Mon, 20 Apr 2015 16:55:46 +0000 en-US hourly 1 Stem cell essay Mon, 20 Apr 2015 16:55:46 +0000 Stem cell research: the failure of bioethics

by Don Marquis

In recent years the issue of human embryonic stem cell (hereafter HESC) research has engendered fierce debate. Some object to HESC research because they say it involves taking a human life. Others argue that its prospective benefits are so huge that not to pursue it would be immoral. It is unreasonable to think that such a controversy will be resolved by journalists or politicians or, for that matter, by patients who hope for a cure from some dreadful disease.

However, it does seem reasonable that practitioners of academic bioetbics should be able to help us clarify this issue. Presumably academics have the proper interests and education to think clearly about bioethics controversies. Academic essays provide an opportunity for careful examination of relevant arguments. Since leading bioethics and medical journals have devoted whole recent issues or parts of recent issues to this controversy, (1) examining this literature should shed considerable light on the HESO controversy.

Such an expectation, in this reader’s experience, will be disappointed. It is amazing how much of the HESC bioethics literature confines itself to describing the science underlying the dispute, or to giving historical accounts of the committees that have reported on this issue, or to surveying the dispute in general terms rather than closely analyzing the arguments that bear on the central ethical issues. (2) The arguments that are offered are typically presented in a cursory way Indeed, often they are more suggested than presented. Arguments that deserve critical scrutiny are quickly set out as if any rational reader would regard them as obviously sound.

No doubt there are many explanations for this. One, however, may have particular relevance to the HESC issue. Obtaining HESCs requires the destruction (or disaggregation, to use the sanitized term) of human embryos. (3) Whether such embryo destruction is morally permissible is (or should be) at the heart of the debate over the morality of HESC research. This has led many to expect that to a great extent, the stem cell controversy will mirror the abortion controversy If one believes there are good arguments for the moral permissibility of fetal destruction, then many of the same arguments can apply to embryo destruction. If one believes that destroying a fetus destroys a human life with full moral status, then presumably the same arguments can apply to embryos. When these considerations are combined with the fact that most partisans on both sides of the abortion dispute seem to consider their positions so obviously true that only cursory argument in defense of them is needed, we may have a plausible explanatio n for the superficial nature of the HESC discussion.

The purpose of this essay is to provide evidence for the claims made in the above two paragraphs. Consider first the major arguments for the view that HESC research should be banned, or at any rate not funded. Richard Doerflinger has defended this view on the grounds that it is incompatible with a Catholic viewpoint. (4) Gilbert Mellaender has defended the view on more general religious grounds. (5) There are obvious problems with such defenses. Religious views are essentially matters of faith, and it is widely thought that there are no objective grounds for preferring one variety of religious faith to others. The fact that there are so many varieties of Christianity and of Islam and, I suppose, of many other religions of which I know little, is evidence for this. Accordingly in the absence of a great deal of convincing argument that has not yet seen the light of day, particular religious considerations cannot establish the wrongness of HESO research. Such religious views count as no more than comforting opin ions, like preferences in furniture or food, and we are left with no reason whatsoever to accept them as binding on the rest of us, or for that matter, even binding on their proponents.

No doubt, the weakness of the religious arguments has suggested to some proponents of HESC research that defending their position requires only a wave at some nonreligious arguments. This may count, therefore, as another reason arguments concerning HESC research seem less than compelling.

The letter that invited this article stated that many readers of this publication hold a view that, if it were true, might furnish a good argument in favor of HESC research. According to the editor, many FREE INQUIRY readers “support untrammeled freedom in scientific research.” Yet to accept this slogan entails endorsement of the Tuskegee studies of the natural course of syphilis, or the notorious Willowbrook experiments in which retarded children were deliberately given hepatitis in order to study how that disease progressed, or the Nazi hypothermia experiments on Jews. However, there is a consensus among decent persons of all political and religious persuasions that these studies were profoundly immoral. Thus such an “untrammeled freedom” argument is plainly unsound.

Another argument for HESC research is based on the hope that it might provide cures, or at least reasonably successful treatments, for Alzheimer’s Disease, spinal cord injuries, muscular dystrophy diabetes, and other diseases. This prospective benefits argument, although often offered in popular or political discussion, is as hopeless as the untrammeled freedom argument. The Tuskegee, Willowbrook, and Nazi studies were wrong, not because they were bad or useless science, but because the human subjects in them were treated inhumanely Basic interests of those subjects were sacrificed without their consent for the ends of the research. There is now a strong consensus, both in society and in academic bioethics, that this is wrong even when the research clearly will promote the common good. In short, conformity with a respect for human subjects (RHS) principle is a necessary condition of morally permissible research, whatever its benefits. (6)

Just how should this RHS principle be formulated and qualified? Here is an issue that can provide a clear framework for analysis of the HESO dispute. Critics of HESC research claim in essence that it violates the principle of respect for human subjects. One can make at least a presumptive defense of the truth of this claim in the absence of any appeal to religion. Destroyed human embryos clearly belonged to our species. Therefore, they were human in one clear sense. Furthermore, the embryos in such research are clearly subjects, that is, the subjects of research. Thus, as the more thoughtful proponents of HESC research at least tacitly realize, arguments in favor of such research must appeal, not to an unrestricted or unqualified, RHS principle, but to a restricted or qualified, version. The case for HESC research requires the defence of a restricted version of the RHS principle that, on the one hand, does not include embryos and, on the other hand, includes those human subjects whose need for protection is uncontroversial.

How might such a case be made? Some authors have suggested that embryo destruction is permissible because embryos are not moral agents. (7) This in turn suggests a respect principle restricted to human subjects who are also moral agents. Plainly this will not do, since it is agreed by all decent people that scientific research that involves the destruction of two-year-olds is immoral, even though two-year-olds are not moral agents. It is worth noting, in this connection, that those retarded children who were deliberately infected with hepatitis in the Willowbrook experiments were not moral agents either.

Other authors have suggested that HESC research is morally permissible because embryos are not persons. (8) This is tantamount to claiming that the respect principle should be restricted to persons. A relevant meaning of person uses the term to refer to a cluster of psychological characteristics that human beings typically possess and animals do not. (9) But this restriction on the RHS principle is rejected by almost everyone. Infants clearly are not persons in this sense, and yet we believe that research that causes the destruction of infants is immoral.

One proponent of HESC research has offered a response to this objection. Carson Strong has defended the view that, although infants are not persons in virtue of any intrinsic property, good reasons exist for conferring the right to life on them because of the consequences for persons of doing so. Treating infants with love and concern will have good consequences for the persons they grow up to be. It will also have good consequences for other persons who may be affected adversely by those human beings who were treated badly when they were infants. Furthermore, treating some infants as expendable might lead us to lack concern for infants we intend to keep. (10) According to Strong these considerations, combined with the fact that infants “are viable, sentient, have the potential to become self-conscious, have been born, and are similar in appearance to the paradigm of human persons” are “significant enough to warrant conferring upon infants serious moral standing including a right to life.” (11)

Strong claims that, on a moral theory in which only persons have full moral status in and of themselves, our conferral of full moral status on infants is mandated. This is hard to believe. All of the reasons Strong cites for treating infants with love and concern apply as well to fetuses. Yet many believe that killing a fetus a woman does not intend to keep is perfectly compatible with love and concern for a fetus she does intend to keep. Strong might protest that this objection does not take account of the fact that infants are viable, sentient, have been born, and are like paradigm humans in appearance, whereas fetuses are not. The trouble with Strong’s view is that he argues that none of the more plausible of these factors is sufficient to underwrite full moral status. Given that, why should we assume that collectively they are of much help? Strong offers no argument here, only assertion. (12) Thus, we are left with good reason for thinking that restricting the RHS principle to persons is far too narrow

Some have suggested that the destruction of embryos is justified because embryos are not capable of sentience, that is, they lack the capacity for thoughts, feelings, or experiences.(13) For this argument to go through, the respect principle must be restricted to individuals with a capacity for consciousness. Embryos lack present capacity for consciousness. So do temporarily unconscious adults. We all agree that research on temporarily unconscious adults that causes their deaths is immoral. Hence, the present capacity for consciousness restriction on the RHS principle is untenable.

This problem with temporarily unconscious adults can be fixed by adopting a RHS principle that excludes only those in whom the absence of consciousness is irreversible. Because it is reasonable to think that a subject whose absence of consciousness is irreversible cannot be harmed in any morally significant way by his or her destruction, there is a good deal to be said for this change. However, an embryo’s lack of consciousness is not irreversible. In the proper environment embryos may develop mental capacities like our own. On this interpretation, a respect principle restricted to those with the capacity for consciousness (or a first cousin) might be defensible, but it does not exclude embryos.

One might attempt to deal with both of these problems by claiming that the RHS principle should be restricted to those who have in the past exhibited the capacity for consciousness. Critics of HESC research should respond that, instead, the RHS principle should be restricted to those who could in the future exhibit the capacity for consciousness. How should we resolve this disagreement? Society endorses medicine’s concern with prognosis. In view of this, critics of HESC research seem to have the more defensible view.

An argument often given in defense of HESO research is that an embryo “is not clearly even an individual,” (14) that at the embryo stage, “it is doubtful one can speak of individuality.” (15) Carol Tauer has reported that a consensus of the National Institutes of Health Human Embryo Research Panel favoring BESC research found that the embryo is not “a distinct individual,” that it lacks “developmental individuation” and thus lacks full moral status. (16) Ronald Green has made essentially the same argument. (17) Restricting the RHS principle to individuals certainly seems reasonable. But why should we suppose that embryos are not individuals?

Here is a reason for supposing that they are. One can count them. One can unambiguously refer to one embryo, and then to a second, and then to a third. So it seems that embryos are indeed individuals and that restricting the RHS principle to individuals does not succeed in excluding embryos from its scope. Supporters of HESC research will protest that embryos are not individuals because of the possibility of twinning. [See Berit Brogaard’s “Stem Cell Research and the Moral Status of the Human Embryo” in this issue for an extended defense of the twinning argument.–Eds] But why should one suppose that this is a reason that embryos are not individuals? One amoeba can split into two. This should not tempt us to claim that it was not the case that there was one individual amoeba before the splitting. Indeed, how could one understand what splitting into two is unless the amoeba were an individual before the split? But unless one understands what splitting into two is, one cannot understand at all what it is for an embryo to twin. Therefore, the individuality restriction, although defensible, seems not to be helpful to the proponent of embryonic stem cell research.

Supporters of HESC research have also made the argument that:

If an embryo is maintained outside a woman’s body and those who provided the gametes for it have not decided to permit its development in a womb, it is not effectively a state in the early development of a person. Put differently an extracorporeal embryo–whether used in research, discarded, or kept frozen–is simply not a precursor to any ongoing personal narrative. (18)

For this claim to do the work its proponents want it to do, the RHS principle must exclude cases where we fall to provide a human subject with an environment in which it can develop into a person. Thus such a restriction allows research on infants in a neonatal intensive care unit that results in their destruction or, for that matter, on any abandoned infant whatsoever. Accordingly, such a restricted version of the principle is too narrow.

Jeffrey Spike has argued that HESC research is morally permissible because it is not the case that embryos can develop independently. (19) This is will hardly do, for the restriction on the RHS principle that is needed to make Spike’s argument go through would allow unethical research on the disabled.

Spike has also defended HESC research on the grounds that “Biologically if every one of those embryos was put into a woman, perhaps 10 or 20 percent would survive to birth.” This won’t do either. Research on patients with cancer in which the survival rate is only 10 to 20 percent is not exempt from the RHS principle.

This concludes my survey of the arguments that human embryo destruction is morally permissible, or, alternatively that the principle of respect for human research subjects should be restricted so that embryos are excluded. What has been surveyed is not a pretty picture. In spite of the vast amounts of ink that academic bioethicists have spiked over the HESC issue, and in spite of the apparent sentiment among so many of them that HESC research should proceed, the crucial arguments offered to support this view are both sketchy and subject to all sorts of fairly obvious difficulties. Perhaps there are no arguments that can justify proceeding with HESC research. But that would oblige academic bioethicists to acknowledge the fact, not to pretend that this unpleasant little difficulty does not exist.

It is possible to imagine objections to the preceding analysis. or example, one might say that embryos cannot possibly be included in the RHS principle because that principle concerns the basic interests of human subjects–and embryos, lacking the capacity for consciousness, cannot have interests at all. (20) The argument for the latter claim is that whatever lacks the capacity for consciousness cannot take an interest in anything and what cannot take an interest in anything cannot have interests. (21) This objection is subject to a number of difficulties. The notion of what is in one’s interest should not be too tightly associated with what one takes an interest in. Not everything that people take an interest in is in their (best) interest and not everything that is in people’s best interest is what they take an interest in. Smokers and drug addicts are obvious examples. Furthermore, this objection cannot account for acting in the best interest of a temporarily unconscious adult or an infant.

Someone also might object to the preceding analysis on the grounds that respect for an individual is compatible with destroying her. (22) It would follow that my interpretation of respect for human subjects principle is too strong. However, whether or not such a notion of respect is possible is beside the point. The respect for human subjects principle used in standard medical research ethics does not permit harming human subjects without their consent if that harm can be anticipated.

One might also object to my analysis on the grounds that it holds proponents of HESC research to standards that are overly strict. Meyer and Nelson say:

Our goal, however, is not to provide a knock-down argument about the moral status or the embryo, but to show how one systematic, reasonable view on moral status in general can be used to defend thc moral propriety of destroying embryos that truly deserve respect. (23)

Meyer and Nelson refer to Mary Anne Warren’s “developmental view” of human moral status. (24) Other defenders of stem cell research also have appealed to her view. (25) Warren is best known for her view that abortion is morally permissible because fetuses lack full moral status. (26) Warren’s developmental view is indeed widely regarded as reasonable–precisely to those who consider abortion morally permissible on the grounds that fetuses lack full moral status because they are only developing human beings and not yet persons. If one holds this, then, of course, one will hold that a human being at the very earliest stages of development lacks moral standing. The triviality of this move boggles the mind. It has all the force of John Paul II’s defense of his views of the morality of abortion and euthanasia in terms of–well–his own moral theology. (27) What is required for the success of the Meyer-Nelson point is a criterion for the reasonableness of a view that can be accepted by any rational person.

An adequate analysis of Warren’s developmental view is far beyond the scope of this essay. In my view, a theory such as hers that bases full moral standing on moral agency cannot account even for the moral standing of adolescents, much less younger human beings, without some backing and filling and other moves that are utterly arbitrary. If proponents of HESC research are willing to tolerate arbitrariness, then they should not object to what they perceive as the arbitrariness of religious perspectives.

Another objection to the preceding analysis might be that the RHS principle includes embryos only if the embryo’s status as a potential human being gives it the same moral status as an actual human being. (28) It is clearly not wrong to destroy isolated human cells. The only difference between a zygote and some arbitrary skin cell is that the zygote is a potential human being. And why should we suppose that being a merely potential human being is sufficient to underwrite full moral status?

The critic of HESC research can reply by holding that embryos are actual human beings. They are very, very young human beings. Not all human beings look like middle-aged professors. It seems doubtful that the ordinary notion of actual human being is sufficiently precise to underwrite either this objection or the response to it.

Another objection to my analysis might concern its strategy. I considered candidate restrictions on a RHS principle individually, and argued that each is indefensible or does not exclude embryos. One might argue that each of those qualities (except for individuality) should be considered to be “candidate sufficient conditions” for full moral standing. One might go on to argue that since embryos meet none of the candidate sufficient conditions for full moral standing, then there is no reason to think that they have moral standing. And if there is no reason to think that they have moral standing, then HESC research is morally permissible.

The trouble with this objection is that in order for it to be successful, one would have to show that all of the candidate sufficient conditions for full moral standing had been considered. In the first place, this has not been done. In the second place, it is easy to think of candidates for full moral standing that proponents of HESC research have not considered.

Another objection to the preceding analysis is that I have presupposed that morality must be objective in a way that it cannot possibly be, and that therefore I have held the defenders of HESC research to impossibly high standards. Such a critic might argue that morality is a social construct, that it is not based on some natural property or other of individuals. (29) This objection opens a very large can of worms. One problem with a somewhat subjectivist conception of morality is showing that it does not permit too much; that in the course of showing that research on human embryos is morally permissible, it does not also show that practices that seem clearly immoral are also morally permissible. That is a difficult, and to my knowledge, not successfully attempted task.

This essay has endorsed no positive thesis. It has been concerned almost exclusively with criticizing the arguments of others. Can something positive and nonreligious be said in favor of banning human embryonic stem research? Here’s a suggestion for an argument: Falling to respect the basic interests of ordinary human beings for the purpose of scientific research is wrong. Age discrimination is morally wrong. When we were very, very young, we were mere embryos. Therefore, destruction of human embryos for the purposes of scientific research is wrong.

Carson Strong would object to this argument on the grounds that embryos do not become self-conscious beings, they only produce beings that are capable of self-consciousness. His reason for this claim is that the embryo that was your precursor was also the precursor of the placenta that supported you. (30) Such an argument appears to require the assumption that an entity cannot shed some of its parts and remain self-identical. However, this seems false: consider amputees.

I would not pretend that the preceding suggestion for an argument is anything more than that. Furthermore, even I find the claim that embryos deserve the same moral respect as adult human beings counterintuitive. Nevertheless, because I think that on issues like this, the moral intuitions of others are not authoritative, it would be outrageous for me to believe that my own intuitions are more authoritative. I’m inclined to think that some argument or other concerned with individuality might be successful in showing that HESC research is permissible. However, I used to think that arguments concerned with the individuality issue were much better than they actually are, so I have no confidence at all in this conjecture. Furthermore, the dismal failure of the arguments of so many who think that HESC research is morally permissible suggests that HESC research is not morally permissible. Of course, this conclusion could be shown to be false by only one good argument from HESC proponents.


