Can The Law Go Upstream?

Roger Magnusson, Lawrence O. Gostin, and David  Studdert recently posted their paper, “Can Law Improve Prevention and Treatment of Cancer?” on SSRN:

The December 2011 issue of Public Health (the Journal of the Royal Society for Public Health) contains a symposium entitled: Legislate, Regulate, Litigate? Legal approaches to the prevention and treatment of cancer. This symposium explores the possibilities for using law and regulation – both internationally and at the national level – as the policy instrument for preventing and improving the treatment of cancer and other leading non-communicable diseases (NCDs). In this editorial, we argue that there is an urgent need for more legal scholarship on cancer and other leading NCDs, as well as greater dialogue between lawyers, public health practitioners and policy-makers about priorities for law reform, and feasible legal strategies for reducing the prevalence of leading risk factors. The editorial discusses two important challenges that frequently stand in the way of a more effective use of law in this area. The first is the tendency to dismiss risk factors for NCDs as purely a matter of individual ‘personal responsibility’; the second is the fact that effective regulatory responses to risks for cancer and NCDs will in many cases provoke conflict with the tobacco, alcohol and food industries. After briefly identifying some of the strategies that law can deploy in the prevention of NCDs, we briefly introduce each of the ten papers that make up the symposium.

You can download the paper for free here.

Related Situationist posts:

• Upstream on Environmental Health and Justice
• The Toxic Situation of Cosmetics,
• Our Carcinogenic Situation,
• Juliet Schor, ‘Colossal Failure: The Output Bias of Market Economies’, and
• The Need for a Situationist Morality.”

What Does Situationism Mean for Law?

Situationist Contributor Jon Hanson was recently interviewed by Big Think.  Here is his answer to the following question: “What are some of the changes that the legal system should be making?”

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Vodpod videos no longer available.

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To watch the first part of Hanson’s BigThink interview, see “Jon Hanson on Situationism and Dispositionism,” which also contains other related Situationist links.

Jon Hanson on Situationism and Dispositionism

Situationist Contributor was recently interviewed by Big Think.  Here is his answer to the following questions: “What is wrong with our legal system’s notion of human behavior?”; and “What led you to study the link between law and cognition?”

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Vodpod videos no longer available.

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For a sample of related Situationist posts, see “Hanson’s Chair Lecture on Situationism,” “Legal Academic Backlash – Abstract,” “‘Situation’ Trumps ‘Disposition’ – Part I,” and ““Situation” Trumps “Disposition”- Part II.”

The Bush Frame: Us vs. Them; Good vs. Evil; Intentions vs. Consequences

President Bush’s farewell speech, like most (though not all) of his speeches, was full of dispositionism and largely devoid of situationist insight.

His final remarks were apparently intended to remind and assure us that “we” are dispositionally different from “them” and that our country and its people have an essential character (good) while other countries or individuals within certain other countries have a very different disposition (evil).  Here are some excerpts.

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America is promoting human liberty, human rights, and human dignity. We are standing with dissidents and young democracies, providing AIDS medicine to bring dying patients back to life, and sparing mothers and babies from malaria. And this great republic born alone in liberty is leading the world toward a new age when freedom belongs to all nations.

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As we address these challenges — and others we cannot foresee tonight — America must maintain our moral clarity. I have often spoken to you about good and evil. This has made some uncomfortable. But good and evil are present in this world, and between the two there can be no compromise. Murdering the innocent to advance an ideology is wrong every time, everywhere. Freeing people from oppression and despair is eternally right. This nation must continue to speak out for justice and truth. We must always be willing to act in their defense and to advance the cause of peace.

. . . . America is a young country, full of vitality, constantly growing and renewing itself. And even in the toughest times, we lift our eyes to the broad horizon ahead.

I have confidence in the promise of America because I know the character of our people. This is a nation that inspires immigrants to risk everything for the dream of freedom. This is a nation where citizens show calm in times of danger and compassion in the face of suffering. We see examples of America’s character all around us. . . .

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In citizens like these, we see the best of our country — resilient and hopeful, caring and strong. These virtues give me an unshakable faith in America. We have faced danger and trial, and there is more ahead. But with the courage of our people and confidence in our ideals, this great nation will never tire . . . never falter . . . and never fail.

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In September of 2003, when President Bush addressed the United Nations General Assembly to justify the preemptive war in Iraq, his tone was similarly dispositionist.

Events during the past two years have set before us the clearest of divides: between those who seek order, and those who spread chaos; between those who work for peaceful change, and those who adopt the methods of gangsters; between those who honor the rights of man, and those who deliberately take the lives of men and women and children without mercy or shame.  Between these alternatives there is no neutral ground.

If “moral clarity” requires insisting that there are just two forces — good and evil — and that a person or group or country is either one or the other, then I’m against it.  As many others have argued, one need not condone terrorism to attempt to understand the circumstances that would lead to terrorism; and, as far as policy goes, to attribute behavior solely to the person and not at all to the situation may be to treat the symptom and not the disease.  Moral clarity and the dispositionism behind it may simplify decision making, but, as we’ve witnessed, they do not necessarily lead to good or moral decisions.

