflects 
Congress's  change  in  focus  "from  'giving  minimal  protection  to  works  to 
providing  maximum  revenue  flow  to  American  companies. '"'^^ 

The  DMCA  contains  three  major  components  pertinent  to  MPS  files:  a 
clarification  of  the  responsibilities  of  ISPs  in  the  transmission  of  digital 
recordings,  new  statutory  licensing  for  digital  audio  transmissions,  and  most 
significantly,  a  sharp  focus  on  the  protection  of  encryption  and  other  security 
technologies  that  protect  the  copyrights  of  digital  materials. 


120.  See  PASSMAN,  supra  note  22,  at  245-46. 

121.  See  Maureen  S.  Domey,  New  High-tech  Solutions  for  High-tech  Infringement,  Nat'l 
L.J.,May  17,  1999,  at  B5. 

122.  Pub.  L.  105-304,  1 12  Stat.  2860  (1998). 

123.  See  144  CONG.  Rec.  H7074-03  (Aug.  4,  1998). 

1 24.  Id.  at  H7096  (statement  of  Rep.  Boucher). 

1 25.  Wendy  Leibowitz,  The  Sound  of  One  Computer  Copy,  THE  Nat'l  L.  J.,  Nov.  2,  1 998, 
atA16. 


340  INDIANA  LAW  REVIEW  [Vol.  33:3 17 


A.  Safe  Harbor  for  ISPs 

The  DMCA  protects  ISPs  with  the  Online  Copyright  Infringement  Liability 
Limitation  Act.^^^  One  of  its  purposes  is  to  reduce  the  incentives  on  ISPs  to 
censor  their  users/^^  The  Act  provides  that  an  ISP  will  not  be  liable  for 
infringement  when  it  transmits,  routes,  or  provides  connections  for  material  on 
its  systems,  when  the  following  conditions  are  met:  the  transmission  was 
initiated  by  someone  other  than  the  ISP;  the  transmission  is  an  automatic  process 
(meaning  the  ISP  did  not  select  the  material  to  be  transmitted);  the  ISP  does  not 
select  the  recipient  of  the  transmission;  no  copy  of  the  material  is  made  that  can 
be  accessed  by  anyone  other  than  an  intended  recipient;  and  no  modification  of 
the  material  occurs  during  transmission.  ^^^  Thus,  ISPs  need  not  aggressively 
monitor  webcasts  for  infringing  transmissions  of  MP3  files. 

An  ISP  is  also  not  liable  for  the  temporary  storage  of  infringing  material  that 
occurs  during  the  material's  transmission,  when  the  material  was  made  available 
by  someone  other  than  the  ISP,  the  material  is  transmitted  without  modification 
by  the  person  who  made  it  available  to  another  person  who  requested  it,  and 
when  the  storage  is  only  what  is  necessary  for  the  transmission.'^^  Similarly,  an 
ISP  would  also  not  be  liable  for  storing  infringing  materials  at  the  direction  of 
users,  if  the  ISP  does  not  know  of  the  existence  of  the  infringing  materials  (no 
actual  knowledge,  no  awareness  of  the  apparent  signs  of  the  materials,  or  if  the 
ISP  did  have  knowledge  it  took  quick  action  to  remove  the  materials),  and  the 
ISP  does  not  receive  any  economic  benefits  attributable  to  the  infringing 
materials  (under  the  rationale  that  if  no  money  is  earned  the  ISP  has  no  control 
over  the  material). '^°  Thus  an  ISP  will  not  be  found  liable  for  renegade  web  sites 
in  its  file  servers  that  post  MP3  files  containing  pirated  material  if  the  ISP  is 
unaware  of  their  presence. 

B.  Additional  Requirements  for  Licensing  Digital  Audio  Transmissions 

The  status  of  record  companies'  public  performance  rights  in  non- interactive, 
non-subscription  digital  audio  transmissions  will  change  with  the  implementation 
of  the  DMCA.  The  language  in  section  114(d)(1)  that  exempted  non- 
subscription  transmissions  from  any  licensing  requirement  has  been  changed  to 
exempt  only  non-subscription  "broadcasf  transmissions.'^*  Accordingly, 
"eligible  non-subscription  transmissions"  that  are  not  "broadcasf  transmissions 
are  now  subject  to  compulsory  licensing  from  record  companies,  just  as 
subscription   transmissions   are   in   section    1 14(d)(2). '^^      New   eligibility 


126.  17  U.S.C.  §  512  (found  in  144  CONG.  Rec.  H7079). 

127.  See  144  CONG.  REC.  H7092  (statement  of  Rep.  Frank). 

128.  See  17  U.S.C.  §  512(a)  (found  in  144  CONG.  REC.  H7079). 

129.  See  17  U.S.C.A.  §  512(b)  (West  Supp.  1999). 

130.  See  id.  §  512(c). 

131.  See  id.  ^  114(d)(1)(A). 

132.  Id  §  114(d)(2). 


1999]  MP3  DIGITAL  MUSIC  FILES  341 


requirements  have  been  added,  including  a  requirement  that  transmitting  entities 
take  "reasonable  steps  to  ensure,  to  the  extent  within  its  control,  that  the 
transmission  recipient  cannot  make  a  phonorecord  in  a  digital  format  of  the 

transmission "'^^  What  would  constitute  such  "reasonable  steps"  is  not  clear. 

Other  eligibility  provisions  limit  the  duration  of  the  transmissions. '^"^ 
Transmissions  that  are  neither  exempt  nor  meet  the  eligibility  requirements  for 
statutory  licenses  must  be  permitted  by  the  record  company,  however,  the 
transmitter  will  have  to  pay  the  record  company  the  agreed-upon  license  fee. 

C   The  Advent  of  an  Encrypted  Web? 

The  DMCA  takes  copyright  law  in  a  new  direction  by  focusing  not  only  on 
the  protected  works  themselves,  but  also  on  general  types  of  security  devices  that 
protect  digital  works  from  infringement.  The  DMCA  adds  criminal  penalties  for 
the  use  of  devices  that  circumvent  copyright  protection  measures  to  the  already 
existing  criminal  penalties  for  the  infringement  itself;  specifically,  section  1201 
will  prohibit  the  circumvention  of  any  technological  measures  that  control  access 
to  copyrighted  sound  recordings. '^^  For  instance,  if  Diamond  Multimedia 
Systems  negotiates  with  the  RIAA  to  install  a  type  of  serial  management  system 
on  its  tiny  MPS  player,  the  Rio,  that  would  prevent  or  limit  the  ability  to  make 
copies  of  MPS  files;  any  interference  with  such  a  system  would  be  a  federal 
crime  under  the  DMCA. 

The  prohibition  will  not  apply  to  libraries,  educational  institutions,  and  other 
types  of  nonprofit  institutions  whose  use  of  copyrighted  works  has  traditionally 
been  considered  non-infringing  fair  use,  if  they  are  likely  to  be  "adversely 
affected"  by  the  prohibition  in  their  abilities  to  make  non-infringing  use  of 
copyrighted  works. '^^  Moreover,  the  implementation  of  the  DMCA  will  not 
affect  any  other  existing  copyrights  or  defenses  to  copyright  infringement, 
including  the  fair  use  privilege.'^^  The  DMCA  encourages  the  private  sector  to 
develop  technological  measures  that  will  enable  nonprofit  educational 
institutions  and  libraries  to  continue  to  create  and  lend  copies  of  sound 
recordings  while  at  the  same  time  protecting  copyright  owners  from 
infringements  of  their  rights.  ^^*  As  a  further  showing  of  good  faith,  in  the  interim 
two-year  period  between  the  date  the  DMCA  was  passed  and  the  date  the  Act 
goes  into  effect,  the  Secretary  of  Commerce  must  assess  the  impact  of  the  new 
criminal  provision  on  fair  use  and  on  the  market  for  the  copyrighted  works.  *^^ 


133.  144  Cong.  Rec.  H7084  (daily  ed.  Aug.  4,  1998)  (statement  of  Rep.  Cable). 

134.  See  17  U.S.C.A.  §  1 14(d)(2)(iii)  (West  Supp.  1999). 

135.  S'ge/t/.  §  1201(a)(1)(A). 

136.  5'ee/f/.  §  1201(a)(1)(B). 

137.  See  id.  §  1201(c). 

138.  See  1 44  CONG.  REC.  at  H7078-7079. 

139.  See  17  U.S.C.A.  §  1201(a)(1)(C)  (West  Supp.  1999). 


342  INDIANA  LAW  REVIEW  [Vol.  33:317 


VIII.  Trampled  Under  Foot:  The  Fair  Use  of  Sound 
Recordings  and  the  DMCA 

The  comprehensive  and  complex  statutory  licensing  system  that  exists  to 
compensate  record  companies  and  music  publishers  can  be  avoided  if  the 
reproduction  or  public  performance  of  the  songs  and  sound  recordings  is 
considered  fair  use.  Uses  of  MP3  files  made  from  copyrighted  recordings  that, 
in  a  general  sense,  are  a  benefit  to  society  in  a  manner  consistent  with  section 
107  of  the  Copyright  Act  do  not  require  the  payment  of  mechanical  or  voluntary 
licenses  and  there  may  be  permissible  uses  of  MP3  recordings  that  will  be 
recognized  after  analyzing  the  language  of  the  preamble  and  the  four  factors  in 
the  fair  use  statute. '"^^  After  all,  the  Supreme  Court,  interpreting  the  Constitution, 
said  that,  "the  primary  objective  of  copyright  is  not  to  reward  the  labor  of 
authors,  but  to  'promote  the  Progress  of  Science  and  the  useful  Arts.'"^"^' 
Unfortunately,  the  DMCA  may  have  the  unintended  consequence  of  stifling  this 
Constitutional  mandate  by  encouraging  the  technological  locking  up  of  access  to 
digital  materials  and  providing  mandatory  payments  for  most  types  of  digital 
transmissions.  These  measures  are  contributing  to  the  commercialization  and 
over-regulation  of  the  Internet,  which  could  narrow  its  early  promise  as  a  haven 
for  the  relatively  unregulated  flow  of  information  worldwide. 

The  time  before  the  October  2000  effective  date  for  the  DMCA,  will 
determine  the  impact  of  Congress's  desire  to  justly  balance  the  "technical 
measures"  that  will  be  designed  to  protect  copyrighted  material  against  the  fair 
use  needs  of  non-profit  libraries,  educational  institutions,  and  other  organizations 
whose  function  is  the  dissemination  of  information.  A  risk  exists  that  Congress 
will  overreach  and  unnecessarily  constrain  lawful  uses  of  copyrighted  material 
or  even  access  to  uncopyrighted  material. 

Particularly  problematic  is  the  fact  that  technological  security  devices,  like 
Serial  Management  Systems  or  password  protections,  do  not  distinguish  between 
infringing  and  non- infringing  uses.     For  instance,  if  MP3  recorders  were 


140.  See  17  U.S.C.  §  107  (1994).  For  instance,  a  nonprofit  fan-supported  web  site  that 
reviews  the  music  of  a  particular  genre  or  recording  artist  may  contain  samples  from  recent  records. 
Commentary  and  criticism  are  recognized  public  purposes  in  the  preamble  to  section  1 07.  Although 
the  artistic  nature  of  the  work  may  weigh  against  fair  use  (the  law  may  be  more  likely  to  favor  the 
fair  use  of  factual  works),  the  noncommercial  use  of  a  limited  amount  of  a  sound  recording  favors 
fair  use.  See  Harper  &  Row  Publishers,  Inc.  v.  Nation  Enters.,  47 1  U.S.  539, 563  ( 1 985)  ("The  law 
generally  recognizes  a  greater  need  to  disseminate  factual  works  than  works  if  fiction  or  fantasy."); 
Dr.  Seuss  Enters.  L.P.v.  Penguin  Books  USA,  Inc.,  109F.3d  1394, 1402  (9th  Cir.  1997)  ("Creative 
works  are  'closer  to  the  core  of  intended  copyright  protection'  than  informational  and  functional 
works  .  .  .").  But  see  Campbell  v.  Acuff-Rose  Music,  Inc.,  510  U.S.  569  (1994)  (which  found  2 
Live  Crew's  parody  of  "Oh,  Pretty  Woman"  to  be  fair  use).  The  impact  on  the  market  for  the 
copyrighted  work  may  even  be  favorable  if  visitors  to  the  site  are  motivated  to  purchase  the  entire 
album. 

141 .  Feist  Publications,  Inc.  v.  Rural  Tel.  Serv.  Co.,  Inc.,  499  U.S.  340, 349  (1991)  (quoting 
U.S.  Const,  art.  I,  §  8,  cl.  8). 


1 999]  MPS  DIGITAL  MUSIC  FILES  343 


equipped  with  devices  that  limited  the  number  of  copies  that  could  be  made,  or 
that  permitted  copies  to  be  made  only  from  a  CD,  musicians  who  are  now 
eschewing  the  traditional  recording  industry  and  distributing  their  music 
themselves  on  the  Internet  may  find  it  difficult  to  exercise  their  own 
reproduction,  distribution,  and  public  performance  rights.  Furthermore,  not 
every  digital  recording  is  necessarily  copyrighted.  Federal  government-produced 
materials,  for  instance,  automatically  belong  in  the  public  domain."*^  Thus  under 
the  scenario  described  above,  it  would  be  difficult  to  disseminate  a  digital 
recording  of  the  President's  State  of  the  Union  Address,  even  though  the 
recording  of  that  work  would  almost  certainly  be  in  the  public  domain.  Even 
copyrighted  digital  recordings  will  eventually  enter  the  public  domain  as  their 
term  of  protection  expires. 

Lastly,  there  is  a  growing  movement  on  behalf  of  the  "copy  left"  ideal — ^the 
complete  antithesis  of  copyright — ^which  advocates  placing  and  keeping  new 
works — such  as  software — ^permanently  in  the  public  domain.''*^  Copy  left  refers 
to  a  quasi-license  agreement  that  certain  works  on  the  Internet  are  intended  by 
their  authors  to  be  freely  copied,  distributed,  performed,  derived  from,  or 
displayed  by  anyone  free  of  charge,  no  permission  necessary,  with  only  the 
requirement  that  the  work  and  any  subsequent  copies  or  derivative  works 
continue  to  be  "copylefted,"  so  that  no-one  ever  "owns"  any  rights  to  it.'"*"*  This 
could  be  the  ethos  behind  many  small-scale  recording  artists  who  are  currently 
using  MP3  files  to  freely  distribute  their  music  on  the  Internet,  desiring  only  that 
they  reach  an  audience. 

Thus  a  key  issue  for  Congress  is  whether  the  security  devices  contemplated 
by  the  DMCA  will  be  amenable  to  accessing  works  in  the  public  domain, 
regardless  of  how  they  enter  the  public  domain,  or,  whether  due  to  the  recording 
industry's  desire  to  prevent  infringement,  non-infringing  uses  will  be  prevented 
too.  The  Supreme  Court  has  looked  disfavorably  on  efforts  to  combat 
infringement  that  interfere  with  the  public's  ability  to  make  non-infringing  uses 
of  materials.  In  denying  Universal  the  ban  it  sought  on  Betamax  video  recorders, 
Justice  Stevens  commented  that  "an  injunction  which  seeks  to  deprive  the  public 
of  the  very  tool  or  article  of  commerce  capable  of  some  non-infringing  use  would 
be  an  extremely  harsh  remedy,  as  well  as  unprecedented  in  copyright  law.'""*^ 

There  are  also  significant  dangers  of  overreaching  with  respect  to  the  fair  use 
of  copyrighted  recordings.  The  DMCA  encourages  a  vision  of  the  future  digital 
environment  in  which  copyrighted  materials  are  promulgated  with  technological 


142.  ^ee  17  U.S.C.§  105(1994). 

143.  Not  surprisingly,  much  discussion  of  "copy  left"  is  found  on  the  Internet.  Derived  from 
the  "open  source"  movement  in  software  development  and  distribution,  "copyleft"  is  introduced 
in  Open  Source  Software:  A  (New?)  Development  Methodology  (visited  Nov.  17,  1998) 
<http://www.opensource.org/halloween  1  .html>. 

144.  This  "copyleft"  licensing  scheme  is  summarized  in  Wired  Magazine's  web  site: 
<http://www.wired.eom/wired/5.08/linux.html>. 

145.  Sony  Corp.  of  Am.  v.  Universal  City  Studios,  Inc.,  464  U.S.  417,  444  (1984)  (citation 
omitted). 


344  INDIANA  LAW  REVIEW  [Vol.  33:317 


"locks"  that  limit  their  ability  to  be  accessed,  reproduced,  and  circulated  without 
first  being  assessed  a  charge,  creating  in  effect  a  "pay-per-view"  Web."^^ 
Congress,  expressing  its  best  intentions,  made  it  clear  that  the  circumvention 
provision  does  not  apply  to  nonprofit  libraries,  archives,  educational  institutions, 
and  charitable  and  other  tax-exempt  institutions."*^  The  DMCA  also  stipulated 
that  it  would  have  no  effect  on  the  law  of  fair  use.^"*^  Thus  certain  copyrighted 
works  may  also  be  required  to  contain  some  sort  of  "key"  that  will  facilitate  the 
circumvention  of  their  protection  devices. 

Unfortunately,  this  may  result  in  a  very  narrow,  regulated  future  for  fair  use. 
While  it  may  be  conceivable  to  authorize  such  "keys"  to  libraries,  educational 
institutions,  and  other  organizations  who  routinely  make  fair  use  of  copyrighted 
works,  the  fair  use  privilege  does  not  belong  solely  to  these  institutions.'"*^  As  the 
language  of  the  statute  and  the  development  of  the  case  law  demonstrates,  the 
finding  of  fair  use  is  based  on  conduct — ^that  is,  the  "use"  of  the  copyrighted 
work  and  the  effects  of  that  use,  and  not  on  the  status  of  the  user,  that  is,  on 
whether  the  user  is  a  librarian,  a  professor,  scholar,  or  journalist.  ^^^  Anyone  may 
be  in  the  position  to  make  a  fair  use  of  a  copyrighted  work  for  a  variety  of 
legitimate  purposes,  including  scholarship,  commentary,  parody,  and  even  the 
more  mundane  temporary  copying  for  later  use  or  the  copying  for  home  use  of 
lawfully  acquired  materials.*^*  If  the  general  public  is  going  to  be  able  to 
continue  to  make  fair  use  of  copyrighted  works  in  Congress's  locked-down  vision 
of  the  Internet,  then  either  everyone  is  going  to  be  provided  a  "key"  (thereby 
defeating  the  purpose  of  the  locks  in  the  first  place),  or  "keys"  will  have  to  be 
distributed  in  advance  for  each  purported  fair  use  in  an  oppressive  regulatory 
framework.  Unfortunately,  savvy  members  of  the  online  community  may 
respond  to  excessive  regulation  by  attempting  to  hack  around  protection  devices, 
exposing  themselves  not  only  to  the  risk  of  a  suit  for  infringement  but  for 
criminal  prosecution  as  well.^^^ 


1 46.  See  A  Pay-Per-  View  World,  WASH.  POST,  Aug.  4, 1 998,  at  A 1 4  (discussed  in  1 44  CONG. 
Rec.  H7094)  (statement  of  Rep.  Bliley). 

147.  See  17  U.S.C.A.  §  1201(d)(1)  (West  Supp.  1999). 

148.  See  id.  §  1201(c)(i). 

149.  Not  to  mention  that  the  very  idea  of  "authorizing"  fair  use  by  such  institutions  before 
the  fact  brings  to  mind  troubling  images  of  fair  use  being  narrowly  defined. 

1 50.  The  diversity  of  those  found  to  have  made  permissible  fair  use  of  copyrighted  materials 
includes  the  rap  group  2  Live  Crew's  parody  of  Roy  Orbison's  "Oh,  Pretty  Woman."  See  Campbell 
V.  Acuff-Rose  Music,  Inc.,  510  U.S.  569  (1994). 

151.  Certain  home  copying  was  recognized  as  legitimate  fair  use  in  Sony  Corp.  v.  Universal 
City  Studios,  Inc.,  464  U.S.  417  (1984);  home  taping  for  noncommercial  use  is  permitted  in  the 
Audio  Home  Recording  Act.  See  17  U.S.C.  §  1002  (1994). 

152.  Congress,  made  sensitive  to  the  importance  of  fair  use  from  lobbying  by  libraries, 
universities,  and  other  interested  parties,  convened  a  Conference  on  Fair  Use  (CONFU)  to  address 
these  concerns  and  to  begin  to  develop  guidelines  for  librarians.  Ultimately  the  CONFU  could  not 
reach  a  consensus  on  the  guidelines,  reporting  that  it  was  "premature  to  draft  guidelines  for  digital 
transmissions  of  digital  documents."  1 44  CONG.  REC.  at  H7096-7097  (statement  of  Rep.  Boucher). 


1999]  MPS  DIGITAL  MUSIC  FILES  345 


To  summarize,  the  Digital  Millennium  Copyright  Act  encourages  music 
publishers  and  record  companies  to  control  the  access  and  circulation  of  their 
works,  which  could  cut  off  not  only  infringing  uses  but  also  lawful  fair  use.'^^ 
This,  along  with  the  imposition  of  a  more  expansive  regime  of  statutory  licenses, 
will  make  the  Internet  increasingly  a  pay-per-use  marketplace  rather  than  an  open 
forum  for  the  free  flow  and  exchange  of  information.  However,  by  providing  for 
fair  use,  as  supported  by  language  in  the  Constitution,  the  Copyright  Act  has 
recognized  that  there  are  circumstances  in  which  the  goals  enumerated  in  the 
Constitution,  that  are  served  by  copyrights  (that  is,  promoting  progress),  are 
better  served  by  allowing  the  use  of  copyrighted  works,  rather  than  prohibiting 
such  use.'^"^  Congress  should  spend  the  time  before  the  DMCA  goes  into  effect 
carefully  reconsidering  the  impact  of  the  Act  on  fair  use  as  understood  in  its 
broadest  (and  truest)  sense  and  taking  action  to  ameliorate  the  potential  damage 
to  the  best  aspects  of  the  Internet.  Until  then,  the  music  industry  will  be 
developing  technological  measures  to  contain  MP3  music  piracy. 