(1.) Here are some leading examples. JAMA 284, no. 24 (December, 2000); Hastings Center Report 31, no. 1 (January/February 2001); Kennedy Institute of Ethics Journal 9, no. 2 (1999); American Journal of Bioethics 2, no. 1 (2002); Journal of Medicine and Philosophy 22, no. 5 (October 1997).

(2.) A recent issue of American Journal of Bioethics (2, no. 2) devoted to the stem cell issue is especially noteworthy in this respect.

(3.) This wonderful term is found in Robert P. Lanza, Arthur L. Caplan, Lee M. Silver, Jose B. Cibelli, Michael D. West, and Ronald M. Green, “The Ethical Validity of Using Nuclear Transfer in Human Transplantation,” JAMA 284, no. 24 (December 27, 2000): 3175-3179. I shall henceforth refer to this essay as “Caplan.”

(4.) Richard Doerflinger, “The Ethics of Funding Embryonic Stem Cell Research: A Catholic Viewpoint,” Kennedy Institute of Ethics Journal 9, no. 2: 137-150. Doerflinger does offer some non-religious considerations, but these are so cursorily presented that it is unclear exactly what they are. See p. 139.

(5.) Gilbert Meilaender, “The Point of a Ban, Or, How to Think about Stem Cell Research,” Hastings Center Report 31, no. 1 (January-February, 2001): 9-15.

(6.) I assume that some authors who appear to reject this principle, such as Glenn McGee and Arthur Caplan, “The Ethics and Politics of Small Sacrifices in Stem Cell Research,” Kennedy Institute of Ethics Journal, op. cit., 151-158 and Ronald M. Green, “Determining Moral Status,” American Journal of Bioethics, op. cit, pp. 20-30 are instead committed to qualification of the principle.

(7.) This is suggested in Michael J. Meyer and Lawrence J. Nelson, “Respecting What We Destroy: Reflection on Human Embryo Research,” Hastings Center Report 31, no. 1 (January-February 2001): 18.

(8.) Ibid. Carson Strong seems to hold this view. See his “The Moral Status of Preembryos, Embryos, Fetuses, and Infants,” The Journal of Medicine and Philosophy 22, no. 5 (October 1997): 457-78.

(9.) Dan Brock uses the term this way in Life and Death (Cambridge: Cambridge University Press, 1993), p. 372. Others do also.

(10.) These arguments can be found, as Strong notes, in S.I. Benn “Abortion, Infanticide and Respect for Persons,” and Joel Feinberg “Potentiality, Development and Rights.” Both are in Joel Feinberg (ed.) The Problem of Abortion, 2nd ed. (Belmont, Calif.: Wadsworth, 1984). See Strong, p. 464.

(11.) Strong, p. 468.

(12.) Ibid.

(13.) This argument can be found both in Caplan, p. 3177 and Meyer and Nelson, p. 18.

(14.) Meyer and Nelson, p. 18.

(15.) Caplan, p. 3177.

(16.) Carol Tauer, “Embryo Research and Public Policy,” Journal of Medicine and Public Policy 22, no. 5 (October 1997): p. 430.

(17.) Ronald Green also gives this argument. See op. cit. p. 22.

(18.) Meyer and Nelson, p. 18.

(19.) Jeffrey Spike, “Bush and Stem Cell Research: An Ethically Confused Policy,” American Journal of Bioethics 2, no. 1 (2002): 45.

(20.) Carson Strong would endorse this principle. See Strong, op. cit. p. 467.

(21.) This line of argument can be found in Bonnie Steinbuck, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (New York: Oxford University Press, 1992).

(22.) Meyer and Nelson, p. 19.

(23.) Ibid., p. 18.

(24.) Mary Anne Warren, Moral Status: Obligations to Persons and Other Living Things, (Oxford: Clarendon Press, 1997).

(25.) Eric Juengst and Michael Fossel, “The Ethics of Embryonic Stem Cells–Now and Forever, Cells Without End,” JAMA 284, no. 24 (December 27, 2000): 3180-3184.

(26.) Mary Anne Warren, “On the Moral and Legal Status of Abortion,” The Monist 57, no. 1 (January 1973): 43-61. This essay has been widely reprinted.

(27.) See John Paul II Evangelium Vitae (Boston: Daughter of St. Paul, 1995)

(28.) Caplan, p. 3177.

(29.) Ronald M. Green, op cit., pp. 20-30.

(30.) C. Strong, op. cit., p. 460. This argument originally is due to Steven Buckle, “Arguing from Potential,” Bioethics 2 (1988): 227-53.

Don Marquis is professors of philosophy at the University of Kansas, Lawrence. He has authored a widely reprinted secular argument that abortion is immoral.

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Essay on steroids Mon, 20 Apr 2015 16:45:44 +0000 Of muscles and mania

by Eleanor Grant

Intrigued when two men with no history of mental illness had to be hospitalized for psychotic episodes while taking steroids, psychiatrists Harrison G. Pope Jr. and David L. Katz wondered whether there might be a connection. They recruited 41 steroid-using bodybuilders and athletes from Boston- and Los Angeles-area gyms and interviewed the 39 men and two women exhaustively about their lives.

Of those interviewed, 12 percent reported overtly psychotic symptoms. One man heard nonexistent voices for five weeks; another was convinced that his friends were robbing him blind. Another 10 percent described symptoms the researchers call “subthreshold psychotic.” One bodybuilder, for example, was convinced that he could fall from a third-floor window without harm.

One-third of the steroid users showed major mood swings, and 12 percent experienced manic episodes. One bodybuilder twice bought expensive sports cars while on steroids, only to have to sell them later. Another deliberately drove an old car into a tree at 40 miles per hour while his friend videotaped the crash. Increased irritability and aggression in everyday situations were even more common.

Surprisingly, not one of the bodybuilders reported such behavior before taking steroids. Many were shocked by their bizarre actions. “Most said it was absolutely uncharacteristic,” Katz notes.

Many of the steroid users reported some physiological difficulties as well, such as hair loss, acne, testicular atrophy and breast swelling. Overall, however, “the psychiatric problems were far more pronounced than the physical ones,” according to Pope. Fortunately, the psychotic and manic symptoms disappeared promptly when steroid use was discontinued.

Why steroids would have such a disturbing effect on behavior is unclear. Most steroids taken by athletes are synthetic variations of the natural hormone testosterone, long associated with male aggression. But the exact biochemical mechanism involved remains a mystery.

Despite its largely illegal status–an estimated 80 percent of athletes’ steroids are obtained on the black market–steroid use is common among bodybuilders. Many of those Pope and Katz interviewed put steroid use among competitive bodybuilders at 100 percent. And bodybuilders aren’t the only ones. “Every professional football player I know takes them, with some position-related exceptions,” says Maj. Jim Wright, an exercise physiologist for the U.S. Army.

Pope, himself a bodybuilder who does not use steroids, believes that despite more rigorous testing and crackdowns on suppliers, the use of these potent drugs will continue unabated in sports in which power and aggression are at a premium. “It’s an illusion to think we can put a stop to it,” he says. “But the public needs to know that it goes on, and that there are dangers involved.”

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Surrogate motherhood essay Mon, 20 Apr 2015 16:39:15 +0000 Surrogacy: all the features of a relationship that could go wrong?


by Helen Szoke



The first IVF baby was born in Australia in 1980. However, before IVF technology became common practice, donor insemination had been used as a means of addressing male infertility. Although its use dates back to the 1950’s within hospital settings, it was not until 1987 that the Fatally Law Act (Cth) 1975 was amended to recognise the social parent in donor procedures as the legal parent, thus severing the legal relationship between the biological parent and the child. State governments reflected this change in their own legislation (2). Ironically these changes had the effect of further exacerbating the issues associated with the legal status of the child in surrogacy arrangements. The birth mother became the legal mother, irrespective of the genetic link.

As the use of IVF became more widespread, various federal and state reviews were instituted, with a view to identifying the public policy considerations associated with the use of reproductive technology (3). In 1988, IVF was applied to a totally different procedure which challenged all previous understandings of motherhood and family. The Kirkman sisters were involved in a very public surrogacy arrangement in Victoria, the first reported case of IVF surrogacy. Alice Kirkman was born in May that year, from an egg taken from her mother Maggie, and donor sperm. The resultant embryo was transferred to Maggie’s sister Linda, who safely carried the baby to term. The baby was handed over to Maggie and her husband, and subsequently an adoption order was made in accordance with state legislation. (Kirkman & Kirkman, 1988)

There are many features of that arrangement which suggest that there was not a high level of support for this form of altruistic surrogacy. The ethics committee of the hospital where the Kirkman’s doctor was a member of the IVF team found the proposed arrangement unethical, resulting in the transfer of the procedure to another hospital where there was no institutional ethics committee. (Waller, 1993) Victoria’s legislative provisions which were not in full force at that time clearly intended to allow altruistic surrogacy applications in only a small number of special circumstances. (Waller, 1993) However, the Kirkman episode did have the effect of placing altruistic surrogacy on the policy agenda. In 1988, the Australian Health Ministers’ Conference formed the National Bioethics Consultative Committee (NBCC) to report on a range of matters related to assisted reproductive technology. These included record keeping and access to information, birth certificates and birth records, counselling and access to reproductive technology. (National Binethics Consultative Committee, 1989) During the deliberations of the Committee, surrogacy was added as a further reference from the Council of Social Welfare Ministers, and an extensive discussion paper and report resulted. (National Bioethics Consultative Committee, 1990) The Consultative Committee reports did not hasten the move to national legislation. In fact, the recommendations supporting the regulation of altruistic surrogacy were not accepted by a joint meeting of the Australian Health and Welfare Ministers. Further, this meeting decided that the responsibility for advice to them on bioethical issues should be transferred to the NHMRC. This resulted in the formation of the Australian Health Ethics Committee (AHEC) and the ultimate demise of the NBCC. (Waller, 1993)

Commercial surrogacy has no basis in any Australian jurisdiction, and most of the Australian states have legislative provisions which make any contract in relation to a surrogacy agreement unenforceable, and any payment for the soliciting of a surrogacy arrangement illegal. The ACT is the only jurisdiction where altruistic IVF surrogacy is facilitated by statute. The Substitute Parents Agreement Act 1994 makes surrogacy agreements void and unenforceable and prohibits commercial arrangements, advertising and procuring a person to participate. However, provided these conditions are met and the interests of the child are considered paramount, altruistic or voluntary arrangements can be put into effect. This was clarified through the passage of the Substitute Parent Agreements (Consequential Amendments) Act 1994. (Wallace, 1995) The practice occurs in NSW, but without any statutory provisions directly regulating surrogacy, and it is allegedly also practised in WA. The variations between states mean that some people will pursue treatment in a state that allows the procedure. Such reproductive tourism is not new. Of greater concern, however, is the lack of any statutory provision that clarifies the status of the child born as a result of a surrogate arrangement. The very provisions that defined the legal status of a child born to a woman following a donor treatment procedure, confuse the issue in surrogacy. These provisions say that for all intents and purpose the woman who gives birth is the mother. This is not the desired outcome where the woman who gives birth is the surrogate. Only the ACT has addressed this requirement through legislation, where application may be made by the genetic parents of a child who is born as a result of surrogacy agreement to the Supreme Court to have the child’s birth certificate re-registered in their names. The child then has the same status and legal rights as a child who is adopted. In the case of a surrogacy arrangement that is not organised within a family, the adoption process becomes difficult, and legal custody must be sought through the Family Court. The Commonwealth Government lacks clear constitutional power to legislate on the issue of surrogacy. (Janu, 1996)

Although the demand for IVF surrogacy is not great, the primary consideration must be whether there is sufficient protection for the interests of the child who is born. The much publicised surrogacy arrangement by the Kirkman sisters spurred on the regulatory moves by respective state governments. Since then, Australia has experienced the first legally arbitrated tragedy of a custody battle in the Baby Evelyn case. (“Re Evelyn”, 1998) This case involved the use of traditional surrogacy, where the surrogate mother was inseminated with the commissioning father’s sperm. This case highlights how irreparably wrong such arrangements can go. This case was a de facto arrangement between the couples concerned and highlights the risks that are taken in the absence of selection, counselling, screening and competent medical management. ‘Evelyn’ was born to a woman who rived in South Australia, and who agreed to carry the child for a Queensland couple. The woman who gave birth was in fact the child’s natural mother, and she found she could not relinquish ‘Evelyn’ to her natural father and his wife. After family court proceedings the child was returned to her natural mother in South Australia with court orders specifying the type and frequency of contact between the child and her natural father and his wife. Professor Leeton estimates that of the 12,000 surrogate births in the United States over the last 20 years, approximately 0.6% resulted in legal disputes, and most of these were cases where traditional surrogacy was used. (Leeton, 1999) Notwithstanding the volume of the cases that lead to court proceedings, the gravity of placing a child in such circumstances through the intervention of assisted reproductive techniques cannot be underestimated.

Little can be done to monitor the private arrangements made between couples organising their own surrogacy arrangements. They do not become evident until a child is born and the legal status of the child has to be clarified. Arguably, such arrangements should be discouraged in law, as the complexity of surrogacy is exacerbated by the requirement that the surrogate mother relinquish her own biological child. Where reproductive technology is used, however, it is possible to monitor and regulate practice, providing checks and balances to ensure as far as possible the interest of all parties, and most importantly of the child, are protected. Much more public debate is required to progress this issue.


The most contentious application of social regulatory regimes relates to those which impinge on private behaviour. In this regard, where governments choose to regulate surrogacy practices, an added complexity arises because surrogacy raises a cluster of issues which are different from each other. The rationale for such intervention by government must thus be clearly defined, and the identification of the public interest clearly stated. In the justification for regulatory intervention, risk management is a major focus. Risk management used to be about war and famine. Increasingly it is about the risks of new technology. (Douglas, 1985) The management of risk may relate to ensuring consumers are able to make a free and informed choice, balancing private interests and public good, and balancing the contentious aspects of rights versus choice. A consumer may be protected from his or her own bad decision making through the imposition of a regulatory framework. “Governments have always, and must continue to be, in the business of regulating behaviour.” (Thomson, 1983) The question is, what behaviour is to be regulated?

In the case of surrogacy arrangements the question may be whether government should intervene to prohibit, intervene and provide checks and balances, or leave these arrangements to the province of the common law. All of these options are reflected in the different arrangements which have been instituted by different state governments. The policy maker may feel that free and informed choice is not possible. (Francis, 1993) Some commentators question the moral concerns about government intervention and ask if risks are better balanced if they are anticipated, or if one tries to mitigate their effects. (Wildavsky, 1983) Other commentators argue that both regulatory and non-regulatory frameworks must be looked at. Alternatives to regulation include common law suits, used to deal with injuries arising from defective products, or product liability, where a person may recover from the manufacturers following personal injury and the laws of nuisance and trespass. (Baram & McAllister, 1982) Each, however, has its limitations, as it addresses problems after the event and only on a case by case basis. They are also very expensive avenues for dealing with resolution of such problems. In those cases such as surrogacy arrangements where a child’s legal standing and protection is involved the parties may find the common law too imprecise and too tardy an instrument. Many state laws render surrogacy agreements or contracts void, overriding the potential common law avenues to enforce an agreement.

The acceptability of risks involves freedom as well as justice. The assessment of risk is thus objective, through an understanding of the institutional context, and subjective, through the perception of the individual. Social organizations impinge on private attitudes to risk. (Douglas, 1985) Regulatory intervention is thus more likely in those circumstances where the policy makers feel that free and informed choice is not possible, and the consumer must be protected. (Francis, 1993) In the case of altruistic surrogacy, however the question of protection is complex. Is it the child who is protected, or the commissioning parents or the surrogate mother? Or is it the general community, and the public interests which should be protected by prohibiting such arrangements? There may be confusion in areas of social regulation about assigning responsibility. Douglas argues that people regularly underestimate risk and will pay great attention to media coverage about air crashes, but don’t seem to notice the number of deaths associated with asthma. (Douglas, 1985) Similarly, Gertson et al identify the trend in consumer polling which consistently shows a preference by consumers for disclosure rather than regulation. However, in practice, consumers will not take into account advice given through educative campaigns and will more often listen to the advice of families and friends. (Gertson et al., 1988) In practice, this assessment and the government response will depend on contextual factors and community acceptance.

The assessment of risk becomes increasingly difficult in areas where the interests of the private individual overlap with the public interest.

“The polarisation of the ethical debate concerning IVF demonstrates
that one person’s instinct can foster reasoning and conclusions that
are quite different from those of another. Whether the diversity of
moral opinion concerning the effect of IVF on marriage, the family
and the nature of human parenthood should preclude regulation of the
area is a complex issue …” (McCartan, 1986)

Certainly for some commentators the development of reproductive technology is seen as providing government with “another reason to interfere with human reproduction in the guise of protection.” (Spallone, 1989) However, reproductive technologies are not just about treatment, hut also about the creation of new life under unusual circumstances. This has an impact not just on the individual involved but also on society more generally. Where surrogacy arrangements are put in place, this myriad of relationships is made more complex. Unlike donation, where the uncommitted sperm or egg is donated without further involvement or interaction, surrogacy involves a continuous and arguably intimate relationship over the period of a year or more. A pregnancy must be achieved, a baby gestated, medical checks undertaken, a baby delivered and then handed over. The wellbeing of the surrogate after the birth may be a consideration. The ability to confidently relinquish a child may be difficult, as was evident in the

Baby Evelyn case.
“Some friction developed between Mrs S (Surrogate) and the Q’s while
the Q’s were in South Australia relating to Mrs Q’s unwillingness to
persist with her efforts to breastfeed the child and because of
concerns Mrs S developed about the capacity of Mrs Q to properly
nurture the child and keep Mrs S informed.” (“Re Evelyn”, 1998)
There are many opportunities for changes of mind, changes in circumstances or real harm to the developing child along the way. Any pregnancy is a matter of uncontrollable features such as possible harm to the child, harm to the woman carrying the child, or changes in the familial circumstances. Surrogacy adds further dimensions to this. The intervention of the state into private activity is not a recent phenomenon. The nature of marriage and as a consequence the status of children born to that marriage has long been governed by legal requirements, albeit ones that have changed significantly in the last three decades. (Hale, 1996) The intervention may not be uniform. The legislative response to surrogacy in Australia has not been uniform. Surrogacy is distinguishable from other forms of reproductive technologies because it transfers the burden of gestation away from the whom wants the child. It also disrupts traditional notions of child rearing because it introduces an identifiable third party into an arrangement (Stuhmcke, 1994) as opposed to anonymous donation of gametes where the third party is often not identified to the corn missioning woman or couple. It is claimed that legislative response to surrogacy in Australia is perceived to be the prevailing moral view of the issue, yet there is a lack of empirical data about the incidence and the outcome of surrogacy arrangements. Opponents of surrogacy are very vocal. Those seeking surrogacy as a response to their particular circumstances are a small number, and naturally tend to remain silent because of their unusual and controversial problem

There are a number of responses which governments may institute for the regulation of altruistic surrogacy, which are variously applied in different states, or which could be explored in the future. Governments may utilise the common law to regulate practice, such as occurs in NSW. (Szoke, 1999) They may prohibit all forms of surrogacy contracts or make agreements unenforceable, such as occurs in all states where surrogacy legislation exists (4). Finally, certain forms of surrogacy may be regulated by state law, such as the Substitute Parents Act 1994 (ACT). In all states, the legal status of the child is regulated by legislation and affected by adoption laws. This is unfortunate as the basics motivation between surrogacy arrangements on the one hand and adoption procedures on the other are diametrically opposed as they represent a planned and wanted child against one that is neither. In the case of traditional or IVF surrogacy, the child is legally the child of the woman who gave birth. The process of the commissioning mother becoming the legal parent may be affected by state adoption laws, where private trade in children is prohibited, or Family Law, where custodial orders are given.

