Professionalism in forensic bioethics

Journal of Law, Medicine and Ethics

Volumn 30, Issue 3, 2002, Pages 420-439

  Spielman, Bethany J ^a,b,c  

^a Department of Medical Humanities ^*

^b SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF MEDICINE   (United States)

^c S Illinois University Law School   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COMPETENCE; CONFERENCE PAPER; FORENSIC MEDICINE; HUMAN; LEGAL ASPECT; LEGAL LIABILITY; MEDICAL ETHICS; PROFESSIONAL PRACTICE; PROFESSIONAL SECRECY; PROFESSIONAL STANDARD; RELIABILITY; WITNESS; BIOETHICS; BIOETHICS AND PROFESSIONAL ETHICS; CONFIDENTIALITY; CONFLICT OF INTEREST; ETHICIST; ETHICS; EXPERT WITNESS; INFORMED CONSENT; LEGAL APPROACH; PRIVACY; REVIEW;

BIOETHICS AND PROFESSIONAL ETHICS; LEGAL APPROACH;

BIOETHICAL ISSUES; CONFIDENTIALITY; CONFLICT OF INTEREST; ETHICISTS; ETHICS, PROFESSIONAL; EXPERT TESTIMONY; FORENSIC MEDICINE; HUMANS; INFORMED CONSENT; PRIVACY;

EID: 0036727901     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2002.tb00411.x     Document Type: Conference Paper

References (208)

1. See B. Spielman and G. Agich, "The Future of Bioethics Testimony: Guidelines for Determining Qualifications, Reliability and Helpfulness," San Diego Law Review, 36 (1999): 1044-75, at 1044-45.
2. Technical Advisory Service for Attorneys, at 〈http:// www.tasanet.com/〉 (last visited June 25, 2002).
3. D.B. Mishkin, "Proffering Bioethicists as Experts," Judge's Journal, 36 (1997): 50-89, at 50-51, 88-89; H. Morreim, "Bioethics, Expertise, and the Courts: An Overview and an Argument for Inevitability," Journal of Medicine and Philosophy, 22 (1997): 291-95.
4. D.B. Mishkin, "Proffering Bioethicists as Experts," Judge's Journal, 36 (1997): 50-89, at 50-51, 88-89; H. Morreim, "Bioethics, Expertise, and the Courts: An Overview and an Argument for Inevitability," Journal of Medicine and Philosophy, 22 (1997): 291-95.
5. This paper does not address the role of the bioethicist as a party, since in that role the bioethicist cannot be said to be using bioethics to aid a court. Nor does it address other public bioethics roles, which have also generated controversy in the popular press as well as in scholarly and professional publications. S.G. Stohlberg, "The Nation: Morality Play; Ought We Do What We Can Do?" The New York Times, Aug. 12, 2001, at sec. 4, p. 1; D. Irving, "The Bioethics Mess," Crisis Magazine, 108, no. 5 (2001): 16-21; A. Robeznieks, "A Bioethics Primer: The Growth of a Complex Field," available at 〈http://www.ama-assn.org/sci-pubs/amnews/ pick_01/prsa1126.htm〉; R. Neville, "On the National Commission: A Puritan Critique of Consensus Ethics," Hastings Center Report, 9 (1979): 22-24; R. Marker, "The Woodstock of Bioethics," The Human Life Review, 21, no. 1 (1995): 35-52; R.H. Blank, "A National Forum for Bioethics: Attractive but Unworkable or Workable but Unattractive," Politics and the Life Sciences, 13, no. 1 (1994): 77-101.
6. This paper does not address the role of the bioethicist as a party, since in that role the bioethicist cannot be said to be using bioethics to aid a court. Nor does it address other public bioethics roles, which have also generated controversy in the popular press as well as in scholarly and professional publications. S.G. Stohlberg, "The Nation: Morality Play; Ought We Do What We Can Do?" The New York Times, Aug. 12, 2001, at sec. 4, p. 1; D. Irving, "The Bioethics Mess," Crisis Magazine, 108, no. 5 (2001): 16-21; A. Robeznieks, "A Bioethics Primer: The Growth of a Complex Field," available at 〈http://www.ama-assn.org/sci-pubs/amnews/ pick_01/prsa1126.htm〉; R. Neville, "On the National Commission: A Puritan Critique of Consensus Ethics," Hastings Center Report, 9 (1979): 22-24; R. Marker, "The Woodstock of Bioethics," The Human Life Review, 21, no. 1 (1995): 35-52; R.H. Blank, "A National Forum for Bioethics: Attractive but Unworkable or Workable but Unattractive," Politics and the Life Sciences, 13, no. 1 (1994): 77-101.
7. This paper does not address the role of the bioethicist as a party, since in that role the bioethicist cannot be said to be using bioethics to aid a court. Nor does it address other public bioethics roles, which have also generated controversy in the popular press as well as in scholarly and professional publications. S.G. Stohlberg, "The Nation: Morality Play; Ought We Do What We Can Do?" The New York Times, Aug. 12, 2001, at sec. 4, p. 1; D. Irving, "The Bioethics Mess," Crisis Magazine, 108, no. 5 (2001): 16-21; A. Robeznieks, "A Bioethics Primer: The Growth of a Complex Field," available at 〈http://www.ama-assn.org/sci-pubs/amnews/ pick_01/prsa1126.htm〉; R. Neville, "On the National Commission: A Puritan Critique of Consensus Ethics," Hastings Center Report, 9 (1979): 22-24; R. Marker, "The Woodstock of Bioethics," The Human Life Review, 21, no. 1 (1995): 35-52; R.H. Blank, "A National Forum for Bioethics: Attractive but Unworkable or Workable but Unattractive," Politics and the Life Sciences, 13, no. 1 (1994): 77-101.
8. This paper does not address the role of the bioethicist as a party, since in that role the bioethicist cannot be said to be using bioethics to aid a court. Nor does it address other public bioethics roles, which have also generated controversy in the popular press as well as in scholarly and professional publications. S.G. Stohlberg, "The Nation: Morality Play; Ought We Do What We Can Do?" The New York Times, Aug. 12, 2001, at sec. 4, p. 1; D. Irving, "The Bioethics Mess," Crisis Magazine, 108, no. 5 (2001): 16-21; A. Robeznieks, "A Bioethics Primer: The Growth of a Complex Field," available at 〈http://www.ama-assn.org/sci-pubs/amnews/ pick_01/prsa1126.htm〉; R. Neville, "On the National Commission: A Puritan Critique of Consensus Ethics," Hastings Center Report, 9 (1979): 22-24; R. Marker, "The Woodstock of Bioethics," The Human Life Review, 21, no. 1 (1995): 35-52; R.H. Blank, "A National Forum for Bioethics: Attractive but Unworkable or Workable but Unattractive," Politics and the Life Sciences, 13, no. 1 (1994): 77-101.
9. This paper does not address the role of the bioethicist as a party, since in that role the bioethicist cannot be said to be using bioethics to aid a court. Nor does it address other public bioethics roles, which have also generated controversy in the popular press as well as in scholarly and professional publications. S.G. Stohlberg, "The Nation: Morality Play; Ought We Do What We Can Do?" The New York Times, Aug. 12, 2001, at sec. 4, p. 1; D. Irving, "The Bioethics Mess," Crisis Magazine, 108, no. 5 (2001): 16-21; A. Robeznieks, "A Bioethics Primer: The Growth of a Complex Field," available at 〈http://www.ama-assn.org/sci-pubs/amnews/ pick_01/prsa1126.htm〉; R. Neville, "On the National Commission: A Puritan Critique of Consensus Ethics," Hastings Center Report, 9 (1979): 22-24; R. Marker, "The Woodstock of Bioethics," The Human Life Review, 21, no. 1 (1995): 35-52; R.H. Blank, "A National Forum for Bioethics: Attractive but Unworkable or Workable but Unattractive," Politics and the Life Sciences, 13, no. 1 (1994): 77-101.
10. This paper does not address the role of the bioethicist as a party, since in that role the bioethicist cannot be said to be using bioethics to aid a court. Nor does it address other public bioethics roles, which have also generated controversy in the popular press as well as in scholarly and professional publications. S.G. Stohlberg, "The Nation: Morality Play; Ought We Do What We Can Do?" The New York Times, Aug. 12, 2001, at sec. 4, p. 1; D. Irving, "The Bioethics Mess," Crisis Magazine, 108, no. 5 (2001): 16-21; A. Robeznieks, "A Bioethics Primer: The Growth of a Complex Field," available at 〈http://www.ama-assn.org/sci-pubs/amnews/ pick_01/prsa1126.htm〉; R. Neville, "On the National Commission: A Puritan Critique of Consensus Ethics," Hastings Center Report, 9 (1979): 22-24; R. Marker, "The Woodstock of Bioethics," The Human Life Review, 21, no. 1 (1995): 35-52; R.H. Blank, "A National Forum for Bioethics: Attractive but Unworkable or Workable but Unattractive," Politics and the Life Sciences, 13, no. 1 (1994): 77-101.
11. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
12. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
13. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
14. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
15. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
16. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
17. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
18. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
19. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
20. Mishkin, supra note 3; P.G. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report, 14, no. 1 (1984): 27-34; E.D. Pellegrino and V.A. Sharpe, "Medical Ethics in the Courtroom: The Need for Scrutiny," Perspectives in Biology and Medicine, 32 (1980): 547-64; K.W. Wildes, "Healthy Skepticism: The Emperor Has Very Few Clothes," Journal of Medicine and Philosophy, 22 (1997): 365-71; J.J. Paris, "An Ethicist Takes the Stand," Hastings Center Report, 14, no. 1 (1984): 32-33; R. Delgado and P. McAllen, "The Moralist as Expert Witness," Boston University Law Review, 62 (1982): 869-926; V.A. Sharpe and E.D. Pellegrino, "Medical Ethics in the Courtroom: A Reappraisal," Journal of Medicine and Philosophy, 22 (1997): 373-79; G.R. Scofield, "Is the Medical Ethicist an 'Expert'?," Bioethics Bulletin (ABA), 3, no. 1 (1994): 1-28, at 1-2, 9-10, 28; G. Scofield, "Commentary: The Wizard of Oughts," Journal of Law, Medicine & Ethics, 28, no. 2 (2000): 232-35, at 235; G. Agich and B. Spielman, "Ethics Expert Testimony: Against the Skeptics," Journal of Medicine and Philosophy, 22 (1997): 381-403.
21. This problem is not unique to bioethicists. G.I. Perrin and B.D. Sales, "Forensic Standards in the American Psychological Association's New Ethics Code," Professional Psychology: Research and Practice, 25 (1994): 376-381, at 377.
22. Knight Ridder News Service, "Suicide Doctor Says He's 'Not Intimidated,'" The Record (Bergen, New Jersey), February 18, 1992, sec. A, p. 6 ("Sheehy said Caplan's testimony would be irrelevant.").
23. R. Delgado, "Symposium: The Critique of Normativity: Article: Norms and Normal Science: Toward a Critique of Normativity in Legal Thought," University of Pennsylvania Law Review, 139 (1991): 933-62, at 950 (although normative law talk "feels good," it is ultimately dangerous); P. Schlag, "Normative and Nowhere to Go," Stanford Law Review, 431 (1990): 167-91, at 188 (normative legal thought, rather than assisting in the understanding of present political and moral situations, stands in the way). For the view that philosophers' ethical contributions were not useful in the policy context of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, see A.J. Weisbard, "The Role of Philosophers in the Public Policy Process: A View from the President's Commission," Ethics, 97 (1987): 776-85, at 782 ("I would propose no rule precluding persons trained in philosophy from engaging in such policy analysis, but I would be inclined to inquire how their philosophical training provided any special competence or insight for that function, except insofar as any good liberal arts training in clear thinking and careful expression might have done.").
24. R. Delgado, "Symposium: The Critique of Normativity: Article: Norms and Normal Science: Toward a Critique of Normativity in Legal Thought," University of Pennsylvania Law Review, 139 (1991): 933-62, at 950 (although normative law talk "feels good," it is ultimately dangerous); P. Schlag, "Normative and Nowhere to Go," Stanford Law Review, 431 (1990): 167-91, at 188 (normative legal thought, rather than assisting in the understanding of present political and moral situations, stands in the way). For the view that philosophers' ethical contributions were not useful in the policy context of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, see A.J. Weisbard, "The Role of Philosophers in the Public Policy Process: A View from the President's Commission," Ethics, 97 (1987): 776-85, at 782 ("I would propose no rule precluding persons trained in philosophy from engaging in such policy analysis, but I would be inclined to inquire how their philosophical training provided any special competence or insight for that function, except insofar as any good liberal arts training in clear thinking and careful expression might have done.").
25. R. Delgado, "Symposium: The Critique of Normativity: Article: Norms and Normal Science: Toward a Critique of Normativity in Legal Thought," University of Pennsylvania Law Review, 139 (1991): 933-62, at 950 (although normative law talk "feels good," it is ultimately dangerous); P. Schlag, "Normative and Nowhere to Go," Stanford Law Review, 431 (1990): 167-91, at 188 (normative legal thought, rather than assisting in the understanding of present political and moral situations, stands in the way). For the view that philosophers' ethical contributions were not useful in the policy context of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, see A.J. Weisbard, "The Role of Philosophers in the Public Policy Process: A View from the President's Commission," Ethics, 97 (1987): 776-85, at 782 ("I would propose no rule precluding persons trained in philosophy from engaging in such policy analysis, but I would be inclined to inquire how their philosophical training provided any special competence or insight for that function, except insofar as any good liberal arts training in clear thinking and careful expression might have done.").
26. Washington v. Glucksberg, 117 S. Ct. 2258 (1997).
27. Vacco v. Quill, 117 S. Ct. 2293 (1997).
28. R. Posner, "Lecture: 1997 Oliver Wendell Holmes Lectures: The Problematics of Moral and Legal Theory," Harvard Law Review, 111 (1998): 1637-1709, at 1702.
29. "I have in mind, for example, the constitutional theorizing of Bruce Ackerman, Akhil Amar, Walter Berns, Ronald Dworkin, John Finnis, Robert George, Andrew Koppelman, and David Richards, among others ... as well as the nonconstitutional legal theorizing of Jules Coleman, Joel Feinberg, George Fletcher, Charles Fried, Leo Katz, Gregory Keating, Margaret Jane Radin, and Ernest Weinrib.... My concern is with the type of moral theory that I call 'academic moralism,' the type found in the writings of present-day academic philosophers such as Elizabeth Anderson, Sissela Bok, Ronald Dworkin, David Gauthier, Alan Gewirth, Frances Kamm, Thomas Nagel, Martha Nussbaum, John Rawls, Joseph Raz, and Judith Jarvis Thomson," Posner, supra note 11, at 1638-39.
30. Romer v. Evans, 517 U.S. 620 (1996).
31. Posner, supra note 11, at 1639.
32. Judge Posner specifically mentions James Childress' Practical Reasoning in Bioethics. J.F. Childress, Practical Reasoning in Bioethics (Bloomington: Indiana University Press, 1997); Posner, supra note 11, at 1673.
33. Judge Posner specifically mentions James Childress' Practical Reasoning in Bioethics. J.F. Childress, Practical Reasoning in Bioethics (Bloomington: Indiana University Press, 1997); Posner, supra note 11, at 1673.
34. Judge Posner specifically mentions James Childress' Practical Reasoning in Bioethics. J.F. Childress, Practical Reasoning in Bioethics (Bloomington: Indiana University Press, 1997); Posner, supra note 11, at 1673.
35. Hall v. Anwar, 774 So.2d 41 (2001) (Fla. 2d. Dist. Ct. App. 2001), petition for appellate review denied, 791 So.2d 1097 (Fla. 2001).
36. Admission was erroneous because it was inconsistent with state law permitting only physicians to testify to medical standards of care.
37. Hall v. Anwar, supra note 16, at 44.
38. See C.E. Schneider, "Experts,〉 Hastings Center Report, 31, no. 4 (2001): 10-11 for commentary on Hall. 20. Daubert v. Merrell Dow Pharmaceutical, 509 U.S. 579 (1993).
39. Kumho Tire Co. v. Carmichael, 19 S. Ct. 1167 (1999).
40. Fed. R. Evid. 702. Rule 702 stated: "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." An amendment to the rule adds the following clause: "if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the case." There are several other rules that a trial judge may use to evaluate expert testimony. Rule 401 helps to determine if evidence is relevant: "'relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Rule 403 provides for a balancing test: "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. Rule 703 outlines the foundational requirements of Rule 702: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Fed. R. Evid. 703.
41. Daubert, supra note 20.
42. Daubert, supra note 20, at 595.
43. In General Electric Corp. v. Joiner, the court additionally noted that although trained experts may extrapolate from data, a court is not required to admit expert testimony that 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 proffered. General Electric Corp. v. Joiner, 522 U.S. 136, at 146 (1997).
44. Molly T. Johnson et al., Expert Testimony in Federal Civil Trials: A Preliminary Analysis (Washington, D.C.: Federal Judicial Center, 2000).