Strange  Brew:  A  Conclusion 

MPS  files  are  at  the  forefront  of  a  revolution  in  the  reproduction  and 
distribution  of  popular  music: 

[rjecord  companies  and  music  publishers  are  confronted  with  a 
consuming  public  that  can  literally  manufacture  its  own  albums  based  on 
material  that  is  beamed  into  households  from  remote  sources,  and  can 
enjoy  these  albums  with  a  sound  quality  that  is  equal  to,  or  higher  than. 


Besides  the  fact  that  the  CONFU  was  given  a  narrow  charge  that  did  not  consider  fair  use  outside 
an  educational  and  institutional  context,  any  guidelines  on  fair  use  would  be  of  limited  use  to 
libraries  and  other  academics  anyway.  Whether  an  otherwise  infringing  use  of  copyrighted 
materials  constitutes  lawful  fair  use  is  an  extremely  fact-sensitive  determination  that  ultimately  is 
best  settled  by  looking  at  each  situation  on  a  case-by-case  basis,  rather  than  applying  a  static  set  of 
guidelines.  Analysis  on  a  case  by  case  basis  ensures  both  a  more  accurate  assessment  of  fair  use 
that  is  tailored  to  each  use  and  the  ability  to  adapt  each  assessment  to  the  current  state  of  the  law. 
This  approach  was  recently  adopted  by  Indiana  University  in  its  policy  on  the  use  of  copyrighted 
works  for  education  research,  on  the  advice  of  Professor  Kenneth  Crews,  Director  of  the  lUPUI 
Copyright  Management  Center.  This  approach  is  supported  by  the  United  States  Supreme  Court. 
Emphasizing  the  hard-to-pin-down  nature  of  fair  use.  Justice  Stevens  in  Sony  remarked  that  fair  use 
is  not  conducive  to  rigid  rules  or  guidelines,  but  instead  must  be  decided  on  a  case  by  case  basis. 
See  Sony,  464  V.S.  at  449. 

153.  The  usefulness  of  the  protection  devices  once  the  copyright  term  has  expired  is  yet 
another  question. 

1 54.  See  Arica  Inst.,  Inc.  v.  Palmer,  970  F.2d  1 067,  1 077  (2d  Cir.  1 992);  see  also  Pacific  & 
Southern  Co.  v.  Duncan,  744  F.2d  1490, 1495(Ga.  \9M),cert.  denied,41\  U.S.  \004,  on  remand, 
618  F.  Supp.  469  (1985)  ("The  'fair  use'  doctrine  allows  a  court  to  resolve  tensions  between  the 
ends  of  copyright  law,  public  enjoyment  of  creative  works,  and  the  means  chosen  under  copyright 
law,  the  conferral  of  economic  benefits  upon  creators  of  original  works."). 


346  INDIANA  LAW  REVIEW  [Vol.  33:317 


that  which  is  currently  the  standard. '^^ 

Nevertheless,  users  of  MP3  files  on  the  Internet  must  conscientiously  attempt 
to  comply  with  the  Copyright  Act.  Some  form  of  a  license  payment  is  necessary 
for  most  transmissions  of  digital  recordings  not  made  by  the  copyright  owner  or 
on  the  owner's  behalf.  Voluntary  licenses  for  public  performances  can  be 
negotiated  with  ASCAP  and  the  other  performance  rights  societies;  mechanical 
licenses  for  reproductions  and  distributions  can  be  paid  to  the  Harry  Fox  Agency; 
and  RIAA  can  negotiate  on  behalf  of  record  companies.  On  the  other  hand,  MP3 
users  should  always  remain  open  to  exploring  the  scope  of  fair  use  of  sound 
recordings  for  bona  fide  purposes  that  benefit  the  public. 

For  its  part,  the  recording  industry  can  develop  sensitive  methods  to  obtain 
all  the  royalties  to  which  copyright  owners  are  entitled,  while  at  the  same  time 
not  foreclosing  non- infringing  uses  of  MP3  technology.  For  example,  ASCAP 
has  recently  begun  using  a  software  program  called  "EZ-Seeker"  that  searches 
out  web  sites  that  distribute  music  and  automatically  sends  out  a  license  form.'^^ 
The  RIAA  is  in  the  process  of  developing  an  industry-wide  technical  standard 
that  would  give  the  music  industry  control  over  the  online  distribution  of 
music. '^^  Entitled  the  Secure  Digital  Music  Initiative  (SDMI),  the  initiative  is  a 
coalition  of  representatives  from  the  record  industry  and  several  technology 
companies  organized  to  develop  a  system  to  limit  music  distribution,  provide 
license  and  royalty  payments,  and  secure  online  music  from  unauthorized 
copying.  ^^^  While  such  a  system  may  satisfy  the  RIAA,  it  is  unclear,  and 
probably  doubtful,  whether  these  companies  have  been  concerned  with  fair  use 
or  access  to  works  either  in  the  public  domain  or  not  eligible  for  copyright 
protection. 

Yet  a  workable  model  already  exists:  the  Audio  Home  Recording  Act 
compensates  copyright  owners  for  unlawful  copying  using  DATs  by  providing 
them  with  royalty  payments  derived  from  sales  of  DAT  recording  devices  and 
paid  to  them  by  manufacturers  and  importers  of  DAT  equipment. '^^  Similarly, 
a  small  surcharge  could  be  added  to  the  price  of  MP3  playback  devices  like  the 
Rio,  or  even  to  blank  CDs  and  floppy  disks,  with  a  share  going  to  publishers  and 
record  companies.  Although  this  would  compensate  copyright  owners  by  raising 
the  prices  paid  by  consumers,  the  impact  of  the  increase  would  be  minimized 
since  it  would  spread  the  cost  across  the  public.  Meanwhile,  the  MP3  files 
themselves  would  remain  accessible  for  fair  use,  public  domain  use,  and 
authorized  copying. 

Finally,  the  music  industry  may  have  to  accept  the  revolution  in  music 


1 55.  Howard  Siegel,  Digital  Distribution  of  Music:  How  Current  Trends  Affect  Industry,  5 
Multimedia  &  Web  Strategist,  Oct.  1998  at  1,  3. 

1 56.  See  Multimedia  Developments  of  Note,  4  MULTIMEDIA  &  WEB  STRATEGIST,  Sept.  1 998, 
at  1,  2. 

1 57.  See  Domey,  supra  note  1 2 1 ,  at  B7. 

158.  See  id 

1 59.  See  PASSMAN,  supra  note  22,  at  245-46. 


1999]  MPS  DIGITAL  MUSIC  FILES  347 


distribution  that  MP3  files  represent.  Rather  than  trying  to  contain  the 
proliferation  of  digital  music  on  the  information  highway,  record  companies  and 
music  publishers  should  embrace  and  develop  the  new  markets  made  possible  by 
MPS  technology.  For  instance,  the  industry  could  learn  from  the  way  obscure, 
far-flung  musicians  have  made  names  for  themselves  in  localized  online 
communities  by  distributing  their  recordings  on  MPS  sites.  As  one  web  site 
enthuses,  "[a]rtists  and  labels  can  employ  MPS  technology  in  the  best  way  to  suit 
their  individual  needs.  Give  away  one  song  to  sell  a  CD,  distribute  low  quality 
versions  of  songs,  sell  individual  songs  for  digital  delivery,  prepend  an  audio 
commercial  to  songs,  there  are  limitless  possibilities  for  artists  to  explore." '^° 
Record  companies  could  reproduce  and  distribute  music  in  a  similar  fashion, 
reaching  widely  diverse  audiences: 

[D]igital  distribution  presents  Utopian  possibilities.  Freed  of  the  costs 
of  manufacturing  and  distributing  CDs,  digitally  distributed  music  could 
be  cheaper  for  consumers  and  more  profitable  for  musicians.  Music 
could  be  geared  to  more  specialized  audiences  that  may  be  small  but 
widely  scattered;  a  fan  in  Helsinki  could  download  tunes  from  a  band  in 
Jakarta.'^* 

As  an  example,  Hollywood  Records,  a  well-known  handler  of  high-profile  movie 
soundtracks,  has  adopted  MPS  as  its  standard. '^^ 

In  the  meantime.  Congress  will  struggle  to  develop  a  policy  that  both 
facilitates  the  technological  protection  of  copyrights  and  preserves  the  law's 
traditional  deference  for  fair  use.  Whatever  policy  emerges  may  be  short  lived. 
Congress,  the  music  industry,  and  the  online  community  are  likely  to  discover 
well  before  the  October  1,  2000  implementation  of  the  DMCA  that  the  MPS 
format  has  become  obsolete  and  a  new  format  is  looming  on  the  horizon.  To 
prevent  perennial  crises  as  new  technologies  emerge.  Congress  and  the  courts 
must  learn  to  reconcile  both  the  law  to  technology  and  the  rights  of  copyright 
owners  to  the  progressive  goals  found  in  the  Constitution. 


1 60.  Robertson,  supra  note  1 3 . 

161.  Jon  Pareles,  Internet  Incites  Revolution  in  Music  Industry,  J.  Rec,  July  17,  1998, 
available  in  1998  WL  1 1955428. 

1 62.  See  Internet:  Hollywood  Records  Embraces  "Pirate  "  Standard  MPS,  NETWORK  Wk., 
July  27,  1998,  available  in  1998  WL  16054305. 


348 


INDIANA  LAW  REVIEW 


[Vol.  33:317 


Appendix:  Table  of  Licences 


Rights 

Record  Companies 

Music  Publishers 

(sound  recordings) 

(songs) 

Reproduction 

Voluntary  License 

Compulsory  License  for 
reproductions  in  the  form  of 

(including  digital 

recordings  (mechanical  licenses) 

phonorecord  deliveries) 

(Harry  Fox  Agency) 

(including  digital  phonorecord 
deliveries) 

Distribution 

Voluntary  License 
(including  digital  phonorecord 

Compulsory  License  for  distributions 
of  recordings 

deliveries) 

(Harry  Fox  Agency) 

Public 

No  license  required/No 

Voluntary  License 

Performance 

performance  right 

(Except  for  certain  digital 
transmissions*) 

(ASCAP/BMI/SESAC) 

Derivative 

Voluntary  License 

Voluntary  License 

Works 

Voluntary  License:  thecopyrightownermay  voluntarily  grant  the  license.  The 
effect  is  that  the  use  cannot  be  made  without  the  owner's  permission  and  without 
paying  a  negotiated  license  fee. 

Compulsory  License:  the  copyright  owner  must  grant  a  license.  The  effect  is 
that  the  use  may  be  made  without  the  owner's  permission  as  long  as  the  license 
fee  set  by  statute  is  paid. 

Digital  Phonorecord  Delivery:  a  recording  that  is  transmitted  digitally  with  the 
intent  that  the  receiver  will  be  acquiring  a  fixed  copy  of  the  recording. 

^criteria  for  Digital  Audio  Performances: 

There  must  be  a  transmission,  that  is  digital,  and  audio  only  (not  audio-visual). 
If  the  transmission  is  interactive:  Voluntary  License. 
If  the  transmission  is  non- interactive: 

and  through  a  subscription:  Voluntary  (Compulsory  if  "compliant"), 
and  not  through  a  subscription: 

and  is  a  "broadcast":  no  performance  right,  so  no  license  is  required, 
and  is  an  "eligible"  non-broadcast:  Compulsory  License  (DMCA). 


Closing  the  Doors  on  Unsupported  Speculation: 

Joiner's  Effect  on  the  Admissibility 

OF  Expert  Testimony 


Theresa  M.  Moore* 


Introduction 

The  critical  debate  over  what  types  of  scientific  testimony  and  evidence 
should  survive  the  scrutiny  of  the  Federal  Rules  of  Evidence  continues  to 
progress.  Attorneys  continuously  search  for  guidance  regarding  the  admission 
of  expert  testimony  because  admissibility  decisions  can  be  a  pivotal  point  in 
determining  the  viability  and/or  outcome  of  a  particular  claim.'  Due  to  the 
Supreme  Court's  goal  to  exclude  "junk  science,"^  the  Court  has  emphasized  the 
importance  of  scientifically  accurate  (or  reliable)  expert  evidence  and  testimony. 
In  achieving  this  goal,  however,  the  scope  of  a  district  court  judge's  authority  to 
exclude  a  particular  expert's  testimony  has  never  been  clearly  defined.  In  the 
meantime,  courts  continue  to  experience  an  influx  of  new  scientific  and  non- 
scientific  testimony.  Therefore,  it  is  critical  that  district  court  judges  are  given 
guidance  to  assist  them  in  their  determinations  of  admissibility. 

Over  five  years  ago,  the  Supreme  Court  created  a  new  standard  governing  the 
admissibility  of  expert  testimony  in  Daubert  v.  Merrell  Dow  Pharmaceuticals, 
Inc?  After  defining  the  requirements  for  the  admissibility  of  expert  testimony, 
the  Court  set  forth  a  directive  addressing  the  scope  of  district  court  judicial 
authority.  The  Supreme  Court  specifically  provided  that  the  district  court  judge, 
when  acting  as  the  gatekeeper,  must  focus  "solely  on  [the]  principles  and 
methodology  [of  the  experts  and],  not  on  the  conclusions  they  generate.'"*  As  a 
result  of  Daubert' s  distinction  between  methods  and  conclusions,  conflicting 
views  developed  as  to  the  scope  of  a  district  court's  power  when  determining  the 


*  J.D.  Candidate,  December  1999,  Indiana  University  School  of  Law— Indianapolis;  B.S., 
1993,  Ball  State  University. 

1 .  See  Patrick  C.  Barry,  Admissibility  of  Scientific  Evidence  in  the  Remand  o/Daubert  v. 
Merrell  Dow  Pharmaceuticals,  Inc..  Questioning  the  Answers,  2  WiDENER  L.  Symp.  J.  299,  305 
(1997)  (noting  that  evidence  of  causation  now  must  be  presented  via  expert  testimony,  and 
therefore,  many  suits  can  be  precluded  if  the  expert's  opinion  is  speculatively  based  on  existing 
data);  Michael  H.  Gottesman,  From  Barefoot  to  Daubert  to  Joiner;  Triple  Play  or  Double  Error?, 
40  ARIZ.  L.  Rev.  753,  769  (1998). 

2.  5ee  Graham  v.Playtex  Prods.,  Inc.,  993  F.Supp.  127, 134(N.D.N.Y.  1998)  (stating  that 
Dauberfs  primary  concern  was  the  exclusion  of  "junk  science");  Charles  F.  Preuss,  Closing  the 
Door  on  Junk  Science,  65  Def.Couns.  J.  323, 323  (1998)  (illustrating  how  the  appropriate  standard 
of  admissibility  is  important  to  ensure  that  courtrooms  are  not  infiltrated  with  "junk  science"); 
Richard  B.  Racine  et  al.,  The  Battle  over  Science  in  the  Courtroom,  FED.  LAW.,  Feb.  1995,  at  36, 
40;  Jeffrey  Robert  White,  Experts  and  Judges,  TRIAL,  Sept.  1998,  at  91,  91. 

3.  509  U.S.  579(1993). 

4.  Mat  595. 


350  INDIANA  LAW  REVIEW  [Vol.  33:349 


admissibility  of  an  expert's  testimony.^  Some  of  the  circuit  courts  gave  great 
deference  to  the  Supreme  Court's  direct  limitation  that  a  judge's  focus  should  be 
on  the  reliability  of  an  expert's  methods  and  not  on  the  expert's  conclusions.^ 
Other  circuit  courts  gave  less  deference  to  the  Supreme  Court's  distinction  and 
allowed  a  "district  [court]  judge  to  evaluate  both  the  scientific  validity  of  the 
expert's  methodology  and  the  strength  of  the  expert's  conclusions."^ 

After  many  years  of  confusion,  the  Supreme  Court  revisited  Daubert  in 
General  Electric  Co.  v.  Joiner}  Although  the  Court's  primary  concern  in  Joiner 
was  identifying  the  appropriate  standard  of  review  governing  a  district  court's 
decision  to  admit  or  exclude  expert  testimony,  the  Court  also  provided  insight 
into  Dauber fs  "methodology/conclusion"  distinction.^  While  it  is  unclear 
whether  Jo/w^r  conclusively  extended  the  trial  court  judge's  gatekeeping  role  to 
include  an  expert's  conclusions,'^  the  Supreme  Court's  opinion  has  resoundingly 


5.  See  J.  KennardNeal,  Life  After  JoinQr,  How  Will  the  New  Supreme  Court  Decision  Affect 
the  Admissibility  of  Expert  Testimony  in  Georgia?,  3  Ga.  B.  J.  32,  34  (1998)  (discussing  the 
growing  debate  as  to  the  scope  of  "the  district  court's  gatekeeper  role  in  evaluating  the 
'conclusions'  of  the  proposed  expert");  Anthony  Z.  Roisman,  The  Courts,  Daubert  and 
Environmental  Torts:  Gatekeepers  or  Auditors?,  14  PACE  Envtl.  L.  Rev.  545, 562  (1997)  (stating 
that  Daubert's  seemingly  bright-line  distinction  between  methodology  and  conclusions  has  not 
produced  uniform  results  among  the  circuit  courts);  Ruth  Saunders,  The  Circuit  Courts  'Application 
o/ Daubert  v.  Merrell  Dow  Pharmaceuticals,  Inc.,  46  Drake  L.  Rev.  407,  422-23  (1997) 
(illustrating  that  posi-Daubert  circuit  court  opinions  have  led  to  two  distinct  interpretations  of  the 
Supreme  Court's  opinion). 

6.  See  infra  notes  52-53  and  accompanying  text;  see  also  Kenneth  J.  Chesebro,  Taking 
Daubert '5^  "Focus"  Seriously:  The  Methodology/Conclusion  Distinction,  15  CardozoL.  Rev. 
1745,  1746  (1994)  (indicating  that  the  persuasiveness  of  the  expert's  opinion  is  beyond  the  scope 
of  an  admissibility  determination  under  Rule  702);  Lawrence  S.  Pinsky,  The  Use  of  Scientific  Peer 
Review  and  Colloquia  to  Assist  Judges  in  the  Admissibility  of  Gatekeeping  Mandated  by  Daubert, 
34  Hous.  L.  Rev.  527,  542  (1997)  (stating  that  a  judge's  focus  is  limited  to  the  validity  of  the 
expert's  underlying  methodology  and  not  whether  the  expert's  testimony  or  ultimate  conclusion  is 
correct);  Saunders,  supra  note  5,  at  422  (stating  that  circuit  courts,  supporting  Daubert' s  bright-line 
distinction,  distinguished  between  the  trial  judge's  initial  role  of  determining  whether  to  admit  the 
proffered  scientific  testimony  and  the  jury 's  role  of  deciding  the  "weight"  of  the  expert's  opinion). 

7.  Saunders,  supra  note  5,  at  422  (intimating  that  the  Ninth  Circuit  interpreted  Daubert' s 
gatekeeping  role  broadly);  see  infra  notes  72-101  and  accompanying  text. 

8.  522  U.S.  136(1997). 

9.  The  Supreme  Court  granted  certiorari  "to  determine  what  standard  an  appellate  court 
should  apply  in  reviewing  a  trial  court's  decision  to  admit  or  exclude  expert  testimony  under 
Daubertr  Id.  at  138. 

1 0.  Some  commentators  believe  that  the  combined  effect  of  the  Daubert  and  Joiner  opinions 
allows  a  district  court  judge  to  exclude  expert  testimony  if  the  judge  is  in  disagreement  with  the 
expert's  application  of  a  reliable  methodology  in  arriving  at  the  proffered  conclusion.  See.  e.g., 
Gottesman,  supra  note  1,  at  772;  Preuss,  supra  note  2,  at  323.  However,  there  are  others  who 
maintain  that  the  Joiner  decision  should  not  be  construed  so  broadly  and  that  the  Supreme  Court's 
opinion  did  not  extend  the  judge's  gatekeeping  role  to  include  an  expert's  conclusions.  See,  e.g.. 


1 999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  3  5 1 


impacted  the  admissibility  of  expert  testimony. 

This  Note  analyzes  and  summarizes  the  various  standards  governing  the 
admissibility  of  expert  testimony  and  provides  a  glimpse  at  Joiner'^  effect  on 
future  decisions.  Part  I  provides  a  historical  background  of  expert  testimony  and 
describes  the  differing  opinions  on  a  district  court  judge's  authority  to  analyze 
the  validity  or  reliability  of  an  expert's  conclusion(s).  Part  II  addresses  the 
history  of  Joiner  from  the  district  court  decision  to  the  appeal  to  the  Supreme 
Court.  Part  III  suggests  that  the  Supreme  Court's  decision  in  Joiner  and  the 
proposed  amendments  to  Federal  Rule  of  Evidence  702  represent  a  retreat  from 
Dauberfs  methodology/conclusion  distinction.  Finally,  part  IV  discusses  how 
the  Court's  decision  signals  a  return  to  a  more  restrictive  era  governing  expert 
testimony  admissibility  determinations  under  Federal  Rule  of  Evidence  702. 

I.  History  of  Expert  Testimony 

A.  The  Step  Away  from  Requiring  General  Acceptance 

For  more  than  seventy  years,  the  admissibility  of  expert  testimony  was 
governed  by  the  "general  acceptance"  test  set  forth  in  Frye  v.  United  States}^ 
Under  Frye,  a  trial  judge  was  required  to  exclude  evidence  based  on  scientific 
principles  that  had  not  gained  general  acceptance  in  that  field. '^  The  proponent 
of  scientific  evidence  was  required  to  demonstrate  that  (1)  "the  expert's 
conclusions  represent[ed]  an  established  view  within  the  field"  and  that  (2)  "the 
expert's  conclusions  . . .  [were]  sufficiently  accurate  to  be  reliable."'^ 

Frye's  "general  acceptance"  test  was  first  called  into  question  when  the 
Federal  Rules  of  Evidence  ("FRE")  were  adopted  in  1975.'"^  Specifically,  the 
Frye  test  conflicted  with  FRE  702,  which  provides  "[i]f  scientific,  technical  or 
other  specialized  knowledge  will  assist  the  trier  of  fact  to  understand  the 
evidence  or  determine  a  fact  in  issue,  a  witness  qualified  as  an  expert  by 
knowledge,  skill,  experience,  training,  or  education,  may  testify  thereto  in  the 
form  of  an  opinion  or  otherwise."'^  Because  Rule  702  did  not  require  "that  the 
offered  evidence  be  generally  accepted  within  the  scientific  community,"  this 
established  a  conflicting  view  as  to  the  admissibility  of  expert  testimony.'^  This 
discrepancy  developed  into  a  split  among  the  circuit  courts  as  to  whether  the 
Frye  standard  survived  under  the  Federal  Rules.  In  1993,  the  Supreme  Court 


Chesebro,  supra  note  6,  at  1 746;  Pinsky,  supra  note  6,  at  542. 