Matters to do with rights and choice are inevitably blurred. Democracies may vary in their emphasis on rights, with some placing a great emphasis on human rights and others emphasising human good. (Blank, 1984) Biomedical technologies have further focussed the role of rights, because they act on humans and directly deal with issues of life and death. (Blank, 1984) Positive rights impose obligations on others. McNeil identifies the difficulty of using individual rights as a measure of intervention, in that it emphasises individualism, and inevitably places issues into a consumer context. (McNeil, 1990) Within the context of a rights/responsibility understanding, it can be argued that no one person has an inalienable right to form a family through assisted means. A consideration of responsibility helps to place rights in a social context, and to prioritise competing rights. “Responsibility of society towards these individuals or groups must be gauged and their freedom of expressions and choice must be balanced against some broader responsibility for society.” (Blank, 1984) Democracies have a role in defining boundaries to be applied to these technologies.


One would expect that Australian state governments would continue the prohibition on commercial surrogacy and the unenforceability of a contract for a surrogacy arrangement. However, in the case of altruistic surrogacy, regulation rather than prohibition may provide a strategy that recognises diversity. “The creation of regulatory regimes bespeaks compromise–of limits, such as when another woman’s womb may be used or organs transplanted–unlike prohibitions of practice.”(Francis, 1993) This means that there must be a political will to develop facilitative regulatory mechanism and a commitment to ensuring that the public is informed about how the technology will be used.

For those who wish to argue that social regulatory regimes should be applied in a facilitative manner, then the regulation of medically indicated, altruistic IVF surrogacy arrangements is provides a means to protect interests, minimize risks and provide checks and balances which ensure that the parties to the arrangement are informed. In such circumstances, conditions may be imposed. It may be required that the provision an surrogacy treatment is only where there are medically indicated conditions, and where it is possible for there to be no biological link between the surrogate and the commissioning parents. The matter of rights in relation to relinquishing the child is also vexed, and the final decision must reside with the birth mother. There should be a prohibition on provision of” services by intermediary agencies, to ensure that there are no opportunities for exploitation of women who are willing to be surrogates, or the commissioning couple. Finally, it may be appropriate for the surrogate and the commissioning mother to have separate clinical supervision to allow the respective treating doctor to avoid a conflict of interest in treating the surrogate and the commissioning mother. This may address the conflict of interest, which arises when a doctor attempts to act in the best interest of” the surrogate and the commissioning couple, when they are both the mother of the same baby: (Rothenberg, 1990) Precedents already exist for the issuing of parental orders to enable the legal status of the child born to be clarified (5).

However, were such provisions to be put in place, the respective costs and benefits would have to be assessed. The Australian Health Ministers Council, in rejecting the recommendations of the National Bioethics Consultative Committee in 1990, were concerned that regulation of surrogacy in a facilitative way would institutionalise the practice as a means of family formation. In a similar vein, the medicalisation of surrogacy could be seen to legitimise the practice. (Rothenberg, 1990) Surrogacy arrangements are such that many aspects of the process could go wrong. The costs are high, because the child is the ultimate expression of that relationship. There is a high level of need or desire on the part of the commissioning parents, a necessity to involve a third party for at least the period of treatment and gestation, the involvement in a medical intervention where the outcomes which can be predicted are limited, and where there is a low level of community acceptance and understanding. Finally the issues of the legal status of the child remain unresolved. Legislation would then have to be changed to ensure that the legal status of the child could be clarified other than through a Family Court order. Such clarification would be in the interests of the child.

Proponents of regulation of surrogacy through statute argue that such concerns are the reason why such arrangements would be better managed through a regulatory process, rather than left to the free market to sort out. For example, it is legal to donate embryos, where the biological link is completely disaggregated from the social link. Why then could not this gift relationship be extended to gestation of a child, who is returned to their biological parent? Where there is monitoring and regulation of practice in such a volatile area, it is possible to afford proper medical, psychological and legal protections to the parties to the agreement. The concern is that where such a regulation does not occur, then people are forced into an unregulated market, which may exploit them financially and emotionally. (Dunn, 2001) Finally the complexities of these arrangements, it is argued, means that it is better to institute a risk management structure to ensure that only those appropriate cases are facilitated, and the parties enter into the arrangement fully informed and aware of the possible pitfalls in their decisions.

The options for the treatment of altruistic surrogacy remain diverse in Australia. The issue is not easily managed within the context of the public policy process, as it engenders real concerns about the challenge to commonly understood notions of gestation, motherhood and the family. In Victoria, surrogacy was a contentious issue in the revision of the legislation that led to the Infertility Treatment Act 1995. The Government and the Opposition both reached bi-partisan and bicameral agreement that altruistic surrogacy would not be encouraged in that State. At the end of the day, risk management and instituting checks and balances through statutory regulation can only be achieved where community acceptance exists.

(1) The commissioning couple is the couple who is unable or unwilling to have a child through normal gestation.

(2) Status of Children Act 1974 (Tas); Family Relationship Act 1984 (SA); Family Relationship Amendment Act 1984 (ACT); Status of Children Act 1984 (Vic); Artificial Conception Act 1984 (NSW); Artificial Conception Act 1985 (WA); Artificial Conception Act 1985 (Qld).

(3) Each state reported as follows:

Chalmers, D. “Committee to Investigate Artificial Conception and Related Matters.” Hobart: Tas Government 1985.

Justice Denack. “Report of the Special Committee appointment by the Queensland Government to enquire into the laws relating to artificial insemination, in-vitro ferzilisation and other related matters.” Brisbane: Qld Parliament 1984.

New South Wales Law Reform Commission “Report: Artificial Conception–Human Artificial Insemination 1986″; “Report: Artificial Conception–Surrogate Motherhood” 1988; “Report: Artificial Conception–In-Vitro Fertilisation” 1988.

Select Committee of the Legislative Council. “Artificial Insemination by Donor, In-Vitro Fertilisation and Embryo Transfer Procedures and Related Matters in South Australia.” Adelaide 1987.

W.A. Parliamentary Committee. “Report of the Committee Appointed by the Western Australian Government to Enquire into the Social, Legal and Ethical Issues Relating to in-Vitro Fertilisation.” Perry 1986.

Waller, L “Consolidated Reports of the Victorian Inquiry into IVF and Related Issues.” Melbourne 1990.

(4) See for example: Surrogate Parenthood Act 1988 (Qld); Substitute Parents Act 1994 (ACT); Surrogacy Contracts Act 1993 (Tas).

(5) See for example: Substitute Parents Act 1994 (ACT) and Human Fertilisation & Embryology Act 1990 (UK).


Acts of Parliament

Status of Children Act 1974 (Tas)

Family Relationships Amendment Act 1984 (ACT)

Family Relationships Amendment Act 1984 (Cth)

Status of Children Act 1984 (Vic)

Artificial Conception Act 1984 (WA)

Artificial Conception Act 1984 (NSW)

Surrogate Parenthood Act 1988 (Qld)

Surrogate Contracts Act 1993 (Tas)

Substitute Parent Agreement Act 1994 (ACT)

“Re Evelyn” (1998) FamCA 55 BR7321 of 1997

Baram, M.S. & McAllister, K. (1982) Alternatives to Regulation (Lexington, Lexington Books).

Bible, Genesis

Blank, R.H. (1984) Redefining Human Life: Reproductive Technologies and Social Policy (Boulder, Colorado, Westview Press).

Chalmers, D. Committee to Investigate Artificial Conception and Related Matters. Hobart: Tas Government 1985.

Justice Denack. Report of the Special Committee appointment by the Queensland Government to enquire into the laws relating to artificial insemination, in-vitro fertilisation and other related matters. Brisbane: Qld Parliament 1984.

Douglas, M. (1985) Risk Acceptability according to the social sciences (London, Routledge & Kegan Paul).

Dunn, M. (2001) ‘Outlawed surrogacy thriving’ Herald Sun, 21 April 2001, page 5.

Ferrari, J. (1997) ‘Infertile couples turn to US surrogate mums’ The Australian, 10 September 2001, page 5.

Francis, J. (1993) The Politics of Regulation (Mass, Blackwell).

Gertson, L.N., Fraleigh, C. & Schwab, R. (1988) The Deregulated Society (Pacific Grove, California, Brooks/Cole Publishing Company).

Hale, B. (1996) From the Test Tube to the Coffin. Choice and Regulation of Private Life (London, Stevens & Sons/Sweet & Maxwell).

Janu, P.W. (1996) The case for the discouragement of surrogacy arrangements, Journal of Law and Medicine, 4(1), pp. 72-81.

Kirkman, M. & Kirkman, L. (1988) My Sister’s Child (Melb, Penguin).

Leeton, J. (1991) Surrogacy, Aust N Z J Obstet Gynaecol, 3(3), pp. 260.

Leeton, J. (1999) Letter to the Editor, ANZJOG, (April).

McCartan, M.K. (1986) A Survey of the Legal, Ethical, and Public Policy Considerations of in vitro Fertilisation, Notre Dame Journal of Law, Ethics and Public Policy, 2, pp. 695-731.

McNeil, M. (1990) Reproductive Technologies: A New Terrain for the Sociology of Technology, in: M. McNeil, Varcoe, I, Yardley S. (EA) The New Reproductive Technologies (London, Macmillan).

National Bioethics Consultative Committee (1989) Reproductive Technology. Record keeping and Access to Information. Birth Certificates and Birth Records of Offspring Born as a Result of Gamete Donation.(Canberra, ACT, NBCC).

National Bioethics Consultative Committee (1990) Surrogacy. Reports 1 and 2. (Canberra, ACT, NBCC).

New South Wales Law Reform Commission. Report: Artificial Conception–Human Artificial Insemination 1986; Report: Artificial Conception–Surrogate Motherhood 1988; Report: Artificial Conception–In-Vitro Fertilisation 1988.

Rothenberg, K.H. (1990) Gestational Surrogacy and the Health Care Provider: Put Part of the IVF Genie back into the Bottle, Law, Medicine and Health Care, 18(4), pp. 345-352. Select Committee of the Legislative Council (as per back page 4).

Spallone, P. (1989) Beyond Conception. The New Politics of Reproduction. (Houndsmill, Macmillan).

Stuhmcke, A. (1994) Surrogate Motherhood: The Legal Position ha Australia, Journal of Law and Medicine, 2(2), pp. 116-124.

Szoke, H. (1999) Regulation of Assisted Reproductive Technology: the State of Play ha Australia, in: I. Freckleton & K. Petersen (Eds) Controversies in Health Law (Annandale, The Federation Press).

The Daily Telegraph ‘Writer to have baby for gay couple’ The Daily Telegraph, 24 March 2001, page 24.

Thomson, J.J. (1983) Some Questions About government Regulation of Behaviour, ha: T.R. Machan & M.B. Johnson (Eds) Rights and Regulation. Ethical, Political and Economic Issues (Cambridge, Mass, Ballinger Publishing Company).

W.A. Parliamentary Committee. Report of the Committee Appointed by the Western Australian Government to Enquire into the Social, Legal and Ethical Issues Relating to In-Vitro Ferlilisation. Perty, 1986.

Wallace, M. (1995) Health Care and the Law (North Ryde, Law Books Co Ltd).

Waller, L. (1990) Consolidated Reports of the Victorian Inquiry into IVF and Related Issues. 2nd Reprint (Melbourne, Vic, Committee to Consider the Social, Ethical and Legal issues arising from in-vitro fertilisation).

Waller, L. (1993) Surrogate Parenting First Worm Congress on Family Law and Children’s Rights (Sydney, NSW).

Wildavsky, A. (1983) Foreword, in: T.R. Machan & M.B. Johnson (Eds) Rights and Regulation. Ethical, Political and Economic Issues. (Cambridge Mass, Ballinger Publishing Company).



Helen Szoke is currently undertaking a PhD at the University of Melbourne, within the Political Science Department, looking at the public policy issues associated with the regulation of reproductive technologies. She has published a chapter entitled Regulation of Reproductive Technology in Australia. The State of Play. in CONTROVERSIES IN HEALTH LAW–Ian Freckleton and K Petersen (eds). Federation Press:Syd. 1999, and is currently awaiting the publication of “The State of ART Regulation’ which she has co-edited with Dr Jennifer Gunning. Helen has been the Chief Executive Officer of the Infertility Treatment Authority, in Melbourne, Victoria, Australia, since 1996. The Infertility Treatment Authority is a government statutory authority with responsibility for the implementation of statutory provisions outlined in the Infertility Treatment Act 1995.

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Tax reform essay Mon, 20 Apr 2015 16:16:41 +0000 A user’s guide to proposals to replace the U.S. tax system and strangle fiscal policy

by Neil H. Buchanan



The Flat Tax

Taxes on labor income provide a different angle on taxing people, rather than machines. The most famous of these is the Flat Tax. A fiat tax applies only to labor income (wages and salaries) and does not tax personal income from property (interest, dividends, or capital gains). On the business side, taxes are levied on net cash flow, i.e., business revenue after subtracting all expenses for wages, benefits, and investment. This effectively means that all investment spending is fully expensed, that is, 100 percent depreciated and deducted in the year that it is incurred. The tax rate is the same for both individuals and businesses.

Most flat tax plans are based on the proposal by Robert Hall and Alvin Rabushka [1995], who have been marketing this idea in one form or another for almost two decades. The Hall/Rabushka approach is “pure” in the sense that there are no further exemptions for specific items. However, in a bow to political reality, most fiat tax proponents in Congress would maintain the deductions for mortgage interest and charitable contributions.

 This is patently absurd. The current tax code would be no simpler than it is today if the five tax brackets were replaced by one rate. (How difficult is it to look up tax liability in a tax table? The complexity comes in actually computing the number to look up in that table.) Similarly, any flat tax could include graduated rates without changing any other aspect of the system.

The best Hall and Rabushka can come up with to justify the single rate is that multiple rates encourage income shifting, as taxpayers would supposedly try to make their incomes subject to the lowest rate possible. Currently, for example, corporate executives prefer to take their incomes in the form of capital gains (from stock options), rather than salary, since the tax rate on capital gains is half of the rate for earned income. However, this is only true if different sources of income are taxed at differing rates. Under a graduated tax schedule, high-income individuals could still be liable to pay taxes at a 40 percent rate for all of their income, while middle-class people could be liable to pay taxes at a 15 percent rate. No income shifting games would be possible.

Of course, the sponsors of fiat tax plans claim that the overall effect of their systems would be progressive despite their flat-rate structure – due to the large exemptions that reduce the proportion of income subject to tax. In virtually all fiat tax plans offered to date, the single tax rate is applied to all labor income minus a basic exemption (on the order of $20,000 for individuals).

Nevertheless, it is worth remembering that these plans are still committed to the notion that the maximum marginal tax rate on any level of income should be no more than a certain low percentage. This means that the country would be moving to a system in which a person with a million dollars in annual income would find their next dollar of labor income taxed at a maximum of, say, 17 percent instead of the current 39.6 percent.(5)

A flat tax does not exempt saving itself from taxation; instead, the income one earns from saving and investment is exempted from tax. Thus, the “cost of saving” is decreased (or, equivalently, the cost of consumption is increased) at the individual level, as one can earn a greater after-tax rate-of-return on any amount of saving at a particular interest rate. (Hall and Rabushka also claim that the plan itself would lower interest rates.)

More to the point, the action on the Flat Tax happens at the business end, as overall taxes on capital are reduced significantly. Even here, however, the story is not as clean as it seems, since different industries would experience wildly different changes in their tax liabilities. For example, aircraft makers would pay 1.4 percent more of their income in taxes, while automobile makers would pay 0.4 percent less [Merrill, Wertz, and Shah 1995].

Finally, the Flat Tax, despite the claims of its proponents that it is a completely worked-out plan, still has one major gap. Even after years of analysis and discussion, proponents of the Flat Tax do not know how they would tax financial services [Gleckman and McNamee 1996]. That is, how does one tax “net cash flow” when it is unclear what to include as revenues for companies whose business it is to turn over large flows of cash? Certainly, a bank’s revenues could not include all of its deposits, since it is merely holding that money for someone else. Therefore, it is not at all clear how the flat-taxers would tax banks or other financial corporations. This ought to be, to say the least, a matter of some concern for anyone who would suggest that the country should rewrite its entire tax code in favor of a fiat tax.(6)

Keeping the Income Tax but Sweeping out the Stables

A simple alternative to these reactionary plans is to keep the basic structure that we have now but to eliminate all of the complexity of the tax code by eliminating all deductions.(7) To date, the only detailed plan for fundamental change in the tax code that maintains an emphasis on income taxation was proposed by House Minority Leader Richard Gephardt. He calls his proposal the “10% Tax Plan,” which is something of a misnomer, since it has more than one tax bracket. It is an attempt to remove the complexity from the current tax code, thus expanding the tax base and lowering tax rates – while maintaining a progressive rate structure and a commitment to tax all income.