45. In re Diet Drugs, MDL Docket No. 1203, 2001 U.S. Dist. LEXIS 1174 (E.D. Pa. February 1, 2001).
46. Id. at *30-*31 (elipses in original quotation).
47. Id. at *30.
48. Wendland v. Wendland, 28 P.3d 151 (Cal. 2001). The case was eventually appealed to the California Supreme Court, which held that a conservator may not withhold artificial nutrition and hydration from such a person absent clear and convincing evidence that the conservator's decision is in accordance with either the conservatee's own wishes or his best interests.
49. I am indebted to Lawrence J. Nelson for providing a transcript of testimony In re the Matter of Robert Wendland, Superior Court of California, October 23, 1997.
50. Id. The bioethicist was permitted to testify.
51. E.H. Morreim, "At the Intersection of Medicine, Law, Economics, and Ethics: Bioethics and the Art of Intellectual Cross-Dressing," in R.A. Carson and C.R. Burns, eds., Philosophy of Medicine and Bioethics (Dordrecht, Germany: Kluwer Academic Publishers, 1997): at 300.
52. Aghili v. Banks, No. 14-98-01148-CV, 2001 Tex. App. LEXIS 5749 (Tex. Ct. App. August 23, 2001) (includes a discussion of the problem of blurring the roles of attorney and witness).
53. C. Elliott, "Throwing a Bone to the Watchdog," Hastings Center Report, 31, no. 2 (2001): 9-12.
54. Schneider, supra note 19, at 11.
55. In re Diet Drugs, supra note 27, at 26-29. It is worth noting that, although Judge Bechtle was highly critical of this bioethics testimony, he did not rely on the distinction between normative, metaethical, and descriptive ethics testimony - a distinction that is often discussed in bioethics, but has never been used by judges. The limitations of this distinction are discussed in Spielman and Agich, supra note 1. A recent helpful discussion of normative expertise is included in D.M. Risinger, "Preliminary Thoughts on a Functional Taxonomy of Expertise for the Post-Kumho Word," Seton Hall Law Review, 31 (2000): 508-37, at 526-29.
56. In re Diet Drugs, supra note 27, at 26-29. It is worth noting that, although Judge Bechtle was highly critical of this bioethics testimony, he did not rely on the distinction between normative, metaethical, and descriptive ethics testimony - a distinction that is often discussed in bioethics, but has never been used by judges. The limitations of this distinction are discussed in Spielman and Agich, supra note 1. A recent helpful discussion of normative expertise is included in D.M. Risinger, "Preliminary Thoughts on a Functional Taxonomy of Expertise for the Post-Kumho Word," Seton Hall Law Review, 31 (2000): 508-37, at 526-29.
57. Elliott, supra note 35, at 10.
58. See S. Lubet, "Expert Witnesses: Ethics and Professionalism," Georgetown Journal of Legal Ethics, 12 (1999): 465-88.
59. The most well known example is the American Psychiatric Association's 1995 expulsion of Dr. James Grigson from membership "for indicating, while testifying in court as an expert witness, that he could predict with 100 [percent] certainty that the individuals would engage in future violent acts." D.W. Shuman and S.A. Greenberg, "The Role of Ethical Norms in the Admissibility of Expert Testimony," Judges' Journal, 37 (1998): 5-9, at 6, citing American Psychiatric Association, News Release No. 95-25, July 20, 1995. See also Wagner v. Georgetown University Medical Center, 768 A.2d 546 (D.C. Ct. of App. 2001) (member of American Association of Neurological Surgery censured for unethical practices in the giving of expert testimony); Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (summary judgment for association sued by neurosurgeon suspended for poor quality of testimony). See also American College of Occupational and Environmental Medicine, Ethical Guidelines for Occupational and Environmental Medicine Expert Witnesses, available at 〈http://www.acoem.org/position/position.asp?STATEMENT ID=2〉 ("medical experts should be aware that transcripts of depositions and courtroom testimony are public records, subject to independent peer review by colleagues and professional organizations, and that testimony in some states may be subject to the jurisdiction and review of appropriate licensing or disciplinary boards").
60. The most well known example is the American Psychiatric Association's 1995 expulsion of Dr. James Grigson from membership "for indicating, while testifying in court as an expert witness, that he could predict with 100 [percent] certainty that the individuals would engage in future violent acts." D.W. Shuman and S.A. Greenberg, "The Role of Ethical Norms in the Admissibility of Expert Testimony," Judges' Journal, 37 (1998): 5-9, at 6, citing American Psychiatric Association, News Release No. 95-25, July 20, 1995. See also Wagner v. Georgetown University Medical Center, 768 A.2d 546 (D.C. Ct. of App. 2001) (member of American Association of Neurological Surgery censured for unethical practices in the giving of expert testimony); Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (summary judgment for association sued by neurosurgeon suspended for poor quality of testimony). See also American College of Occupational and Environmental Medicine, Ethical Guidelines for Occupational and Environmental Medicine Expert Witnesses, available at 〈http://www.acoem.org/position/position.asp?STATEMENT ID=2〉 ("medical experts should be aware that transcripts of depositions and courtroom testimony are public records, subject to independent peer review by colleagues and professional organizations, and that testimony in some states may be subject to the jurisdiction and review of appropriate licensing or disciplinary boards").
61. The most well known example is the American Psychiatric Association's 1995 expulsion of Dr. James Grigson from membership "for indicating, while testifying in court as an expert witness, that he could predict with 100 [percent] certainty that the individuals would engage in future violent acts." D.W. Shuman and S.A. Greenberg, "The Role of Ethical Norms in the Admissibility of Expert Testimony," Judges' Journal, 37 (1998): 5-9, at 6, citing American Psychiatric Association, News Release No. 95-25, July 20, 1995. See also Wagner v. Georgetown University Medical Center, 768 A.2d 546 (D.C. Ct. of App. 2001) (member of American Association of Neurological Surgery censured for unethical practices in the giving of expert testimony); Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (summary judgment for association sued by neurosurgeon suspended for poor quality of testimony). See also American College of Occupational and Environmental Medicine, Ethical Guidelines for Occupational and Environmental Medicine Expert Witnesses, available at 〈http://www.acoem.org/position/position.asp?STATEMENT ID=2〉 ("medical experts should be aware that transcripts of depositions and courtroom testimony are public records, subject to independent peer review by colleagues and professional organizations, and that testimony in some states may be subject to the jurisdiction and review of appropriate licensing or disciplinary boards").
62. See, e.g., C. Mooney, "Irrationalist in Chief," The American Prospect, 12, part 17 (2001): 10-12 (quoting ethicist's criticisms of Leon Kass, appointed to head President Bush's council on bioethics).
63. Kipnis observes, "those who reject a role for ethicists in judicial proceedings are characteristically less concerned to fault specific actions undertaken in the complexity of actual cases than they are to protest, theoretically and in the abstract, all such involvement." K. Kipnis, "Confessions of an Expert Ethics Witness," The Journal of Medicine and Philosophy, 22 (1997): 325-43, at 326.
64. G.J. Annas, "A French Homunculus in a Tennessee Court," Hastings Center Report, 19, no. 1 (1989): 20-22, at 21 ("It seems that the judge was dazzled with Dr. Lejeunes' testimony (about the moral status of the preembryo) even though its 'science' is woefully unsophisticated. The term 'specialized' seems to have been used by Dr. Lejeune entirely differently than other witnesses and this seems to have confused the judge. Lejeune says 'specialized' means unique, the other witnesses used 'specialized' to mean specific."). At about the same time, ethics testimony in Scheer v. Entel Radiological Associates, a dispute concerning a physician's contract was criticized at a national bioethics meeting. H. Brody,"When Bioethicists Shouldn't Testify in Court," Ethics-In-Formation, 6, no. 1 (1993): 1-6, at 1.
65. G.J. Annas, "A French Homunculus in a Tennessee Court," Hastings Center Report, 19, no. 1 (1989): 20-22, at 21 ("It seems that the judge was dazzled with Dr. Lejeunes' testimony (about the moral status of the preembryo) even though its 'science' is woefully unsophisticated. The term 'specialized' seems to have been used by Dr. Lejeune entirely differently than other witnesses and this seems to have confused the judge. Lejeune says 'specialized' means unique, the other witnesses used 'specialized' to mean specific."). At about the same time, ethics testimony in Scheer v. Entel Radiological Associates, a dispute concerning a physician's contract was criticized at a national bioethics meeting. H. Brody,"When Bioethicists Shouldn't Testify in Court," Ethics-In-Formation, 6, no. 1 (1993): 1-6, at 1.