11.  293  F.  1013,  1014(D.C.  Cir.  1923). 

12.  See  id.  at  \0\4. 

13.  Peter  B.  Oh,  Assessing  Admissibility  ofNonscientific  Expert  Evidence  Under  Federal 
Evidence  Rule  702,  64  Def.  Couns.  J.  556,  564  (1997). 

14.  ^eeRussellD.  Marlin,Note,  21  U.  Ark. Little RocK L. Rev.  133,  139(1998). 

15.  Fed.  R.  EviD.  702. 

1 6.  See  Racine  et  al.,  supra  note  2,  at  38;  see  also  Marlin,  supra  note  1 4,  at  1 39  (indicating 
that  ''''Frye''?,  replacement  was  not  fully  recognized  until  the  court  incorporated  it  into  the  Daubert 
standard  in  1993."). 


352  INDIANA  LAW  REVIEW  [Vol.  33:349 


granted  certiorari  in  Daubert  v.  Merrell  Dow  Pharmaceuticals,  Inc}^  to  (1) 
resolve  the  conflict  between  Frye's  restrictive  approach  and  the  more  liberal 
approach  promulgated  in  PRE  702  and  (2)  determine  the  proper  standard  for 
admitting  scientific,  expert  testimony. ^^ 

B.   The  Daubert  Decision 

The  primary  issue  in  Daubert  was  whether  the  plaintiffs'  expert  could  testify 
as  to  epidemiological  studies  establishing  the  "causational"  link  between  the 
plaintiffs'  birth  defects  and  their  pregnant  mothers'  use  of  the  antinausea  drug 
Bendectin.  The  defendant  moved  for  summary  judgment  and  offered  a 
supporting  affidavit  of  an  expert  stating  that  after  his  review  of  all  Bendectin 
literature,  he  was  unable  to  find  a  study  indicating  that  use  of  the  drug  caused 
fetus  malformations.^^  In  opposition,  the  plaintiffs  offered  the  testimony  of  eight 
experts  claiming  that  the  use  of  Bendectin  could  cause  birth  defects.^^  The 
plaintiffs'  experts  based  their  opinion  on  the  use  of  animal  studies  and  a 
"reanalysis  of  previously  published  epidemiological  (human  statistical) 
studies."^'  The  district  court  applied  F/^^e's  general  acceptance  test  and  excluded 
the  plaintiffs'  expert  testimony.  As  a  result,  the  plaintiffs  were  unable  to  sustain 
their  burden  of  causation  and  the  district  court  granted  the  defendant's  motion  for 
summary  judgment.^^  The  Ninth  Circuit  Court  of  Appeals  also  applied  Frye's 
general  acceptance  test  and  affirmed  the  district  court's  decision  to  exclude  the 
expert  testimony  .^^ 

The  Supreme  Court  vacated  the  decision  by  the  Ninth  Circuit  and 
unanimously  concluded  that  Frye's  general  acceptance  test  "was  superseded  by 
the  adoption  of  the  Federal  Rules  of  Evidence."^'*  The  Supreme  Court  also 
determined  that  federal  judges,  as  "gatekeepers,"^^  are  to  apply  a  two-step 
analysis  under  PRE  Rules  104(a)^^  and  702  to  determine  any  preliminary 


17.  506  U.S.  914  (1992  (mem.) 

18.  See  Daubert  v.  Merrell  Dow  Pharm.,  Inc.,  509  U.S.  579,  585  (1993). 

19.  See  id.  at  5S2. 

20.  See  id.  at  583. 

21.  M  (citations  omitted). 

22.  See  id.  at  583-84. 

23.  See  Daubert  v.  Merrell  Dow  Pharm.,  Inc.,  951  F.2d  1 128  (9th  Cir.  1991). 

24.  Daubert,  509  U.S.  at  587,  589.  Specifically,  Rule  702  governs  the  admissibility  of 
expert  testimony.  See  id.  at  588. 

25.  Id.  at  596.  See  Racine  et  al.,  supra  note  2,  at  39  (stating  that  a  trial  judge  must  act  as  a 
gatekeeper  to  "assess  whether  the  reasoning  or  methodology  underlying  the  testimony  is 
scientifically  valid  and  can  be  applied  properly  to  the  facts  at  issue"). 

26.  PRE  104(a)  states: 

Preliminary  questions  concerning  the  qualification  of  a  person  to  be  a  witness,  the 
existence  of  a  privilege,  or  the  admissibility  of  evidence,  shall  be  determined  by  the 
court,  subject  to  the  provisions  of  subdivision  (b)  [discussing  relevancy  admissions 
conditioned  of  fact].    In  making  its  determination  it  is  not  bound  by  the  rules  of 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  353 


questions  regarding  the  reliability  and  relevance  of  an  expert's  testimony.^^  The 
two-step  analysis  requires  the  trial  judge  to  conduct  an  initial  determination  as 
to  whether  "the  expert  is  proposing  to  testify  to  (I)  scientific  knowledge  that  (2) 
will  assist  the  trier  of  fact  to  understand  or  determine  a  fact  in  issue."^^ 
Therefore,  the  combination  of  both  prongs  requires  the  judge  to  assess  "whether 
the  reasoning  or  methodology  underlying  the  testimony  is  scientifically  valid  and 
.  . .  whether  that  reasoning  or  methodology  properly  can  be  applied  to  the  facts 
m  issue. 

Dauber fs  first  prong  ensures  scientific  reliability  by  requiring  that  the 
proffered  testimony  be  based  on  scientific  knowledge.^^  Basically,  this  reliability 
prong  requires  that  the  testimony  be  supported  by  valid,  scientific  methods  and 
procedures.^'  The  testimony's  reliability  is  determined  by  applying  Dauberfs 
non-exclusive  list  of  factors  which  include:  (1)  whether  the  expert's  theory  or 
technique  "can  be  (and  has  been)  tested[,]"^^  (2)  "whether  the  theory  or  technique 
has  been  subjected  to  peer  review  and  publication[,]"^^  (3)  "the  known  or 
potential  rate  of  error,"^"*  and  (4)  whether  the  technique  is  generally  accepted  in 
the  scientific  community. ^^  Dauber  fs  second  prong,  in  contrast,  confirms  the 
relevance  or  "fitness"  of  the  proffered  testimony  by  requiring  "that  the  evidence 
or  testimony  assist  the  trier  of  fact  to  understand  the  evidence  or  to  determine  a 
fact  in  issue."^^  Therefore,  the  goal  is  to  keep  unreliable  or  irrelevant  evidence 


evidence  except  those  with  respect  to  privileges. 
Fed.R.Evid.  104(a). 

27.  See  Daubert,  509  U.S.  at  589;  see  also  FEDERAL  JUDICIAL  CENTER,  REFERENCE  MANUAL 
ON  Scientific  Evidence  45-46  (1994)  [hereinafter  Reference  Manual]. 

28.  Daubert,  509  U.S.  at  592. 

29.  Id.  at  592-93;  see  also  Jonathan  R.  Schofield,  Note,  A  Misapplication  o/ Daubert.- 
Compton  V.  Subaru  of  America  Opens  the  Gate  for  Unreliable  and  Irrelevant  Expert  Testimony, 
1997  BYU  L.  REV.  at  489,  493. 

30.  See  Daubert,  509  U.S.  at  590.  Scientific  knov^ledge  requires  that  the  testimony  is 
grounded  "in  the  methods  and  procedures  of  science"  and  "connotes  more  than  subjective  belief 
or  unsupported  speculation."  Id.  Under  this  standard,  scientific  knowledge  is  described  as  "an 
inference  or  assertion  [that  is]  derived  by  the  scientific  method"  and  is  "supported  by  appropriate 
validation— i.e.,  'good  grounds,'  based  on  what  is  known."  Id.  See  also  Shelly  Storer,  Note,  The 
Weight  Versus  Admissibility  Dilemma:  Daubert 's  Applicability  to  a  Method  or  Procedure  in  a 
Particular  Case,  1998  U.  ILL.  L.  Rev.  231,  235. 

31.  See  Kurtis  B.  Reeg  &  Cawood  K.  Bebout,  What 's  It  All  About,  Daubert.?,  55  J.  Mo.  Bar 
369,  369  (1997)  (indicating  that  "a  valid  scientific  connection  to  the  pertinent  inquiry"  is  a 
precondition  to  Rule  702  admissibility)  (quoting  Daubert,  509  U.S.  at  592);  Saunders,  supra  note 
5,  at  410  (stating  that  Daubert' s  first  prong  "focuses  on  the  determination  of  whether  the  reasoning 
or  methodology  applied  by  the  expert  is  scientifically  valid"). 

32.  Daubert,  509  U.S.  at  593. 

33.  Id. 

34.  Id.  at  594. 

35.  See  id. 

36.  Id.  at  591  (citations  omitted). 


354  INDIANA  LAW  REVIEW  [Vol.  33:349 


from  the  jury's  purview.^^ 

In  applying  both  Daubert  prongs,  the  Court  emphasized  that  under  PRE  702, 
a  district  court  judge's  inquiry  should  be  flexible  and  that  the  judge  should  focus 
on  the  expert's  underlying  methodology  and  not  the  conclusion  generated.^^  The 
Court  also  noted  that  any  concerns  of  admitting  ill-founded  conclusions  are 
safeguarded  by  vigorous  cross-examination,  presentation  of  contrary  evidence, 
and  careful  instructions  on  burden  of  proof.^^  According  to  the  Court,  the 
Federal  Rules  of  Civil  Procedure  ("FRCP")  also  provide  further  protections 
against  the  admission  of  ill-founded  conclusions.'^^  Irrespective  of  whether  an 
expert's  testimony  satisfies  the  requirements  of  FRE  702,  the  district  court  judge 
may  conclude  that  the  evidence  is  insufficient  to  maintain  the  plaintiffs  burden 
to  persuade  a  "reasonable  juror  to  conclude  that  the  position  more  likely  than  not 
is  true.'"^'  In  such  an  event,  the  judge  remains  free  to  direct  a  judgment  under 
FRCP  50(a)  or  to  grant  summary  judgment  under  FRCP  56.^^ 

The  Court  viewed  the  use  of  these  procedural  devices  as  a  sufficient 
safeguard  and  a  more  appropriate  resolution  than  the  wholesale  exclusion  of 
expert  testimony  under  Frye's  general  acceptance  test/^  The  Court  recognized 
that  its  flexible  approach  may  still  "prevent  the  jury  from  learning  of  authentic 
insights  and  innovations.'"*"*  However,  the  Court  noted  that  the  balance  should 
always  be  struck  in  favor  of  admitting  the  proffered  testimony.'*^ 

In  the  wake  of  Daubert,  many  articles  were  written  assessing  the  Supreme 
Court's  effect  on  the  admissibility  of  expert  testimony.  The  articles  discussed  the 
challenging  responsibilities  imposed  upon  district  court  judges  to  act  as  a 
gatekeepers  and  to  assess  the  validity  of  scientific  expert  testimony.  Many 
believed  that  the  Daubert  decision  required  district  court  judges  to  become 
"amateur  scientists"  in  order  to  make  admissibility  determinations  on  complex 
scientific  evidence  and  testimony .''^     One  commentator  even  opined  that 


37.  See  REFERENCE  MANUAL,  supra  note  27,  at  46. 

38.  See  Daubert,  509  U.S.  at  594-95. 

39.  See  id.  at  596. 

40.  See  id. 

[I]n  the  event  the  trial  court  concludes  that  the  scintilla  of  evidence  presented  supporting 
a  position  is  insufficient  to  allow  a  reasonable  juror  to  conclude  that  the  position  more 
likely  than  not  is  true,  the  court  remains  free  to  direct  a  judgment,  Fed.  Rule  Civ.  Proc. 
50(a),  and  likevy^ise  to  grant  a  summary  judgment.  Fed.  Rule  Civ.  Proc.  56. 


Id 


41.  Id. 

42.  See  id. 

43.  See  id.;  see  also  Saunders,  supra  note  5,  at  413-14  (discussing  concerns  over 
abandoning  Frye's  more  stringent  approach  for  Daubert' s  flexible  approach). 

44.  Daubert,  509  U.S.  at  596-97. 

45.  See  id.;  Saunders,  supra  note  5,  at  4 14. 

46.  See,  e.g.,  John  M.  Conley  &  David  W.  Peterson,  The  Science  of  Gatekeeping:  The 
FederalJudicial  Center's  New  Reference  Manual  on  Scientific  Evidence,  74  N.C.  L.  REV.  1 183, 
1 1 86  ( 1 996)  (discussing  the  urgent  need  for  the  publication  of  the  Federal  Judicial  Center's  science 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  355 


Dauberfs  gatekeeping  requirement  sparked  more  questions  than  it  answered/^ 

C.  Confusion  After  Daubert 

Even  though  the  Daubert  ruling  clarified  several  issues  regarding  the 
admissibility  of  expert  testimony,  the  Court's  decision  prompted  the  development 
of  new  uncertainties.  One  of  the  burgeoning  issues  was  whether  a  district  court 
could  exclude  expert  testimony  that  was  based  upon  reliable  methodology  merely 
because  the  court  did  not  agree  with  the  reliability  of  the  expert's  conclusion/^ 
The  circuit  courts  responded  differently  to  this  issue,  and  as  a  result,  a  circuit 
court  split  developed/^  The  courts'  disparate  rulings  resulted  from  attempts  to 
balance  Dauberfs  two-prong  requirements  of  reliability  and  relevance  (i.e., 
"fitness")  against  Dauberfs  methodology/conclusion  distinction  limiting  the 
district  court  judge's  scope  of  admissibility  determinations.^^  The  circuit  courts' 
attempts  to  balance  these  competing  requirements  resulted  in  two  different 
approaches  for  determining  at  what  point  a  district  court  judge's  gatekeeping  role 
ends  and  the  jury's  role  (as  factfinder)  begins. 

1.  Weight'Ofthe-Evidence  Approach. — The  first  approach,  the  "weight-of- 
the-evidence  approach,"  applies  a  strict  interpretation  of  Daubert  that 
distinguishes  "between  the  initial  role  of  the  trial  judge  in  determining  the 
admissibility  of  scientific  expert  testimony  and  the  weight  the  jury  is  to  give  that 
testimony — ^the  methodology/conclusion  distinction."^'  Circuit  courts  employing 
this  approach  believed  that  if  a  proponent  established  the  expert's  reliance  on  a 
standard  scientific  methodology,  the  trial  judge  had  no  inherent  or  implicit 
authority  to  exclude  the  expert's  testimony,  no  matter  how  absurd  the 
conclusion.^^    These  courts  allowed  the  jury  (not  the  judge)  to  analyze  the 


manual  to  assist  judges). 

47.  See  Racine  et  al.,  supra  note  2,  at  38. 

48.  See  Conley  &  Peterson,  supra  note  46,  at  1 198;  see  also  Pinsky,  supra  note  6,  at  542 
(indicating  confusion  as  to  whether  an  expert's  conclusions  were  beyond  the  purview  of  the  trial 
judge's  determination  of  admissibility).  The  Supreme  Court  in  Daubert  failed  to  clarify  the  extent 
of  a  district  court  judge's  authority  to  review  the  expert's  application  of  a  scientific  technique  or 
methodology.  See  Storer,  supra  note  30,  at  236. 

49.  See  Roisman,  supra  note  5,  at  562  (stating  that  Daubert' s  bright-line  distinction  did  not 
yield  uniform  results  among  the  circuit  courts);  Saunders,  supra  note  5,  at  423  (opining  that  the 
circuit  courts  have  adopted  two  distinct  readings  as  to  the  scope  of  a  district  court  judge's 
gatekeeping  role  under  Daubert). 

50.  See  Storer,  supra  note  30,  at  246. 

5 1 .  Saunders,  supra  note  5,  at  422. 

52.  S'ee  United  States  V.  Bonds,  12F.3d540,556(6thCir.  1993)  (holding  that  "the  Daw^er/ 
Court  has  instructed  the  courts  that  they  are  not  to  be  concerned  with  the  reliability  of  the 
conclusions  generated  by  valid  methods,  principles  and  reasoning.  Rather,  they  are  only  to 
determine  whether  the  principles  and  methodology  underlying  the  testimony  itself  are  valid."); 
Christopherson  v.  Allied-Signal  Corp.,  939  F.2d  1 1 06, 1 1 1 1  (5th  Cir.  1 99 1 )  (en  banc),  cert,  denied, 
503  U.S.  912  (1992)  (stating  that  the  focus  should  be  on  the  expert's  methodology  and  not  the 


356  INDIANA  LAW  REVIEW  [Vol.  33:349 


expert's  application  of  a  "reliable"  methodology  to  the  facts  at  hand.^^  Under  the 
weight-of-the-evidence  approach,  the  judge's  role  is  to  determine  whether  or  not 
an  expert's  opinion  is  based  on  more  than  mere  conjecture;  the  jury's  role  is  to 
determine  whether  an  expert's  testimony  is  credible.^"*  Circuit  courts  exercising 
this  approach  give  credence  to  the  adversarial  system's  use  of  cross-examination, 
presentation  of  evidence,  well-crafted  jury  instructions,^^  and  Dauber f^ 
differentiation  between  methodology  and  conclusions. 

Dauber fs  bright-line  distinction  was  viewed  as  a  necessary  dividing  line  and 
limitation  upon  the  judge's  authority.^^  Without  Dauberfs  delineation  between 
methods  and  conclusions,  a  district  court  judge  could  consider  the  expert's 
ultimate  conclusion  in  making  her  determination  of  admissibility  and,  as  a  result, 
the  judge  would  inappropriately  encroach  upon  the  jury's  role.^^  Therefore,  some 
commentators  argue  that  a  more  expansive  approach  of  determining  admissibility 
inappropriately  extends  a  district  court  judge's  role  as  gatekeeper  because 
nothing  in  the  Supreme  Court's  opinion  in  Daubert  requires  or  mandates  that  the 
judge  determine  whether  the  expert's  conclusions  are  right  or  wrong.^^ 

Circuit  courts  applying  the  weight-of-the-evidence  approach,  such  as  the 
District  of  Columbia,  illustrate  the  concerns  surrounding  a  more  expansive 
gatekeeping  role  and  the  importance  of  Dauberfs  methodology/conclusion 


conclusions);  Peteet  v.  Dow  Chem.  Co.,  868  F.2d  1428,  1433  (5th  Cir.  1989)  (providing  that  as 
long  as  an  expert's  methodology  is  well-founded,  the  nature  of  the  expert's  conclusion  is  irrelevant 
to  admissibility,  even  if  it  is  controversial  or  unique).  "[A]n  opinion  must  be  admitted  once  an 
expert  demonstrates  reliance  on  a  standard  scientific  methodology;  otherwise,  the  court  would  be 
second-guessing  the  expert's  conclusion  contrary  to  Daubert.''  REFERENCE  Manual,  supra  note 
27,  at  77.  See  also  Conley  &  Peterson,  supra  note  46,  at  1 1 95  (indicating  that  Daubert  implies  that 
even  if  an  expert's  conclusions  are  absurd,  the  judge  has  no  authority  to  exclude  the  testimony  if 
the  expert  uses  a  reliable  scientific  method);  Pinsky,  supra  note  6,  at  542  (stating  that  a  judge's 
focus  is  limited  to  the  validity  of  the  expert's  underlying  methodology  and  not  whether  the  expert's 
testimony  or  ultimate  conclusion  is  correct). 

53.  5ee  United  States  v.Chischilly,  30  F.3d  1144, 11 52-54  (9th  Cir.  1994)  (holding  that  the 
DNA  expert's  application  of  DNA  profiling  procedures  was  a  question  of  weight  to  be  determined 
by  the  jury),  cert,  denied,  513  U.S.  1 132  (1995).  Once  Rule  702  has  been  met  in  regard  to  the 
scientific  method  in  the  abstract,  the  scientific  testimony  will  go  to  the  finder  of  fact,  unless  the 
judge  determines  that  other  Federal  Rules  of  Evidence  preclude  the  jury  from  considering  the 
testimony.  See  Storer,  supra  note  30,  at  240. 

54.  See  Roisman,  supra  note  5,  at  550. 

55.  See  Storer,  supra  note  30,  at  238. 

56.  See  Chesebro,  supra  note  6,  at  1 753  (stating  that  the  Daubert  decision  was  made  in  vain 
unless  a  district  court  judge's  focus  remains  on  the  expert's  procedures  and  methodologies). 