President Bush seemed eager in his farewell remarks to downplay the consequences of his decisions and, instead, to remind us that he acted with the best of intentions — that, in other words, his disposition was good.  At one point he admitted that “[t]here are things I would do differently if given the chance. Yet I have always acted with the best interests of our country in mind. I have followed my conscience and done what I thought was right.”   Again, his focus is on disposition.

To fellow dispositionists, the message struck a chord.  Bill O’Reilly, for instance, had this reaction:

[President Bush] had the best interest of the folks at heart. President Bush is a patriot. He tried to do his best. I’m glad he gave a speech tonight.  We wish President Bush the best. He’s a patriot, a good man and I hope he continues to contribute to the country.

Eric Bolling, also from FOX, echoed that theme, writing: “Like him or not, [President Bush] has always done what he felt was best for us all.”

As did Laura Ingraham (FOX News Contributor):  “This man is a patriot. He’s a good man and he wanted the best for the country.”

Syndicated Columnist Cal Thomas went even further, praising the President  as a “good and decent man,” and then attacking the disposition of those who disapprove of Bush’s performance (that is, most Americans).  According to Thomas:

Democrats read the polls and their primary objective is power. As Bush’s approval numbers started to slip, Democrats ratcheted up their opposition and Bush, a non-ideological president, was unable to counter their bile with his own sense of goodness.

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Part of the problem with the Bush presidency was not him, but us. We don’t like inconvenience, war, or a bad economy. And when we were touched by each of these, we blamed the president for not restoring us quickly to our pursuit of pleasure and material things.     Most television shows do not last as long as the Bush presidency and that’s the other part of the problem. We project more on our presidents than they are able to give. Yet they don’t want to tell us that only we can make our lives better . . . .

I suspect that those who doubt the good intentions of President Bush are few and far between.  In other words, only a relative handful of Americans are claiming that Bush is an evil president.   Such “moral clarity” is lacking — as well it should be.  Good intentions may be desirable, but they are by no means sufficient to make a person a good president.

A situationist perspective does not focus on intentions.  As Situationist contributor Mahzarin Banaji has argued, our moral obligation is more demanding than that:  “if we haven’t exhausted every opportunity to know whether what we are doing is right, it will be no excuse for us to say that we meant well.”

Ultimately, the public’s lack of confidence in President Bush is not based on a sense that he intended to leave the planet in worse shape than he found it, but that he did so out of ignorance and arrogance and did not “exhaust[] every opportunity to know whether what [he was] doing [was] right.”

But one need not be a situationist to believe that the intentions of policymakers are not the sole measuring stick for the success of the policymakers.  At the conclusion of his pre-war speech to the U.N. General Assembly, President Bush himself admonished: “Our good intentions will be credited only if we achieve good outcomes.”

Considering where we have come since that speech, it is hard to see how one can say we have “achieve[d] good outcomes.”

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To read some related Situationist posts, see “Jeffrey Sachs on Our Situation – Part I, Part II, Part III, and Part V,” “Bush, Cheney, Rumsfeld, and Tenet: ‘Guilty’,” “The Situation of Decision Making,” “Attributing Blame — from the Baseball Diamond to the War on Terror,” “A Convenient Fiction,” “The Law and Situation of Military Propaganda,” “Um, I don’t make misteaks . . .,”  “Some (Interior) Situational Sources War – Part VI,” and “With God on Our Side . . ..”

What does an Obama victory mean?

After eight years under the same president, our country is on the verge of some major changes.  This is an exciting time.  The election of a new president encourages us to take a collective look in the mirror and it throws the spotlight on the distinctive characteristics of the person we’ve elected.  Whom we choose as president says a great deal about us – who we are, what we want, and how we have changed in the past eight years.

It is beyond doubt that Barack Obama’s intelligence, his policy positions, and his remarkable temperament will play a crucial role in the next chapter of world history. At the same time, both the full meaning of this election and its likely impact on the next four years are more difficult to ascertain than we might like to admit.

As a Democrat, it’s tempting to interpret an Obama victory as a clear-cut endorsement, both of Obama specifically and the Democratic platform generally.  After all, Obama has practically Kennedyesque personal appeal and he’s spent the past 21 months campaigning relentlessly on the idea that he would bring progressive change to the country by ending the war in Iraq, providing health care to all Americans, and practicing a new kind of politics.

The idea of the election as a direct choice between the policies of Obama and McCain would also fit into a clean, dispositionist narrative of American politics.  But what if voters ultimately made their decisions based on other factors?  For example, Douglas Schoen of the Wall Street Journal argues that the results of this election are “not a mandate for Democratic policies” because voters acted primarily out of a desire to reject Bush and the Republicans.  What about other factors such as the economy or the personal attributes of the candidates?