66. G.J. Annas, "A French Homunculus in a Tennessee Court," Hastings Center Report, 19, no. 1 (1989): 20-22, at 21 ("It seems that the judge was dazzled with Dr. Lejeunes' testimony (about the moral status of the preembryo) even though its 'science' is woefully unsophisticated. The term 'specialized' seems to have been used by Dr. Lejeune entirely differently than other witnesses and this seems to have confused the judge. Lejeune says 'specialized' means unique, the other witnesses used 'specialized' to mean specific."). At about the same time, ethics testimony in Scheer v. Entel Radiological Associates, a dispute concerning a physician's contract was criticized at a national bioethics meeting. H. Brody,"When Bioethicists Shouldn't Testify in Court," Ethics-In-Formation, 6, no. 1 (1993): 1-6, at 1.
67. A.M. Capron, "Abandoning a Waning Life," Hastings Center Report, 25, no. 4 (1995): 24-26 (testimony in Gilgunn v. Massachusetts General Hospital, Mass., Suffolk Superior Court C.A. No. 92-4820-H, incompletely represented positions of the American Medical Association and the President's Commission).
68. R.P. George, "'Shameless Acts' Revisited: Some Questions for Martha Nussbaum," Academic Questions, 9 (1995-1996): 24-42. Subsequent to an ethicist's testimony in Evans, fellow scholars described the testimony as irresponsible and dishonest. The expert in Romer v. Evans was accused by fellow scholars of misrepresentations, distortions, deceptions, and of making false representations about the positions of ancient Greek philosophers as well as contemporary commentators on Greek philosophy and public morality. She was also accused of misrepresenting her own published work, attempting to pass off a superseded work as authoritative, and dissembling about the scholarly credentials of a professor whose work one of the other experts had relied upon.
69. R.P. George, "'Shameless Acts' Revisited: Some Questions for Martha Nussbaum," Academic Questions, 9 (1995-1996): 24-42. Subsequent to an ethicist's testimony in Evans, fellow scholars described the testimony as irresponsible and dishonest. The expert in Romer v. Evans was accused by fellow scholars of misrepresentations, distortions, deceptions, and of making false representations about the positions of ancient Greek philosophers as well as contemporary commentators on Greek philosophy and public morality. She was also accused of misrepresenting her own published work, attempting to pass off a superseded work as authoritative, and dissembling about the scholarly credentials of a professor whose work one of the other experts had relied upon.
70. Wendland, supra note 30.
71. W.J. Smith, Culture of Death: The Assault on Medical Ethics in America (San Francisco: Encounter Books, 2000): at 74 ("Once again Dr. Cranford came to court to testify, as did other bioethicists ... in favor of ending Wendland's life.").
72. J. Paris, "The Legal Duties of the Bioethicist." Paper presented at University of Pennsylvania Law School Symposium, Philadelphia, Pennsylvania, April 11, 2001.
73. Shneider, supra note 19; F. Baylis, "Expert Testimony by Persons Trained in Ethical Reasoning: The Case of Andrew Sawatzky," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 224-31; F. Baylis, "Rebuttal: Expert Ethics Testimony," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 240-42; Scofield, "Commentary", supra note 5, at 235; G. Scofield, "Response: Narcissus Meets Pandora," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 243-44.
74. Shneider, supra note 19; F. Baylis, "Expert Testimony by Persons Trained in Ethical Reasoning: The Case of Andrew Sawatzky," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 224-31; F. Baylis, "Rebuttal: Expert Ethics Testimony," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 240-42; Scofield, "Commentary", supra note 5, at 235; G. Scofield, "Response: Narcissus Meets Pandora," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 243-44.
75. Shneider, supra note 19; F. Baylis, "Expert Testimony by Persons Trained in Ethical Reasoning: The Case of Andrew Sawatzky," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 224-31; F. Baylis, "Rebuttal: Expert Ethics Testimony," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 240-42; Scofield, "Commentary", supra note 5, at 235; G. Scofield, "Response: Narcissus Meets Pandora," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 243-44.
76. Shneider, supra note 19; F. Baylis, "Expert Testimony by Persons Trained in Ethical Reasoning: The Case of Andrew Sawatzky," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 224-31; F. Baylis, "Rebuttal: Expert Ethics Testimony," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 240-42; Scofield, "Commentary", supra note 5, at 235; G. Scofield, "Response: Narcissus Meets Pandora," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 243-44.
77. Shneider, supra note 19; F. Baylis, "Expert Testimony by Persons Trained in Ethical Reasoning: The Case of Andrew Sawatzky," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 224-31; F. Baylis, "Rebuttal: Expert Ethics Testimony," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 240-42; Scofield, "Commentary", supra note 5, at 235; G. Scofield, "Response: Narcissus Meets Pandora," Journal of Law, Medicine & Ethics, 28, no. 3 (2000): 243-44.
78. Scofield, "Commentary" supra note 5, at 235.
79. Chesler and Kalmuss asked experts, "Have you had any disagreements with or criticisms from professional colleagues about the propriety or wisdom of testifying?" and "Has testifying had any effect on your professional career, positive or negative?" Chesler defined professional conflict as follows: "Professional conflict arises from the expectation or experience of negative professional consequences associated with one's party affiliation. Material consequences may include nonpromotion and reduced employment, funding, or publishing opportunities. Status consequences include negative labels associated with one's party affiliation and diminished prestige within the professional community." M.A. Chesler, J. Sanders, and D.S. Kalmuss, Social Science in Court: Mobilizing Experts in the School Desegregation Cases (Madison: University of Wisconsin Press, 1988): at 168.
80. Professor Rosalind Rosenberg testified on behalf of Sears, Roebuck and Co., the defendant in an employment discrimination case, that the relatively smaller percentage of women in higher-paying, high ticket, commissions sales jobs might be explained by male and female differences in job preference. Equal Employment Opportunity Commission v. Sears, Roebuck and Co., 628 F. Supp. 1264 (1986). This testimony precipitated strong negative reaction among feminist historians, including the following: "Most people are quite appalled that Rosalind Rosenberg put her skills in the service of a company when we mostly identify with the position of women workers and the Women's Movement. Some people think she was misguided that she made a mistake. Others think it was more than that, that she was stupid or evil. Personally, I can't believe anyone could be so stupid. I'm more inclined to believe she was defending a class interest as she understood it." C. Sternhell, "Life in the Mainstream: What Happens When Feminists Turn up on Both Sides of the Courtroom?" Ms., 15 (July 1986): 48-57, at 49.
81. Professor Rosalind Rosenberg testified on behalf of Sears, Roebuck and Co., the defendant in an employment discrimination case, that the relatively smaller percentage of women in higher-paying, high ticket, commissions sales jobs might be explained by male and female differences in job preference. Equal Employment Opportunity Commission v. Sears, Roebuck and Co., 628 F. Supp. 1264 (1986). This testimony precipitated strong negative reaction among feminist historians, including the following: "Most people are quite appalled that Rosalind Rosenberg put her skills in the service of a company when we mostly identify with the position of women workers and the Women's Movement. Some people think she was misguided that she made a mistake. Others think it was more than that, that she was stupid or evil. Personally, I can't believe anyone could be so stupid. I'm more inclined to believe she was defending a class interest as she understood it." C. Sternhell, "Life in the Mainstream: What Happens When Feminists Turn up on Both Sides of the Courtroom?" Ms., 15 (July 1986): 48-57, at 49.
82. For example, social psychologists who questioned the value of testimony about eyewitness identifications in criminal cases were sharply criticized at first. Elizabeth Loftus, a well recognized psychologist, wrote in response to an article critical of expert eyewitness identification testimony: "At the same time that psychologists are reading the McCloskey and Egeth articles that are so deeply critical of experimental psychologists offering testimony as an interesting intellectual exercise, prosecuting attorneys across the land are using them for an entirely different purpose: Judges are being told that the articles are proof that the psychological testimony does not even pass the 'Frye test.... Even as we speak, prosecutors are using the McCloskey and Egeth articles to argue that there is no general acceptance in the field." E. Loftus, "Whose Shadow is Crooked?" American Psychologist, 38 (1983): 576-577, at 576.
83. The public, too, increasingly regards experts with a skeptical eye. See S. Rampton and J. Stauber, Trust Us, We're Experts!: How Industry Manipulates Science and Gambles with Your Future (New York: Jeremy P. Tarcher, 2000).
84. In re Diet Drugs, supra note 27, at *30.
85. Id. at *30-*31.
86. Kipnis, supra note 42, at 334.
87. Transcript of Lawrence J. Nelson testimony, supra note 31. The attorney for Mr. Wendland's mother and sister raised a key question about reliability of method: Is the expert using methods in the litigation context that are at least as rigorous as those employed in his practice? See also Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, at 1175 (1999) (same degree of rigor characterizing practice in a particular field must be applied to expert testimony in the courtroom).