57.  See  Saunders,  supra  note  5,  at  4 1 8. 

58.  The  Supreme  Court  did  not  "articulate  any  legal  rationale  for  why  the  conclusion 
reached  by  an  expert  bears  on  the  Rule  702  admissibility  inquiry,  as  long  as  the  expert  is  using  a 
proper  methodology."  Chesebro,  supra  note  6,  at  1 750.  In  fact,  the  Daubert  opinion  "demonstrates 
that  even  the  most  fervent  disagreements  with  an  expert's  conclusion  are  irrelevant  under  Rule 
702."  Id.  at  1751.  See  Conley  &  Peterson,  supra  note  46,  at  1 198-99. 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  357 


distinction.  In  Ambrosini  v.  Labarraque,^^  a  pregnant  mother's  use  of  the  drugs 
Bendectin  and  Depo-Provera  was  alleged  to  cause  birth  defects.  The  defendants, 
the  mother's  physician  and  the  drug  manufacturer,  moved  for  summary  judgment, 
alleging  that  the  plaintiffs  were  unable  to  prove  that  the  birth  defects  were  caused 
by  the  mother's  use  of  the  drug.^^  The  district  court  agreed  and  granted  the 
motion.^' 

The  district  court's  decision  was  reversed  on  appeal^^  because  the  district 
court  failed  "to  distinguish  between  the  threshold  question  of  admissibility  and 
the  persuasive  weight  to  be  assigned  the  expert  evidence.  .  .  ."^^  The  appeals 
court  noted  that  Dauber fs  relevance  prong  requires  an  expert's  proffered 
testimony  to  exceed  subjective  belief  or  unsupported  speculation,^"*  However,  the 
court  stated  that: 

[TJhere  is  nothing  in  Daubert  to  suggest  that  judges  become  scientific 
experts,  much  less  evaluators  of  the  persuasiveness  of  an  expert's 
conclusion.  Rather,  once  an  expert  has  explained  his  or  her 
methodology,  and  has  withstood  cross-examination  or  evidence 
suggesting  that  the  methodology  is  not  derived  from  the  scientific 
method,  the  expert's  testimony,  so  long  as  it  "fits"  an  issue  in  the  case, 
is  admissible  under  Rule  702  for  the  trier  of  fact  to  weigh.^^ 

Consequently,  the  appeals  court  disagreed  with  the  district  court's  decision 
excluding  plaintiffs'  expert  testimony.  The  appeals  court  reasoned  that  Daubert 
did  not  require  the  exclusion  of  the  expert's  underlying  evidence  nor  the  expert's 
ultimate  conclusion  merely  because  the  judge  disagreed  with  studies  indicating 
the  lack  of  a  causal  link  between  the  drug  and  the  resulting  birth  defects.^^ 

The  appeals  court  further  found  that  the  expert's  inability  to  reference  an 
existing  epidemiological  study  supporting  his  conclusion  was  not  fatal  to  the 
issue  of  admissibility.  In  fact,  the  appeals  court  admitted  the  expert  testimony 
because  the  expert  was  able  to  explain  that  he  considered  all  of  the  available  data 
and  utilized  traditionally  accepted  methods  to  reach  his  conclusion  that  Depo- 
Provera  could  cause  the  plaintiffs  type  of  birth  defects.^^   In  support  of  this 


59.  101  F.3d  129  (D.C.  Cir.  1996). 

60.  5ee/£/.  at  131. 

6 1 .  See  id. 

62.  Seeid.dXXAX. 

63.  Id.  at  131.  With  respect  to  Daubert' s  reliability  prong,  the  court  noted  Daubert' s 
instruction  that  a  district  court's  focus  should  be  limited  to  the  methodology  and  principles  of  the 
plaintiffs  expert  and  not  on  the  ultimate  conclusions  rendered.  See  id.  at  133. 

64.  See  id.  "Under  the  first  prong  of  the  analysis,  the  district  court's  focus  is  on  the 
methodology  or  reasoning  employed.  Scientific  implies  a  grounding  in  the  methods  and  procedures 
of  science  and  knowledge  connotes  more  than  subjective  belief  or  unsupported  speculation."  Id. 
(internal  quotes  omitted)  (quoting  Daubert,  509  U.S.  at  590). 

65.  /^.  at  134. 

66.  See  id.  at  \36. 

67.  See  id.  at  131. 


358  INDIANA  LAW  REVIEW  [Vol.  33:349 


decision,  the  appeals  court  stated  that  "when  experts  are  'concededly  well 
qualified  in  their  fields,'  the  fact  that  a  case  may  be  the  first  of  its  type,  or  that  the 
plaintiffs  doctors  may  have  been  the  first  alert  enough  to  recognize  a  causal 
connection,  should  not  preclude  admissibility  of  the  experts'  testimony. "^^ 

Thus,  in  balancing  Daubert's  requirements  of  reliability  and  relevance  (i.e., 
"fitness")  against  Z)awZ?er/'s  methodology/conclusion  distinction,  the  Ambrosini 
court  favored  the  latter  of  the  two  requirements  in  order  to  support  the  admission 
of  novel  scientific  evidence.  As  a  result  of  the  circuit  court's  reasoning  and 
approach  to  Dauberfs  requirements  for  admitting  expert  testimony,  the 
Ambrosini  decision  became  one  of  the  primary  examples  of  maintaining 
Dauber fs  bright-line  distinction  under  the  weight-of-the-evidence  approach. 

2.  Admissibility  Approach. — ^The  second  approach  is  termed  the 
"admissibility  approach."^^  This  approach  places  more  emphasis  on  Dauber fs 
"fitness"  requirement  and  interprets  Daubert  as  giving  trial  judges  a  more  active 
gatekeeping  role  that  "enables  the  district  judge  to  evaluate  both  the  scientific 
validity  of  the  expert's  methodology  and  the  strength  of  the  expert's 
conclusions. "^°  Decisions  by  the  Third  and  Ninth  Circuits  illustrate  this  approach 
and,  accordingly,  do  not  share  the  Supreme  Court's  praise  of  ensuring  reliable 
expert  testimony  through  cross-examination  of  experts.^'  Furthermore,  these 
circuit  courts  began  to  question  whether  there  was  truly  a  dividing  line  between 
an  expert's  methods  and  ultimate  conclusions.^^ 

One  of  the  first  circuit  court  opinions  questioning  the  limitations  of 
Dauber  fs  methodology /conclusion  distinction  was  In  re  Paoli  Railroad  Yard 
PCB  Litigation.^^  The  Paoli  case  was  instituted  by  thirty-eight  plaintiffs  who 
sought  damages  related  to  polychlorinated  biphenyls  ("PCBs"),  which  leaked  out 
of  transformers  at  a  railroad  yard  and  into  the  groundwater  of  several  nearby 
residences.^"*  Some  plaintiffs  sought  recovery  for  physical  injuries  allegedly 
caused  by  their  exposure  to  PCBs.^^  Others  sought  damages  for  emotional 
distress  related  to  their  fear  of  future  injury  or  for  a  decrease  in  their  property 
values. ^^  Defendants  filed  a  motion  in  limine  to  exclude  the  plaintiffs'  expert 
testimony  and  the  underlying  evidence  purporting  to  show  the  harmful  effects  of 
PCBs.   The  district  court  excluded  all  the  testimony  and  underlying  evidence 


68.  /<af.  at  138  (citations  omitted). 

69.  Storer,  supra  note  30,  at  242. 

70.  Saunders,  supra  note  5,  at  422. 

71 .  The  Supreme  Court  viewed  the  concerns  of  a  potential  influx  of  "junk  science"  into  the 
courtrooms  as  an  overly  pessimistic  view  about  the  capabilities  of  the  jury  and  the  adversary  system. 
See  Racine  et  al.,  supra  note  2,  at  40. 

72.  See  Neal,  supra  note  5,  at  34. 

73.  35  F.3d  717  (3d  Cir.  1994);  see  also  Saunders,  supra  note  5,  at  417  (stating  that  "[t]he 
Third  Circuit  has  taken  a  leading  role  in  evaluating  the  admissibility  of  scientific  expert  testimony 
since  1985."). 

74.  See  In  Re  Paoli  Railroad  Yard  PCB  Litigation,  35  F.3d  at  734-35. 

75.  See  id  at  732,  735. 

76.  See  id. 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  359 


relied  upon  by  the  plaintiffs'  experts.^^  Because  the  plaintiffs  were  unable  to 
sustain  their  burden  with  respect  to  causation  due  to  the  lack  of  admissible  expert 
testimony,  the  court  granted  the  defendants'  motion  for  summary  judgment.^^ 

The  plaintiffs  appealed  the  decision  and  contended  that  the  district  court's 
admissibility  determination  "usurped  the  role  of  the  jury. "^^  The  Third  Circuit 
Court  of  Appeals  affirmed  the  district  court's  decision  to  exclude  the  testimony 
of  several  causation  experts  because  the  experts  failed  to  proffer  any  justification 
for  their  conclusions  with  respect  to  plaintiffs  that  they  did  not  physically 
examine.^^  In  analytical  support  of  the  court's  expert  testimony  admissibility 
determination,  the  circuit  court  disagreed  with  DauberVs 
methodology/conclusion  distinction  and  specifically  stated  that  it  has  "only 
limited  practical  import."*'  Nevertheless,  the  court  acknowledged  XhatDaubert's 
"methodology/conclusion  distinction  remains  of  some  import"*^  when  a  party 
contends  that  an  expert's  testimony  is  unreliable  only  because  it  differs  from  the 
opinions  of  that  party's  own  experts.*^ 

The  court  provided  that  when  a  judge  is  determining  the  admissibility  of 
scientific  evidence  or  testimony,  the  judge  may  not  "exclude  evidence  simply 
because  he  or  she  thinks  that  there  is  a  flaw  in  the  expert's  investigative  process 
which  renders  the  expert's  conclusions  incorrect.  The  judge  should  only  exclude 
the  evidence  if  the  flaw  is  large  enough  that  the  expert  lacks  'good  grounds'  for 
his  or  her  conclusions."*"*  The  court  reasoned  that: 

When  a  judge  disagrees  with  the  conclusions  of  an  expert,  it  will 
generally  be  because  he  or  she  thinks  that  there  is  a  mistake  at  some  step 
in  the  investigative  or  reasoning  process  of  that  expert.  If  the  judge 
thinks  that  the  conclusions  of  some  other  expert  are  correct,  it  will  likely 
be  because  the  judge  thinks  that  the  methodology  and  reasoning  process 
of  the  other  expert  are  superior  to  those  of  the  first  expert.  This  is 
especially  true  given  that  the  expert's  view  that  a  particular  conclusion 
"fits"  a  particular  case  must  itself  constitute  scientific  knowledge — a 
challenge  to  "Jit"  is  very  close  to  a  challenge  to  the  expert's  ultimate 
conclusion  about  the  particular  case,  and  yet  it  is  a  part  of  the  judge's 
admissibility  calculus  under  Daubert}^ 

Thus,  in  balancing /)(2M^^r^'s  requirements  of  reliability  and  relevance  (i.e., 
"fitness")  against  Dauberfs  methodology/conclusion  distinction,  the  Paoli 
decision  illustrates  that  a  district  court  judge  must  ensure  that  proffered  expert 


77. 

See  id.  at  736. 

78. 

See  id. 

79. 

Id.  at  743. 

80. 

See  id.  at  733-34. 

81. 

Id.  at  746. 

82. 

/^.  at  746  n.  15. 

83. 

See  id.  at  746. 

84. 

Id. 

85. 

Id.  (emphasis  added) 

360  INDIANA  LAW  REVIEW  [Vol.  33:349 


testimony  is  relevant  to,  or  "fits,"  the  facts  of  the  case.  The  opinion  also 
demonstrates  that  a  judge's  admissibility  determination  cannot  be  impeded  by 
"classifications"  prohibiting  review  of  the  fitness  of  the  proffered  expert's 
testimony. ^^  Consequently,  the  Third  Circuit's  opinion  in  Paoli  became  one  of 
the  primary  cases  illustrating  a  departure  from  Daubert's  bright-line  distinction. 

Interestingly  enough,  the  Ninth  Circuit's  opinion  on  remand  in  Daubert  If^ 
also  played  a  role  in  courts  finding  the  line  betw^een  methods  and  conclusions  to 
be  less  distinct.  Specifically,  the  Daubert  II  decision  increased  the  confusion 
surrounding  the  extent  to  which  a  district  court  can  evaluate  an  expert's 
conclusions.^^  In  addressing  Dauber fs  first  prong  of  reliability,  the  Daubert  II 
court  recognized  that  expert  testimony  must  reflect  scientific  knowledge,  be  a 
product  of  scientific  method,  and  amount  to  "good  science."^^  The  Daubert  II 
court  determined  the  reliability  of  the  plaintiffs'  expert  testimony  by  applying 
two  out  of  the  four  Supreme  Court  factors:  ( 1 )  "whether  the  theory  or  technique 
employed  by  the  expert  is  generally  accepted  in  the  scientific  community"  and 
(2)  "whether  it's  been  subjected  to  peer  review  and  publication."^^  In  addition, 
the  court  considered  "whether  the  experts  are  proposing  to  testify  about  matters 
growing  naturally  and  directly  out  of  research  they  have  conducted  independent 
of  the  litigation,  or  whether  they  have  developed  their  opinions  expressly  for 
purposes  of  testifying."^' 

After  applying  these  factors,  the  Daubert  II  court  concluded  that  the 
plaintiffs'  expert  scientists  studied  the  effects  of  Bendectin  only  after  being  hired 
for  the  purposes  of  providing  litigation  testimony  and  that  their  conclusions  were 
not  based  on  any  preexisting  research.^^  The  court  provided  that  in  order  for  the 
plaintiffs  to  prove  that  the  proffered  expert  testimony  was  founded  on 
"scientifically  valid  principles'':^^ 

[T]he  [plaintiffs']  experts  must  explain  precisely  how  they  went  about 
reaching  their  conclusions  and  point  to  some  objective  source — a  learned 
treatise,  the  policy  statement  of  a  professional  association,  a  published 
article  in  a  reputable  scientific  journal  or  the  like — ^to  show  that  they 


86.  See  id. 

87.  Daubert  v.  Merrell  Dow  Pharm.,  Inc.,  43  F.3d  1311  (9th  Cir.  1995). 

88.  The  Ninth  Circuit's  analysis  "raised  what  may  be  the  most  difficult  question  left 
unresolved  by  Daubert:  the  extent  to  which  a  trial  court  can  evaluate  an  expert's  conclusions  in 
ruling  on  admissibility."  Conley  &  Peterson,  supra  note  46,  at  1 198. 

89.  DflM^er/,  43F.3datl315. 

90.  Id.  at  1316.  The  remaining  two  factors  the  Supreme  Court  mentioned  were  deemed 
difficult  or  impossible  to  apply  to  the  expert  testimony  proffered  in  this  case  because  the  same 
experts  were  responsible  for  the  original  research  on  Bendectin,  but  were  unable  to  explain  the 
nature  of  the  research  or  what  type  of  methodology  they  used.  See  id.  at  n.4. 

91.  /c/.  at  1317. 

92.  See  id.  at  1318-19  (noting  that  the  plaintiffs  made  no  showing  that  their  expert's 
testimony  stemmed  from  pre-litigation  research). 

93.  /^.  at  1318. 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  361 


have  followed  the  scientific  method,  as  it  is  practiced  by  (at  least)  a 
recognized  minority  of  scientists  in  their  field.^'* 

After  reviewing  the  plaintiffs'  supporting  evidence,  the  Daubert  II  court 
concluded  that  the  plaintiffs  failed  to  satisfy  their  burden  because  the  experts' 
opinions  were  never  published  in  a  scientific  journal  or  subjected  to  the  scrutiny 
of  colleagues.^^  Furthermore,  the  experts  were  unable  to  explain  a  reliable 
methodology  supporting  their  use  of  animal  studies,  chemical  analyses,  and 
epidemiological  data  to  formulate  their  ultimate  conclusions  regarding  this 
matter.^^  Hence,  the  experts  could  not  explain  their  conclusion  that  Bendectin 
caused  the  plaintiffs'  injuries  in  the  absence  of  an  authority  for  extrapolating 
human  causation  from  animal  studies.^^  The  court  reasoned  that  "something 
doesn't  become  'scientific  knowledge'  just  because  it's  uttered  by  a  scientist;  nor 
can  an  expert's  self-serving  assertion  that  his  conclusions  were  'derived  by  the 
scientific  method'  be  deemed  conclusive. . .  ."^^  Therefore,  the  Daubert  II court 
held  that  the  plaintiffs'  expert  testimony  failed  to  satisfy  Daubert' s  reliability 
prong. 

The  Daubert  //court  also  held  that  the  expert  testimony  failed  Daubert' s 
fitness  prong  because  the  plaintiffs  were  unable  to  prove  by  a  preponderance  of 
the  evidence  that  the  ingestion  of  Bendectin  by  their  mothers  doubled  the 
likelihood  of  their  birth  defects.^^  Specifically,  the  plaintiffs'  experts  could  not 
reference  epidemiological  studies  indicating  that  a  mother's  ingestion  of 
Bendectin  during  pregnancy  would  double  the  risk  of  birth  defects. '^^  Because 
the  statistical  relationships  between  Bendectin  and  birth  defects  did  not  prove  the 
relative  risk  to  be  greater  than  two,  the  court  reasoned  that  the  expert's  testimony 
would  be  unhelpful  and  confusing  to  the  jury. '^'  Consequently,  the  testimony 
failed  the  Supreme  Court's  "fitness"  prong,  and  the  Daubert  //court  upheld  the 
trial  court's  exclusion  of  the  plaintiffs'  expert  testimony  on  Bendectin. '^^ 

Thus,  after  balancing  Daubert'^  two-prong  requirements  of  reliability  and 
"fitness"  against  Daubert' s  methodology /conclusion  distinction,  the  Daubert  II 
court  elected  to  give  more  weight  to  the  "fitness"  requirement  than  the  Supreme 
Court's  bright-line  directive.  The  Ninth  Circuit's  reasoning  illustrates  that  a 
judge  making  an  admissibility  determination  must  ensure  that  the  expert's 
conclusion  is  relevant  to  the  facts  of  the  case.  As  a  result,  the  Daubert  II 
decision  became  an  additional  example  of  the  admissibility  approach  to  expert 


94.  Mat  1319. 

95.  Seeid.Rt\3\S. 

96.  See  id.  at  ]3\9. 

97.  See  id.  at  U]9-20. 

98.  Id.  at  1315-16  (quoting  Daubert  v.  Merrell  Dow  Pharm.,  Inc.,  509  U.S.  579,  590,  592 
(1993)). 

99.  See  id.  at  \320. 

100.  See  id. 

101.  See  id.  at  \32\. 

1 02.  See  Neal,  supra  note  5,  at  34. 


362  INDIANA  LAW  REVIEW  [Vol.  33:349 


testimony. 

3,  Which  Approach  Is  Correct? — The  preceding  cases  illustrate  the  conflict 
among  circuit  courts  regarding  Daubert's  bright-line  distinction  between 
conclusions  and  methodology.  Under  the  weight-of-the-evidence  approach,  the 
district  court  judge  admits  expert  conclusions  premised  on  the  support  of 
available  data  derived  from  reliable  methodology.  In  contrast,  under  the 
admissibility  approach,  the  district  court  judge  will  prohibit  admission  of  expert 
conclusions  when  the  testimony  fails  to  satisfy  PRE  702 's  "fitness" 
requirement — i.e.,  the  gap  between  the  underlying  evidence  and  ultimate 
conclusion  is  too  large.  The  potential  consequences  of  the  differing  approaches 
were  viewed  by  some  commentators  as  leading  to  extremes  of  either  cursory  or 
overly  stringent  review  of  an  expert's  testimony.  '°^  Accordingly,  the  appropriate 
balance  between  the  competing  requirements  of  PRE  702  and  Dauber fs 
methodology/conclusion  distinction  became  a  crucial  point  of  interest  requiring 
direction  by  the  Supreme  Court. '^'^  The  need  for  the  Supreme  Court  to  clarify  the 
scope  of  the  district  court's  gatekeeping  function  became  evident  when  the  Court 
granted  certioari  in  General  Electric  Co.  v.  Joiner. ^^^ 

II.  General  Electric  Co.  v.  Joiner 

A.  Procedural  History  and  Factual  Background 

Since  1 973,  the  plaintiff  (Joiner)  had  come  into  contact  with  dielectric  fluids 
in  the  city's  electrical  transformers  through  his  employment  as  an  electrician  for 
the  Water  &  Light  Department  in  Thomasville,  Georgia.  '°^  Early  dielectric  fluids 
were  flammable  and  made  out  of  a  petroleum-based  mineral  oil.  To  correct  this 
problem,  polychlorinated  biphenyls  ("PCBs")  were  used  to  make  the  dielectric 
fluid  non-flammable,  but  in  1978,  Congress  banned  the  future  production  and 
sale  of  PCBs  because  they  were  viewed  as  an  "unreasonable  risk  of  injury  to 


103. 

[S]ome  jurisdictions  may  subsume  Rule  702's  fitness  requirement  within  the  validity 

inquiry  required  under  the  first  prong  of  Rule  702.   In  contrast,  an  overly  rigorous 

application  of  the  fitness  test  may  result  in  a  challenge  to  the  expert's  conclusions 

regarding  external  validity,  contrary  to  Dauberfs  admonition  that  Rule  702's  focus 

"must  be  solely  on  principles  and  methodology,  not  on  the  conclusions  they  generate." 

Erin  K.L.  Mahaney,  Assessing  the  Fitness  of  Novel  Scientific  Evidence  in  the  Po^r-Daubert  Era: 

Pesticide  Exposure  Cases  as  a  Paradigm  for  Determining  Admissibility ,  26  Envtl.  L.  1161,  1 1 85 

(1996)  (citations  omitted)  (reviewing  post-Daubert  application  of  Rule  702's  fitness  test  and 

arguing  that  use  of  Rule  702's  fitness  requirement  provides  a  valid  tool  in  the  judge's  gatekeeping 

function). 

1 04.  "The  sixty-four  dollar  question  after  Daubert  was  whether  the  weight-of-the-evidence 
approach  is  a  'scientifically  valid'  methodology  for  determining  the  issue  of  causation  in  torts 
cases."  Gottesman,  supra  note  1,  at  771. 

105.  520  U.S.  1 1 14  (1997)  (mem.). 