Under this plan,(8) all income, both earned and unearned, would be taxable for a majority of taxpayers at a 10 percent rate. At relatively high incomes ($40,200 of taxable income for a family of four, after subtracting $19,350 in exemptions, i.e., a gross income of $59,550), the marginal tax rate rises progressively to 20, 26, 32, and finally 34 percent for taxable income of more than $264,450. The only deduction that would be maintained is the mortgage interest deduction. The plan is relatively mute when it comes to business taxes, with the exception of a few smaller items like personal deductions for job-related expenses (which are reclassified as adjustments to income).

This plan is generally not implicated in most of the discussion below. However, it is the only progressive tax plan that has yet been seriously proposed, so it is worth mentioning simply as an alternative to the regressive plans.

Making Future Change More Difficult

One of the principle goals of economic policy is to create prosperity, preferably in both the immediate and longer-term senses. Part of the approach to achieving that goal should be to maintain maximum flexibility in policymaking, that is, to keep all policy options open. Circumstances will change, so forsaking certain policy options ahead of time is surely foolish.

Super-Majorities and Referenda

The paranoid (and mistaken) belief that legislators are simply salivating in their desire to raise taxes surreptitiously has spawned a set of anti-democratic and self-defeating proposals – many of them offered as constitutional amendments. Even Rep. Gephardt has proposed that a national referendum be held before any of the tax rates in his plan could be increased. Others have proposed super-majority requirements in both houses of Congress before taxes could be raised by any means (increases in rates, changes in exemptions, etc.). In some proposals, for example, more than two-thirds of both houses would have to approve any tax increase – which effectively means that either 34 senators or 146 representatives could prevent any tax change that would increase revenues.

The problem with these extraordinary requirements is that they can create rigidities in both directions. For example, in response to downturns in the economy, we should want to cut taxes – and to do so in a timely fashion. This seems easy enough, since no one has proposed procedural impediments to cutting taxes. The problem is that everyone will know that taxes, once cut, cannot be increased again without a huge expenditure of political capital. Since many in Congress and elsewhere are (perversely) committed to maintaining a balanced federal budget, the difficulty of raising taxes would be a potent reason to hesitate before cutting taxes – even in a downturn. Therefore, the likely result is that taxes would not be changed in either direction, except in extreme circumstances.

The various proposals are silent on this matter, but it is not necessarily clear that one could even pass a tax cut with a “sunset” clause in it. For example, one might propose the following: “Taxes will be decreased tomorrow and then increased back to their current level one year from tomorrow.” If this were to pass by less than a super-majority vote, there might be a legal challenge to the ability to “raise taxes” in the future, even if taxes are only to be raised back to their previous level.

Moreover, this logic does not apply solely to cyclical changes in the economy. If the economy were to start growing faster in a sustained way, we would normally believe that the higher-than-expected tax revenues should either be spent on previously ignored projects or reduced by enacting a tax cut. Should there be a super-majority requirement, however, any deficit-fearing member of Congress would not want to cut taxes, because the seeming improvement in the economy could prove to be short-lived. After all, even professional economists have difficulty distinguishing a cyclical upturn from a secular trend.

Only two possibilities would remain: either allow excess tax revenues to be a drag on the economy or spend the excess on whatever projects might be handy (since spending would not be required to fall under a super-majority rule – at least, not yet). Ironically, therefore, the results of a super-majority rule might be to decrease the likelihood of tax cuts in both good times and bad and to increase the level of government spending.

The final problem with the super-majority proposals involves what type of tax change is covered by the super-majority requirement. For example, a proposal by the so-called Kemp Commission [National Commission on Economic Growth and Tax Reform 1996], which would require a two-thirds majority vote in both the House and the Senate, applied only to proposals to raise the single tax rate itself.

This should hardly be comforting to anyone concerned about rampant taxation. Recall that the Flat Tax creates mild de facto progressivity by including a large standard deduction. Since the standard deduction would not be subject to the commission’s super-majority requirement, the easy way to raise taxes would be to decrease or eliminate the standard deduction. Perhaps not coincidentally, this would raise more taxes from the lower-middle class and the poor. Therefore, the system would be biased toward generating future regressivity.

This has encouraged efforts to create “loophole-free” tax limitation plans. One proposed constitutional amendment would impose a super-majority requirement on any law that would even indirectly increase federal tax revenue. (“Any bill, resolution, or other legislative measure changing the internal revenue laws shall require for final adoption in either House the concurrence of two-thirds of the members present, unless that bill, resolution, or measure is determined at the time of adoption, in a reasonable manner prescribed by law, not to increase the internal revenue by more than a de minimis amount” [Barton 1996].) As proposed, it is not clear whether such an amendment would even permit offsetting tax changes (two or more proposals that, on net, would leave tax revenue unchanged) to be passed by a simple majority. This means that any tax proposal that would raise revenue, whether a direct rate increase or an obscure definitional change that would broaden the tax base, could only be passed by a super-majority vote.

Beyond the nightmarish details involved with such a broad proposal, there is a much broader problem with such a plan. Supply-side economists (who are among those most anxious to reduce taxes on businesses and the wealthy) claim that tax rate cuts cause tax revenue increases. The famous “Laffer Curve” was designed, after all, to demonstrate that the government could receive more tax revenue by lowering the tax rate.

Whether or not one believes that particular assertion, the argument comes up again and again, from debates about capital gains taxation at the national level to arguments over property tax rates at the local level. In almost every case, one can find conflicting forecasts of both increases and decreases in tax revenue due to any proposed change in tax law. Indeed, Alan Auerbach [1996] points out that so-called “dynamic scoring,” which is supposed to include the effects on tax revenues of behavioral changes due to changes in tax policy, is unworkable because even the sign of the behavioral effect is unknowable.

If, as many proponents claim, a cut in the capital gains tax rate will increase tax revenue, then that proposal would require a super-majority vote. In that bizarre world, proponents of various changes in the tax code would be inspired to present evidence that their proposals will be revenue losers, which would allow them to be passed by simple majorities. The current debates would be turned upside down, with proponents of higher tax rates adopting Laffer Curve-style analyses to ease passage of their proposals.

Interactions with Budget Rules

If a super-majority requirement were enforced in conjunction with a constitutional amendment requiring a balanced budget, the situation would become murkier still. If a balanced budget amendment required a super-majority vote to set aside the requirement of a balanced budget (as most proposed versions of the amendment would do), then any change that would increase the deficit would require a super-majority vote. Tax law changes that forecast a decrease in tax revenue would then fall under that dragnet. In other words, no fiscal policy – no matter what its imagined effects on revenues – could ever be changed without a super-majority vote.

This would certainly further paralyze the political system. Nothing could be changed without a super-majority vote. Anyone opposed to any change need only show that the change has some effect on the federal fiscal system. For those who believe that a perfect fiscal system (so perfect that it will never need to be changed) can be put in place before these proposals become part of the Constitution, this might be the desired result. For others, however, the prospects are disheartening at best.

It is even possible that the system could completely break down. If the result of not changing the tax laws is to increase revenues, that too could be challenged as a “tax increase” that needs to be subjected to a super-majority vote. Thus, given the lack of ability to forecast revenues with any precision, there would be no “default” position. Any alternative, including the choice to stand pat, would be open to a constitutional challenge.

The only technical alternative to this would be to designate a particular agency that would make definitive forecasts for every policy initiative – forecasts that would have to be legally immune from challenge. This would further dilute the decisionmaking power of elected representatives.

Moreover, any such agency would be forced to institutionalize a single model of the economy. This would certainly be controversial among both economists and politicians, no matter which approach was chosen, since the economics profession is extremely split in its opinions about various approaches to modeling. Which version of Keynesianism or neoclassicism will be the “official” arbiter of economic policy? The possibilities for dispute and conflict are seemingly endless.

The overall conclusions regarding special voting rules are (1) if they apply only to changing the tax rate in a single-rate system, the result is inherently regressive; (2) if they apply to the rates but not to the base, they are easily sidestepped; (3) if they apply to the base as well as the rate(s), it is extremely difficult to define what a “tax increase” is, leading to more gamesmanship; and (4) in conjunction with a balanced-budget amendment (or a binding balanced-budget requirement), the super-majority requirement for tax increases will lead to legislative stasis.

The (Lack of) Reasoning Behind the Proposals

The proposals described above are, in some ways, entirely political creations. However, the underlying themes have a familiar ring, at least to those of us who have had contact with neoclassical economics. The basic argument underlying all neoclassical tax analyses is this: All taxes are inefficient, but taxes on capital are the worst of all. This section reviews the specific arguments that attempt to justify shifting taxes away from capital and toward working people.

Cutting Taxes on Capital (Entirely?)

On the empirical level, some interesting work has been done by economists who have attempted to apply the neoclassical model to actual U.S. data, testing whether cuts in taxes on capital will have the purported benefits. Steven Fazzari and Benjamin Herzon [1996] reach particularly devastating conclusions. Using a rather standard neoclassical model, and looking at the consequences of cutting the tax rate on capital from 28 percent to 19.8 percent, they actually confirm the orthodox conclusion that this would increase the level of GDP. However, the increase is hardly breathtaking. GDP would rise (as a result of the capital gains tax cut) by the amount that it currently rises in about a month.

Moreover, even this minimal effect must be put into perspective: (1) this is a one-time effect on GDP, not a permanent increase in the GDP growth rate; (2) even this trivial effect would take about 10 years to show up in the economy; and (3) even these tiny effects are based on highly generous estimates of the response of investment to a drop in the cost of capital. On the latter point, Fazzari and Herzon use an estimate that a 1 percent drop in the cost of capital will cause a 0.5 percent increase in the equilibrium level of the capital stock. In a rather dramatic understatement, they note that this is on the high side of the estimates reported in other economists’ work.

More accurately, other studies indicate that the response of investment to declines in the cost of capital is probably zero (see Buchanan [1999] for extensive references to these studies). Therefore, the range of estimates for this effect is not between, say, 0.4 and 0.5, so that Fazzari and Herzon’s choice of the higher estimate is arguably unimportant. Instead, the range is between 0.5 and 0.0, with the broad consensus hovering around the latter figure. The conclusion that there will be a one-time increase in GDP of 25-50 days growth therefore should be seen as an extreme upper bound, rather than as the midpoint of a range.

Empirical evidence also argues for extreme skepticism about other proposals to reduce the tax rate on capital. For example, the Investment Tax Credit, which is often used as an alternative to capital gains tax cuts, is equally unproven in creating more investment, as demonstrated by Thomas Karier [1994] and noted by Peter Clark [1993].

The common theme between all such studies is that they are looking at the results of reducing the cost of capital (through various methods). Since investment is not responsive to the cost of capital, it should not be surprising that the different methods of lowering the cost of capital are ineffective.

Moreover, it is not at all clear that capital is overtaxed in the United States, relative either to our own past or to other industrialized countries. Jane Gravelle [1994], for example, argues that aggregate effective tax rates on capital in this country have not gone up since the enactment of the landmark 1986 tax act. She writes [1994, 24]: “Thus, the claim for a need to lower capital income tax burdens on the grounds that increases in the 1986 Tax Reform Act were excessive is not supported by this measure of the effective rate.” Earlier, she notes that rates of capital income taxation are now as low as they have ever been in the United States, and in particular, as low as they were in the prosperous 1960s.

For international comparisons, Dale Jorgenson and Ralph Landau [1993] present estimates of effective tax rates for 1980, 1985, and 1990 from the major industrialized countries. They show that the effective tax rates on individual assets in the United States (as elsewhere) went up and down dramatically over that decade. For example, the effective marginal tax rate on tax-exempt institutions went from 4.2 percent to -1.2 percent to 16.9 percent in the three time periods noted. Also, most types of capital had a lower effective tax rate in the United States in 1985 than in 1980 or 1990, without any demonstrable jump in investment in the 1985-89 period, relative to the other two periods (even though there was no recession in the late eighties). Finally, the effective tax rate in the United States on key assets is comparable to the rates for our two major competitors. For example, the effective marginal tax rate on machinery is (using similar assumptions to produce estimates for each country) 33.5 percent in Japan, 39.8 percent in Germany, and 38.9 percent in the United States. The United States is hardly noncompetitive.

The fact that empirical studies have failed to find an impact from changing the tax treatment of capital on rates of investment is easier to understand if one looks more carefully at related theoretical work. A great deal of effort has gone into making the assumptions of neoclassical tax theory more realistic. For example, various studies have extended the simple model by allowing agents to have different preferences with regard to present versus future consumption and by introducing the concepts of risk and uncertainty into the models.

Studies of this type have shown that, even in theory, the effect of lowering taxes on capital is ambiguous in terms of its effects on economic efficiency. Gravelle [1994] notes that any change in the tax system that favors capital income will simultaneously result in changes in other taxes, spending, and deficit levels. How these other changes will effect the economy is entirely ambiguous. In fact, Gravelle shows several theoretical specifications in which efficiency is increased by raising taxes on capital.

Given this, it is not at all clear that moving to a supposedly capital-friendly approach will have the desired positive effects – quite aside from the many negative effects of the various proposals.


The notion of double-taxation has become a central point of concern for many tax analysts. (See Hall and Rabushka [1995] for a diatribe on this subject.) In its most limited form, double-taxation describes the levying of a corporate income tax on firms, followed by a personal income tax on any dividends. The term has now become, however, a much more broad complaint about the entire tax system.

Analysis of double-taxation should be separated into two parts. First, one would want to know the total effective tax rate on any particular flow of money. Second, one should also be concerned with whether any particular method of collecting taxes creates unwanted inefficiencies.

On the first question, it should be clear that what matters is not how many times something is taxed, but rather how much total tax is paid. Most people would, no doubt, rather pay $50 in tax four times than pay $1,000 in tax once. As the very orthodox analyses by Gravelle and Jorgenson and Landau noted above indicate, the effective tax rates on capital in the United States are not high. They are obviously not equal to the sum of the corporate profits tax rate (34 percent) plus the marginal tax rate on personal income (39.6 percent for most holders of significant amounts of stock). Not surprisingly, the complexity of the tax code works in favor of capital in this regard, reducing the net tax rate significantly.(9)

Much more important are the efficiency effects of double-taxation, which have been the subject of an extensive literature (reviewed very well by Gravelle). While there is little agreement about the overall efficiency effects of these tax artifacts (especially the size of any such effects), it is most likely the case that there are some inefficiencies of this sort caused by the tax system. However, these need to be weighed against the costs of changing the entire tax system. Using them as an excuse to replace the whole system is simply inappropriate.

It is also true that multiple taxation is not limited to capital income. Currently, labor income is taxed by the federal government twice – once by the Social Security system and once by the income tax. (One could even argue that there is triple-taxation, if one includes employers’ contributions to Social Security.)

Even the transition to a consumption tax would create a severe case of double-taxation. In the years when there is still an income tax, people pay tax on their incomes. However, anyone who puts some of their remaining money into a mutual fund, then withdraws the proceeds and spends them after the changeover to the consumption tax, would pay tax on that money again. Double-taxation would be part of the system so long as anyone had money on deposit from before the tax regime changed.(10)

Therefore, the preoccupation with the double-taxation of capital income is clearly not motivated by a desire to end multiple taxation. It is simply the typical Trojan horse for regressive tax changes. However, we should make no mistake about it. There is such a thing as double-taxation. It occurs whenever the same activity is taxed more than once. Therefore, profits are certainly double-taxed, as profits to businesses and as dividends to shareholders. Even if the net tax rate on capital is not too high as a result of this, why should the tax system be designed in this way?

There are two answers to this question, both of which are too practical to show up in a textbook. The first is that there is virtually no chance that double-taxation could be eliminated in a neutral fashion. That is, it is highly improbable that a political coalition could be formed that would agree to eliminate one of the two taxes while simultaneously raising the other tax rate to the appropriate level. Second, there are very good reasons to split a tax into parts, if (as is certainly the case) tax evasion cannot be completely eliminated. Hiding a gain twice is more difficult than hiding it once; so even if the tax system only catches the gain at one point and not the other, at least some tax revenue will be collected. This is not elegant, but it works.

More broadly, the language of double-taxation can be applied to virtually any situation. Since the economy is a system of flows – incomes flowing to households and businesses, deposits and withdrawals flowing into and out of financial institutions – one can describe nearly anything as multiple taxation by looking at the history of the transaction. A business can claim that any business tax amounts to double-taxation, for example, because the money flowing in as revenues was previously subject to sales tax and, prior to that, income tax.

A strong version of such disingenuous reasoning is found in the dead letter from the so-called Kemp Commission, which tried to describe the current tax code’s “Bias Against Saving and Investment.” Describing a family who has earned $1,000, paid $280 of that in federal income taxes, and decided to invest the remaining $720, the report describes four levels of taxation:

First, [the family] already had to pay income taxes to have the $720 to invest. Second, the company in which they invest will generally pay tax at a 35 percent rate on the returns on the amount invested. Third, if the company pays dividends, the family will pay a 28 percent tax on the dividends they receive. Alternatively, if the company retains the after tax income for reinvestment or finds other ways to boost future earnings, the stock price will rise. The future earnings will be taxed, and if the family sells the stock, it will pay a capital gains tax at a 28 percent rate. . . . Fourth, if they hold the proceeds of the sale until death, they will be subject to an estate tax that can go as high as 55 percent [National Commission on Economic Growth and Tax Reform, 1996; incorrect use of bold-face in original].