88. Kipnis, supra note 42, at 339.
89. American Medical Association, Code 9.07: Medical Testimony: Council on Ethical and Judicial Affairs. Code of Medical Ethics: Current Opinions with Annotations 259 (2002), cited in B.A. Brody, et al., Medical Ethics: Codes, Opinions, and Statements (Washington, D.C.: Bureau of National Affairs, Inc., 2000): at 5.
90. American College of Occupational and Environmental Medicine, supra note 40.
91. American Academy of Economic and Financial Experts, "The AAEFE Statement of Disclosure," at 〈http://www.aaefe.org/disclosure. htm〉 (last visited June 25, 2002).
92. I b i d.
93. American Psychological Association, "Ethics Code Draft 7" at 2.01 Boundaries of Competence, at 〈http://anastasi.apa.org/ draftethicscode〉 (last visited June 25, 2002).
94. Barefoot v. Estelle, 463 U.S. 880 (1983). Thomas Barefoot was convicted of the capital murder of a police officer. In the sentencing phase, the jury had to determine whether there was a probability that Mr. Barefoot would commit criminal acts of violence that would constitute a continuing threat to society. The jury's affirmative response to this question resulted in Mr. Barefoot being sentenced to death. The principal evidence presented to the jury on the question of "future dangerousness" was the expert testimony of two psychiatrists. Dr. James Grigson testified for the prosecution. He was permitted to offer clinical opinions, including an opinion on the ultimate issue of future dangerousness, even though he had not performed a psychiatric examination or evaluation of the accused. Instead, the critical psychiatric testimony was based on an extended hypothetical question propounded by the prosecutor. Dr. Grigson claimed predictive accuracy of "one hundred percent and absolute." Brief Amicus Curiae for the American Psychiatric Association, Thomas A. Barefoot, Petitioner, V. W. J. Estelle., Jr., Director, Texas Department of Corrections, Respondent, No. 82-6080, October Term, 1982, March 4, 1983, On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit, Brief Amicus Curiae For The American Psychiatric Association. LEXIS, Federal Legal - U.S., Supreme Court Cases & Materials, U.S. Supreme Court Briefs.
95. Barefoot v. Estelle, 463 U.S. at 906.
96. See Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001) (critique of an "imprudent" assertion of consensus).
97. Shuman has noted the difference between peer review in science and peer review in clinical psychology: "In science, peer review suggests a level of agreement on the validity of the science, but what does it mean with respect to clinical writing? Peer review may mean it presents an interesting idea, but not necessarily a valid one. It may mean that the ideas agree with those of the editorial consulting reviews and the editor, which at best is a judgment about the writings' ... consistency with the views of other practitioners." D.W Shuman, "The Impact of Daubert and its Progeny on the Admissibility of Behavioral and Social Science Evidence," Psychology, Public Policy, and Law, 5 (1999): 3-15, at 7. The same might be said of bioethics peer review.
98. D.W Shuman and B.D. Sales, "The Admissibility of Expert Testimony Based Upon Clinical Judgment and Scientific Research," Psychology, Public Policy, and Law, 4 (1998): 1226-52; M.A. Berger, "When Is Clinical Psychology Like Astrology?" Arizona State Law Journal, 33 (2001): 75-82.
99. D.W Shuman and B.D. Sales, "The Admissibility of Expert Testimony Based Upon Clinical Judgment and Scientific Research," Psychology, Public Policy, and Law, 4 (1998): 1226-52; M.A. Berger, "When Is Clinical Psychology Like Astrology?" Arizona State Law Journal, 33 (2001): 75-82.
100. R. Macklin, "Ethics and Value Bias in the Forensic Sciences," Journal of Forensic Science, 42 (1997): 1203-06, at 1206. But, see Fed. R. Evid. 702 Advisory Committee Note: "Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leading the trier of fact to apply them to the facts."
101. R. Macklin, "Ethics and Value Bias in the Forensic Sciences," Journal of Forensic Science, 42 (1997): 1203-06, at 1206. But, see Fed. R. Evid. 702 Advisory Committee Note: "Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leading the trier of fact to apply them to the facts."
102. Kipnis, supra note 42, at 338-39.
103. J. Fletcher, "Bioethics in a Legal Forum: Confessions of an 'Expert' Witness," The Journal of Medicine and Philosophy, 22 (1997): 297-324, at 306-07.
104. In the Matter of Baby K, 16 F.3d 590 (1994). The critical issue on appeal, however, hinged on statutory interpretation of the Emergency Treatment and Active Labor Act. 42 U.S.C. 1395dd (1992).
105. Hall v. Anwar, supra note 16.
106. Schindler v Schiavo, 780 So.2d 176 (Fla. App. 2001), at 179; review denied Schindler v. Schiavo, 789 So.2d 348 (Fla. 2001), remanded by Schindler v. Schiavo, 792 So.2d 551 (Fla. App. 2001).
107. Florida Statutes (1997) chapter 765; In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990).
108. In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990).
109. The court noted that "it is doubtful that this issue is preserved for appeal ... [N]evertheless ... "we have reviewed the issue as if it were." Id. at 179.
110. Schindler v Schiavo, 780 So.2d 176 (Fla. App. 2001), at 179; review
111. Schindler, supra note 75, at 179.
112. American Psychological Association, supra note 64.
113. Committee on Ethical Guidelines for Forensic Psychologists, "Specialty Guidelines for Forensic Psychologists," Law and Human Behavior, 15 (1991): 655-65, at 665.
114. American Society of Anesthesiologists, "Guidelines for Expert Witness Qualifications and Testimony" (1990), at 〈http://www.asahq. org/Standards/07.html〉 (last visited June 25, 2002) cited in Brody et al., supra note 60, at 129.
115. H. Brody, "When Bioethicists Shouldn't Testify in Court," Ethics-In-Formation, 6, no. 1 (1993): 1-6, at 1. This view was also reflected in comments from the floor at a conference on the role of bioethics in health-care policy: "There is a sense that if you ... get down into the courtroom, that somehow you are getting at a level that is maybe a little dirty, a little shameful." Conference proceedings, "The Role of Bioethics in Health-Care Policy" (Center for Biomedical Ethics, University of Minnesota: Minneapolis, 1995): at 16.
116. H. Brody, "When Bioethicists Shouldn't Testify in Court," Ethics-In-Formation, 6, no. 1 (1993): 1-6, at 1. This view was also reflected in comments from the floor at a conference on the role of bioethics in health-care policy: "There is a sense that if you ... get down into the courtroom, that somehow you are getting at a level that is maybe a little dirty, a little shameful." Conference proceedings, "The Role of Bioethics in Health-Care Policy" (Center for Biomedical Ethics, University of Minnesota: Minneapolis, 1995): at 16.
117. Fletcher, supra note 72, at 317.
118. H. Brody, supra note 84.
119. Mishkin, supra note 3, at 50, 89; Wildes, supra note 5, at 365, 367.
120. Fletcher, supra note 72, at 317.
121. Kipnis, supra note 42, at 330.
122. Although these broader issues have not been thoroughly articulated by those who discuss participation as experts, Larry Churchill raises the question of the social purpose of bioethics in L.R. Churchill, "Are We 'Professionals'? A Critical Look at the Social Role of Bioethicists," Daedalus, 128 (1999): 253-274, at 253.
123. Opinion 9.07 "Medical Testimony," American Medical Association Council on Ethical and Judicial Affairs, Code of Medical Ethics: Current Opinions with Annotations (Chicago: American Medical Association, 2001): at 210.
124. American College of Occupational and Environmental Medicine, supra note 40.
125. American College of Physicians-American Society of Internal Medicine, Ethics Manual (1998) cited in Brody et al., supra note 60, at 745; American College of Obstetricians and Gynecologists, "Ethical Issues Related to Expert Testimony by Obstetricians and Gynecologists" (1987), cited in Brody et al., supra note 60, at 472; American Academy of Orthopedic Surgeons, "Orthopaedist Testimony: Guidelines for Behavior" (1996), cited in Brody et al., supra note 60, at 616; American Society of Plastic and Reconstructive Surgeons, "Code of Ethics" (1998), cited in Brody et al., supra note 60, at 819.
126. American College of Physicians-American Society of Internal Medicine, Ethics Manual (1998) cited in Brody et al., supra note 60, at 745; American College of Obstetricians and Gynecologists, "Ethical Issues Related to Expert Testimony by Obstetricians and Gynecologists" (1987), cited in Brody et al., supra note 60, at 472; American Academy of Orthopedic Surgeons, "Orthopaedist Testimony: Guidelines for Behavior" (1996), cited in Brody et al., supra note 60, at 616; American Society of Plastic and Reconstructive Surgeons, "Code of Ethics" (1998), cited in Brody et al., supra note 60, at 819.