106.  General  Elec.  Co.  v.  Joiner,  522  U.S.  136,  139  (1997). 


1 999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  363 


health  or  the  environment."'^^  In  1983,  the  city  discovered  that  PCBs  had 
contaminated  the  fluid  in  approximately  2668  of  the  city's  transformers,  which 
allegedly  used  mineral  oil-based  dielectric  fluid. '^* 

Eight  years  after  the  discovery  of  PCBs,  Joiner  was  diagnosed  with  small-cell 
lung  cancer.  The  plaintiffs  (Joiner  and  his  wife)  brought  strict  liability  and 
negligence  claims  against  the  manufacturers  of  the  transformers  and  dielectric 
fluids,  alleging  that  Joiner's  exposure  to  PCBs  and  its  derivatives, 
polychlorinated  dibenzofurans  ("furans")  and  polychlorinated  dibenzodioxins 
("dioxins"),  promoted  or  accelerated  the  onset  of  his  cancer.'^^  The  plaintiffs 
admitted  that  Joiner  had  smoked  cigarettes  for  eight  years,  his  parents  smoked, 
and  his  family  had  a  history  of  lung  cancer."^  However,  Joiner  claimed  that  his 
cancer  would  not  have  developed  for  many  years,  if  at  all,  in  the  absence  of  his 
exposure  to  PCBs  originating  from  the  city's  transformer.' '^ 

After  the  case  was  removed  to  federal  court,  the  defendants  moved  for 
summary  judgment.  The  defendants  contended  that  there  was  no  supporting 
evidence  that  Joiner  was  exposed  to  PCBs,  furans,  or  dioxins,  and  even  if  he  had 
been,  the  plaintiffs  were  unable  to  offer  admissible  scientific  evidence  that 
exposure  to  PCBs  could  cause  or  promote  the  type  of  cancer  with  which  he  was 
diagnosed. '  '^  Because  of  the  lack  of  supporting  evidence,  defendants  alleged  that 
the  plaintiffs  were  unable  to  establish  that  PCBs  caused  cancer  in  humans,  i.e. 
"general  causation."  Defendants  further  claimed  that  even  if  general  causation 
could  be  assumed,  the  plaintiffs  were  unable  to  establish  that  the  alleged 
exposure  caused  Joiner's  cancer,  i.e.,  "specific  causation."''^  In  response,  the 
district  court  held  that  PCB  exposure  presented  a  genuine  issue  of  material  fact, 
but  granted  summary  judgment  with  respect  to  furan  and  dioxin  exposure 
because  the  plaintiffs  were  unable  to  offer  sufficient  evidence  to  establish  that 
Joiner  had  been  exposed  to  those  substances.'''' 

The  remaining  issue  for  the  district  court  was  whether  to  admit  the  plaintiffs' 
expert  testimony  that  Joiner's  cancer  was  caused  by  his  exposure  to  PCBs.  After 
applying  a  Daubert  analysis,  the  district  court  found  the  expert  testimony 
inadmissible  because  the  testimony  was  buttressed  on  the  assumption  that  Joiner 
was  exposed  to  furans  and  dioxins."^  The  court  then  concluded  that  because  the 
plaintiffs  "failed  to  show  a  genuine  dispute  over  whether  furans  and  dioxins  were 
in  the  PCBs  to  which  Joiner  was  exposed,""^  any  expert  testimony  based  upon 


107.     Joiner  V.  General  Elec.  Co.,  864  F.Supp.  1310, 1312(N.D.Ga.  1994)  (citing  15  U.S.C. 
§  2605(a)),  rev'd,  78  F.3d  524  (1 1th  Cir.  1996),  rev'd,  522  U.S.  136  (1997). 


108. 

Seeid.^\n\2-U. 

109. 

See  Joiner,  522  U.S.  at  139-40. 

110. 

Seeid.dXn9. 

HI. 

See  id.  at  140. 

112. 

See  Joiner,  864  F.  Supp.  at  1314 

113. 

See  id.  at  1315. 

114. 

Seeid.dX\3\6. 

115. 

See  id.  at  \322. 

116. 

Id. 

364  INDIANA  LAW  REVIEW  [Vol.  33:349 


such  assumptions  "does  not  fit  the  facts  of  the  case,  and  is  therefore 
inadmissible."''^ 

Even  if  the  assumptions  of  exposure  could  be  supported  by  evidence,  the 
district  court  still  considered  the  opinions  of  the  plaintiffs'  experts  inadmissible 
due  to  the  conclusions  that  the  experts  derived  from  the  underlying  studies.''^ 
Specifically,  the  defendants  revealed  that  the  plaintiffs'  experts  were  unable  to 
proffer  credible  evidentiary  support  for  their  conclusion  that  PCBs  cause  or 
promote  small-cell  lung  cancer  in  humans.''^  The  district  court  found  the  studies 
underlying  the  experts'  opinions  to  be  flawed  because  the  studies  utilized  infant 
mice  injected  with  massive  doses  of  PCBs  and  the  mice  studies  were  preliminary 
in  nature. '^^ 

Furthermore,  the  district  court  was  not  persuaded  by  the  experts'  reliance  on 
four  epidemiological  studies'^'  because  none  of  the  studies  directly  supported  the 
experts'  conclusions  that  PCBs  promote  small-cell  lung  cancer  in  humans. '^^ 
The  court,  however,  mentioned  that  the  lack  of  an  epidemiological  study 
supporting  the  plaintiffs'  case  did  not  require  an  automatic  foreclosure  of  their 
cause  of  action  because: 

[A]  cause-effect  relationship  need  not  be  clearly  established  by  animal 
or  epidemiological  studies  before  a  doctor  can  testify  that,  in  his  opinion, 
such  a  relationship  exists.  As  long  as  the  basic  methodology  employed 
to  reach  such  a  conclusion  is  sound,  such  as  use  of  tissue  samples, 
standard  tests,  and  patient  examination,  products  liability  law  does  not 
preclude  recovery  until  a  'statistically  significant'  number  of  people 
have  been  injured  or  until  science  has  had  the  time  and  resources  to 
complete  sophisticated  laboratory  studies  of  the  chemical. '^^ 

Nevertheless,  the  court  ultimately  concluded  that  the  epidemiological  studies 
relied  on  by  the  plaintiffs'  experts  were  either  equivocal  or  not  helpful  to  the 
plaintiffs'  claim  that  exposure  to  PCBs  caused  or  accelerated  his  cancer.'^"*  The 
court  specifically  found  the  experts'  opinions  to  be  nothing  more  than  "subjective 
belief  or  unsupported  speculation."'^^  Thus,  the  court  granted  summary  judgment 
as  to  all  of  the  plaintiffs'  claims  because  the  gap  between  the  underlying 
evidence  and  the  experts '  ultimate  conclusions  was  too  wide}^^ 

The  Eleventh  Circuit  Court  of  Appeals,  applying  an  abuse  of  discretion 


117. 

Id. 

118. 

See  id. 

119. 

See  id. 

120. 

See  id.  at  1323. 

121. 

See  id.  at  \324. 

122. 

See  id  at  1326. 

123. 

Id.  at  1322  (citations  omitted), 

124. 

See  id.  at  1324. 

125. 

Id  at  1326. 

126. 

See  id. 

1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  365 


standard  of  review,  reversed  the  decision  in  a  divided  three  member  panel. '^^ 
The  court  noted  that  "a  particularly  stringent  standard  of  review  [was  applied]  to 
the  trial  judge's  exclusion  of  expert  testimony"'^^  in  order  to  preserve  the 
preference  for  admissibility  under  the  Federal  Rules  of  Evidence. '^^  In  applying 
this  standard,  Judge  Rosemary  Barkett,  writing  for  the  majority,  disagreed  with 
the  district  court's  decision  to  exclude  the  plaintiffs'  expert  testimony. '^^  She 
concluded  that  there  was  sufficient  testimony  in  the  record  to  support  the 
conclusion  that  Joiner  had  been  exposed  to  PCBs.'^^  The  court  found  the 
experts'  testimony  reliable  under  FRE  702  because  the  experts  had  extensive 
experience,  specialized  expertise,  conducted  physical  examinations  of  Joiner,  and 
were  familiar  with  "general  scientific  literature  in  the  field."'^^  Furthermore,  the 
court  accepted  the  experts'  assertions  that  they  "utilized  scientifically  reliable 
methods."'" 

Judge  Barkett  found  that  the  district  court  incorrectly  reviewed  the  plaintiffs' 
expert  testimony  in  its  entirety.'^'*  Accordingly,  she  wrote  in  support  of  the 
weight-of-the-evidence  approach  for  determining  the  admissibility  of  expert 
testimony. '^^  Relying  upon  Dauber fs  departure  from  the  wholesale  exclusion 
of  evidence,  which  commonly  resulted  under  Fry^'s  "general  acceptance"  test. 
Judge  Barkett  explained  that: 

Opinions  of  any  kind  are  derived  from  individual  pieces  of  evidence, 
each  of  which  by  itself  might  not  be  conclusive,  but  when  viewed  in 
their  entirety  are  the  building  blocks  of  a  perfectly  reasonable 
conclusion,  one  reliable  enough  to  be  submitted  to  a  jury  along  with  the 
tests  and  criticisms  cross-examination  and  contrary  evidence  would 
supply. '^^ 

The  court  held  that  each  reason  the  district  court  recited  in  response  to  the 
experts'  reliance  on  the  animal  studies  did  not  make  the  underlying  research 
unreliable  in  the  absence  of  evidence  that  the  studies  themselves  were  flawed. '^^ 


127.  See  Joiner  v.  General  Elec.  Co.,  78  F.3d  524  (11th  Cir.  1996),  rev'd,  522  U.S.  136 
(1997). 

128.  Mat  529. 

129.  See  id. 

130.  See  id.  ?Li  52%. 

131.  Seeid.dHSM. 

132.  Id.2X52>\. 

133.  Mat  532. 

134.  Seeid.dXSZl. 

135.  See  id. 

1 36.  Id.  Under  this  approach,  "[t]he  expert  would  not  be  required  to  prove,  in  a  step-by-step 
process,  how  she  got  from  'Point  A'  to  'Point  B'  as  a  prerequisite  to  admissibility  of  her  testimony. 
Rather,  the  court  would  only  review  the  expert's  conclusions  'in  their  entirety.'"  Quentin  F. 
Urquhart,  Jr.  &  Brett  A.  North,  Joiner  v.  General  Electric;  The  Next  Chapter  in  the  Supreme 
Court 's  Handling  of  Expert  Testimony,  FOR  THE  Def.,  Sept.  1997,  at  9,  13. 

137.  See  Joiner,  78  F.3d  at  532. 


366  INDIANA  LAW  REVIEW  [Vol.  33:349 


Judge  Barkett  further  posited  that  the  appropriate  "question  is  whether  the 
expert's  use  of  these  studies  to  help  formulate  an  opinion  is  methodologically 
sound."'^^  A  judge's  gatekeeping  role  "is  not  to  weigh  or  choose  between 
conflicting  scientific  opinions,  or  to  analyze  and  study  the  science  in  question  in 
order  to  reach  its  own  scientific  conclusions."'^^  Rather,  a  judge's  role  is  "to 
assure  that  an  expert's  opinions  are  based  on  relevant  scientific  methods, 
processes,  and  data,  and  not  on  mere  speculation,  and  that  they  apply  to  the  facts 
at  issue."''*^  After  applying  her  view  of  the  district  court's  gatekeeping  role. 
Judge  Barkett  concluded  that  the  plaintiffs'  expert  testimony  should  have  been 
admitted  because  it  was  relevant  to  establish  whether  exposure  to  PCBs  caused 
Joiner's  cancer.'"*'  Therefore,  the  Eleventh  Circuit  Court  of  Appeals  concluded 
that  all  of  the  plaintiffs'  expert  testimony  was  admissible  and  reversed  the  grant 
of  summary  judgment  by  the  district  court. '"^^ 

However,  Judge  Edward  Smith  disagreed  with  the  majority's  decision  to 
admit  the  expert  testimony  and  wrote  a  dissenting  opinion  that  provides  insight 
into  the  Supreme  Court's  opinion  in  the  subsequent  appeal.  Judge  Smith 
explained  that  under  Daubert's  reliability  prong,  a  district  court  judge  must 
evaluate  "each  step  in  the  expert's  analysis  all  the  way  through  the  step  that 
connects  the  work  of  the  expert  to  the  particular  case.""*^  He  further  articulated 
that: 

[A]n  expert's  testimony  does  not  "assist"  the  trier  of  fact  if  the  expert 
does  not  explain  the  steps  he  took  to  reach  his  conclusion.  We  should 
not  require  the  trier  of  fact  to  accept  blindly  the  expert's  word  to  fill  the 
analytical  gap  between  proffered  "scientific  knowledge"  and  the  expert's 
conclusions.  Therefore,  the  trial  court  "gatekeeper"  has  broad  discretion 
to  decide  whether  a  leap  of  faith  across  the  analytical  gap  is  so  great  that, 
without  further  credible  grounds,  the  testimony  is  inadmissible. "''* 

Thus,  Judge  Smith  wrote  in  support  of  the  "admissibility  approach"  to  expert 
testimony  determinations  when  he  stated  "[i]t  is  incumbent  on  the  proponent  of 
scientific  evidence  to  fill  the  analytical  gap  between  a  proffered  study  and  the 
particular  facts  of  the  case  (i.e.,  Tit').""*^ 


138.  Id. 

1 39.  Id.  at  530.  It  is  improper  for  a  district  court  to  exclude  expert  testimony  when  the  court 
would  draw  a  different  conclusion  from  the  proffered  evidence  than  the  conclusion  rendered  by  the 
expert.  See  Conning  the  lADC  Newsletters,  65  Def.  Couns.  J.  434,  441  (1998). 

140.  Joiner,  78  F.3d  at  530;  Roisman,  supra  note  5,  at  567. 

141.  See  Joiner,  7SF.3d  at  533-34. 

142.  See  id.  Qi  534. 

143.  Id.  at  537  (Smith,  J.,  dissenting)  (quoting  In  re  Paoli,  35  F.3d  717,  743,  745  (3d  Cir. 
1994)).  Judge  Smith  expressed  his  approval  of  the  trial  court's  step-by-step  approach  and  stated 
that  he  cautions  "against  using  the  majority's  approach  that  applies  each  Daubert  prong  to  the 
testimony  as  a  whole."  Id.  at  540. 

144.  /^.  at  535. 

145.  /flf.at539(quotingDaubertv.MerrellDowPharm.Inc.,509U.S.579,593n.lO(1993)). 


1 999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  367 


Using  this  approach,  Judge  Smith  challenged  the  circuit  court's  majority 
decision  admitting  non-supportive  epidemiological  studies  and  the  majority's 
claims  that  the  district  court  impermissibly  delved  into  the  correctness  of  the 
experts'  conclusions.''*^  He  explained  that  the  district  court  was  not  determining 
whether  the  expert  opinions  were  correct,  but  whether  the  animal  studies  "fit"  the 
facts  of  the  case.'"*^  Therefore,  he  found  no  abuse  of  discretion  in  the  district 
court's  exclusion  of  the  plaintiffs'  expert  testimony.''*^  In  fact.  Judge  Smith's 
dissenting  opinion  provided  a  detailed  analysis  of  his  concerns  with  the  Eleventh 
Circuit's  approach  to  admissibility  determinations.  The  Supreme  Court's  review 
of  this  case  recognized  persuasiveness  of  the  Smith  dissent. 

B.  Appeal  to  the  Supreme  Court 

The  Supreme  Court  granted  certiorari  in  General  Electric  Co.  v.  Joiner^^'^ 
specifically  to  decide  the  proper  standard  of  review  with  respect  to  a  trial  court's 
decision  regarding  the  admissibility  of  expert  testimony. '^°  However,  many 
commentators  viewed  it  as  an  important  opportunity  to  revisit  Dauber fs 
methodology/conclusion  distinction  and  the  scope  of  a  district  court  judge's 
authority  with  respect  to  expert  testimony.'^'  The  arguments  propounded  by  the 
petitioners  (PCB  manufacturers)  and  respondents  (Joiner)  provide  insight  as  to 
the  concerns  and  arguments  for  both  the  weight-of-the-evidence  and  admissibility 
approaches. 

The  petitioners  argued  in  favor  of  the  admissibility  approach  and  for  a  more 
expanded  "gatekeeping"  role  for  district  court  judges.  The  petitioners  asserted 
that  the  court  of  appeals  incorrectly  "held  that  if  an  expert  cites  conventional 
scientific  authorities,  the  expert  has  satisfied  the  requirement  of  scientific 
methodology,  no  matter  what  the  authorities  actually  say,  and  what  steps  are 
missing  between  the  citations  and  the  conclusion."'^^  In  other  words,  the 
declaration  approach  taken  by  the  court  of  appeals  showed  great  deference  to  the 
experts'  own  that  their  testimony  constituted  sufficient  "scientific  knowledge" 


According  to  Judge  Smith,  "an  expert  may  not  bombard  the  court  with  innumerable  studies  and 
then,  with  blue  smoke  and  slight  of  hand,  leap  to  the  conclusion."  Id.  at  537. 

146.  See  id.  ?ii  539. 

147.  See  id. 

148.  Seeid.dX5^(). 

149.  General  Elec.  Co.  v.  Joiner,  520  U.S.  1 1 14  (1997)  (mem.). 

150.  See  General  Elec.  Co.  v.  Joiner,  522  U.S.  136,  138-39  (1997). 

151.  See  William  M.  Sneed,  The  Ongoing  Revolution  in  Expert  Witness  Practice:  Daubert 
and  the  Seventh  Circuit,  86  ILL.  B.J.  418,  422  (1998)  (indicating  that  "many  members  of  the  legal 
community  believed  that  the  case  presented  an  excellent  opportunity  for  the  Court  to  revisit  and 
perhaps  scale  back  Daubert. ""y,  Urquhart  &  North,  supra  note  1 35,  at  1 3  (anticipating  the  Supreme 
Court's  opinion  in  Joiner  on  the  "question  of  whether  trial  courts  can  properly  examine  the 
reasoning  behind  the  expert's  conclusions"). 

152.  Petitioner's Briefat 48, Genera/ £/ec.  Co.  v.  Jomer, 78 F.3d 524 (1 1th Cir.  1996)(No. 
96-188). 


368  INDIANA  LAW  REVIEW  [Vol.  33:349 


that  was  relevant  to  the  facts  of  the  case.'^^  Petitioners  agreed  with  the  district 
court's  decision  finding  the  experts'  testimony  inadmissible  because  the 
testimony  relied  on  inconclusive  epidemiological  studies  and  animal  studies  that 
subjected  mice  to  high  dosages  of  PCBs.'^"^ 

In  support  of  their  argument,  petitioners  reasoned  that  "[ujnder  Daubert, 
scientific  methodology  requires  scientific  reasoning,  which  includes  as  a 
minimum  that  conclusions  be  logically  supported  by  premises,"^^^  and  in  this 
case,  repeated  testing  did  not  give  rise  to  a  single  study  supporting  the  conclusion 
that  PCBs  caused  small-cell  lung  cancer.^^^  Similarly,  the  American  Medical 
Association  as  petitioners'  amici  curiae  argued  that  the  district  court's 
gatekeeping  role  requires  a  preliminary  assessment  that  the  research  underlying 
the  expert's  testimony  was  consistent  with  a  reliable  scientific  methodology  and 
supports  the  expert's  ultimate  conclusion. '^^  During  oral  arguments  before  the 
Supreme  Court,  the  petitioners  contended  that  if  the  gatekeeping  role  was 
interpreted  too  narrowly,  Daubert  would  essentially  be  overruled  because  a  court 
would  be  required  to  hold  proffered  expert  testimony  admissible  if  the  expert 
drew  a  conclusion  from  a  published  study  conducted  according  to  scientific 
methodology.'^^ 

The  petitioners  further  argued  that  a  district  court  judge's  gatekeeping  role 
lacks  meaning  unless  it  allows  the  judge  to  review  whether  "there  is  too  great  an 
analytical  gap"  between  the  expert's  underlying  premise(s)  and  the  expert's 
ultimate  conclusion(s).'^^  They  claimed  that  a  district  court  must  utilize  a  "link- 
by-link"  analysis  to  ensure  the  reliability,  or  trustworthiness,  of  an  expert's 
proffered  testimony.  '^^  Hence,  expert  testimony  would  be  submitted  to  the  jury 
only  after  the  district  court  is  satisfied  that  the  proponent  has  established  the 
appropriate  linkage  between  the  expert's  underlying  data  and  the  ultimate 


1 53.  See  Urquhart  &  North,  supra  note  135,  at  13. 

1 54.  See  Anthony  Z.  Roisman,  The  Implications  o/G.E.  v.  Joiner  for  Admissibility  of  Expert 
Testimony,  84  A.L.I.-A.B.A.  491,  494  (1998). 

155.  Petitioner's  Brief  at  48,  Joiner  (No.  96-188). 

156.  See  id. 

157.  See  American  Medical  Ass'n  Brief  as  Amicus  Curiae  in  Support  of  Petitioners  at  6, 
Joiner  (No.  96- 1 88).  "The  district  court  must  consider  whether  the  conclusions  to  which  the  expert 
would  testify  can,  as  a  matter  of  good  science,  be  drawn  from  scientifically-generated  data."  Id. 
See  also  Brief  of  Amici  Curiae  The  New  England  Journal  of  Medicine  and  Marcia  Angell  M.D., 
in  Support  of  Neither  Petitioners  nor  Respondents,  Joiner  (No.  96-188)  (espousing  the  use  of 
scientists  to  assist  judges  in  making  decisions  as  to  the  admissibility  of  expert  testimony);  Brief 
Amici  Curiae  of  Bruce  N.  Ames  et.  al,  in  Support  of  Petitioners,  Joiner  (No.  96-188). 

158.  See  United  States  Supreme  Court  Official  Transcript  at  *21,  Joiner,  522  U.S.  136 
(1997),  available  in  1997  WL  634566  (U.S.  Oral  Arg.). 