This “quadruple-taxation” is contrasted with the single-taxation that would result if the family had decided to spend the $720 on a trip to Disneyland, rather than to save it.(11) What is not stated is that one could just as easily follow the path of money spent on consumption and claim multiple taxation through similar reasoning: Disney uses the money to pay its employees, who pay Social Security tax and income tax and spend the remaining money on clothes, paying (in most states) sales tax, with the clothing company paying profit taxes and paying its employees, etc. Using this method of counting, it is possible to claim that any flow of money is taxed an infinite number of times.

What makes that type of reasoning wrong, of course, is that the different taxes are being levied due to different economic events. The second and third levels of tax noted above, for example, are not taxes on the $720, but on the gains created by the investment of the $720. The investment itself is not being re-taxed. Similarly, the inheritance tax is not a continuation of taxation on a flow of income, but a way to recapture part of a stock of wealth that would otherwise be passed to heirs who have done nothing – “entrepreneurial” or otherwise – to benefit the economy.

The issue of double-taxation has an important, though limited, role to play in tax debates. However, the issue is currently being overused beyond the point of absurdity. The appropriate questions remain the total amount of taxes levied and the efficiency effects that they cause.

Social Engineering and the Myth of Economic Neutrality

Perhaps the most striking fact about the proponents of reactionary tax proposals is their failure to recognize that it is not possible to build a tax system that does not “distort” the economy. To listen to their rhetoric, one would think that the economy has been ruined by liberal “social engineers” who insist on loading the federal income tax code with provisions to encourage pernicious behaviors – all the while making life more difficult for entrepreneurs who yearn only for a level playing field on which to compete. This would be comical if it were not so serious. To be blunt, social engineering (or whatever one wants to call it) is both good and inevitable. Everyone does it, not because everyone occasionally gives in to temptation, but because tax policy cannot be about anything but changing social outcomes.

The unchallenged notion that underlies much of the current debate is the idea that the tax code could be made economically neutral, i.e., that people could make decisions not on the basis of tax considerations, but on the basis of their personal preferences and the possibilities of a free marketplace. Once again, this evocative rhetoric has no correlation with reality. To put the point as simply as possible: How can the U.S. government have collected more than $1.8 trillion dollars in 1999 (more than one-fifth of personal income) without affecting people’s behavior? It is simply not possible.

Neoclassicals define economics as the study of human responses to incentives. As such, every institutional structure is analyzed to find the incentives and disincentives that it embodies. This is particularly true of the tax system – perhaps the most extensively studied incentive system in the entire economy. It is, quite simply, not possible to construct a tax system without incentives and disincentives. No tax system can be “neutral,” allowing the economy to move to some state of nature in which all human decisions are led by an invisible hand.

Indeed, even the simplest of tax systems, the “head tax” (where every person pays exactly the same number of dollars per year, no matter what their situation – or what the British call a “poll tax”), creates incentives and disincentives. For example, some people might respond to such a tax by legally “disappearing,” that is, by altering their behavior in ways that allow them to pay no tax. This involves making choices to give up some activities that are more likely to result in discovery.

Moreover, a head tax would create a clear disincentive to having children (although, as always, the magnitude of that disincentive is unclear), since every child would create a tax liability yet would be unable to work for quite a number of years. (Similarly, an exemption for children below a certain age would create other behavioral distortions – lying about the ages of one’s children, incentives to throw children out of the household on a certain date, etc.) While these particulars might seem a bit silly to some, they are exactly what those who dream of a perfect tax system claim that they can eliminate.

The effects of taxes on saving is another fertile area of faulty analysis. The current tax code is often asserted to have built-in disincentives to save. (The extensive, and generous, inducements to save are conveniently ignored.) This is one reason why, for example, the tax-preferred treatment of IRAs and pensions is broadly popular among politicians of both parties.(12) It is also why the tax deduction for interest on consumer debt was phased out – with no discernible impact on the saving rate, which continued to decline.

The crucial point, however, is that the more extreme tax reform proposals wipe out the existing tax code, including all of its disincentives (and incentives) regarding saving. Then, starting from a blank slate, they tax consumption only. This is therefore quite clearly “social engineering,” with the self-appointed tax engineers making the judgment that the economy would be better off with a larger amount of saving than the private economy would naturally produce.

While one could claim that the years of artificially low saving need to be followed by years of artificially high saving (an arguable proposition, at best), this would imply that there would be some point at which consumption should no longer be penalized. However, this is not part of any of the proposals offered to date, and the rhetoric is rather overwhelmingly anti-consumption in general – not just anti-consumption as a short-term corrective.

When it comes to social engineering, of course, it is notable that the one deduction that is allowed in many of the proposed tax systems is the dependent-child exemption. House Majority Leader Armey, indeed, specifically refers to the importance of making the tax system fairer for “families.” If we believe that people respond to financial incentives, might we not conclude that this incentive to have children is an attempt at social engineering? After all, many state welfare systems have been changed recently to prevent a minuscule financial incentive from inducing a population explosion among the poor. Why should that not be a similar concern in the general tax code?

It is possible, of course, to accept the “unpleasant” fact that taxation moves people’s behavior away from the invisible hand’s optima but still believe that these distortions should not be considered consciously when designing tax policy. A tax that distorts behavior is one thing; but when Congress deliberately decides to favor one activity over another, that is “social engineering.” This “see no evil” approach, which says that distortions are fine so long as we do not know what they are, is bizarre at best. If the economy is not going to be where the non-taxed free market would have it anyway, why not use our admittedly limited analytical powers to see if we can improve matters? This is no longer a matter of moving away from a state of grace, but rather of moving from one creation of fallible humans to another.

The dream of the non-distorting tax is therefore forever to remain unrealized. Of course, this is not to deny that some tax systems are more transparent than others in how they alter behavior. Even if it is not possible to be perfectly neutral, it is at least possible to be simpler than the current tax code. Increased transparency should not be automatically equated with decreased distortion, however. For example, a perfectly transparent tax that would levy a 100 percent rate on all commercial transactions in the state of Texas would hardly lead to small changes in behavior and efficiency.

Therefore, rather than imagining that we can build a non-distorting tax system, the best criteria to evaluate a tax system are (1) what goals are you trying to promote? and (2) are you succeeding? Any analysis of the tax system therefore must proceed from normative assumptions. Since the proponents of trickle-down economics do not want to admit publicly that their real agenda is to shift income upward, they find it more convenient to talk in misleading terms about inefficiency and social engineering. We should not be fooled.


With the significant exception of a simplified income tax system, every plan to replace the current U.S. federal tax system would move us in precisely the wrong direction. These plans would abandon income taxation entirely in an attempt to solve problems that do not exist, and they are based on a flawed ideal of a neutral tax code. The companion to these plans is an even more misguided set of proposals (some in the form of constitutional amendments) that would severely limit future fiscal policy.

No matter the results of this round of the tax debate, however, when the day is done we can be sure of one thing: someone will have a new proposal the next day. It might even be better than anything we have now.


1. While most current tax proposals are clearly motivated by a desire to make the U.S. tax code less progressive (or more regressive), this essay will generally concentrate on the technical and political aspects of various approaches to taxation. (It is impossible not to say something about progressivity along the way, though.) Of course, this does not imply that the effects of the tax code on the distribution of income and wealth are unimportant. Quite the opposite. See Buchanan [1998] for a spirited defense of progressivity and some proposals for progressive tax reform.

2. Interestingly, however, no serious proposals have been offered to simplify anything but the federal tax system. Given that there are more than 80,000 taxing authorities in the United States, the tax system’s complexities probably have as much to do with interactions among jurisdictions as with the federal tax code itself.

3. An entirely different dimension of the tax code is also under severe attack. Most of the Republican leadership in Congress are committed to repealing the estate tax. This dangerous idea is too broad to be included in the analysis here. However, the interested reader might find it useful to refer to the article mentioned in note 1 for analysis and further references.

4. This, of course, ignores the possibility that the Flat Tax will be so beneficial to the economy that more tax revenue will be realized from lower tax rates. The Laffer Curve, which refuses to die, is a subject for a different essay.

5. Their next dollar of capital income, of course, would not be taxed at all – or, to put it in Hall and Rabushka’s terms, it would be taxed at the firm level before it was received as income.

6. This is also a rather stunning omission, given Hall and Rabushka’s claim that they have heard, and successfully defended their plan against, every possible argument that can be raised against it.

7. As a practical matter, of course, strong political constituencies will defend much of what makes the tax code complex; and even if we were to succeed in simplifying the current code, new complexities would be added all the time. A more modest understanding of this problem is to view it as a process, not a once-and-for-all solution.

8. These details were last spelled out in 1996. Even with Gephardt’s presidential ambitions temporarily on hold, however, something like this plan could emerge again rather soon, with slightly revised details.

9. The extreme example of this is the tax treatment of real estate. According to Hudson [1995], real estate is effectively not taxed at all!

10. There are endless aspects of the transition from the current system to any sweeping alternative system. None of these has been worked out to anyone’s satisfaction. Although these issues are beside the point of this analysis, suffice it to say that any claims that any new system would simplify people’s lives would come to be seen as cruel jokes as taxpayers tried to negotiate two tax systems and make choices between them. Since the transition period could last as long as 30 years, this is hardly a small issue.

11. Perhaps it would be too much to hope that proponents of a plan to shift the tax burden to working people would not invoke the Disney corporation, which pays its chief executive several hundred million dollars per year.

12. It is odd that neoclassicals forget their own theories when they analyze taxes and saving. As any graduate of an intermediate microeconomics class knows, any change in “prices” can be separated into income effects and substitution effects, with the relative sizes of the two effects unknown. Why, when it comes to saving, is the substitution effect always assumed to be greater than the income effect, so that higher net interest rates always raise saving?


Auerbach, Alan. “Dynamic Revenue Estimation.” Journal of Economic Perspectives (Winter 1996): 141-158.

Barton, Joe. 104th Congress, 2d Session. “H. J. RES. 169, Proposing an Amendment to the Constitution of the United States Relating to Taxes.” March 28, 1996.

Buchanan, Neil H. “Some Proposals for Progressive Tax Reform.” Center for Advanced Macroeconomic Policy (CAMP). Working Paper no. 1998-09, October 1998.

—–. “Taxes, Saving, and Macroeconomics.” Journal of Economic Issues 33, no. 1 (March 1999): 59-76.

Clark, Peter K. “Tax Incentives and Equipment Investment.” Brookings Papers on Economic Activity 1 (1993): 317-47.

Fazzari, Steven M., and Benjamin Herzon. “Capital Gains Taxes and Economic Growth: Effects of a Capital Gains Tax Cut on the Investment Behavior of Firms.” The Jerome Levy Economics Institute, Public Policy Brief no. 25, 1996.

Gleckman, Howard, and Mike McNamee. “The Flat Tax May Be Back. Right, Bob?” Business Week (June 10, 1996): 34-35.

Gravelle, Jane. The Economic Effects of Taxing Capital Income. Cambridge, Mass.: The MIT Press, 1994.

Hall, Robert H., and Alvin Rabushka. The Flat Tax. 2d ed. Stanford, Calif.: Hoover Institution Press, 1995.

Hudson, Michael. “Comments at the ‘Land, Wealth, and Poverty Conference’.” The Jerome Levy Economics Institute, November 2-4, 1995.

Jorgenson, Dale W., and Ralph Landau, eds. Tax Reform and the Cost of Capital: An International Comparison. Washington, D.C.: The Brookings Institution, 1993.

Karier, Thomas. “Investment Tax Credit Reconsidered: Business Tax Incentives and Investments.” The Jerome Levy Economics Institute, Public Policy Brief no. 13, 1994.

Merrill, Peter, Ken Wertz, and Shvetank Shah. “Corporate Tax Liability Under the USA and Flat Taxes.” Tax Notes (August 7, 1995): 741-745.

National Commission on Economic Growth and Tax Reform. Unleashing America’s Potential: A Pro-Growth, Pro-Family Tax System for the 21st Century. New York: St. Martin’s Griffin, 1996.

Slemrod, Joel B. Statement of Joel B. Slemrod. Testimony before the Senate Finance Committee, Washington, D.C., April 5, 1995.

Neil H. Buchanan holds a Ph.D. in Economics from Harvard University.

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Essay on tobacco industry Mon, 20 Apr 2015 15:54:30 +0000 Should Congress decide the future of the tobacco industry

by John McCain , Robert A. Levy
The measure was developed in cooperation with the attorneys general, representatives of the public -health sector and the Clinton administration. It contains the six major initiatives experts say must be jointly undertaken if we are to cure the pediatric epidemic of tobacco use. These elements include: (1) advertising restrictions to eliminate marketing appeals to youth; (2) higher cigarette prices to deter underage consumption; (3) aggressive youth-smoking reduction targets and industry penalties for nonattainment; (4) stronger enforcement of youth tobacco-access rules; (5) public disclosure, oversight and regulation of cigarette ingredients; and (6) industry payments to compensate for smoking-related medical costs and to finance smoking prevention, cessation and medical-research programs.

First, marketing and advertising. Documents disclosed in courts and Congress prove that tobacco companies have targeted and groomed the youth market to replace the 400,000 customers they “lose” each year. Studies show that young people are particularly susceptible to the industry’s marketing pitches. So effective have these companies been at appealing to youth, that many children can identify Joe Camel as readily as they do Barney or cartoon characters.

The bill would place vast advertising and marketing restrictions on the tobacco industry, including a ban on billboards and outdoor advertising at sports arenas, as well as a prohibition of color ads and the use of human and animal figures. It would restrict point-of-sale advertising to ensure that cigarette pitches aren’t directed at children and would require bold, new warning labels on cigarette packaging. And, the tobacco industry would not be permitted to pay Hollywood to have its products featured in entertainment media.

Second higher cigarette prices. Experts say the most important step to deter youth consumption is to hike the price of tobacco products. Health studies show that consumption of only a modest number of cigarettes can result in clinical addiction, and that higher pricing is essential to deter underage use. Accordingly, the bill would increase the price per pack of cigarettes by a minimum of $1.10 over five years. The Clinton administration believes that this hike, included in the president’s budget request, could cut youth consumption in half.

Third, youth smoking-reduction targets. Four-and-one-half million underage Americans use tobacco, and the number is growing.

The bill calls for a 60 percent reduction in youth consumption within 10 years and levies hefty financial penalties on the tobacco industry for failing to achieve them.

Fourth, stronger enforcement of rules for youth access to tobacco products. While smoking by minors is prohibited in every state, youths continue to buy tobacco. The bill would require that tobacco products be stored in areas inaccessible to youths and required retailers to “card” tobacco purchasers in the same manner as alcohol buyers. In addition, the bill would ban vending machines, except in adult facilities, and require face-to-face transactions where teens are present.

Fifth, cigarette-ingredient regulation. Cigarettes contain numerous active ingredients harmful to health, including nicotine, tar and ammonia. Evidence suggests that the tobacco industry has manipulated these ingredients to enhance their addictive qualities and, in some instances, added benign substances such as molasses to sweeten the taste for introductory users–our children.

The bill would permit the FDA to oversee and regulate tobacco products in order to protect public health and promote the development of safer cigarettes. However, any ban on nicotine, tobacco products or retail sales of tobacco could not go into effect for two years, enabling Congress time to act. Moreover, the FDA would have to consider the black-market potential of any modification to cigarettes that would push uses to seek contraband products.

Sixth, industry payments. Smoking-related health-care costs exceed a whopping $45 billion per year! The bill would require the industry to pay $516 billion during the next 25 years to reimburse taxpayers for costs to Medicare and state healthcare programs. These funds also would be employed to finance smoking-related health research, prevention and cessation activities, as well as to help innocent tobacco farmers and rural communities affected by changes in the industry.

Finally, the bill would place a cap on the tobacco industry’s exposure to legal liability without barring any individual or group’s ability to sue or receive compensation. The tobacco industry has successfully fended off lawsuits for years. However, should trends change and massive new judgments be awarded against the tobacco industry, bankruptcy is always a possibility.

Experts agree that bankruptcy is an undesirable outcome for the nation economically, legally and medically. Involving bankruptcy would permit the industry to shield itself from its financial responsibilities, including compensation to victims. When the asbestos companies went bankrupt and left the financial and legal mess that it still with us, only the lawyers made out. Moreover, the extinction of domestic manufacturers would simply push tobacco users to purchase foreign brands or unregulated contraband which would lead to a public-health crisis.

We have heard many opinions about whether the industry — at the end of the day — will submit to this legislation. Legal challenges, of course, would delay reforms, so industry cooperation would be advantageous. While public-health authorities insist that price hikes are the key to cutting underage smoking, they alone won’t do the job.

The proposed advertising restrictions and youth-usage penalties, which the industry is threatening to challenge, are essential pieces of the puzzle.

The National Tobacco Policy and Youth Smoking Reduction Act, however, was never intended to be a “deal” with the tobacco industry. Our mission was to pass the best possible legislation to stop youth smoking. That’s what the public has demanded and, with that goal in mind, the bill will be considered by the full Senate, where it will be further refined.

Tobacco is a legal products and the decision to use it, though risky, is a choice for adults to make. Nevertheless, the nation requires that the tobacco industry join us in the fight to protect our children. If they choose not to, the American people will respond accordingly. Congress will act, and the states will resume their lawsuits to extract in court what we might more efficiently achieve through cooperation.

The real bottom line for tobacco legislation is not about the industry’s finances but rather, the health of our children.

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Violence in the media essay Mon, 20 Apr 2015 15:38:39 +0000 Controlling Communications That Teach or Demonstrate Violence: “The Movie Made Them Do It”.

by Lillian R. BeVier

Violence sells. Americans have what sometimes seems to be an insatiable appetite for it. Depictions and descriptions of violence saturate our culture. Songs urge us to rape women, kill police officers, and commit suicide. Movies portray–indeed they glorify–violence as an intrinsic element of every imaginable plot line.