127. American College of Physicians-American Society of Internal Medicine, Ethics Manual (1998) cited in Brody et al., supra note 60, at 745; American College of Obstetricians and Gynecologists, "Ethical Issues Related to Expert Testimony by Obstetricians and Gynecologists" (1987), cited in Brody et al., supra note 60, at 472; American Academy of Orthopedic Surgeons, "Orthopaedist Testimony: Guidelines for Behavior" (1996), cited in Brody et al., supra note 60, at 616; American Society of Plastic and Reconstructive Surgeons, "Code of Ethics" (1998), cited in Brody et al., supra note 60, at 819.
128. American College of Physicians-American Society of Internal Medicine, Ethics Manual (1998) cited in Brody et al., supra note 60, at 745; American College of Obstetricians and Gynecologists, "Ethical Issues Related to Expert Testimony by Obstetricians and Gynecologists" (1987), cited in Brody et al., supra note 60, at 472; American Academy of Orthopedic Surgeons, "Orthopaedist Testimony: Guidelines for Behavior" (1996), cited in Brody et al., supra note 60, at 616; American Society of Plastic and Reconstructive Surgeons, "Code of Ethics" (1998), cited in Brody et al., supra note 60, at 819.
129. For example, McCracken v. Walls-Kaufman, 717 A.2d 346 (D.C. App. Ct. 1998), discussed in Spielman and Agich, supra note 1, at 1072-73.
130. C. Baylis, " "Rebuttal: Expert Ethics Testimony," supra note 49, at 242. Referring to bioethicists in the courtroom, one Center for Medical Ethics conference participant stated: "We have got to be in there and we have got to be in there fighting for our positions. We can't sit up there in our ivory tower and write these articles and then just expect the world to be a better place." University of Minnesota, supra note 84, at 17.
131. C. Baylis, " "Rebuttal: Expert Ethics Testimony," supra note 49, at 242. Referring to bioethicists in the courtroom, one Center for Medical Ethics conference participant stated: "We have got to be in there and we have got to be in there fighting for our positions. We can't sit up there in our ivory tower and write these articles and then just expect the world to be a better place." University of Minnesota, supra note 84, at 17.
132. M. Saks, "Normative and Empirical Issues about the role of Expert Witness," in D. Kagehiro and W. Laufer, eds., Handbook of Psychology and the Law (New York: Springer-Verlag, 1992): 185-203, at 189-90.
133. Id. at 189.
134. Id. at 189.
135. M.J. Saks. "Expert Witnesses, Nonexpert Witnesses, and Nonwitness Experts," Law and Human Behavior, 14 (1990): 291-312, at 296-97.
136. A. Caplan, "Bioethics on Trial," Hastings Center Report, 21, no. 2 (1991): 19-20, at 20.
137. Fletcher, supra note 72, at 299, 310-12.
138. Elliot, supra note 35, at 10.
139. "In an article in the Times Literary Supplement, Wellesley classicist Mary Lefkowitz cited Nussbaum's testimony [the testifying expert in Romer v. Evans] as a telling instance of how 'culturally correct arguments' are used to promote 'higher ethical values at the expense of some historical and linguistic precision.'" Daniel Mendelsohn, citing Lefkowitz in "The Stand: Expert Witnesses and Ancient Mysteries in a Colorado Courtroom," Lingua Franca, 6, no. 6 (September/October 1996): 34-46, at 36.
140. "In an article in the Times Literary Supplement, Wellesley classicist Mary Lefkowitz cited Nussbaum's testimony [the testifying expert in Romer v. Evans] as a telling instance of how 'culturally correct arguments' are used to promote 'higher ethical values at the expense of some historical and linguistic precision.'" Daniel Mendelsohn, citing Lefkowitz in "The Stand: Expert Witnesses and Ancient Mysteries in a Colorado Courtroom," Lingua Franca, 6, no. 6 (September/October 1996): 34-46, at 36.
141. Capron, supra note 44.
142. Fletcher, supra note 72, at 312-13 ("I learned 'on the job' about the real complexity of the issues and the intractability of the positions that collided in the courtroom. As time wore on, the teacher and consultant in me began to appreciate how Ms. H's position could be defended ethically and just how intricate and fascinating the issues were. However, as a moral advocate for the hospital, I was constrained for a time in teaching to grant Ms. H's position the moral validity and force that it deserved.").
143. Kipnis, supra note 42, at 331.
144. Id. at 339.
145. Id. at 331.
146. Federal Judicial Center, supra note 26. Advocacy was a more frequently cited problem than questionable validity or reliability, or excessive expense of experts.
147. Summers v. Gilbert, 82 Cal. Rptr. 2d 162 (App. 1991).
148. American Medical Association, supra note 60.
149. American College of Occupational and Environmental Medicine, supra note 40.
150. These groups include The American Academy of Orthopaedic Surgeons, "Code of Ethics for Orthopaedic Surgeons" (1995), cited in Brody et al., supra note 60, at 588; The American College of Physicians-American Society of Internal Medicine, cited in Brody et al., supra note 60, at 509; American College of Obstetricians and Gynecologists, cited in Brody et al., supra note 60, at 745; American Society of Anesthesiologists, "Guidelines for Expert Witness Qualifications and Testimony" (1990), cited in Brody et al., supra note 60, at 129; American College of Radiology, "Code of Ethics" (1998), cited in Brody, et al., supra note 60, at 871.
151. These groups include The American Academy of Orthopaedic Surgeons, "Code of Ethics for Orthopaedic Surgeons" (1995), cited in Brody et al., supra note 60, at 588; The American College of Physicians-American Society of Internal Medicine, cited in Brody et al., supra note 60, at 509; American College of Obstetricians and Gynecologists, cited in Brody et al., supra note 60, at 745; American Society of Anesthesiologists, "Guidelines for Expert Witness Qualifications and Testimony" (1990), cited in Brody et al., supra note 60, at 129; American College of Radiology, "Code of Ethics" (1998), cited in Brody, et al., supra note 60, at 871.
152. These groups include The American Academy of Orthopaedic Surgeons, "Code of Ethics for Orthopaedic Surgeons" (1995), cited in Brody et al., supra note 60, at 588; The American College of Physicians-American Society of Internal Medicine, cited in Brody et al., supra note 60, at 509; American College of Obstetricians and Gynecologists, cited in Brody et al., supra note 60, at 745; American Society of Anesthesiologists, "Guidelines for Expert Witness Qualifications and Testimony" (1990), cited in Brody et al., supra note 60, at 129; American College of Radiology, "Code of Ethics" (1998), cited in Brody, et al., supra note 60, at 871.
153. These groups include The American Academy of Orthopaedic Surgeons, "Code of Ethics for Orthopaedic Surgeons" (1995), cited in Brody et al., supra note 60, at 588; The American College of Physicians-American Society of Internal Medicine, cited in Brody et al., supra note 60, at 509; American College of Obstetricians and Gynecologists, cited in Brody et al., supra note 60, at 745; American Society of Anesthesiologists, "Guidelines for Expert Witness Qualifications and Testimony" (1990), cited in Brody et al., supra note 60, at 129; American College of Radiology, "Code of Ethics" (1998), cited in Brody, et al., supra note 60, at 871.
154. American Academy of Physical Medicine and Rehabilitation, "Expert Witness Testimony" (1992), cited in Brody et al., supra note 60, at 740.
155. Committee on Ethical Guidelines for Forensic Psychologists, supra note 82.
156. A.R. Jonsen, "The Birth of Bioethics," Hastings Center Report, 23, no. 6 (1993): S1-S15.
157. R. Shalit, "When We Were Philosopher Kings," New Republic, May 1, 1997, at 24; S.G. Stolberg, "Bioethicists Find Themselves the Ones Being Scrutinized," New York Times, Aug. 2, 2001 (Late Edition), at A1; W Saletan, "The Ethicist's New Clothes," at 〈http://www.ccwv.net/ EssayDisplay.asp? recordID=276〉 (last visited July 20, 2002).
158. R. Shalit, "When We Were Philosopher Kings," New Republic, May 1, 1997, at 24; S.G. Stolberg, "Bioethicists Find Themselves the Ones Being Scrutinized," New York Times, Aug. 2, 2001 (Late Edition), at A1; W Saletan, "The Ethicist's New Clothes," at 〈http://www.ccwv.net/ EssayDisplay.asp? recordID=276〉 (last visited July 20, 2002).
159. R. Shalit, "When We Were Philosopher Kings," New Republic, May 1, 1997, at 24; S.G. Stolberg, "Bioethicists Find Themselves the Ones Being Scrutinized," New York Times, Aug. 2, 2001 (Late Edition), at A1; W Saletan, "The Ethicist's New Clothes," at 〈http://www.ccwv.net/ EssayDisplay.asp? recordID=276〉 (last visited July 20, 2002).