159.  Mat  ♦22. 

160.  See  Urquhart  &  North,  supra  note  135,  at  13  (proposing  that  "district  [court]  judges 
should  be  given  the  freedom  to  look  behind  an  expert's  facial  assertion  of  'good  science'  in  ruling 
on  the  admissibility  of  proffered  expert  testimony."). 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  369 


conclusion  rendered.'^' 

In  contrast  to  the  petitioners'  view,  the  respondents  and  their  amici  argued 
that  the  petitioners'  points  of  contention  were  issues  reserved  for  the  jury  because 
they  relate  to  the  "weight"  of  the  proffered  evidence/testimony,  and  not 
admissibility.'^^  Therefore,  "[wjhere  opposing  experts  disagree  as  to  how 
epidemiological  and  other  data  should  be  interpreted  it  is  for  the  jury  to  decide 
the  issue."'^^  The  respondents  reasoned  that  Dauhert  "made  it  unmistakably 
clear  that  [the  district  court  judges']  discretion  as  gatekeepers  does  not  extend  to 
evaluating  the  conclusions  an  expert  may  draw  based  on  scientifically  valid 
principle  or  procedure."'^"*  Thus,  the  respondents'  amici  supported  Dauberfs 
methodology /conclusion  distinction,'^^  and  contended  that  the  petitioners  were 
falsely  led  to  believe  that  admissibility  under  Daubert  was  dependent  upon  the 
expert's  conclusion  or  opinion, '^^ 

The  respondents'  view  arose  from  the  strong  trust  of  a  jury's  ability  to  assess 
the  weight  and  credibility  of  expert  testimony, '^^  and  was  bolstered  by  studies  of 
jury  performance.'^^  Accordingly,  the  respondent's  amici  believed  that  the 
petitioners'  concern  with  alleged  "gaps"  between  an  expert's  proffered  testimony 
and  the  expert's  underlying  data  should  go  toward  the  weight  of  the  testimony 
and  not  admissibility.'^^  The  respondents  contended  that  the  proper  tools  for 
ensuring  the  reliability  of  expert  testimony  were  that  of  cross-examination, 
presentation  of  contrary  evidence,  exposing  flaws  in  the  scientific  methodology 
or  the  "underlying  scientific  knowledge  in  which  the  expert's  opinion  is 
based.'"'" 


161.  See  id. 

162.  Roisman,  supra  note  154,  at  494. 

163.  Brief  of  Amicus  Curiae  Trial  Lawyers  of  America  in  Support  of  Respondents  at  *8, 
Jomer  (No.  96-188). 

164.  Id\  see  Brief  of  Amicus  Curiae  Trial  Lawyers  for  Public  Justice  in  Support  of 
Respondents  at  *  12,  Joiner  (No.  96-188). 

165.  See  Brief  of  Amicus  Curiae  in  Support  of  Respondents  at  9,  Joiner  (No  96-1 88);  Trial 
Lawyers  for  Public  Justice  Brief  at  4,  Joiner  (No.  96-188).  Respondent's  amici  argued  that  the 
petitioners  and  their  amici  disregarded  the  Supreme  Court's  bright-line  distinction  that  only  an 
expert's  methodology  should  be  considered  for  purposes  of  determining  admissibility.  See  id. 

1 66.  See  Brief  of  Amicus  Curiae  Trial  Lawyers  for  Public  Justice  in  Support  of  Respondents 
atl2,yomer(No.  96-188). 

167.  See  Brief  of  Amicus  Curiae  Association  of  Trial  Lawyers  of  America  in  Support  of 
Respondents  at  22,  Joiner  (No.  96-1 88). 

168.  See  id.  at  23  (citing  Joe  S.  Cecil  et  al..  Citizen  Comprehension  of  Different  Issues: 
Lessons  from  Civil  Jury  Trials,  40  Am.  U.  L.  Rev.  727,  744-45  (1991)). 

1 69.  See  Brief  for  Ardith  Cavallo  as  Amicus  Curiae  Suggesting  Affirmance  at  1 1 ,  Joiner  (No. 
96-188)  (arguing  that  the  purpose  of  Rule  702's  gatekeeping  function  is  to  control  courtroom 
speculation  and  conjecture). 

170.  Id.  at  1 1.  Again,  "vigorous  cross-examination,  presentation  of  contrary  evidence,  and 
careful  instruction  on  the  burden  of  proof  are  the  traditional  and  appropriate  means  of  attacking 
shaky  but  admissible  evidence."  Id.  (citing  Daubert  v.  Merrell  Dow  Pharm.,  Inc.,  509  U.S.  579, 


370  INDIANA  LAW  REVIEW  [Vol.  33:349 


Physicians  devoted  to  health  problems  affecting  workers  provided  an 
interesting  amicus  brief  on  behalf  of  the  respondents.  The  physicians  opined  that 
the  district  court  disregarded  the  Supreme  Court's  directive  that  admissibility 
determinations  must  be  consistent  with  the  "liberal  thrust  of  the  Federal  Rules  of 
Evidence,"  and  "should  weigh  broadly  in  favor  of  the  proponent  of  the 
evidence."'^'  Furthermore,  the  physicians'  amicus  brief  set  forth  that  the 
plaintiffs'  experts  utilized  the  scientifically  valid  methodology  of  differential 
diagnosis'^^  in  concluding  that  PCBs  could  cause  Joiner's  type  of  lung  cancer. '^^ 
The  physicians'  amici  brief  contended  that  the  plaintiffs'  physician-experts  were 
not  required,  under  Georgia  law,  to  prove  that  PCBs  were  the  "sole,  primary  or 
initiating  cause"^^"^  of  Joiner's  cancer.  In  contrast,  the  experts  merely  needed  "to 
discern  whether  any  other  toxic  exposure  might  reasonably  have  contributed  to 
the  early  appearance" '^^  of  Joiner's  lung  cancer  by  a  "reasonable  degree  of 
medical  certainty."*^^  As  a  result,  the  physicians  believed  that  the  district  court 
was  incorrect  in  its  assessment  and  understanding  of  the  methodologies  utilized 
by  medical  professionals.'^^ 

After  both  sides  had  the  opportunity  to  present  their  written  briefs  and  oral 
arguments  on  October  14,  1997,  it  appears  the  Supreme  Court  was  most 
persuaded  by  the  position  argued  by  the  petitioners.  Transcripts  from  the  oral 
argument  indicate  that  the  Court  believed  the  district  court  was  correct  in  finding 
that  the  underlying  methodology  proffered  by  the  plaintiffs'  experts  was  not 
sufficient  to  predicate  a  conclusion  about  the  cause  of  cancer  in  humans. '^^ 


596(1993)). 

171.  Brief  of  Peter  Orris,  David  Ozonoff,  Janet  S.  Weiss  and  OCAW  (Oil,  Chemical,  & 
Atomic  Workers  Intl.  Union,  AFL-CIO),  as  Amici  Curiae  in  Support  of  Respondents  at  *6,  Joiner 
(No.  96-188)  (citing  Daubert,  509  U.S.  at  587).  This  preference  of  admissibility  is  derived  from 
the  possibility  for  reasonable  experts  to  arrive  at  "diametrically  opposed  conclusions."  Id.  at  *5  n.6. 

1 72.  Differential  diagnosis  is  defined  as  "[t]he  method  by  which  a  physician  determines  what 
disease  process  has  caused  a  patient's  symptoms.  The  physician  considers  all  relevant  potential 
causes  of  the  symptoms  and  then  eliminates  alternative  causes  based  on  a  physical  examination, 
clinical  tests,  and  a  thorough  case  history."  Id.  at  *  1 0  (citing  Reference  Manual,  supra  note  27, 
at  214). 

173.  See  id. 

1 74.  M  at  *  1 4  n.  1 4  (quoting  Parrott  v.  Chatham  County  Hosp.  Auth.,  1 45  Ga.  App.2d  269, 
270  (Ga.  Ct.  App.  1978);  Wells  v.  Ortho  Pharm.  Corp.,  788  F.2d  741,  743  (1 1th  Cir.),  cert,  denied, 
479  U.S.  950(1986)). 

175.  M  at*14. 

176.  /c/.  at*14n.l4. 

177.  Seeid.dX*\. 

1 78.  See  United  States  Supreme  Court  Official  Transcript  at  +52,  Joiner,  522  U.S.  1 36  (U.S. 
1997),  available  in  1997  WL  634566  (U.S.  Oral  Arg.),  66  USLW  3321.  The  Supreme  Court 
posited: 

Maybe  the  district  court  was  saying  the  methodology  is  fine  for  what  it  purports  to  do. 
But  it  does  not  provide  a  sufficient  predicate  for  use  in  reasoning  to  a  conclusion  about 
cause  in  humans.  Maybe  that's  what  the  district  court  was  doing.  And  if  it  was  doing 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  371 


Specifically,  the  Court  was  not  convinced  tiiat  the  weight-of-the-evidence 
approach  would  ensure  reliability  because  an  expert  could  pass  the  threshold  of 
admissibility  by  stating  that  he  reviewed  all  available  evidence  prior  to  making 
his  ultimate  conclusiori.'^^  As  a  result,  the  Court  responded  that  Dauber fs 
methodology/conclusion  distinction  might  be  nothing  more  than  a  diversion. '^° 

C  The  Supreme  Court 's  Decision 

The  Supreme  Court's  opinion  provided  important  guidance  and  clarification 
as  to  the  extent  and  scope  of  a  judge's  gatekeeping  role  when  determining  the 
admissibility  of  an  expert's  opinion.'^'  Upon  concluding  that  an  abuse  of 
discretion  standard  governs  the  review  of  a  lower  court's  exclusion  of  expert 
testimony,  ^^^  the  majority  found  error  with  the  court  of  appeals'  overly  stringent 
review  of  the  district  court's  decision  excluding  Joiner's  expert  testimony. '^^ 
Therefore,  the  Court  began  with  a  discussion  of  the  problems  underlying 
causational  expert  testimony  based  on  the  analysis  of  animal  and  existing 
epidemiological  studies. 

The  Court  first  addressed  the  animal  studies  and  found  that  the  plaintiffs' 
experts  failed  to  explain  why  they  based  their  opinions  on  studies  utilizing  mice 
injected  with  massive  doses  of  PCBs.'^"*  Additionally,  the  experts  did  not  explain 
why  no  other  study  demonstrated  an  incidence  of  cancer  due  to  PCB  exposure  in 
humans. '^^  The  Court  stated  that  "[t]he  issue  was  whether  these  experts' 
opinions  were  sufficiently  supported  by  the  animal  studies  on  which  they 
purported  to  rely,"'*^  not  the  validity  of  using  of  animal  studies. '^^  Based  on  the 


that,  it  seems  to  me,  number  one,  that  it  was  not  committing  any  legal  error.  And, 
number  two,  it  was  making  a  judgment,  ultimately,  about  what  the  jury  could  find 
helpful  that  should  be  subject  to  abuse  of  discretion  view. 


Id. 


179.  Seeid.dX*5A. 

1 80.  See  id.  In  response  to  Respondent's  argument  that  Daubert  merely  requires  the  district 
court  to  decide  whether  the  bases  supporting  the  expert's  conclusion  are  reliable,  the  Court  stated 
that  "maybe  the  methodology  prong  is  just  a  red  herring."  Id. 

181.  See  Neal,  supra  note  5,  at  35  n.39  (stating  that  "the  real  issue  that  the  defendants  wanted 
the  Supreme  Court  to  consider  and  clarify  was  whether  a  district  court  could  look  at  the  conclusions 
that  the  expert  had  reached  as  well  as  the  methodology."). 

182.  "Abuse  of  discretion — ^the  standard  ordinarily  applicable  to  review  of  evidentiary 
findings — is  the  proper  standard  by  which  to  review  a  district  court's  decision  to  admit  or  exclude 
expert  scientific  evidence."  Joiner,  522  U.S.  at  138-39.  See  Marlin,  supra  note  14,  at  142-43 
(providing  an  overview  of  the  standard  of  review  applied  to  the  admissibility  of  scientific  testimony 
prior  to  the  Supreme  Court's  decision  in  Joiner). 

183.  See  Joiner,  522  U.S.  at  143. 

184.  SeeiddXXU. 

185.  Seeid.dXU^'AS. 

186.  /c/.  at  144. 

187.  See  id. 


372  INDIANA  LAW  REVIEW  [Vol.  33:349 


facts  of  this  case,  however,  the  Court  found  no  abuse  of  discretion  by  the  district 
court's  decision  rejecting  the  animal  studies  as  an  insufficient  basis  of 
establishing  causation  in  humans.'^* 

Next,  the  Court  discussed  the  reliability  and  relevance  of  the  epidemiological 
studies  underlying  the  expert's  causation  testimony.  The  majority  found  no  legal 
error  in  the  district  court's  decision  "because  it  was  within  the  District  Court's 
discretion  to  conclude  that  the  studies  upon  which  the  experts  relied  were  not 
sufficient,  whether  individually  or  in  combination,  to  support  their  conclusions 
that  Joiner's  exposure  to  PCB's  contributed  to  his  cancer."'^^  Thus,  the  Supreme 
Court  was  not  expressly  rejecting  the  weight-of-the-evidence  approach  as  an 
acceptable  methodology.'^^  To  illustrate  this  point,  the  majority  individually 
analyzed  the  admissibility  of  four  epidemiological  studies  used  by  the 
petitioners'  experts  to  derive  their  opinions  and  found  that  none  of  the  studies 
"concluded"  that  PCB  exposure  increased  the  risk  of  cancer  or  that  Joiner's 
cancer  was  aggravated  by  his  exposure  to  PCBs.'^' 

After  the  Court  reviewed  each  of  the  four  studies,  the  majority  disagreed  with 
the  petitioners'  reliance  on  Dauberfs  bright-line  distinction  requiring  judges  to 
remain  focused  on  the  expert's  methodology  and  not  the  expert's  conclusions.*^^ 
The  majority  explained  that  "conclusions  and  methodology  are  not  entirely 
distinct  from  one  another."'^^  The  Court  further  described  the  difficulty  of 
conforming  to  Daubert's  bright-line  distinction  as  follows: 

Trained  experts  commonly  extrapolate  from  existing  data.  But  nothing 
in  either  Daubert  or  the  Federal  Rules  of  Evidence  requires  a  district 
court  to  admit  opinion  evidence  which  is  connected  to  existing  data  only 
by  the  ipse  dixit  of  the  expert.  A  court  may  conclude  that  there  is  simply 
too  great  an  analytical  gap  between  the  data  and  the  opinion 


188.  Seeid,?&\A2>. 

189.  /^.  at  146-47. 

1 90.  The  Court  recognized  that  there  might  be  an  argument  that  the  experts'  evidence,  when 
taken  as  a  whole,  provided  support  for  a  conclusion  that  PCB  exposure  aggravated  the  development 
of  Joiner's  cancer.  See  id.  at  145-47.  However,  the  court  was  unwilling  to  take  this  approach 
because  the  plaintiff  failed  to  offer  evidence  showing  (1)  how  the  studies  were  analytically  linked 
or  (2)  the  cumulative  impact  of  the  studies.  See  id. 

191.  Id.  The  first  study  involved  Italian  workers  exposed  to  PCBs  reporting  an  increased 
incidence  of  lung  cancer,  but  found  no  causal  connection  between  the  exposure  and  death  from 
cancer.  See  id.  at  145.  The  second  study  reported  an  increased  incidence  of  lung  cancer  deaths  at 
a  defendant's  PCB  production  plant,  but  no  causal  link  between  the  exposure  to  PCBs  and  the 
increased  number  of  lung  cancer  deaths.  See  id.  The  third  study  involved  Norwegian  cable 
company  workers  exposed  to  mineral  oil,  not  PCBs.  See  id.  at  145-46.  The  fourth  study  was 
inconclusive  because  it  involved  Japanese  workers  who  were  exposed  to  numerous  potential 
carcinogens  (by  the  ingestion  of  toxic  rice  oil)  in  addition  to  PCBs.  See  id. 

192.  Seeid.dXH6. 

193.  Id 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  373 


proffered.'^'* 

According  to  the  Court,  any  expert  testimony,  such  as  the  petitioners'  expert 
testimony,  which  interprets  existing  studies  or  data  should  not  be  adm  itted  based 
on  the  bare  assertion  of  an  authority  figure. '^^  Consequently,  the  majority  found 
no  reversible  error  in  the  district  court's  decision  and  decided  that  "it  was  in  the 
District  Court's  discretion  to  conclude  that  the  studies  upon  which  the  experts 
relied  were  not  sufficient ...  to  support  their  conclusions"'^^  with  respect  to  the 
cause  of  Joiner's  cancer. '^^ 

7.  Justice  Breyer  's  Concurrence. — ^Justice  Breyer's  short  concurring  opinion 
placed  emphasis  on  Dauberfs  statement  that  trial  judges  must  act  as  gatekeepers 
to  ensure  the  reliability  and  relevance  of  all  scientific  testimony  and  evidence. '^^ 
He  cautioned  that  judges  must  exercise  special  care  in  making  admissibility 
determinations  because  the  gatekeeping  requirement  may  often  require  judges 

to  make  subtle  and  sophisticated  determinations  about  scientific 
methodology  and  its  relation  to  the  conclusions  an  expert  witness  seeks 
to  offer — particularly  when  a  case  arises  in  an  area  where  the  science 
itself  is  tentative  or  uncertain,  or  where  testimony  about  general  risk 
levels  in  human  beings  or  animals  is  offered  to  prove  individual 
causation.'^' 

Given  this  difficult  role,  Justice  Breyer  noted  that  use  of  the  pretrial  conference 
under  the  Federal  Rules  of  Civil  Procedure  provides  a  forum  to  "narrow  the 
scientific  issues  in  dispute."^^  Additionally,  he  encouraged  district  court  judges 
to  use  their  power  to  appoint  independent  experts  under  FRE  706^^'  as  a  method 


194.  /c/.  (emphasis  added). 

195.  See  id. 

196.  Id. 

197.  See  id.  at  \  46-47. 

198.  See  id.  at  148  (Breyer,  J.,  concurring). 

199.  Mat  147-48. 

200.  Id.  at  149. 

201 .  The  use  of  court  appointed  experts  is  governed  by  FRE  706(a),  which  provides: 
The  court  may  on  its  own  motion  or  on  the  motion  of  any  party  enter  an  order  to  show 
cause  why  expert  witnesses  should  not  be  appointed,  and  may  request  the  parties  to 
submit  nominations.  The  court  may  appoint  expert  witnesses  agreed  upon  by  the 
parties,  and  may  appoint  expert  witnesses  of  its  own  selection.  An  expert  witness  shall 
not  be  appointed  by  the  court  unless  the  witness  consents  to  act.  A  witness  so  appointed 
shall  be  informed  of  the  witness'  duties  by  the  court  in  writing,  a  copy  of  which  shall 
be  filed  with  the  clerk,  or  at  a  conference  in  which  the  parties  shall  have  opportunity  to 
participate.  A  witness  so  appointed  shall  advise  the  parties  of  the  witness'  findings,  if 
any;  the  witness'  deposition  may  be  taken  by  any  party;  and  the  witness  may  be  called 
to  testify  by  the  court  or  any  party.  The  witness  shall  be  subject  to  cross-examination 
by  each  party,  including  a  party  calling  the  witness. 

Fed.  R.  Evid.  706(a). 


374  INDIANA  LAW  REVIEW  [Vol.  33:349 


of  facilitating  the  court's  task  of  determining  the  admissibility  of  scientific 
evidence  and  testimony.^^^ 

2.  Justice  Stevens '  Partial  Concurrence. — ^Justice  Stevens  concurred  with 
the  majority's  ruling  regarding  the  proper  standard  of  review,  but  dissented  with 
the  majority's  holding  that  the  testimony  of  the  plaintiffs  expert  witnesses  was 
inadmissible.^"^  He  would  have  remanded  the  matter  to  the  court  of  appeals.^"'* 
Stevens  agreed  with  the  Eleventh  Circuit's  determination  that  the  evidence  of 
exposure  created  an  issue  of  fact.^°^  He  was  unpersuaded  by  the  majority's 
statement  that  "'conclusions  and  methodology  are  not  entirely  distinct  from  one 
another, '"^"^  and  found  the  court  of  appeals'  opinion  persuasive  in  its  acceptance 
of  the  "weight  of  the  evidence"^"^  approach  as  a  scientifically  acceptable 
methodology.^"^  Justice  Stevens  also  found  error  in  the  district  court's 
conclusion  that  no  study,  by  itself,  was  sufficient  to  establish  a  link  between 
PCBs  and  the  plaintiffs  onset  of  lung  cancer.^"^  He  opined  that  the  district  court 
judge's  individual  examination  of  each  of  the  studies  led  the  judge  to  focus  on 
the  experts'  conclusions,  and  not  on  the  underlying  methodology.^'" 

In  support  of  his  dissent.  Justice  Stevens  wrote  that  "[i]t  is  not  intrinsically 
'unscientific'  for  experienced  professionals  to  arrive  at  a  conclusion  by  weighing 
all  available  scientific  evidence — ^this  is  not  the  sort  of 'junk  science'  with  which 
Daubert  was  concerned."^"  He  further  stated  that  the  district  court's  position  of 
prohibiting  experts  from  arriving  at  a  conclusion  by  weighing  all  scientific 
evidence  is  contrary  to  the  same  methodology  used  by  the  Environmental 
Protection  Agency  ("EPA")  to  assess  risks.^'^  Furthermore,  he  found  "nothing 
in  either  Daubert  or  the  Federal  Rules  of  Evidence  requires  a  district  judge  to 
reject  an  expert's  conclusions  and  keep  them  from  the  jury  when  they  fit  the  facts 
of  the  case  and  are  based  on  reliable  scientific  methodology."^'^  Thus,  Justice 
Stevens  did  not  understand  why  the  experts'  opinions  were  inadmissible  since  the 
proffered  opinions  were  not  based  on  a  single  study,  but  on  the  combined  weight 
of  all  available  evidence — a  methodology  applied  by  the  federal  government.^ '"* 
Consequently,  he  found  that  the  plaintiffs  experts  could  reasonably  infer  that 
PCBs  could  promote  lung  cancer  if  the  experts  were  allowed  to  combine  the 


202.  See  Joiner,  522  U.S.  at  149  (Breyer  J.,  concurring). 

203.  See  id.  at  150-51  (Stevens,  J.,  concurring  in  part  and  dissenting  in  part). 

204.  See  id. 

205.  Seeid.2A\52. 

206.  /^.  at  155. 

207.  /^.  at  153. 

208.  See  id 

209.  Seeid2X\5A 

210.  Seeid-^XXSlf. 

211.  Id 

2 1 2.  See  id.  (citing  Brief  for  Respondents  at  40-4 1 ,  Joiner  (No.  96- 1 88)). 