Despite substantial evidence that an individual’s repeated exposure to portrayals of violence is associated with significantly increased likelihood that the individual will commit aggressive acts against others, (1) no legal regime currently regulates such portrayals either on television, in music, in movies, or in video games. Neither Congress, the Federal Communications Commission, the Federal Trade Commission, nor any state legislature has yet mustered the political will to impose substantial or systematic legal constraints upon producers or purveyors of violent images. Official censorship is rightly to be feared, but unreflective invocations of our commitment to freedom of speech provide incomplete justification for our legal regime’s apparent indifference to the possibility that media-induced violence may impose substantial costs on innocent victims. Industries other than entertainment are subject to substantial regulation; and in other industries profit-making corporations are held by tort law to far-reaching duties to protect not only their customers but also innocent bystanders from harm that their products cause. (2) What reasons of legal policy counsel against imposing similar regulations and duties on the entertainment industry? Ought we to reconsider them?

This paper offers a modest beginning to the exploration of the reasons that support the legal and political decision to refrain from regulating media portrayals of violence. It will summarize the basic outlines of several common-law doctrines that could conceivably be deployed to impose liability on publishers or purveyors of communicative material–books, movies, video games, and music–that might be thought to have induced individuals to engage in violent behavior that harmed innocent victims. The paper will not consider legislation or regulations that propose restricting or punishing such material. Since the beginning of 2003, for example, legislators in various states and cities have introduced 16 anti-video game bills alone, and Congress and the Federal Trade Commission also periodically consider similar restrictions. (3) The policy and constitutional issues that legislative or administrative agency regulations would present are in many respects similar to the kinds of issues that the prospect of judge-imposed liability raises, but the legal and institutional contexts of legislation and regulation are sufficiently different from the context of litigation to warrant excluding them from the present discussion. The paper will briefly describe the common law doctrines of negligence, product liability, and aiding and abetting as potential sources of media accountability. It will identify the principal reasons why courts have generally been reluctant to use them to impose liability on media defendants. In addition, on the assumption that the tort policy roadblocks to liability could–or perhaps should–be overcome, it will discuss the First Amendment roadblocks. Readers should understand that the paper does not aim, nor does it purport, to provide a complete or nuanced analysis of legal doctrine. Rather, it seeks to use legal doctrine as a framework for structuring a discussion of why liability for media-induced violence is the exception rather than the role. It keeps legal jargon to a minimum while seeking to supply a transparent, though necessarily truncated, summary of the legal basics.


The relevant legal questions have arisen in three related situations. First is the publication of manuals containing specific and explicit instructions about how to commit a crime-how to build a bomb or how to become a hired killer and commit a successful murder. An example of the latter is the publication Hit Man: A Technical Manual for Independent Contractors, which contained 130 pages of detailed factual instructions on how to become a professional killer and, once hired to kill, how to carry out the murder. In Rice v. Paladin Enterprises, Inc., (4) for example, family members of the hired killer’s victims sued the publisher of the manual. Materials that explicitly teach audiences how to engage in violent acts pursue an agenda and raise legal issues that are different from those that merely portray or glamorize violence and thus “teach” it only implicitly or by example. Both kinds of materials, however, have been alleged to have caused members of the audience to commit violent acts for which the victims or their families have sought recompense not merely from the perpetrators but from the media corporation that produced them. Thus both raise the kinds of issues with which this paper is concerned

The second example is the so-called “copy-cat” situation, in which particular violent or harmful acts portrayed in film or on television become the inspiration for audience members’ violent acts, and the victims’ families sue the producers. In Olivia N. v. NBC, (5) for example, a gang of teenagers allegedly inspired by a showing of “Born Innocent” on television savagely assaulted a 9-year old girl and raped her with a bottle. And in Yakubowicz v. Paramount Pictures Corporation, (6) a teenager was knifed to death by a gang who had just come from watching “The Warriors,” a film that included numerous scenes of juvenile gang-related violence. Sometimes the victim of the copy-cat crime is the copy-cat himself. In Herceg v. Hustler Magazine, (7) for example, an adolescent who read an article called “Orgasm of Death” in the magazine attempted “auto-erotic asphyxia” and killed himself doing so.

The third paradigmatic situation is closely related to the copy-cat case. It gives rise to the claim that “the movie–or the television program, or the music, or the video game-made me do it.” In Zamora v. State, (8) for example, a teenager claiming to have become a sociopath by reason of having been “involuntarily subliminally intoxicated” by watching thousands of murders on television brutally murdered his 82-year old neighbor. And in another case, McCollum v. CBS, (9) a depressed teenager committed suicide after listening for hours and hours to Ozzy Ozborne recordings containing the message “that life is filled with nothing but despair and hopelessness and suicide is not only acceptable, but desirable.” (10)


When victims of allegedly media-induced crimes sue the producers, they allege one or more of three theories of liability: negligence, products liability, or aiding and abetting the commission of a crime.


Negligence is the cause of action most frequently invoked by victims of copy-cat and “movie-made-me-do-it” crimes. Though the law varies in its particulars from state to state, in general it is true that a plaintiff-victim of media-induced violence could recover on a negligence theory if she could persuade a court “that the media entity owed to the public in general or the plaintiff in particular a duty to exercise reasonable care with respect to the risks of harmful audience responses; that the defendant breached that duty by disseminating a depiction that unreasonably risked harmful audience response; that the depiction caused such a response; and that the response resulted in foreseeable harm to the plaintiff.” (11)

Courts have been singularly unsympathetic to alleged media-induced violence victims’ negligence claims. Plaintiffs have foundered principally on the requirements that they prove that the media defendants owed them a duty to protect them from unreasonable risks of harm and that the media portrayals were both the cause in fact and the proximate cause of the harm that in fact ensued. The most significant stumbling block in all the cases has been the fact that the actual perpetrator of the crime or injury has been an independent third party who has committed an intentional criminal or harmful act. It is easy to intuit why courts would be reluctant to impose liability on media defendants who did not themselves commit the acts that directly injured the victims. This intuitive reluctance is embodied in the way courts apply the law of negligence in media-induced violence cases. In particular it finds expression in courts’ unwillingness to find that media defendants owed plaintiff victims a duty to protect the victims from harmful audience responses and in their refusal to conclude that the requisite causal link exists between defendants’ portrayal of violence and plaintiffs’ injuries,

Consider the question of duty. Whether media defendants owe a duty to protect victims from the risk of harm caused by the violent acts of third parties is treated by courts as a question of law. Judges treat it forthrightly as a question that they are free–indeed that they have an obligation to–decide based on their assessment of its policy implications. Judges have been almost uniformly reluctant to decide the question in favor of plaintiffs, in large part because they have concluded that media defendants cannot reasonably be held to have foreseen that their products would stimulate criminal acts by members of the audience. No one has a duty to protect others from risks of harm that cannot reasonably be foreseen. Whether the crimes that harmed the alleged victims of media-induced violence were foreseeable is a question that must be answered in hindsight, after the crimes have been committed. The difficulty is that the perspective from which the determination is made is supposed to be before the fact: the question is whether the defendant should have foreseen them. It is an uncertain proposition at best to say with certainty that a harm that did materialize but was not in fact foreseen was so likely to happen that the defendant should have foreseen it–or was so unlikely that it need not have done so.

No clear standard has emerged for gauging how probable–and thus how foreseeable–an actually unforeseen harm was, but a couple of examples suggest the way courts approach the inquiry and reveal why judges have such a strong inclination to conclude that the harms were not foreseeable. In one case, the parents of the victims of the Columbine, Colorado, school shootings sought relief from several media defendants. The court acknowledged that the defendants “might have speculated that their motion picture or video games had the potential to stimulate an idiosyncratic reaction in the mind of some disturbed individuals. (12) But, said the court, the defendants had no reason to suppose that the two boys who did the shooting “would decide to murder or injure their fellow classmates and teachers.” (13) Similarly, in a case brought by victims of the Paducah, Kentucky, school shootings, the court acknowledged that the shooter’s reaction to depictions of violence “was not a normal reaction. Indeed, [the shooter] is not a normal person[.] But it is not utter craziness to predict that someone like [him] is out there.” (14) Nonetheless, the court concluded that defendants could not in fact have foreseen the particular crime, and thus should not be found to have been under a duty to prevent it: it was simply

too far a leap from shooting characters on a video
screen (an activity undertaken by millions) to
shooting people in a classroom (an activity undertaken
by a handful, at most) for [the shooter’s]
actions to have been reasonably foreseeable to
the manufacturers of the media that [he] played
and viewed. (15)
The second issue on which victims of media-induced violence have foundered in negligence cases is the issue of causation. That media portrayals of violence were a cause-in-fact of–or even a substantial factor in producing-violent behavior turns out to be a highly problematic conclusion, given the range of influences that bear on those who commit crimes. True, a substantial body of social science research suggests a correlation between viewing violent images and a viewer’s subsequent violent acts, but it is also true that correlation is not cause and standing alone it does not support an inference of causality. Though

[v]iolence on television has been shown in
hundreds of studies to have an influence on
aggressive behavior, … the causes of violence are
manifold, and include biological and psychological
factors as well as broader social and cultural
ones…. Peer influences, family role models,
social and economic status, educational level,
and the availability of weapons can each significantly
alter the likelihood of a particular reaction
to viewing violence on television. (16)

This point bears emphasis. In a recent study that it undertook following the Columbine shootings, the Federal Trade Commission found that researchers generally agree that media violence explains only a very small amount of youthful violent behavior. (17) The effects of images “come through a process of socialization … [and] depend on mental intermediation” (18) and it is extremely difficult to measure “the actual probability that any single image will result in imitative behavior.” (19) It follows that the conclusion that any single image did in fact result in imitative behavior cannot confidently be reached. Even if a causal link could confidently be established between a particular media portrayal and violence inflicted on a particular victim, courts would be inclined to find that the intervening criminal act of the third party perpetrator breaks the causal chain between the media defendant and the victim plaintiff. “Proximate cause” is the doctrinal rubric for considering whether a criminal act that supercedes between the media defendant’s portrayal of violence and the harm that befalls the plaintiff breaks the causal chain, and the foreseeability of the crime is again relevant to the inquiry. The general rule is that “a third party’s criminal action that directly causes all of the damages will break the chain of causation.” (20) Two reasons provide the rule’s rationale. First, the commission of intentional criminal acts is relatively rare, a fact which has considerable bearing on their foreseeability. Despite the fact that our culture is saturated with media depictions of violence, most people obey the law most of the time. Media defendants have been held to be entitled to assume that members of their audiences will do likewise. Second, the criminal law and the sanctions it imposes assume that those who commit crimes are responsible moral agents. Imposing liability on defendants who do not actually participate in the crimes would tend unjustifiably to diminish the criminal actor’s own moral accountability. As one commentator argued,

[i]f we decide speech is responsible for causing
harmful acts, we are giving potential criminals an
excuse for their behavior. One of the goals of our
criminal justice system is to insure responsibility
for our actions. We should not diminish that goal
by suggesting that the criminal would not have
acted violently had he or she not read that book
or seen that movie. By suggesting that media
causes violence, we are encouraging criminals
to blame something besides themselves for their
antisocial behavior. (21)

Thus the tort of negligence has been a dead end for victims claiming to have been harmed by media-induced violence. The most salient reasons are that the particular acts of violence are not foreseeable, and that they are in any event committed not by the media defendants but by third parties deemed to be independent moral agents. Liability for Defective Products

Consider next the product liability cause of action. Though as in negligence the law varies in detail from state to state, again a generally accurate statement is possible: manufacturers, distributors, and retailers are liable in tort for injuries caused in fact by defects in the manufacture or design of their products or in their failure to warn consumers of a danger of which they should have been made aware. (22) Liability for defective products does not require a finding that defendant breached a duty owed plaintiff to exercise “reasonable care” to prevent the harm. Product liability is strict liability. In other words, if a product is determined to be defective, no amount of caution–no amount of care however reasonable–on the part of the manufacturer can forestall liability once the defect has caused an injury.

Plaintiff-victims pursuing product liability claims in media violence cases have argued that video games, songs, movies and books are “products” and that their violent content constitutes a “defect” that was a cause-in-fact of the harm they suffered, but courts have nearly always rejected such claims. (23) They have regarded as decisive the fact that the plaintiffs suffered their injuries or deaths on account of consumers’ reactions to and not on account of defects in the products themselves, as would be the case for example if a video game had exploded and injured them. In addition, plaintiffs’ injuries were caused by the effect on the audience of the ideas and images conveyed by the products. But when dealing with claims of liability for injuries allegedly caused by ideas and images, courts have been almost uniformly inclined to separate the tangible containers of the ideas and images, which they treat as products for the purposes of products liability, from their communicative elements-the ideas and images they convey-which they do not so treat.

Aiding and Abetting

Consider finally the possibility of imposing civil liability on media defendants pursuant to a theory that their publications aided and abetted the commission of a crime. This was the theory successfully invoked in the exceptional Paladin case, a case that merits significant discussion not because it is typical or because there are likely to be more cases closely analogous to it in the future but rather because it is so unique. It is unique on account of its gruesome facts, on account of the procedural posture in which it reached the Fourth Circuit Court of Appeals, and on account of the nature of the publication for which liability was sought.

In the book he wrote about the case, Rod Smolla, the attorney and law professor who represented the victims in Paladin, described the effect the book had on him:

I was depressed at the absolute incarnate evil of
the thing, the brazen, cold-blooded, calculating,
meticulous instruction, and repeated encouragement
in the black arts of assassination … I didn’t
even want to touch the damn book. I couldn’t
leave it on the night table–I had to take it back
to my office in the house and lock it in my briefcase.
It didn’t even seem like it was a book at all,
really. It was more like someone had sent me a
loaded pistol, or a vial of poison. The physical
thing had a stench of evil to it. (24)

The opening of the powerful and passionate opinion that Judge Michael Luttig wrote for the Fourth Circuit makes Professor Smolla’s reaction completely comprehensible, for it consists of several pages of hair-raising, blood-curdling, even sickening quotes from “Hit Man” itself. The extensive quotations from the book begin with the author’s bold assertion that “the professional hit man fills a need in society,” (25) and go on to summarize the book’s detailed instructions on how to equip oneself (with flesh-toned surgical gloves, for example, and handcuffs); what to wear (dark clothes); what kind of knife to use and how to deploy it (6-inch double edged serrated blade, thrust into a vital organ and twisted); how to build a silencer if the plan is to kill the victim with a gun; how to kill with a gun at short range, with a rifle, with explosives, with tire; and, finally, how to dispose of the corpse (the first thing to do is chop off its head). After this eye-opening introduction, the opinion proceeds to recount how, on March 3, 1993, “readied by these instructions and steeled by these seductive adjurations,” (26) one James Perry murdered three people: an 8-year old quadriplegic boy, whom he strangled, and the boy’s mother and nurse, whom he shot point blank through the eyes. Perry committed the murders pursuant to a contract with the boy’s father, who stood to receive his son’s $2 million insurance settlement. Moreover, “[i]n soliciting, preparing for, and committing [the] murders, Perry meticulously followed countless of Hit Man’s 130 pages of derailed factual instructions on how to murder and how to become a professional killer,” (27) and the opinion offers a lengthy summary of the instructions and what Perry did to follow them. Relatives of the victims sued Paladin Enterprises, Hit Marts publisher for the wrongful death of their loved ones, their theory being that through its publication of the manual Paladin had aided and abetted the crimes. The district court granted summary judgment to the defendant Publisher. (28) The Fourth Circuit Court of Appeals reversed, holding that sufficient facts had been stipulated or pleaded under Maryland law to render Paladin civilly liable for aiding and abetting murder and that, if liability were otherwise appropriate under state law, the First Amendment did not preclude imposing liability on the publisher (the issue discussed in the next section).

As to civil liability for aiding and abetting, the Fourth Circuit held that Maryland law recognizes such a cause of action, and that its elements are very much like those that define the crime of aiding and abetting:

The state defines ‘aider’ as one who ‘assist[s],
support[s] or supplement[s] the efforts of another,’
and defines ‘abettor’ as ‘one who instigates, advises
or encourages the commission of a crime.’ (29)

The one difference between civil and criminal liability is in the intent standard, which in the context of civil torts only requires that the criminal conduct be “the natural consequence of the defendant’s original act,” but in the criminal context requires the defendant to have had a “purposive attitude” toward the commission of the offense. (30) This difference was not relevant in Paladin, however, because Paladin had stipulated to facts that would have justified imposing liability even under the more rigorous standard for establishing criminal intent(30) Paladin had stipulated that Perry followed the instructions enumerated in Hit Man for planning, executing, and attempting to cover up his triple murder; that in marketing Hit Man, Paladin intended to attract and assist would-be criminals desiring information and instructions on how to commit crimes; that Paladin intended and had knowledge that Hit Man actually would be used by criminals and would-be criminals to plan and execute the crime of murder for hire; and that Hit Man assisted Perry in the perpetration of his triple murder. (31) These stipulations alone were sufficient to establish as a matter of law that Paladin was civilly liable for aiding and abetting Perry’s crime, the court held. But the court pointed to four additional bases upon which, collectively, “a reasonable jury could find” that Paladin possessed the intent required under Maryland law: the book’s declared purpose was to facilitate murder; its pointed promotion of murder is probative of the publisher’s intent; the way it was marketed would support an inference of the requisite intent; and it would be reasonable for a jury to conclude that the only genuine use for the book is that of facilitating murder. (32) These additional bases for liability turned out to be crucial to a finding of liability in the later case of Wilson v. Paladin Enterprises, (33) a case that was very similar to Paladin except for the fact that the defendant did not stipulate to having marketed Hit Man with the intention of attracting and assisting would-be criminals. As bases for concluding nonetheless that Paladin indeed had published with the requisite intent, the Wilson court relied on Hit Man’s declaration that it proposes to facilitate murder; the book’s actual and extensive promotion; Paladin’s marketing strategy targeting would-be criminals; and the impossibility of conjuring a purpose for the book other than an unlawful one. (34)


Assume for the moment that courts put aside their doubts about the wisdom–purely as a matter of tort policy–of imposing liability for negligence or defective products or civil liability for aiding and abetting on media defendants whose products seduce, glorify or, implicitly or explicitly, teach violence. Courts might become persuaded that profit-making media corporations ought to be held to a duty to protect innocent victims from violent acts that, at least in hindsight, and on account of the fact that such acts have in fact been perpetrated in the past, appear to have been reasonably foreseeable effects of their unrestrained, exploitive depictions of violence. And they might be persuaded that particular crimes have in fact been caused by the depictions, notwithstanding that the crimes themselves are actually committed by third parties who cannot by any stretch of the imagination have been said to have been “incited” to commit them. Other courts than the Fourth Circuit–like the district court in Wilson–similarly confronted with a plaintiff victimized by a criminal who learned his methods from a publication that meticulously and in great detail described how to commit a criminal act, might become convinced that the defendant publisher ought to be held to be an aider and abettor of the crime.