160. B. Diamond, "The Fallacy of the Impartial Expert," Archives of Criminal Psychodynamics, 3 (1959): 221-36. The merits of "advocacy scholarship" and the possibility of neutral, objective scholarship have been debated by historians who participated in writing and signing of an amicus curiae brief in Webster v. Reproductive Health Services, No. 88-605, October Term, 1988, March 30, 1989, Brief of 281 American Historians as Amicus Curiae Supporting Appellees; LEXIS, Federal Legal - U.S., Supreme Court Cases & Materials, U.S. Supreme Court Briefs; J.E. Larson and C. Spillenger, "'That's Not History' The Boundaries of Advocacy and Scholarship," The Public Historian, 12 (1990): 33-43; J.C. Mohr, "Historically Based Legal Briefs: Observations of a Participant in the Webster Process," The Public Historian, 12 (1990): 20-29; S. Law, "Conversations between Historians and the Constitution," The Public Historian, 12 (1990): 11-17.
161. B. Diamond, "The Fallacy of the Impartial Expert," Archives of Criminal Psychodynamics, 3 (1959): 221-36. The merits of "advocacy scholarship" and the possibility of neutral, objective scholarship have been debated by historians who participated in writing and signing of an amicus curiae brief in Webster v. Reproductive Health Services, No. 88-605, October Term, 1988, March 30, 1989, Brief of 281 American Historians as Amicus Curiae Supporting Appellees; LEXIS, Federal Legal - U.S., Supreme Court Cases & Materials, U.S. Supreme Court Briefs; J.E. Larson and C. Spillenger, "'That's Not History' The Boundaries of Advocacy and Scholarship," The Public Historian, 12 (1990): 33-43; J.C. Mohr, "Historically Based Legal Briefs: Observations of a Participant in the Webster Process," The Public Historian, 12 (1990): 20-29; S. Law, "Conversations between Historians and the Constitution," The Public Historian, 12 (1990): 11-17.
162. B. Diamond, "The Fallacy of the Impartial Expert," Archives of Criminal Psychodynamics, 3 (1959): 221-36. The merits of "advocacy scholarship" and the possibility of neutral, objective scholarship have been debated by historians who participated in writing and signing of an amicus curiae brief in Webster v. Reproductive Health Services, No. 88-605, October Term, 1988, March 30, 1989, Brief of 281 American Historians as Amicus Curiae Supporting Appellees; LEXIS, Federal Legal - U.S., Supreme Court Cases & Materials, U.S. Supreme Court Briefs; J.E. Larson and C. Spillenger, "'That's Not History' The Boundaries of Advocacy and Scholarship," The Public Historian, 12 (1990): 33-43; J.C. Mohr, "Historically Based Legal Briefs: Observations of a Participant in the Webster Process," The Public Historian, 12 (1990): 20-29; S. Law, "Conversations between Historians and the Constitution," The Public Historian, 12 (1990): 11-17.
163. B. Diamond, "The Fallacy of the Impartial Expert," Archives of Criminal Psychodynamics, 3 (1959): 221-36. The merits of "advocacy scholarship" and the possibility of neutral, objective scholarship have been debated by historians who participated in writing and signing of an amicus curiae brief in Webster v. Reproductive Health Services, No. 88-605, October Term, 1988, March 30, 1989, Brief of 281 American Historians as Amicus Curiae Supporting Appellees; LEXIS, Federal Legal - U.S., Supreme Court Cases & Materials, U.S. Supreme Court Briefs; J.E. Larson and C. Spillenger, "'That's Not History' The Boundaries of Advocacy and Scholarship," The Public Historian, 12 (1990): 33-43; J.C. Mohr, "Historically Based Legal Briefs: Observations of a Participant in the Webster Process," The Public Historian, 12 (1990): 20-29; S. Law, "Conversations between Historians and the Constitution," The Public Historian, 12 (1990): 11-17.
164. B. Diamond, "The Fallacy of the Impartial Expert," Archives of Criminal Psychodynamics, 3 (1959): 221-36. The merits of "advocacy scholarship" and the possibility of neutral, objective scholarship have been debated by historians who participated in writing and signing of an amicus curiae brief in Webster v. Reproductive Health Services, No. 88-605, October Term, 1988, March 30, 1989, Brief of 281 American Historians as Amicus Curiae Supporting Appellees; LEXIS, Federal Legal - U.S., Supreme Court Cases & Materials, U.S. Supreme Court Briefs; J.E. Larson and C. Spillenger, "'That's Not History' The Boundaries of Advocacy and Scholarship," The Public Historian, 12 (1990): 33-43; J.C. Mohr, "Historically Based Legal Briefs: Observations of a Participant in the Webster Process," The Public Historian, 12 (1990): 20-29; S. Law, "Conversations between Historians and the Constitution," The Public Historian, 12 (1990): 11-17.
165. M.J. Saks argues that the legal system does in fact require shifting roles of experts. Saks, supra note 96, at 311.
166. See S. Lubet, "Expert Witnesses: Ethics and Professionalism," Georgetown Journal of Legal Ethics, 12 (1999): 465-78 for a helpful discussion of switching sides.
167. Wendland v. Wendland, supra note 30, at 155.
168. Committee on Ethical Guidelines for Forensic Psychologists, supra note 82.
169. American Psychological Association Ethical Principles for Psychologists, supra note 40, at 3.10 "Informed Consent."
170. American Academy of Psychiatry and Law, "Ethical Guidelines for the Practice of Forensic Psychiatry," at 〈http://www.forensic-psych.com/ articles/artEthics.html〉 (last revised October 1989).
171. Committee on Ethical Guidelines for Forensic Psychologists, supra note 82, at 660.
172. D. Kagehiro and W.S. Laufer, eds., Handbook of Psychology and Law (New York: Springer-Verlag, 1992).
173. Davis discusses the tension between protecting patient confidentiality and developing this kind of case presentation. D. Davis, "Rich Cases: The Ethics of Thick Description," Hastings Center Report, 21 (1991): 12-16.
174. Bioethicists have published descriptions of their personal experiences as expert witnesses. See Caplan, supra note 100; Fletcher, supra note 72; Paris, supra note 5. John Lantos has fictionalized his experiences in The Lazarus Case (Baltimore: Johns Hopkins University, 2001).
175. Bioethicists have published descriptions of their personal experiences as expert witnesses. See Caplan, supra note 100; Fletcher, supra note 72; Paris, supra note 5. John Lantos has fictionalized his experiences in The Lazarus Case (Baltimore: Johns Hopkins University, 2001).
176. Fletcher, supra note 72, at 313.
177. Id. at 313-14.
178. Kipnis, supra note 42, at 331.
179. R.W. Shuy, in Language and Crimes: The Use and Abuse of Language Evidence in the Courtroom (Cambridge, Massachusetts: Blackwell, 1993), recounts his consultations and testimony as a forensic sociolinguist in over 200 civil and criminal cases. He is an expert in "language crimes" such as threats, bribery, extortion, and solicitation. Shuy's research on legal actors and the legal system differs from that of forensic bioethicists, however, in one important respect. He analyzes tapes that are already in evidence and part of the public record, and therefore his research would not fall under/would be exempt from federal research regulations, whereas a forensic bioethicist doing research would not necessarily be analyzing only data that was part of the public record. For insightful discussions by a clinical law professor of the problem of publishing accounts of clients' stories, see N.W. Tarr, "Clients' and Students' Stories: Avoiding Exploitation and Complying with the Law to Produce Scholarship with Integrity," Clinical Law Review, 5 (1998): 278-323, at 278; B. Miller, "Telling Stories about Cases and Clients: The Ethics of Narrative," Georgetown Journal of Legal Ethics, 14 (2000): 1-53.
180. R.W. Shuy, in Language and Crimes: The Use and Abuse of Language Evidence in the Courtroom (Cambridge, Massachusetts: Blackwell, 1993), recounts his consultations and testimony as a forensic sociolinguist in over 200 civil and criminal cases. He is an expert in "language crimes" such as threats, bribery, extortion, and solicitation. Shuy's research on legal actors and the legal system differs from that of forensic bioethicists, however, in one important respect. He analyzes tapes that are already in evidence and part of the public record, and therefore his research would not fall under/would be exempt from federal research regulations, whereas a forensic bioethicist doing research would not necessarily be analyzing only data that was part of the public record. For insightful discussions by a clinical law professor of the problem of publishing accounts of clients' stories, see N.W. Tarr, "Clients' and Students' Stories: Avoiding Exploitation and Complying with the Law to Produce Scholarship with Integrity," Clinical Law Review, 5 (1998): 278-323, at 278; B. Miller, "Telling Stories about Cases and Clients: The Ethics of Narrative," Georgetown Journal of Legal Ethics, 14 (2000): 1-53.