213.  Id.  dX\55. 

214.  See  id 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  375 

results  of  various  studies  under  the  weight-of-the-evidence  approach.^'^ 

III.  The  Effect  OF  Jo/7V£/? 

A.  The  Methodology/Conclusion  Distinction  Remains 

Even  though  commentators  disagree  as  to  whether  the  Supreme  Court's 
decision  in  Joiner  resolved  the  circuit  court  split  regarding  the 
methodology/conclusion  distinction,^'^  the  Joiner  decision  clearly  represents  a 
retreat  from  Daubert's  strict  focus  on  methodology.^'^  The  Supreme  Court's 
opinion  reemphasizes  that  expert  testimony  proffered  in  a  post-Joiner 
environment  must  also  satisfy  Dauberfs  second  prong,  which  requires  that 
evidence  be  "sufficiently  tied  to  the  facts  of  the  case"^'^  by  a  valid  scientific 
connection.^'^   In  short,  the  expert  testimony  must  "assist  the  trier  of  fact  to 


215.  See  id. 

216.  One  commentator  believes  that  the  majority  opinion  in  Joiner  can  be  construed  as 
allowing  "district  courts  to  exclude  evidence  whenever  they  disagree  with  the  inductive  reasoning 
by  which  the  expert  employing  that  methodology  arrived  at  his  or  her  conclusion  about  the 
probability  of  causation."  Gottesman,  supra  note  1,  at  772.  Others  agree  with  this  proposition  and 
state  X\idX  Joiner  marked  a  retreat  from  the  Supreme  Court's  previously  strict  focus  on  methodology 
under  Daubert,  thus,  expanding  the  scope  of  the  district  court  judge's  authority  to  include  the 
expert's  conclusions.  See,  e.g.,  Neal,  supra  note  5,  at  37  (opining  that  aftQr  Joiner,  a  "district  court 
[can]  assess  whether  the  conclusions  that  the  expert  purports  to  reach  are  supported  by  the 
underlying  evidence.");  Bruce  R.  Parker,  Understanding  Epidemiology  and  Its  Use  in  Drug  and 
Medical  Device  Litigation,  65  Def.  Couns.  J.  35,  61  (1998)  (indicating  in  its  addendum  that  the 
Supreme  Court's  decision  in  Joiner  "re-emphasizes  that  a  trial  court  is  required,  as  part  of  its 
gatekeeping  role,  to  evaluate  not  only  the  methodology  used  by  an  expert,  but  also  whether  the 
expert's  conclusion[s]  meet  Daubert  standards");  Preuss,  supra  note  2,  at  323  (stating  that  Joiner 
clarifies  that  an  expert's  methodologies  and  conclusions  are  subject  to  review).  However,  at  least 
one  commentator  disagrees  with  such  an  expansive  reading  of  the  Joiner  decision.  See  Roisman, 
supra  note  154,  at  497  (stating  that  the  Joiner  decision  does  not  effect  Daubert' s  admonition  that 
a  trial  court's  preliminary  admissibility  determination  of  expert  testimony  should  focus  on  the 
expert's  methods  and  not  on  the  ultimate  conclusions  rendered). 

2 1 7.  See  Graham  v.  Playtex  Prods.,  Inc.,  993  F.  Supp.  1 27, 1 32  (N.D.N.  Y.  1 998)  (noting  that 
with  Joiner  decision,  "the  Supreme  Court  seems  to  have  retreated  from  this  strict  focus  on 
methodology  alone."). 

218.  Daubert  v.  Merrell  Dow  Pharm.,  Inc.,  509  U.S.  579,  591  (1993). 

219.  See  id.  at  592.  The  Daubert  court  provided  the  following  example: 

The  study  of  the  phases  of  the  moon,  for  example,  may  provide  valid  scientific 
"knowledge"  about  whether  a  certain  night  was  dark,  and  if  darkness  is  a  fact  in  issue, 
the  knowledge  will  assist  the  trier  of  fact.  However,  (absent  creditable  grounds 
supporting  such  a  link),  evidence  that  the  moon  was  full  on  a  certain  night  will  not  assist 
the  trier  of  fact  in  determining  whether  an  individual  was  unusually  likely  to  have 
behaved  irrationally  on  that  night. 
Id.  2ii59\. 


376  INDIANA  LAW  REVIEW  [Vol.  33:349 


understand  or  determine  a  fact  in  issue."^^°  The  Court  was  simply  reminding 
judges  that  there  are  limits  to  the  admissibility  of  scientific  evidence  under  the 
Federal  Rules  of  Evidence.^^'  A  district  court  judge  must  still  focus  on  the 
expert's  methodology ,^^^  and  therefore,  the  Joiner  decision  did  remove  what  the 
Supreme  Court  previously  established  in  Daubert. 

The  Joiner  decision,  however,  failed  to  clarify  which  methodology  a 
scientific  expert  can  rely  upon  to  establish  a  "valid  scientific  connection." 
Specifically,  the  Supreme  Court  did  not  expressly  declare  that  an  expert  can  rely 
on  the  weight-of-the-evidence  approach  as  a  reliable  methodology. ^^^  The 
majority  merely  mentioned  that  it  found  no  error  in  assessing  the  reliability  of 
expert  conclusions  either  "individually  or  in  combination."^^"*  As  a  result,  the 
Court  did  not  authorize  or  deny  the  reliability  of  a  particular  approach.  The 
Court,  nevertheless,  found  that  the  weight-of-the  evidence  approach  lacked 
reliability  under  the  Joiner  circumstances  because  the  Court  apparently  excluded 
the  plaintiffs'  studies  on  an  individual  basis  instead  of  examining  the  data  as  a 
whole.  This  reasoning  appears  to  form  the  basis  of  why  the  Court  ultimately 
agreed  with  the  district  court's  decision  excluding  the  plaintiffs'  expert 
testimony.^^^ 

In  response  to  the  post-Jo/wer  ambivalence  regarding  the  admissibility  of 
expert  testimony,  the  Judicial  Conference  Advisory  Committee  proposed 
amendments  to  PRE  702.^^^  As  proposed,  PRE  702  would  read: 

If  scientific,  technical,  or  other  specialized  knowledge  will  assist  the  trier 
of  fact  to  understand  the  evidence  or  to  determine  a  fact  in  issue,  a 
witness  qualified  as  an  expert  by  knowledge,  skill,  experience,  training 
or  education,  may  testify  thereto  in  the  form  of  an  opinion  or  otherwise 
provided  that  (1)  the  testimony  is  sufficiently  based  upon  reliable  facts 
or  data,  (2)  the  testimony  is  the  product  of  reliable  principles  and 
methods,  and  (3)  the  witness  has  applied  the  principles  and  methods 


220.  Id.  A  district  court  judge  must  also  focus  on  the  fitness  of  "[the]  experts'  testimony  and 
the  data  from  which  they  draw  their  conclusions."  Marlin,  supra  note  14,  at  149. 

221.  See  Marlin,  supra  note  14,  at  148. 

222.  The  Joiner  decision  does  not  effect  Daubert' s  requirement  that  a  judge  should  focus  on 
the  expert's  methods  and  not  on  the  ultimate  conclusions  rendered.  See  Roisman,  supra  note  1 54, 
at  497. 

223 .  See  Gottesman,  supra  note  1 ,  at  77 1  -72. 

224.  General  Elec.  Co.  v.  Joiner,  522  U.S.  136,  147  (1997). 

225.  The  Court  provided  that: 

[I]t  was  within  the  District  Court's  discretion  to  conclude  that  the  studies  upon  which 
the  experts  relied  were  not  sufficient,  whether  individually  or  in  combination,  to  support 
their  conclusions  that  Joiner's  exposure  to  PCBs  contributed  to  his  cancer,  the  District 
Court  did  not  abuse  its  discretion  in  excluding  their  testimony. 
Id.  at  146-47. 

226.  See  Daniel  J.  Capra,  Corporate  Brief:  Evidence  Amendments,  Nat'L  L.J.,  Oct.  5, 1 998, 
atB-U. 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  377 


reliably  to  the  facts  of  the  case 


227 


The  proposed  amendment  language  of  PRE  702  was  intentionally  written  to 
apply  to  both  scientific  and  non-scientific  expert  testimony .^^^  If  ratified,  the 
proposed  FRE  702  would  also  clarify  post-Joiner  ambiguities  surrounding 
Dauber  fs  famous  methodology /conclusion  distinction.^^^  The  language  clearly 
indicates  that  the  district  court  judge,  as  the  gatekeeper,  must  review  the  expert's 
methodology  and  the  expert's  "application  of  that  methodology  to  the  facts  of  the 
case,"^^^  i.e.,  the  expert's  conclusion.  Furthermore,  it  appears  that  the  Advisory 
Committee  was  particularly  persuaded  by  Judge  Edward  R.  Becker's  reasoning 
in  In  re  Paoli  R.R.  YardPCB  Litigation,^^ '  that  "any  step  that  renders  the  analysis 
unreliable  renders  the  expert's  testimony  inadmissible  .  .  .  whether  the  step 
completely  changes  a  reliable  methodology  or  merely  misapplies  that 
methodology."^^^  Thus,  the  combined  effect  of  the  Joiner  decision  and  the 
recently  proposed  amendments  to  FRE  702  illustrate  that  a  district  court  judge 
must  find  the  appropriate  balance  between  assessment  of  the  expert's 
methodology  and  the  expert's  ultimate  conclusion. 

Some  commentators  believe  that  Joiner's  reliance  on  Daubert's  "fitness" 
requirement  may  lead  to  an  unfortunate  erosion  of  the  jury's  factfinding  role^^^ 
and  an  inappropriate  extension  of  the  district  court  judge's  gatekeeping  role.^^"* 
These  commentators  further  contend  that  there  may  be  an  increased  incidence  of 
judges  excluding  "expert  evidence  solely  on  the  basis  of  whether  they  think  the 
evidence  supports  the  party's  case."^^^  Additionally,  they  believe  that  the  Joiner 
decision  may  serve  as  a  pretext  for  district  court  judges  who  do  not  believe  the 
expert's  testimony^^^  and  may  extend  the  judge's  scope  of  review  to  cover  the 
expert's  underlying  assumptions  and  data,  as  well  as,  the  expert's  conclusion.^^^ 

ThQ  Joiner  decision  did  not  explicitly  broaden  a  judge's  scope  of  review,  nor 
did  it  not  remove  Dauberfs  methodology/conclusion  distinction.  The  decision 
in  Joiner  merely  clarified  that  a  district  court  judge's  scope  of  review  does  not 
end  with  proof  of  reliability.    Since  Daubert  it  is  required  that  all  proffered 


227.  Id. 

228.  See  id.  (indicating  that  the  all  expert  testimony  is  subject  to  the  trial  court's  gatekeeping 
function). 

229.  See  id. 

230.  Id. 

231.  35F.3d717(3dCir.  1994). 

232.  Id  at  745. 

233.  See  White,  supra  note  2,  at  92 

234.  See  Hope  After  Joiner,  N.J.  L. J.,  Mar.  23,  1 998,  at  26. 

235.  Id.;  see  also  Gottesman,  supra  note  1,  at  775  (stating  that  the  Joiner  decision  "places 
too  much  discretion  in  the  hands  of  district  judges  and  makes  the  outcomes  of  toxic  tort  cases  in 
federal  courts  turn  on  the  prejudices  of  the  particular  judge  rather  than  on  principles  of  law"). 

236.  See  White,  supra  note  2,  at  92. 

237.  See  Sneed,  supra  note  151,  at  422. 


378  INDIANA  LAW  REVIEW  [Vol.  33:349 


evidence  be  both  reliable  and  relevant^^^ — i.e.,  will  the  evidence  "assist  the  trier 
of  fact  to  understand  or  determine  a  fact  in  issue. "^^^  Nevertheless,  the  Joiner 
court's  reemphasis  on  the  importance  of  Daubert's  "fitness"  prong  may  prove 
fatal  to  some  products  liability  and  toxic  tort  claims. 

B.  Joiner 's  Effect  on  Products  Liability  &  Toxic  Tort  Claims 

Judges  have  relied  on  the  Joiner  decision  to  exclude  expert  testimony  in 
cases  where  the  expert  was  unable  to  satisfy  Dauber fs  "fitness"  requirement. 
There  are  several  different  scenarios  where  expert  testimony  is  excluded  in 
products  liability  and  toxic  tort  contexts.  The  plaintiffs  expert  testimony  may 
be  excluded  if  (1)  the  expert's  conclusion  is  too  far  removed  from  the  available 
scientific  knowledge  or  data  or  (2)  the  expert  is  unable  to  establish,  beyond  his 
own  assertions,  that  he  utilized  a  generally  accepted  scientific  methodology.^'*^ 
In  both  products  liability  and  toxic  tort  cases,  a  court  may  exclude  expert 
testimony  when  the  gap  between  the  underlying  evidence  and  the  expert's 
opinion  results  in  an  analytical  "chasm. "^"^^  The  expert  must  prove  there  is  more 
than  temporal  proximity  between  the  evidence  and  the  ultimate  conclusion 
rendered.^"*^  A  court  will  question  an  expert's  conclusions  that  are  "ad  hoc"  or 
the  product  of  deductive  reasoning  or  speculation  if  there  is  no  physical  evidence 
supporting  the  expert's  position.^"*^ 


238.  See  Daubert  v.  Merrell  Dow  Pharm.,  Inc.,  509  U.S.  579,  589  (1993). 

239.  Id.  at  593. 

240.  In  Moore  v.  Ashland  Chemical,  Inc.,  151  F,3d  269  (5th  Cir.  1998),  cert,  denied,  1 19  S. 
Ct.  1454  (1999),  the  trial  court  excluded  the  plaintiffs  expert  testimony  with  respect  to  causation 
because  the  expert  was  unable  to  explain  his  conclusion  or  cite  scientific  support  for  his  conclusion. 
See  id.  at  279.  The  court  found  the  expert's  assurances  that  he  utilized  a  generally  accepted 
scientific  methodology  insufficient,  see  id.  at  276  (citing  Daubert  v.  Merrell-Dow  Pharmaceuticals, 
Inc.,  43  F.3d  1311,  1316  (9th  Cir.  1 995)  (on  remand)),  the  experts'  testimony  was  allowed  because 
the  expert  "relied  substantially  on  the  temporal  proximity  between  the  [plaintiffs]  exposure  and 
symptoms."  Id.  at  278.  The  trial  court's  exclusion  was  affirmed  on  appeal  because  "the  'analytical 
gap'  between  [the  expert's]  causation  opinion  and  the  scientific  knowledge  and  available  data 
advanced  to  support  that  opinion  was  too  wide."  Id.  at  279.  See  also  In  re  Breast  Implant 
Litigation,  1 1  F.  Supp.2d  1217  (D.  Colo.  1998)  (excluding  expert  testimony  necessary  to  establish 
the  plaintiffs  burden  of  causation  because  the  available  epidemiologic  evidence  failed  to  establish 
that  breast  implants  caused  the  auto-immune  diseases  alleged). 

241.  Belofsky  v.  General  Elec.  Co.,  1  F.  Supp.2d  504  (D.C.V.I.  1998)  (excluding  expert 
testimony  that  the  defendant-manufacturer's  refrigerator  door  was  defectively  designed  because  the 
expert  was  unable  to  explain  the  discrepancy  between  her  ultimate  conclusion  and  contradictory 
evidence). 

242.  See  Daubert,  509  U.S.  at  589. 

243.  In  Childs  v.  General  Motors  Corp.,  No.  CIV.A.95-0331,  1998  WL  414719  (E.D.  Pa. 
July  22, 1 998),  the  trial  court  granted  the  manufacturer's  motion  in  limine  prohibiting  the  plaintiffs 
expert  from  testifying  that  a  defect  in  the  seat  design  caused  the  front  passenger  seat  of  the 
manufacturer's  car  to  collapse  because  the  expert  was  unable  to  show  that  he  relied  upon  generally 


1 999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  379 


Accordingly,  for  a  products  liability  or  toxic  tort  claim  to  survive  the  scrutiny 
of  both  Daubert  and  Joiner,  there  must  be  a  nexus  between  the  scientific 
evidence  and  the  pertinent  inquiry  of  the  case.  The  requisite  nexus  is  often 
difficult  for  the  plaintiff  to  establish  when  the  experts  are  unable  to  prove  that 
their  test  results  would  remain  the  same  if  they  used  humans.^'*'*  An  expert's 
inability  to  replicate  the  test  results  using  humans  will  not  prove  fatal  to  the 
admission  of  expert  testimony,  so  long  as  the  expert  can  explain  her  testing 
procedures  and  the  test  results  were  subjected  to  peer  review  in  a  published 
study.''' 

Nevertheless,  an  expert's  ability  to  explain  her  scientifically  reliable 
methodology  may  prove  somewhat  futile  in  the  context  of  a  novel  opinion 
because  the  expert  must  still  overcome  the  issue  of  "fitness."  A  toxic  tort  or 
products  liability  expert  will  fail  the  "fitness"  requirement  if  the  expert's  opinion 
is  unable  to  reference  the  requisite  causational  link  to  the  facts  of  a  particular 
case.'"^^  This  may  prove  particularly  true  in  situations  where  the  expert's  opinion 
is  based  primarily  upon  the  evaluation  of  animal  studies,  the  impact  of 
cumulative  studies,  and  statistical  analysis.  As  a  result,  the  exclusion  of  such 
testimony  could  effectively  preclude  legally  adequate  products  liability  or  toxic 


accepted  methodologies.  See  id.  at  *2.  The  exclusion  was  supported  by  the  fact  that  there  was  no 
physical  evidence  supporting  the  expert's  proposition  and  the  expert's  theory  could  not  be 
replicated.  See  id.  dX*  A.  5ee  a/jo  Uribe  v.  Sofamor,  1999  WL  1129703,  at*  12  (D.  Neb.  Aug.  16, 
1999)  (excluding  medical  causation  testimony  that  was  unsupported  by  scientific  literature  or 
research  conducted  independent  of  the  litigation  as  too  speculative  and  conclusory);  Comer  v. 
American  Elec.  Power,  63  F.  Supp.2d  927,  931-34  (N.D.  Ind.  1999)  (excluding  an  electrical 
engineer's  testimony  in  a  product  liability  action  against  an  electrical  utility  because  fire  damage 
due  to  defective  wiring  was  "not  based  on  any  particular  evidence  or  trained  observation  but 
represents  mere  subjective  belief  and  unsupported  speculation");  Hartwell  v.  Danek  Med.,  Inc.,  47 
F.  Supp.2d  703, 710-16  ( W.D.  Va.  1 999)  (excluding  expert  medical  testimony  as  merely  conclusory 
in  its  assertion  that  a  spinal  fixation  device  was  the  cause  of  the  plaintiffs  injuries,  and  thus 
precluding  the  plaintiffs  product  liability  claim). 

244.  In  Lytle  v.  Ford  Motor  Co. ,  696  N.E.2d  465  (Ind.  Ct.  App.  1 998),  the  Indiana  Court  of 
Appeals  excluded  expert  testimony  that  a  defect  in  the  defendant's  seat  belt  caused  the  plaintiffs 
wife  to  be  thrown  from  the  defendant's  truck  during  a  collision.  The  expert's  testimony  was 
unreliable,  under  the  combined  criteria  of  Daubert  and  Joiner,  because  the  expert  was  unable  to 
prove  that  his  underlying  pendulum  test,  "hitting  the  back  of  a  suspended  buckle  with  a  small 
hammer  with  sufficient  force  to  cause  the  buckle  to  inertially  release,"  id.  at  467  n.2,  results  would 
remain  the  same  if  he  used  testing  method  more  similar  to  the  forces  present  in  a  real  world  accident 
(crash  test  dummy).  See  id.  at  472-73. 

245.  See  Graham  v.  Playtex  Prods.,  Inc.,  993  F.  Supp.  127, 132  (N.D.N. Y.  1998)  (admitting 
expert  testimony  that  the  defendant-manufacturer's  use  of  rayon  fibers  in  the  defendant's  tampons 
increased  the  risk  of  toxic  shock  syndrom  because  the  court  was  not  persuaded  that  the  lack  of 
epidemiological  data  in  support  of  the  expert's  conclusions  gave  rise  to  a  significant  "analytical 
gap"  requiring  exclusion). 

246.  Barry,  supra  note  1,  at  305.  See  Gottesman,  supra  note  1,  at  769  ("Introduction  of 
scientific  evidence  in  toxic  tort  litigation  to  prove  causal  relationships  is  inherently  problematic"). 


380  INDIANA  LAW  REVIEW  [Vol.  33:349 


tort  cases  from  reaching  juries,  who  may  reasonably  find  in  favor  of  the  plaintiff. 
Such  a  plaintiff  may  therefore  be  unable  to  maintain  a  cause  of  action,  survive 
a  motion  to  dismiss  or  a  motion  for  summary  judgment. 

IV.  A  LOOK  INTO  THE  FUTURE  OF  EXPERT  TESTIMONY 

Although  the  true  effects  of  the  Joiner  decision  remain  open  to  debate,^"*^  the 
Supreme  Court's  departure  from  DauberVs  bright-line  distinction  is  likely  to 
make  the  admissibility  of  expert  testimony  more  restrictive,^'*^  as  well  as 
burdensome  for  the  plaintiff.  The  Supreme  Court's  reemphasis  on  "fitness"  may 
affect  procedural  matters  relating  to  expert  testimony  and  will  require  lawyers  to 
spend  additional  time  preparing  their  experts.^"*^  An  expert's  opinion  that 
something  is  responsible  for  the  cause  of  the  plaintiffs  injuries  (i.e.,  specific 
causation)  will  be  deemed  irrelevant  un^Qv  Dauber f  s  fitness  prong  if  an  expert 
is  unable  to  establish  proof  of  general  causation.^^^  In  products  liability  or  toxic 
tort  claims,  the  expert  must  be  able  to  reference  data  that  establishes  the 
relationship  between  the  cause  and  injury  by  a  preponderance  of  the  evidence 
before  she  can  opine  that  the  particular  item  was  responsible  for  the  claimant's 
injuries.^^'  If  an  expert  is  unable  to  satisfy  this  burden,  a  district  court  judge  may 
find  that  the  testimony  fails  Dauber fs  "fitness"  requirement  because  the 
testimony  would  be  confusing  and  unhelpful  to  the  jury.^^^ 

Thus,  "the  lawyer  must  be  sure  that  the  expert  will  be  able  to  rationally 


247.  See  supra  note  215. 

248.  See  Sneed,  supra  note  151,  at  422  (stating  that  Joiner  decision  language  undermines 
Dauberfs  liberal  approach  to  the  admission  of  expert  testimony). 