Though the economy was hardly a centerpiece of Obama’s campaign, his first concrete lead appeared shortly after the advent of the current financial crisis.  How do we read the tea leaves?  Does the important role of the economy in Obama’s victory hint that his policies couldn’t gain acceptance under normal circumstances, or did the crisis simply prove that that the American people trust Obama’s judgment?  What about age, race, or any of the other factors that might have influenced the election?  Does Obama’s charisma strengthen or weaken the rationale for electing him?  What are the implications for an Obama presidency if the election represented something other than a direct up or down referendum on the president-elect’s policies?

In the context of dispositionist Enlightenment values, elections present the highest, purest forum for individuals to exercise rational choice.  By choosing between various candidates and platforms, we communicate our preferences to the government, in turn providing our rulers with a mandate for the choices they make.  It’s clear that voting is important and that our choice of a given candidate expresses a preference, but it’s not clear how much of that preference derives from stable views or strictly rational evaluation of qualifications and policy positions.  Voters’ perceptions of issues are susceptible to the influence of emotion and identity appeals.  Changes in situational factors such as political climate, economic stability, and “October surprises” affect support for candidates without necessarily altering their positions or qualifications.  And it’s widely understood that politicians don’t reliably follow through on their campaign promises (for example, even before this election, the bailout made both candidates’ existing proposals unfeasible).  What, then, is the nature of the connection between a vote based on proposals from the campaign season and the mandate for the action a new president actually takes?

Even to the extent that we vote based on conscious policy decisions, it is easy to overestimate the degree to which a president’s innate qualities and preferences determine how events unfold during his or her time in office.  Our dispositionist assumptions emphasize a view of the chief executive primarily as an independent decision-making actor – the president as “the decider.”

But even the deepest convictions and policy positions of a president-elect are not determinative of what the country experiences in the following four years. No initial mandate can render a president immune to political forces.  Preexisting conditions (such as our current economic and military challenges) can complicate or preclude efforts to enact new policy.  And every president faces historic changes in global and domestic circumstances that come to define his or her term in office.  Good judgment is crucial when meeting such challenges, but ultimately the president’s choices represent only one of many factors shaping the course of events.

Barack Obama’s election has inspired millions and ignited hope around the globe.  Given the historic shift in power we’re experiencing, it’s tempting to jump to conclusions about what we’ve proven by electing Obama and what the world will look like with him as president of the United States.  But in the end, we support candidates for many different reasons and the results of this presidential election don’t unambiguously define the country.  Likewise, President Obama may go on to accomplish many things, but it’s unwise to assume – for better or for worse – that the fate of our country lies in his hands.  The full meaning of Obama’s presidential victory will take time to emerge.  For now, the best first step we can take into the Yes We Can era would be to remember the limitations we all have as individuals and not rely on President Obama to single-handedly change the world.

Ayn Rand’s Dispositionism: The Situation of Ideas

Last week Clark Davis had a piece titled “Ayn Rand Studies on Campus,” on NPR’s Morning Edition, May 6, 2008. The story illustrates one of the many ways in which dispositionism is promoted (and, by implication, situationism is undermined).

To listen to the story (roughly 4 minutes), click here. We have excerpted portions of the transcript below and added two videos (the first and second parts) of a remarkable Dan Rather interview of Ayn Rand.

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John Allison, CEO of banking giant BB&T, calls Ayn Rand’s novel Atlas Shrugged “the best defense of capitalism ever written.” He says that Rand changed his life, and he’s working to ensure that the deceased author isn’t left out of the nation’s college curricula.

Since 2005, the BB&T Charitable Foundation has given 25 colleges and universities several million dollars to start programs devoted to the study of Rand’s books and economic philosophy. In January, the company announced it was donating $1 million to Marshall University in West Virginia.

The money would establish a course dedicated to Rand’s Atlas Shrugged and Adam Smith’s The Wealth of Nations, and help create the BB&T Center for the Advancement of American Capitalism on campus.

But not everyone at the university is excited by the gift. Rick Wilson, a sociology instructor at Marshall and head of the West Virginia Economic Justice Project, says that Rand’s philosophy, objectivism, is based on the view that selfishness is the only moral value.

“[Objectivism] goes against the collective wisdom of the human race, I think, pretty much everywhere,” says Wilson. “I think it’s a curious interpretation of philanthropy to use corporate money to promote, really, an extreme philosophy.”

Two years ago, faculty at Meredith College in North Carolina rejected a $420,000 grant from BB&T, citing concerns about allowing a corporation to develop curricula.

But Marshall professor Cal Kent, who is slated to direct the center funded by the grant, says BB&T officials just want to give students an additional perspective on capitalism.

“In my experience you’re not able to propagandize students,” says Kent. “Certainly that’s not our intent in this course, and if it were our intent, we would be doomed for failure from the beginning.”

Kent adds that Rand’s philosophy isn’t as scary as some of her detractors insist.

“It’s based on the idea of individualism,” he says. “That means the freedom of individuals to contract with other people, the freedom to choose their occupation, the freedom to do what they see as being in their own best self interest with the resources they have.”

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To read a related Situationist post, see “Deep Capture – Part X.”