181. R.W. Shuy, in Language and Crimes: The Use and Abuse of Language Evidence in the Courtroom (Cambridge, Massachusetts: Blackwell, 1993), recounts his consultations and testimony as a forensic sociolinguist in over 200 civil and criminal cases. He is an expert in "language crimes" such as threats, bribery, extortion, and solicitation. Shuy's research on legal actors and the legal system differs from that of forensic bioethicists, however, in one important respect. He analyzes tapes that are already in evidence and part of the public record, and therefore his research would not fall under/would be exempt from federal research regulations, whereas a forensic bioethicist doing research would not necessarily be analyzing only data that was part of the public record. For insightful discussions by a clinical law professor of the problem of publishing accounts of clients' stories, see N.W. Tarr, "Clients' and Students' Stories: Avoiding Exploitation and Complying with the Law to Produce Scholarship with Integrity," Clinical Law Review, 5 (1998): 278-323, at 278; B. Miller, "Telling Stories about Cases and Clients: The Ethics of Narrative," Georgetown Journal of Legal Ethics, 14 (2000): 1-53.
182. Committee on Ethical Guidelines for Forensic Psychologists, supra note 82, at 664.
183. American Sociological Association, Ethical Standards, at 〈http://www.asanet.org/members/ecostand.html〉 (last updated Aug. 1, 1999).
184. Tarr, supra note 132.
185. American Bar Association Model Rules of Professional Conduct Rule 1.6, titled "Confidentiality of Information," states: "(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b). (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) 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 (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal change or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client." American Bar Association Model Rules of Professional Conduct (1992), at 〈http://www.abanet.org/cpr/mrpc/ rule_1_6.html〉 (last visited September 20, 2002).
186. For example, see the rule concerning conflicts of interest (Rule 1.7b) due to the practitioner-scholar's divided loyalties; the rule concerning agreements about literary rights to an account based on information related to the representation (Rule 1.8d), and the rule about client decision making concerning the objectives of representation (Rule 1.2a). Model Rules, supra note 136. See also Tarr, supra note 132, at 302.
187. If the bioethicist's published conclusions about legal processes are the product of research, then federal regulations may be implicated. Under federal human subject research guidelines, whether research projects must go before an Institutional Review Board (IRB) is a case specific determination. But generally, research will not be exempt from IRB review if information a litigant provided for a specific purpose, such as a legal purpose, is used for scholarly purposes. Research that, additionally, contains identifiers linked to the subject (excluding judges, who are elected or appointed public officials - exempt under 45 C.F.R. 46 § 101b3 (2000) - and research involving only public information) would need to be reviewed by an IRB. And if the IRB determined that the research did not meet requirements for a waiver of informed consent (which must present only minimal risk, no adverse effect on rights and welfare of subjects, research is impracticable without waiver or modification of consent, additional information is provided to subjects. 45 CFR 46 § 116d (2000)), such consent would be required. These requirements are well known to bioethicists, but their application to research on subjects involved in legal rather than medical research may not be immediately apparent.
188. J. Short, "Killing the Messenger: The Use of Nondisclosure Agreements to Silence Whistleblowers," University of Pittsburgh Law Review, 60 (1999): 1218-34.
189. The corporation would likely seek to enjoin the consulting bioethicist from testifying. Courts typically allow employees to testify against employers even if they have signed nondisclosure agreements, especially when the employer has the opportunity to participate in the proceedings and to object to disclosure of privileged information and trade secrets.
190. D. Callahan, "Doing Good and Doing Well," Hastings Center Report, 31, no. 2 (2001): 19-21, at 21.
191. American Sociological Association, supra note 134.
192. American Institute of Certified Public Accountants Code of Professional Conduct, "Rule 301: Confidential Client Information," at 〈http://www.aicpa.org/about/code/et301.htm〉 (last visited June 25, 2002).
193. Society of Forensic Engineers and Scientists, "Code of Ethics of the Society of Forensic Engineers and Scientists," at 〈http://www. forensic-society.org/sfes_code_of_ethics.htm〉 (last visited June 25, 2002).
194. A.A. Stone, "The Ethical Boundaries of Forensic Psychiatry: A View from the Ivory Tower," Bulletin of the American Academy of Psychiatry and Law, 12 (1984): 209-19, at 218.
195. E.F. Loftus, "Experimental Psychologist as Advocate or Impartial Educator," Law and Human Behavior, 10 (1986): 63-78, at 77.
196. B.D. Sales and L. Simon, "Institutional Constraints on the Ethics of Expert Testimony," Ethics and Behavior, 3 (1993): 231-249, at 243.
197. American Society of Obstetricians and Gynecologists, "Ethical Issues Related to Expert Testimony by Obstetricians and Gynecologists" (1987), cited in Brody et al., supra note 60, at 472); American Society of Anesthesiologists, "Guidelines for Expert Witness Qualifications and Testimony" (1990), cited in Brody et al., supra note 60, at 129.
198. American Society of Obstetricians and Gynecologists, "Ethical Issues Related to Expert Testimony by Obstetricians and Gynecologists" (1987), cited in Brody et al., supra note 60, at 472); American Society of Anesthesiologists, "Guidelines for Expert Witness Qualifications and Testimony" (1990), cited in Brody et al., supra note 60, at 129.
199. Annas, supra note 43; Capron, supra note 44; George, supra note 45; Mendelsohn, supra note 103; G.V. Bradley, "In the Case of Martha Nussbaum," First Things, 44 (June/July 1994), at 〈http://www. firstthings.com/ftissues/ft9406/opinion/opinion.html〉 (last visited June 25, 2002); D.H. Kaye, "Bioethics, Bench, and Bar: Selected Arguments in Landry v. Attorney General," Jurimetrics, 40 (2000): 193-216; Larson and Spillenger, supra note 118; Mohr, supra note 118; Law, supra note 118.
200. Annas, supra note 43; Capron, supra note 44; George, supra note 45; Mendelsohn, supra note 103; G.V. Bradley, "In the Case of Martha Nussbaum," First Things, 44 (June/July 1994), at 〈http://www. firstthings.com/ftissues/ft9406/opinion/opinion.html〉 (last visited June 25, 2002); D.H. Kaye, "Bioethics, Bench, and Bar: Selected Arguments in Landry v. Attorney General," Jurimetrics, 40 (2000): 193-216; Larson and Spillenger, supra note 118; Mohr, supra note 118; Law, supra note 118.
201. Annas, supra note 43; Capron, supra note 44; George, supra note 45; Mendelsohn, supra note 103; G.V. Bradley, "In the Case of Martha Nussbaum," First Things, 44 (June/July 1994), at 〈http://www. firstthings.com/ftissues/ft9406/opinion/opinion.html〉 (last visited June 25, 2002); D.H. Kaye, "Bioethics, Bench, and Bar: Selected Arguments in Landry v. Attorney General," Jurimetrics, 40 (2000): 193-216; Larson and Spillenger, supra note 118; Mohr, supra note 118; Law, supra note 118.
202. Annas, supra note 43; Capron, supra note 44; George, supra note 45; Mendelsohn, supra note 103; G.V. Bradley, "In the Case of Martha Nussbaum," First Things, 44 (June/July 1994), at 〈http://www. firstthings.com/ftissues/ft9406/opinion/opinion.html〉 (last visited June 25, 2002); D.H. Kaye, "Bioethics, Bench, and Bar: Selected Arguments in Landry v. Attorney General," Jurimetrics, 40 (2000): 193-216; Larson and Spillenger, supra note 118; Mohr, supra note 118; Law, supra note 118.
203. Austin v. American Association of Neurological Surgeons, 253 F.3d. 967 (7th Cir. 2001).
204. See Report 18 of the Board of Trustees of the American Medical Association, at 〈http:// www.ama-assn.org/meetings/public/int1998/reports/ bot/botrtf/botrep18.rtf〉 (last visited Jan. 17, 2002) for a discussion of the practical and conceptual difficulties of enforcement. The American College of Preventive Medicine has urged the American Medical Association (AMA) to develop a method to investigate physicians who have testified for tobacco companies, so it will be able to admonish, suspend and expel them from the American Medical Association.
205. AMA Reference Committee on Amendments to Constitution and Bylaws, Resolution 5 (I-01), "'Expert' Witness Testimony by Physicians on Behalf of Tobacco Companies," introduced by American College of Preventive Medicine to the American Medical Association House of Delegates, 24 October 2001.
206. Shuman and Greenberg, supra note 40, at 6.
207. D.W. Shuman and S.A. Greenberg, supra note 40, at 6.
208. Azia v. Dilascia, 64 Conn. App. 540 (2001).