249.  Experts  must  be  prepared  to  write  detailed  reports  supporting  their  conclusions  and 
lawyers  must  be  prepared  to  spend  additional  time  with  experts  to  ensure  the  expert's  ability  to 
explain  his  reasoning.  See  Roisman,  supra  note  154,  at  501. 

250.  In  products  liability  claims,  specific  causation  evidence  is  admissible  only  after  the 
expert  has  established  general  causation  between  the  product  and  the  plaintiffs  injuries.  See 
Raynor  v.  Merrell  Dow  Pharm.,  Inc.,  104  F.3d  1371,  1376  (D.C.  Cir.  1997)  (holding  that  non- 
epidemiological  studies  were  insufficient  to  establish  "causation  in  human  beings  in  the  face  of  the 
overwhelming  body  of  contradictory  epidemiological  evidence"). 

251.  The  case  of  In  re  Breast  Implant  Litigation,  11  F.  Supp.2d  1217  (D.  Colo.  1998), 
excluded  plaintiffs'  expert  testimony  in  a  products  liability  claim  against  silicone  breast  implant 
manufacturers  because  their  experts  were  unable  to  establish  general  causation,  i.e.,  there  was  no 
known,  epidemiological  study  concluding  that  women  with  silicone  breast  implants  had  at  least 
twice  the  risk  of  developing  auto-immune  diseases.  The  court  admitted  that  epidemiological  studies 
are  not  required  because  they  may  often  be  unavailable.  See  id.  at  1228.  However,  the  expert 
opinions  were  scientifically  unreliable  because  none  of  the  expert  reports  offered  supporting 
data/evidence  on  general  causation  that  was  subject  to  peer  review.  See  id.  at  1229. 

252.  A  district  court  judge  should  exclude  scientific  testimony  and  evidence  unless  he  or  she 
is  convinced  that  it  is  relevant  to  a  disputed  issue  of  the  case  and  will  not  confuse  or  mislead  the 
jury.  See  id.  at  1223  (citing  Daubert  v.  Merrell  Dow  Pharm.,  Inc.,  43  F.3d  131 1,  1321  (1995)  (on 
remand)). 


1999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  381 


explain  why  A  causes  B  in  those  cases  where  there  is  not  universal  recognition 
of  the  conclusions  advanced  by  the  expert."^"  Furthermore,  the  expert's 
explanation  must  contain  "the  bases  for  her  conclusions,  including  .  .  .  why 
certain  evidence  supports  the  ultimate  conclusions,  in  logical  and  understandable 
laymen's  language,  [otherwise,]  the  Court's  [sic]  are  going  to  reject  such 
evidence  where  on  its  face,  or  following  opposing  expert  criticism,  it  seems 
il logical. "^^'*  Therefore,  the  Joiner  decision  requires  an  expert  to  explain  her 
analysis  in  a  manner  establishing  the  "fitness"  of  the  expert's  underlying  data  and 
her  conclusion.^^^ 

In  Joiner's  wake,  "[tjestifying  experts  should  be  prepared  to  speak  the 
language  of  Daubert  in  their  depositions,  describing  the  'methodology'  they 
used,  how  they  tested  or  otherwise  sought  to  'falsify'  their  conclusions  or 
'hypotheses,'  etc."^^^  If  the  district  court  judge  is  not  satisfied  with  the  expert's 
explanation  or  finds  the  underlying  evidence  unsupportive  of  the  facts  of  the 
case,  the  judge  can  rely  on  Joiner's  authority  to  exclude  the  expert's  testimony. ^^^ 
The  Joiner  decision  allows  judges  to  exclude  expert  testimony  "solely  on  the 
basis  of  whether  she  thinks  the  evidence  supports  the  party's  case."^^^  Thus, 
lawyers  should  be  prepared  to  substantiate  their  claims  with  expert  testimony  at 
the  summary  judgment  stage.^^^ 

Admittedly,  the  expansive  gatekeeping  role  propounded  in  Joiner  may  keep 
otherwise  valid  science  from  the  jury,  however,  the  Supreme  Court  was  aware 
of  this  potential  risk  when  the  Court  set  forth  the  standards  governing  the 
admissibility  of  expert  testimony  under  Daubert?^^  Nevertheless,  allowing 
judges  to  scrutinize  each  step  of  the  expert's  analysis  in  support  of  the  expert's 
conclusion  may  lead  to  an  increased  exclusion  of  testimony  .^^'  The  district  court 


253.  Roisman,  5M/7ra  note  1 54,  at  502. 

254.  Id.  at  491. 

255.  The  Joiner  court  stressed  that  a  district  court  must  review  the  legal  reliability  of  an 
expert's  underlying  methodology  and  the  expert's  conclusions.  See  Marlin,  supra  note  14,  at  148. 
''Joiner,  at  its  most  basic  level,  simply  states  that  experts  must  explain  their  analysis  sufficiently  to 
overcome  any  questions  of  fit  between  data  and  conclusion."  Id.  at  147. 

256.  Sneed,  ^wpranote  151,  at423. 

257.  If  the  expert  is  unable  to  describe  or  admit  that  her  testimony  is  a  result  of  a  scientific 
or  analytical  process,  the  testimony  is  likely  to  be  excluded.  See  id. 

258.  Hope  After  Joiner,  supra  note  234. 

259.  See  Sneed,  supra  note  1 5 1,  at  423  (explaining  that  lawyers  should  "[b]e  fully  prepared 
by  the  summary  judgment  stage,  because  a  significant  number  of  decisions  hold  expert  evidence 
inadmissible  at  this  point.  Affidavits  or  expert  reports  under  FRCP  26(a)(2)  frequently  truncate  the 
expert's  reasoning  or  omit  the  methodology."). 

260.  The  Supreme  Court  previously  noted  in  Daubert  that  no  matter  how  flexible  a  judge's 
gatekeeping  role,  it  is  inevitable  that  the  judge's  determinations  of  admissibility  will  "prevent  the 
jury  from  learning  of  authentic  insights  and  innovations."  Daubert  v.  Merrell  Dow  Pharm.,  Inc., 
509U.S.  579,  597(1993). 

261.  Justice  Stevens'  dissenting  opinion  in  Joiner  suggests  that  if  a  district  court  conducts 
an  individual  examination  of  the  underlying  studies,  the  court  will  wrongly  focus  on  the  expert's 


382  INDIANA  LAW  REVIEW  [Vol.  33:349 


judge's  expanded  gatekeeping  role  increases  the  potential  for  testimonial 
exclusion  when  the  scientific  studies  are  still  developing.  The  Joiner  decision, 
therefore,  further  restricted  the  admissibility  of  opinions  based  upon  the  weight- 
of-the-evidence  approach  that  are  not  exactly  "junk  science." 

The  Supreme  Court  has  not  returned  to  Frye's  general  acceptance  test; 
however,  the  Court  has  returned  to  a  more  restrictive  standard  governing  the 
admissibility  of  expert  testimony.  For  novel  scientific  evidence  or  testimony  to 
be  admissible  undtrFrye,  the  expert's  methods  need  to  be  generally  accepted  by 
the  relevant  scientific  community.^^^  According  to  the  Frye  standard,  "the  thing 
from  which  the  deduction  is  made  must  be  sufficiently  established  to  have  gained 
general  acceptance  in  the  particular  field  in  which  it  belongs."^^^  Frye's  "general 
acceptance"  test  concerned  the  validity  and  reliability  of  the  expert's 
conclusions.^^'*  The  expert's  conclusions  were  valid  if  they  were  consistent  with 
the  predominant  view  in  the  expert's  field^^^  and  the  trial  judge  determined  the 
expert's  conclusions  were  accurate  by  weighing  the  strength  of  each  party's 
arguments. ^^^ 

Although  Daubert  and  Joiner  do  not  allow  judges  to  determine  admissibility 
on  the  comparative  strength  of  opposing  experts,  the  Joiner  decision  allows  the 
Supreme  Court's  desire  to  combine  the  benefits  of  Frye's  more  restrictive 
approach  to  scientific  evidence  and  of  Dauber fs  reliance  on  procedural 
safeguards.  Standing  alone,  the  Frye  standard  focused  on  the  validity  of  an 
expert's  conclusions.  In  contrast.  Dauber fs  two-prong  test  requires  a  district 
court  judge  to  focus  on  the  expert's  underlying  methodology  and  should  favor  the 
introduction  of  proffered  expert  testimony  .^^^  The  Daubert  Court  also  viewed  the 
use  of  cross  examination,  presentation  of  contrary  evidence,  and  careful 
instructions  on  burden  of  proof  as  a  better  resolution  than  a  wholesale  exclusion 
of  expert  testimony  under  Frye's  general  acceptance  test. 

In  Joiner,  the  Supreme  Court  appeared  to  clarify  the  Daubert  opinion  and  its 
previous  stance  on  admissibility  determinations.  Although  the  Joiner  decision 
did  not  promulgate  a  complete  return  to  Frye's  general  acceptance  test,  the  Court 
did  illustrate  support  for  district  court  judges  to  evaluate  the  "accuracy"  of  the 
expert's  conclusions  by  framing  emphasis  on  the  "fitness"  of  the  proffered  expert 
testimony.  The  Joiner  opinion  resembles  Frye's  emphasis  and  concern  over  the 
validity  and  reliability  of  the  expert's  conclusions.  As  a  result,  the  Court 
restricted  opportunities  for  plaintiffs  relying  on  the  weight-of-the-evidence 
approach  to  pass  through  a  district  court  judge's  admissibility  "gates."  After 
Joiner,  expert  testimony  will  be  submitted  to  the  jury  only  after  the  judge  is 


ultimate  conclusions.  See  General  Elec.  Co.  v.  Joiner,  522  U.S.  136,  154-55  (1997)  (Stevens,  J., 
concurring  in  part  and  dissenting  in  part). 

262.  See  Daubert,  509  U.S.  at  585. 

263.  Id.  at  586  (quoting  Frye  v.  United  States,  293  F.  1013,  1014  (D.C.  Cir.  1923)). 

264.  See  Oh,  supra  note  13,  at  564. 

265.  See  id. 

266.  See  id. 

267.  See  Daubert,  509  U.S.  at  596. 


1 999]  ADMISSIBILITY  OF  EXPERT  TESTIMONY  3  83 


satisfied  that  the  plaintiff  has  established  the  appropriate  linkage  between  the 
expert's  underlying  data  and  the  ultimate  conclusion  rendered.  In  the  absence  of 
reliable  evidence  to  predicate  the  expert's  ultimate  conclusion,  the  judge  may 
simply  conclude  "that  there  is  simply  too  great  an  analytical  gap  between  the  data 
and  the  opinion  proffered."^^^ 

Conclusion 

Dauberfs  distinction  between  conclusions  and  methods  remains  important. 
The  Supreme  Court's  Jo/w^r  decision  revisited  the  Court's  previous  directive  and 
reemphasized  the  importance  of  Dauber fs  second  prong  of  relevance  or 
"fitness."  The  consequence  oiX\iQ  Joiner  opinion  remains  the  subject  of  debate. 
However,  various  commentators  and  the  proposed  amendments  to  FRE  702 
indicate  that  the  Court  has  returned  to  heightened  standards,  thereby  preventing 
the  influx  of  "junk  science"  into  the  courtroom,  by  requiring  the  trial  judge,  as 
gatekeeper,  to  review  the  expert's  methodology  and  the  expert's  application  of 
that  methodology  to  the  facts  of  the  case.  This  heightened  level  of  review  may 
create  an  insurmountable  burden  if  the  plaintiffs  expert  is  unable  to  prove  or 
sufficiently  explain  the  relevance  or  reliability  of  her  conclusions.  As  a  result, 
the  viability  of  many  future  claims  will  hinge  on  the  expert's  ability  to  survive 
the  heightened  gatekeeping  scrutiny  established  m  Joiner. 


268.      General  Elec.  Co.  v.  Joiner,  522  U.S.  136,  146  (1997). 


Unitad  StatM  Postal  Soivtca 


Statement  of  Ownership,  Management,  and  Circulation 


i.PuMcatlonTltto 

2.Pul9NcatfonNumtMr 

3.  RHng  Data 

Indiana  Law  Review 

0 

0 

9 

0 

- 

4 

1 

9 

8 

lO-U-99 

4.  issiM  Frtquancy 
Quarterly 

S.  NumtMr  o(  IMUM  PuWMwd  AnmMly 
Four 

6.  AnmMl  SutMOtpdon  Prto* 
$30.00 

7.  CompMe  MMbig  AddiVMOf  KnownOHoaof  PubBcalion  {Not  priMat)  (SOtt,  dty,  county,  stalt.  anil2IP44) 

Chrlis  Paynter 

735  W.    New  York  Sc,   Indianapolis,  Marlon,   Indiana 

46202-5194 

IWMhona 

317-274-4440 

8.  ComptoM  MiMno  AddnMs  of  HMiftquartara  or  Qanorai  BuslnaM  OMo9  o(  Pubtaher  <^ 
735  W.    New  York  St.,    Indianapolis,   Marlon,    Indiana     46202-5194 


9.  RiM  Haamt  and  CowplOe  Meing  Addraw  oi  PvbUm,  Btgtof.  and  ManapinB  EflWof  (Do  not  lm¥»  bltnl0 


Publiahor  (Nmmt  mtd  oompmo  maKng  addnu) 


Indiana  University  School  of  Law  -  Indianapolis 
735  W.  New  York  St. 
Indianapolis,  Indiana  46202-5194 


EdHor  (Nunto  tnlconmittt  ittttbtgtMnti^ 


Lorena  Bray  Drlscoll 
735  W.  New  York  St. 
Indianapolis ,  Indiana 


46202-5194 


Managing  EcMor  (MamffjMi/flonyMa/iMfBV'Oiiiw**^ 

Pamela  Hensler 

735  W.  New  York  St. 
Indianapolis,  Indiana 


46202-5194 


10.  Omm  (Do  netimm  blank,  fffhojpiMetton  komneiftjf*  eo/ponitlon,  gl^9»  nmm  utdaMv*  of  j^  oaijwwiflbw 
nontooa/tduclilntstao/aMttOBmholdoiaoiitmlnQOfliolBbig  1  paioant  of  mono/ ttolot^  amount  otaloBk.  Itnototanailbya 
namaaandmdUmaaaaoS9mln^ilAmiamnaia,llammdl^apattnanUpoFotmrui^^^  ' 

aaeh  MMilualamnar.  HthapUUbatlon  laputtahadltya  nonpmOtoiganialbnL  ghm  Ma  nama  and    ' 


totaamiliytia 
KiK  ffafawia 
mataalhoaaof 


FuONanw 

CiMnnlatiM  llamnr  Aj***—— 

Indiana  University  Board  of  Trustees 

Indiana  University  -  BloominKton 

Indiana  Memorial  Union  Room  005 

Blooming ton,   Indiana     47405 

1l.l(nowwBondheldai».Mn>flaigii»a,and01iarSeourtlyHoldafaOMdr>gor 
HoUbig  1  Paroont  or  Mora  of  IbM  Amount  of  Bonda.  Mortgagva,  or 
Oflwi  Samrtllaa.  If  none,  check boK 


Nona 


RdlNMM 

Complato  MsBkig  Adoraaa 

NONE 

NONE 

t^  Tax  Statua  (Foreomplattonbynonptoiltotffantatfonaaulttotixae/temaiatnonpmtlt/aias/  (Chaekona) 

The  pufpoao.  function,  and  nonproAt  statua  of  thia  otganlzatlon  and  tm  oKempt  statua  for  federal  Income  tax  purposac 

Q  Has  Not  Changed  OudngPnKwlng  12  Monttw 

a  Haa  Changed  Outing  Pracading  12  Mentha /PUMEsMrmusrMfimirwgDt^^ 


PS  Poim  3526,  September  1998 


(Saa  Instructions  on  Ravatsa) 


13.  Publication  TiUa 

Indiana   Law  Review 

15. 


Extant  and  Natura  ol  CIrouf  atlen 


a.  Toial  Numbar  at  Coptaa  fN0tpfm$  nm) 


b.  Paid  and/or 
Raquaatad 
Circulation 


(1) 


(2) 


(3) 


(♦) 


Piidfflaquattad  OutMa^^ouniy  Mai  StibaeriploM  StiM  on 


14.  laaua  Oaia  tor  OreUaflon  Data  Batow 
Auauat    1999 


OiKMid  PraoadkiQ  12  Monow 


1090 


620 


Paid  bvCouMy  Subaorfptaw  (Jhefcrtt  4rt«tlwr*p«o^ 
andaaehmigtcofilmi 


Saiaa  Through  Oad««  and  Cvilm.  SItwtVMittM. 


Othar  Ciaaaw  MtfKl  Ihrou^  «»  USPS 


<^  Total  Paw  and^orRequartwlClieUWIon /Sum  o^f  A  rUflWft«orf      ^ 


wy 


PuWlahadMaaraattoWiH|t>rta 


1115 


Issue  32:4 


620 


120 


130 


120 


85 


870 


'■Free 
Olstflbutlon 
byMaR 
(Samptts. 
complknefit 
ary.and 
ottmrtne) 


(1) 


(2) 


(3) 


Outakla<:ouniy  aa  Staled  on  Fomi  3641 


m-Couniy  aa  Stated  on  Fomi  aS41 


osier  Oaaaea  MMed  TIWMit^  tw  USPS 


*'  ReeOlstitbuiion  Outside  the  Mai /QwrliMaroikir/mea^ 


Total  Free  Distribution  (Sum  o/1Sd.ana  tSti) 


Total  Olslribulion  (Sum  fl^  f5B.  an/ 150 


55 
45 

.11 


825 


50 

50 
0 


60 


175 


Copies  not  Oisirtb««ed 


Total  (Sum  of  ISg.  andfi) 


Percent  Paid  andtar  Requealed  OmJalon 
(ISd  dhMadby  1So.tmm1<H9 


1045 


90 


190 


1015 


60 


1105 


921 


1«0 


nil 


Ml 


16.  PuMtaHon  of  Statamant  o(  OMwnMp 
03  PubllcailonrBqiiwd.VWibepdnHdlnttw 
.PiMrtisf; 


33:1 


.  Inue  of  thtopuMnflon. 


O  Publetfonnotraqiiied. 


lowQlythetaM _ 

orKwtw  omite  material  or  Irtonniian 
flndudbig  dva  penaltlee). 


ijfc  (iilfi  1*^ 

CAMMdenMafami  li  tue  and 


erOwnar 
Edlcorlal  Specialist /Buslnesa  Manager 


/<w;-?^ 


enthetpnei 


•mi  aiyone  MhD  knriahee  falM  or  nMaaAtg  IrAmMlon  en  iNalm 
(liMiiaiiiy  ■tiea  end  IriMiaunmeni)  end^aM  i 


Instructions  to  Publishers 

1.  Coinplete«KJfltooneoowo»tNilomitMlhyot»po«mailirarw^ 

for  your  reoords.  

v<4iom  the  tiuateeiaaclitio.  Alio  lncluJaftttwwi»diKlaUi>MM^^^  chadTttie 

or  nwre  of  the  total  amotjnt  of  bOfKte.mPrtOiO«.  or  otfter  •«»»«••  oClhepUjW*n^ 

box.  Use  blank  sheets  N  more  ipaot  to  ii^pM* 
3  Be  sure  to  furnish  sMdicutolloiilirfOtiiwlioncifctllDf  in  ism  15.  Free  ch^ 

the  first  issue  printed  after  October. 

6.  initemiejndicatethedateofthelssuelnwhlchthtoStaternentofOwnershlpvirtBbepubl^ 

7.  Item  17  must  be  signed. 
MiurBtom0orpuMtsf,MMtalwimntof<nim0f»Mpm^t9^tosuMpmi»kmoe^^  


PS  Fomi  3526,  Saptember  1998  (t^mntl 


Consideiriiig 

"■  ■  I 

tlie  cost  off 
your^textbooks, 
they  siiiist  tliiiik 


^ve  made 
er  already. 


The  verdict  is  in.  VarsityBcx)ks.com  is  the  place  to  buy  your  textbooks.  That's  because  you  can  save  up  to  40%  on  textbooks  and 
get  them  in  one  to  three  business  days.  It's  also  completely  reliable  and  secure,  v/hich  should  bring  a  smile  to  students  of  law  or 
any  other  subject. 

Savings  off  distributor's  suggested  price.  Books  delivered  in  no  more  than  three  business  days.  Some  restrictions  apply.  See  site  for  details. 


SAVE  UP  TO  40%  ON  TEXTBOOKS. 


VarsityBooks  .com 


The  Benchmark 


I 


/^■•^  -^•^'^^  --y/  --y  ■wT  '^ 


BNA's  Criminal  Law  Reporter 


It's  what  your  opponents  read 
Iveii  wSk.  Don't  be  blind-sided* 


I  The  Criminal  Law  Reporter  —  long 

I  regarded  as  the  criminal  bar's 

I 

I  publication  of  record.  Now,  it  does 

I  even  more  for  you: 

Stimmary  &  aiialpj^bf  llie  week's 

most  important  cases  and  other 

developments 

FREE  full  text  of  reported  cases  on 

a  Web  site  for  subsci^)ers 

HUEE  e-mail  alerts  of  US.  Supreme 

Court  rn??ps 

,_  -.^^  availability  on  the 
*Yv,i^  or  Lotus  Notes 
£-iiiail  of  Highlights  with  links  to 
full  text 

A  new,  streamlined  format  for 
faster  reading,  more  depth 

FREE  TRIALS 


^iil^^^^^^Mli^iii 


!•:•:•:•:•:•:•:•:•»«•?; 


Customer  Relations:  1-800-372-1033 

email:  riskfree@bna.com  ♦  vsrww.bna.com 

The  Bureau  of  National  Affairs  ♦  1231  25th  Street,  NW  Washington,  DC  20037