This brings us to the question whether the First Amendment stands–or ought to stand–as a barrier to liability in any of these situations. To what extent does our commitment to free expression, embodied in doctrines protecting advocacy of ideas (even of the idea that laws exist to be violated) and in the principle that “debate on public issues should be uninhibited, robust and wide-open,” (35) trump whatever substantive law policies might counsel in favor of holding media defendants accountable, such as prevention of violent crimes against innocent victims and perhaps even forestalling the debasement of our culture.

The First Amendment inquiry begins with the Paladin case, for it presents a situation about which it seems fair to say the policies in favor of accountability are at their most powerful while the free speech values that would be sacrificed by finding liability are at their most tenuous. If free speech values trump accountability in a case such as Paladin, they would presumably trump it in every case and we could simply dispense with any notion of holding the media liable for events that take place on account of its depictions or teachings of violence. Indeed, it would perhaps not be much of an overstatement to say that publishers, simply “because they are publishers … [would then] have a unique constitutional right to aid and abet murder.” (36) On the other hand, as Judge Luttig pointed in his Paladin opinion, to impose liability for publishing Hit Man cannot realistically be said to imperil First Amendment values or significantly increase the risk that other media defendants will routinely be held liable in copy-cat or movie-made-me-do-it cases. Hit Man was simply unique on account of Paladin’s stipulations regarding its intent in publishing the book; the book’s comprehensive, detailed and clear instructions on how to commit murder; its exhortation to murder; the effectiveness of its instructions; its total lack of ideas or of any “even arguably legitimate purpose beyond the promotion and teaching of murder.” (37)

The most obviously relevant First Amendment doctrine in all the cases in which victims sought to impose liability on media defendants for allegedly media-induced crimes was the Supreme Court’s holding in the seminal case of Brandenburg v. Ohio (38) that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (39) In other words, only advocacy amounting to incitement of imminent lawlessness may be punished consistent with the First Amendment. Judge Luttig offered several reasons why this doctrine was not a barrier to media liability in Paladin. First, invoking the so-called “speech-act” doctrine, he pointed out that Brandenburg does not immunize speech that is an integral part of conduct that violates a valid criminal statute, which the court held Hit Man was. Second, Brandenburg’s requirement that, to be punishable, advocacy of law violation must be directed to inciting or producing imminent lawless action, was inapplicable because Hit Man could not really be said to advocate law violation. Instead, it was a successful effort to assist would-be criminals by telling them precisely how to commit their crimes. Finally, neither of two possible qualifications that might have brought the First Amendment into play applied. Thus, a heightened intent requirement might be thought appropriate where the speech act doctrine was invoked in the context of civil liability for aiding and abetting. First Amendment doctrine has been crafted to prevent the punishment, and even the “chilling” of innocent lawful speech, said Judge Luttig, and thus sometimes it prohibits liability based merely on the fact that the impermissible misuse of information one imparts was foreseeable. This limitation would allay the concern, about exposure to suit under lesser standards, expressed by publishers, broadcasters or distributors with large undifferentiated audiences) But, as we have seen, the facts of Paladin satisfied even such a heightened intent requirement, since the defendant had stipulated that it both knew and intended that Hit Man would be used by criminals to solicit, plan, and commit murders. Similarly, the First Amendment bar to both criminal and civil liability for speech that amounts to abstract advocacy of–as opposed to incitement of imminent–violence did not apply. The court could find no hint of abstract advocacy in Hit Man, nor instructions of any value–only the “detailed, focused instructional assistance to those contemplating” murder, which is the opposite of the kind of speech that Brandenburg was intended to protect. (41) Ideas were simply not the focus of the book. (42)

A noteworthy feature of the Paladin litigation was the number and stature of organizations that filed or joined friend-of-the-court (amici curiae) briefs on defendant’s behalf. They comprise a long and impressive list that included, among others, The Thomas Jefferson Center for the Protection of Free Expression, the American Civil Liberties Union, ABC, America Online, Association of American Publishers, The Baltimore Sun, E.W. Scripps Company, Freedom to Read Foundation, Magazine Publishers of America, McClatchy Newspapers, Media General Corp., National Association of Broadcasters, Newspapers Association of America, The New York Times, The Reporters Committee for Freedom of the Press, the Society of Professional Journalists, and The Washington Post. Though Hit Man itself might not be of genuine value, these amici argued, it ought to be protected in order to fortify the painstakingly constructed First Amendment barrier to liability for speech that did have merit. They claimed that decades of First Amendment jurisprudence would be put at risk by a finding of liability, and asserted that civil liability would hang over the head of and exert a chilling effect on all expression–“music, video, books, even newspaper articles.” (43) For his part, Judge Luttig found it “breathtaking” that national media organizations of such stature would defend Paladin so vigorously, since what Paladin was asserting was

a constitutional fight to intentionally and knowingly
assist murderers with technical information
which Paladin admits it intended and knew
would be used immediately in the commission
of murder. (44)

And in answer to the amici’s claim that liability in this case would have far-reaching chilling effects, Judge Luttig stressed Paladin’s unique facts and strongly emphasized how different they were from the facts in copy-cat and movie-made-me-do-it cases. He pointed out that broadcasters and publishers in such cases are completely unlikely to intend to assist in commission of murder, nor, he emphasized, would the speech itself, as a matter of law, permit any inference that the speaker intended to facilitate the criminal conduct that it depicted. (44) Along with the fact that plaintiffs in copy-cat and “movie-made-me-do-it” cases are unable to prove that defendants’ products constituted “incitement” to “imminent” lawless action, the chilling effect argument provides the principal rationale behind courts’ general unwillingness to impose liability in such cases. For this reason, Judge Luttig’s opinion took great pains both to explain his conclusion that it did not apply in Paladin and narrowly to circumscribe Paladin’s potential effect as precedent. For this reason, also, it is important to understand the “chilling effect” argument that the Paladin amici were making.

The chilling effect argument builds on a fundamental insight about the way liability law works as a mechanism of social control, which is that any decision imposing–or refusing to impose liability always has two components, one backward–looking, the other looking forward. The backward-looking component settles a dispute between a plaintiff and a defendant and, if liability is found, it entails an order that plaintiff compensate defendant for the wrong done. The forward-looking component–we might call it the regulatory component–affects the way potential defendants will behave in the future. A decision imposing liability for negligence or a product defect on a media defendant in a case brought by the victim of a copy-cat crime, for example, would both compensate the victim and signal to producers or publishers of violent content that they too risk liability in the future should someone in the audience commit a copy-cat crime. The signal would have a substantial impact on their future decisions about what to produce or publish. Intuition tells us that, if nothing else, media defendants would take care to produce or publish less violent content–both content that is less violent, and less content that is violent–even if they were otherwise convinced of the violent portrayal’s political, informational, educational, entertainment, or artistic value. It is this predictable reaction to which the “chilling effect” refers. A commonplace interpretation of First Amendment jurisprudence is that rules (or findings of liability in particular cases) that have this effect of chilling future speech are likely to be unconstitutional.

If it were possible for producers and publishers to know ex ante what works were particularly (although still unreasonably) likely to induce copy-cat crimes to be committed, and if we could confidently conclude that such works had no redeeming social value, so that producers’ decisions to suppress them would produce only benefits (no more copy-cat crimes) and no costs (no works of value go unproduced), then we might conclude that the chilling effect is a good thing and that we ought to adopt liability roles precisely so as to bring it into play–and stop wringing our hands about it. But legal rules do not work so exactly. They simply do not, nor can they be crafted to, have such precise effects. They always hit more than they aim at and in the process often deter conduct that is merely only innocuous and often quite valuable. It might be possible for producers to predict in a general way that there are crazy people out there who will sometimes–though very occasionally–react to some depictions of violence by committing violent acts themselves. It is not, however, possible for them to know before the fact that in the audience for a particular work there will be unstable people who will be induced by the work to commit a copy-cat crime. (This fact is what courts are getting at when they say that such crimes are not “foreseeable.”) In addition, recall that it is not even possible after the fact to be sure that a particular work was indeed the legal cause of the harm done by a crime committed in its wake. This is not only because a criminal act committed by a third person will have been the direct cause of the victim’s harm, but also because it is not possible to determine the extent to which other factors than the particular depiction of violence contributed to the perpetrator’s behavior–for example, the environmental characteristics of the audience member, such as living in an unsafe neighborhood and being raised by neglectful parents. Remember, evidence that violent images actually cause crime is scant. Finally, and perhaps most importantly, we can not be confident of a conclusion that even works that induce audience members to commit violent acts have no redeeming political, informational, educational, entertainment, or artistic value. Audiences do in fact plunk down good money to see and to listen to and to play games that depict and describe and glorify violence. And it is certainly conceivable that such works are as likely to portray ideas–albeit ideas that many find loathsome–or to provide satisfying relief from the cares of the day as works that generate feelings of loving kindness.

Courts’ concern with the “chilling effects” of rules that would impose liability on media defendants has its source in these realities, for they create the probability that the prospect of liability would dissuade–“chill”–media defendants from producing many works that either would not turn out to induce violence or would have redeeming social value, or both. It is worth emphasis, too, that it would not be merely works of marginal value that the prospect of liability might chill. Consider, for example, the possibility that the producers of the movie The Godfather might have been persuaded not to release the film had they thought that they might be held liable were someone in the audience induced to commit a copy cat crime. Or that the producers of the recent enactment of Medea in New York might have similarly refrained had the prospect of liability for a copy-cat crime loomed. It is the cost of foregone works which would turn out to have genuine merit that our traditions of flee expression seem to have made us unwilling to bear, or so our courts and judges seem to think.

I do not mean to suggest that our freedom of expression is itself “free,” in the sense that its exercise does not impose real costs both on society as a whole, in that our popular culture is degraded, and on the particular victims of media-induced crimes. We might wish that we used our freedom in more enlightened or uplifting ways, but of course the whole point of freedom is that it eschews coercion even in a good cause. Freedom is and always has been a risky proposition. And, with the exception of the peculiar and so-far unique circumstances of the Paladin case, we seem to have decided that if the cost of freedom of expression is a degraded culture and the occasional violent crime perpetrated on an innocent victim, they are costs we are willing to bear ourselves–or to let fall on the victims. This conclusion is not belied by the fact that the Supreme Court has interpreted the First Amendment to permit the prohibition of obscenity and child pornography, for the reason the Court has permitted the prohibition of such speech is not that it causes members of their audience to commit violent acts. Obscene speech has been held to be completely outside the realm of First Amendment protection because the Court thinks it has no social value other than to appeal to the prurient interest in sex, not because of its potential to lead to criminal acts. (46) Child pornography may be prohibited, but only when real children are portrayed, and then only because of the interest in protecting children from being forced to perform in such portrayals. (47) Child pornography that only appears to depict minors, but that was in fact produced without using real children, may not be prohibited. (47)

What my analysis boils down to is this. Despite the distaste–even perhaps the revulsion–we might experience at much of the violent content that the media produces today, the plain fact is that we do not know with the requisite degree of certainty that it actually causes people to commit crimes. We do believe, though, that if we imposed liability on the media for media-induced crimes, publishers and producers would censor themselves and decide not to produce a great deal of material that would have proved valuable. Society would be culturally the poorer for such decisions. In the end, the conclusion seems warranted that while freedom of expression for producers of violent content undeniably has its costs, the costs of suppression are probably greater–and its benefits are surely more uncertain.


(1.) J.G. Johnson, P. Cohen, E. M. Smailes, S. Kasen and J. S. Brook, “Television Viewing and Aggressive Behavior During Adolescence and Adulthood,” Science 295 (2002): 2468-2471, at 2470.

(2.) See, e.g., Elmore v. American Motors Corp., 451 P.2d 84 (Cal. 1969); Codling v. Paglia, 298 N.E.2d 622 (N.Y. 1973).

(3.) Ronald D. Rotunda, “Current Proposals for Media Accountability in Light of the First Amendment,” forthcoming, Journal of Social Policy, Philosophy, and Law (2004): 1-74, at 6-7.

(4.) 128 F.3d 283 (4th Cir. 1997).

(5.) 178 Cal. Rptr. 888 (Cal. App. 1981).

(6.) 536 N.E. 2d 1067 (Mass. 1989).

(7.) 814 F.2d 1017 (5th Cir. 1987).

(8.) 361 So. 2d 776 (Dist. Ct. Fla. 1978).

(9.) 249 Cal. Rptr. 187 (Cal. App. 1988).

(10.) Id. at 190.

(11.) L.W. Brill, “The First Amendment and the Power of Suggestion: Protecting ‘Negligent’ Speakers in Cases of Imitative Harm,” Columbia Law Review 94 (1994): 984-1044, at 987 (citing Restatement (Second) of Torts, [subsection] 281, 302-302B (1965)). For a thorough and engaging account, see Robert M. O’Neil, The First Amendment and Civil Liability (Bloomington: Indiana University Press, 2001): 137-62.

(12.) Sanders v. Acclaim Entertainment, Inc., 188 F. Supp. 2d 1264 at 1272 (D. Colo. 2002).

(13.) Id.

(14.) James v. Meow Media, 300 F. 3d 683, 693 (6th Cir. 2002).

(15.) Id. at 693.

(16.) J. Federman, ed. National Television Violence Study, Executive Summary, Volume 3 (Santa Barbara: Center for Communication and Social Policy, University of California, Santa Barbara, 1997); at 5.

(17.) Report of the Federal Trade Commission, Marketing Violent Entertainment to Children: A Review of Self-regulation and Industry Practices in the Motion Picture, Music Recordings & Electronic Game Industries(FTC, Sept. 2000), Appendix A, “A Review of Research on the Impact of Violence in Entertainment Media,” at 9.

(18.) American Booksellers v. Hudnut, 771 F. 2d 323, 329 n. 2 (1985).

(19.) Brill, supra note 11, at 1033.

(20.) James v. Meow Media, 300 F. 3d at 699.

(21.) Christopher Campbell, “Murder Media–Does Media Incite Violence and Lose First Amendment Protection?” Chicago-Kent Law Review 76 (2002): 637-69, at 664. In Zamora v. State, 361 So. 2d 776 (Dist. Ct. App. Fla. 1978), the defendant attempted to defend a murder conviction based on the allegation that he was insane on account of “involuntary subliminal television intoxication.” The Florida courts rejected the defense.

(22.) Restatement (Second) Torts, [section] 402A.

(23.) See, e.g., James v. Meow Media, Inc., 300 F. 3d 683 (6th Cir. 2002)(victims of Paducah school shooting unsuccessfully claimed that the violent content of defendants’ video games, movie, and internet transmissions constituted product defects that caused the shooter to act violently); Wilson v. Midway Games, Inc., 198 F. Supp. 2d 167 (D. Conn. 2002)(boy stabbed with kitchen knife by a boy who was allegedly obsessed with the video game Mortal Combat unsuccessfully sued for product liability; court finds a video game is not a product for purposes of the relevant state statute); Davidson v. Time Warner, Inc., 1997 U.S. Dist LEXIS 21559 (S.D. Texas 1997)(victim of shooting by young man who had been listening to a tape of rap songs titled 2PocalypseNow, which contained lyrics that expressed extreme hostility to law enforcement, unsuccessfully claimed that the tape was an inherently dangerous product). See generally O’Neil, supra note 10, at 107-19.

(24.) Rod Smolla, Deliberate Intent (New York: Crown Publishers, 1999): at 38-39.

(25.) Rice v. Palladin, 128 F.3d at 236.

(26.) Id. at 239.

(27.) Id.

(28.) Rice v. Paladin Enterprises, Inc., 940 F. Supp. 836 (D. Md. 1997).

(29.) Rice v. Paladin, 138 F.3d at 233.

(30.) Id.

(31.) Id. at 241.

(32.) Id. at 253-55.

(33.) 186 F. Supp. 2d 1140 (D. Ore. 2001).

(34.) Id. at 1144.

(35.) New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

(36.) 128 F.3d at 264-65.

(37.) 128 F.3d at 267.

(38.) 395 U.S. 444 (1969).

(39.) Id. at 447.

(40.) Id. at 247.

(41.) Id. at 249.

(42.) Id. at 262.

(43.) Id. at 265, quoting Brief of Amici at 3, 22.

(44.) Id.

(45.) Id. at 265-66.

(46.) Miller v. California, 413 U.S. 15 (1973).

(47.) Ferber v. New York, 458 U.S. 747 (1982).

(48.) Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

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Essay on whistleblowing Mon, 20 Apr 2015 15:27:20 +0000 On Being a Whistleblower: The Needleman Case

Claire B. Ernhart Case Western Reserve University
Sandra Scarr University of Virginia
David F. Geneson Hunton & Williams

We believe that members of the scientific community have a primary obligation to promote integrity in research and that this obligation includes a duty to report observations that suggest misconduct to agencies that are empowered to examine and evaluate such evidence. Consonant with this responsibility, we became whistleblowers in the case of Herbert Needleman. His 1979 study ( Needleman et al., 1979), on the effects of low-level lead exposure on children, is widely cited and highly influential in the formulation of public policy on lead. The opportunity we had to examine subject selection and data analyses from this study was prematurely halted by efforts to prevent disclosure of our observations. Nevertheless, what we saw left us with serious concerns. We hope that the events here summarized will contribute to revisions of process by which allegations of scientific misconduct are handled and that such revisions will result in less damage to scientists who speak out.
Key words: misconduct, misrepresentation, due process, whistleblower
The increasing incidence of reports of scientific misconduct is troublesome to the public as well as to the scientific community. Even a few instances of misconduct can erode public trust in science. If we are to sustain the respect of the public when there are allegations of misdeeds, procedures for evaluating evidence must be credible ( Teich & Frankel, 1992). The widely publicized
Requests for reprints should be sent to Claire B. Emhart, Department of Psychiatry, MetroHealth Medical Center, 2500 MetroHealth Drive, Cleveland, OH 44109-1998.
difficulties arising from investigations into the cases of Robert Gallo (the AIDS virus) and Thereza Imanishi-Kari (the David Baltimore case) highlight the importance of the problem ( Hoke, 1992).
Policies of the National Institutes of Health (NIHI 1 ) and the National Science Foundation for the resolution of misconduct charges are presently being questioned on several fronts. It has been recommended that full legal hearings be available for researchers who request them ( American Psychological Association, 1992 ; Hamilton, 1992). Recommendations also include a change in the definition of misconduct, which is discussed later. The proposals do not discuss problems that arise in the quasi-judicial investigations conducted at the university level. This portion of the process also merits attention so that the rights and welfare of those involved can be protected. We are particularly concerned about the protection of those who file legitimate complaints about possible misconduct (i.e., the whistleblowers). The position of professors who serve on inquiry and investigation panels is also anomalous. They serve in their roles as academicians but face many of the problems of judicial proceedings without having the authority to compel production of testimony and evidence.
The authority to conduct reviews of misconduct is now the subject of a class action suit by a plaintiff who is challenging the right of NIH and his university to conduct an investigation of his work ( Needleman v. Healy, 1992). We, who are the whistleblowers in the Needleman case, herein describe our experiences and observations. We hope that this report and others in this issue will be useful in the development of revised policy.


Herbert Needleman is well known for his work on the effects of lead exposure on children. He is an active crusader for the position that lead exposure at low levels is harmful. He has received considerable attention in the media and has published numerous articles in professional journals and chapters in edited books. In all forums, he has consistently emphasized material that supports his stance and has downplayed and disparaged information that is not consistent with his position. He does not publish data from his own findings that do not support his position ( Needleman, 1981).
Needleman has testified before Congress; consulted for the Environmental Protection Agency (EPA), the Centers for Disease Control, and the Agency for
1 The Office of Scientific Integrity has been moved from NIH to the Public Health Service and renamed the Office of Research Integrity. Policies regarding scientific misconduct are under review.
Toxic Substances and Disease Registry; and is a major author of government policy documents. He has testified for plaintiffs in many tort cases in which children have claimed damages as a result of lead exposure. He has obtained grant support from NIH and EPA to conduct further research on this topic. In Science, he was called the “Get-the-Lead-Out Guru” ( Palca, 1991).
Needleman’s activities have been important in setting federal policies that will be very costly. Given the strong likelihood that these policies will result in a diversion of funds from programs that can be helpful to children, the consequences of the publication of misleading reports in the scientific literature and in the media are far-reaching.


The major item that catapulted Needleman into prominence was the article ( Needleman et al., 1979) at the center of our concern. This article was disturbing to us and to others because an exceptionally large number of subjects was eliminated from analysis and because some aspects of the procedure were not well described. Limitations of the methods used were not recognized or discussed in the article. Some problems were noted by one of us ( Ernhart, Landa, & Schell, 1981) and attributed to methodological naivetl. Collegial efforts were made at professional meetings and through letters in journals to explore these problems. Needleman’s responses were not informative, and nagging concerns remained.
In 1982 and 1983, the EPA conducted workshops to assist in preparing a revision of the air quality criteria for lead. Because the Needleman work was questioned at the workshops and because he attacked Ernhart’s research, the project officer chose to have the two studies evaluated to determine if they were to be given credence in the review.
In the spring of 1983, an expert panel on pediatric neurobehavioral evaluations was appointed to review these studies, among others. The panel included Scarr and others with relevant methodological expertise who were not engaged in lead research. Ernhart submitted all of her data and conducted reanalyses requested by the panel. Cooperation by Needleman was limited. The panel did not have sufficient time and was not given the opportunity to explore all of the problems in his work. Nevertheless, the panel believed that the difficulties in the study went well beyond the usual complications resulting from conducting research on human subjects whose exposure and behaviors were beyond the investigator’s control. The panel concluded:
In summary, at this time, based on questionable Pb [lead] exposure categorization and subject exclusion methods, problems with missing data, and concerns
regarding the statistical analyses employed and selected for reporting, the Committee concludes that the study results, as reported in the Needleman, et al. (1979) paper, neither support nor refute the hypothesis that low or moderate levels of Pb exposure lead to cognitive or other behavioral impairments in children. ( United States Environmental Protection Agency, 1983 , p. 38)
The panel was disbanded. In April 1984, EPA’s Clean Air Scientific Advisory Committee (CASAC) reviewed Needleman’s response to the panel’s report and some additional analyses he conducted. Recently, Needleman (1991a) asserted that one of EPA’s statisticians, Hugh Pitcher, was given the data at that time, reanalyzed them, determined that the findings were creditable, and gave the results to CASAC. Pitcher denies this (University of Pittsburgh, 1992). His report to CASAC was limited to comments on analytic issues.
In spite of the strength of the conclusion rendered by the expert panel, CASAC decided that the study was not so seriously flawed as to exclude its findings from consideration in policyrnaking decisions. The impression we had, as we observed that CASAC meeting, was that few members knew the details of the situation and that the decision had been preplanned. In early January 1992, we filed a request under the Freedom of Information Act to obtain and review documents related to the CASAC decision. As of September 1992, this material had not been provided. From another source, we learned that, in August 1983, while the EPA panel was investigating his work, Needleman was given a grant by EPA. This grant yielded one obscure publication ( Atkinson, Crocker, & Needleman, 1987), which consists, ironically, of another inappropriately conducted reanalysis of the same dataset.


In 1990, Scarr and Ernhart were retained independently by attorneys for different defendants in a Superfund case. Needleman was retained by the plaintiff (i.e., the Department of Justice acting for EPA). We each expressed concerns to the respective attorneys regarding the integrity of Needleman’s work. Because he would be relying on his own data, the attorneys used the discovery process to request that we have access to these data. The court approved the request.
Our September 1990 visit to Needleman’s office to review computer outputs of analyses had a number of outlandish elements. The attorney who accompanied us was forced to wait in a public hallway because he represented a lead-using industry. Although he was present, Needleman did not speak to us; communications were relayed through the attorney for the Department of Justice who apparently was present for this purpose. We were not given access to raw data or to a code book for the computer printouts. Requests for explanations for cryptic marks on the printouts were refused. We were not allowed to photocopy; instead we handcopied pages of data to substantiate our observations. We saw no materials related to earlier analyses known to have been made (spring 1977, December 1977, February 1978), and we did not see any data or analyses for subsequent reports, including the 11-year follow-up study.On the second day, we were asked to rescind our rights of freedom of speech by agreeing that we would not discuss our findings other than in the case being tried. We refused, took our notes, and left. Our report ( Ernhart & Scarr, 1990), completed in October 1990, was not distributed pending settlement of the case.Shortly before the Superfund case was settled in November 1990, the Department of Justice, at Needleman’s behest, sought again to have us return or destroy our notes and report. There is no precedent for such an order. We retained counsel, and in January 1991, the case was argued in the Federal Court for the District of Utah, Central Division. In his April 1991 decision in our favor, Chief Judge Bruce S. Jenkins ( United States v. Sharon Steel, 1991 , p. 7) wrote:
Finally there are public policy reasons regarding the suppression of information and knowledge, particularly knowledge of a scientific nature. The pursuit of scientific knowledge is, in theory, an open process. There is something inherently distasteful and unseemly in secreting either the fruits or seeds of scientific endeavors. This is especially true here, where there appears to be little professional or economic justification for the order sought by the plaintiff. … The only harm or prejudice asserted by Dr. Needleman appears to be the risk of academic criticism and potential misuse of his data by others. Exactly how this misuse will occur is not clear. This is insufficient justification for the relief sought by plaintiff. Plaintiff’s motion is therefore DENIED.
In the report ( Ernhart & Scarr, 1990 , pp. 58-59), we described the problems that we had been able to discern as serious. Our summary, here condensed, included the following points:
1. There was improper control of confounding. The final analytic models did not include covariates, notably child’s age, that should have been included. Age was negatively related to the test scores, including the normed IQ scores, and to lead level. Initial analyses with age entered
yielded few significant results. Analyses without child’s age followed, yielding significant models, some of which were published. Data in widely reproduced graphs were not adjusted for confounding.
2. There was exclusion of the data of 40% to 50% of the 270 children who were tested. Exclusions were related to the likelihood of finding significant effects. One group of 16, 18, or 19 (reports differ) children who were excluded as “lead poisoned” were not impaired in intelligence (M IQ = 100, SD= 16).
3. No consideration was given to the risk of Type I error, given the very large number of variables analyzed. Results of analyses that did not support the hypothesis were not reported.
Early analyses in the dated computer output included data for the full sample of the 270 children who had been tested. The initial analyses of covariance, which included age and other covariates, showed little in the way of statistical significance. These were followed by others that moved toward the results that were published. The progression of analyses contributed to a sense of deliberateness in a shift to misleading results.
Our report was not thorough or complete. We had only a day and a half with only a portion of the records, and our handcopied notes were subject to error. Nevertheless, we felt that what we had been able to document warranted further investigation.
After the federal court decision, we sent the report to NIH-OSI on May 7, 1991. The staff at the Office of Scientific Integrity (OSI) reviewed the material and in October 1991 ( Watkins, 1992) requested that a formal inquiry be conducted by the Integrity Office at the University of Pittsburgh, where Needleman is a professor.
We became aware in December 1991 that the inquiry panel had completed its report when reporters contacted us for interviews. Although Needleman made the report (or a portion thereof) available to reporters and his associates, confidentiality requirements prevented the university and OSI from providing us with copies. Reporters told us that the inquiry panel had recommended a full investigation of Needleman’s research, as they had been unable to rule out misconduct. Six months later, the inquiry panel report became public through the NIH reply to Needleman’s suit against NIH and the University of Pittsburgh.
The Needleman Inquiry Panel ( 1991), a distinguished group of Needleman’s colleagues, examined published reports, computer printouts, and data files. It’s conclusions, submitted in December 1991, were:
In terms of the basic data management, the panel was impressed with the accuracy and completeness of the records reviewed with one exception — the loss of the main data tape, apparently without any provision for a back-up.
In the subject selection and classification area, the panel was concerned that the application of the selection and classification procedure criteria described in the 1979 report (and repeated in the 1990 report) did not appear to correspond to what in fact occurred. Indeed a third of the subjects included in the analyzed sample did not seem to meet the criteria, while many of those apparently eligible were neither included nor could be shown to have a reason for exclusion. Unfortunately, Dr. Needleman was unable on three occasions (in his “response to OSI inquiry” and in two interviews 11/22/91 and 12/3/91) to specify the exact selection procedure used. These concerns are further compounded by the subsequent exclusion of subjects for a variety of reasons (i.e., the reduction of the sample size from 270 to 158), an issue much discussed in previous critiques of Dr. Needleman’s study. However, it is apparent that the inappropriate selection of subjects doesn’t, as far as can be ascertained, bias the study in favor of Dr. Needleman’s hypothesis, suggesting an absence of scientific rigor rather than the presence of fraudulent science. Based on the subject selection and classification problems alone it is doubtful whether the 197911990 report represents a fair and accurate ascertainment of the relationship between IQ and dentine lead levels in Chelsea and Somerville 1st and 2nd graders.
Finally, the data analysis appears to be almost mechanically conducted with insufficient thought given to the inclusion of appropriate variables. The final covariate models chosen for presentation do not seem to represent the inclusion of the most important covariates, but do include co-variates with little or no contribution. The basis for choice of the final models are neither obvious nor clearly explained. It is thus difficult to ascribe such choices to deficient analysis or misrepresentation, but the panel felt the modeling to be questionable and that age, sex, father’s education and the examiner effects were neither sufficiently explored in the analysis nor sufficiently presented and discussed in the reports.
In view of the above findings and additional concerns raised by other reviewers of Dr. Needleman’s work, the panel recommends that a full investigation be held to determine if the apparent inappropriate selection of cases and incomplete presentations of results constitutes research misconduct. (Needleman Inquiry Panel, 1991, pp. ii-iii; italics added)
The University of Pittsburgh promptly appointed an investigation board, which began work in early 1992. We did not participate in the reviews by OSI
or the inquiry panel at the university. Our only involvement in the Pittsburgh investigation of Needleman’s possible misconduct consisted of appearing at the unprecedented open hearing that Needleman demanded during the investigation phase.
Preliminary Activity
When the inquiry panel recommended a full and formal investigation, the university appointed a board of five professors, not including those who had served on the inquiry panel, to conduct the investigation. The university’s policy requires that a formal hearing be held during the course of an investigation. We were notified by the University Research Integrity Officer that a hearing would be held on April 13-14, 1992, but we were not asked to be present. There seemed to be no need for our participation because our findings were in the report we filed with NIH-OSI. Our report had been superseded by the more thorough inquiry report.
The university’s policy also specified that the hearing be closed for the protection of the respondent (in this case Needleman) and the witnesses. Needleman objected vociferously to a closed hearing. He solicited support from the faculty and others and included his complaints in his suit against NIH and the university. The chancellor of the university yielded and ruled that the hearing could be open.
The idea of an open hearing appeals to Americans’ sense of justice. 2 This quasi-judicial hearing at Pittsburgh, however, was not to be conducted with due process or with any clear precedents for procedure. Our interests as witnesses were not considered. Because we were familiar with Needleman’s rancorous behavior in other forums, we were concerned that having the hearing open would result in an unproductive and acrimonious performance planned to intimidate witnesses and members of the board in the presence of the media. We were right.
We were contacted by the university less than a week before the hearing and asked to be present on the first morning. Needleman demanded “to confront his accusers,” we were told, and it was not clear to the chairperson of the investigation board that the hearing could proceed without us. It was only as we interacted with the chairperson in making arrangements that we learned the identity of the board members. We also learned then that the board was, in fact, working diligently on the investigation.
2 The significance of this idea in American thought is reflected in the Sixth Amendment to the Constitution, which ensures the right to a speedy and open trial.
Because this was not a judicial procedure, we asked the university’s attorney to seek legal protection for us so that we could be candid in our testimony. (Because they were employees of the university, members of the board were personally protected by the university against the risk of litigation.) Exploration of our request for legal protection by the respective attorneys consumed several days. Ultimately, the university refused to indemnify us against litigation. Three days before the meeting, we decided that as a matter of principle we had an obligation to respond to questions about our findings. We decided to attend, accompanied by our attorney, even without legal protection. Such protection was a serious concern because Needleman had already sued us once and had recently filed his suit against NIH and the university.
Conduct of the Hearing
As a result of confidentiality policies, we went to the open hearing with no knowledge of the findings of the inquiry panel. After introductory statements and a few questions from the board, Needleman was allowed to question us. Few questions had any connection with his research or with our review of his research. Topics included details of studies we had published in the 1970s, other clients of our attorney’s firm, a lawsuit in which Ernhart had testified 4 years ago, and details of a talk that Scarr had given. Some questions were insultingly simple (e.g., he quizzed us about the computation of IQ and what is meant by confounding), and he then made sarcastic comments about the responses.
Several times we asked the chairperson if questioning could be limited to relevant material. We were told that Needleman could ask whatever he wished but that we were not obliged to answer. We balked at contributing to a process that made us targets of insults and that became more and more abusive. We refused to answer a number of questions and carefully limited our responses because of the risk of litigation. In this meeting, as elsewhere, Needleman diverted attention from problems in his research by saying that we were acting for the lead industry. His attorney, who under NIH and University of Pittsburgh regulations was not permitted to participate, was in fact allowed to make extensive comments, which included references to us as “the industry witnesses.”
Three of the six other witnesses provided testimonials about Needleman; their connection to the study was very limited. One co-author was questioned in detail by the board about shifting criteria for classifying subjects. An EPA witness testified that he had conducted additional statistical analyses in the fall of 1991; he said the analyses indicated that Needleman’s original conclusion was valid, even if his analyses were not optimal. It was not clear whether he had been given the same data as those used for the 1979 New England Journal of Medicine article ( Needleman et al., 1979). Another statistician commented
on analyses done by the inquiry panel. Because neither the inquiry report nor written copies of additional analyses were provided to us, the value of these analyses was not readily apparent at the time.
Most co-investigators and staff who were actually involved in the conduct of the study were not at the hearing. The most important missing witness was Charles Gunnoe, the psychologist who had participated closely in the data collection and who had conducted most of the data analyses. In the final session, members of the board questioned Needleman. Once again, penetrating questions about the selection, exclusion, and classification of subjects indicated that the board found this to be a matter of considerable concern.
The open hearing may have pleased Needleman and entertained the audience, but the information produced was quite limited. 3 We found that open misconduct hearings, conducted by a university without due process or legal rules of procedure, can be untidy, acrimonious, threatening to unprotected witnesses, and not very productive. We came away feeling that we had been badly used, not by the board but by a proceeding that did not include rules to prevent irrelevant and insulting questioning and that did not protect witnesses from future litigation. The sense that the hearing was not very enlightening was shared by members of the press ( Palca, 1992 ; Taylor, 1992).
The window that the hearing provided indicated that the study was receiving an investigation that was more thorough than was possible either by the EPA expert panel or by us in our brief visit to Pittsburgh. The burden of the knowledge of the problems in this work lay with people who were competent and who were able to learn more about it than we did. Our involvement became history. Or so we thought.
We now have the Needleman Hearing Board Final Report, but, at the request of the university, it remains confidential while Needleman completes his appeals. We have also been kept apprised of the progress of the final report and the appeals as they move through the university hierarchy. The report and recommendations have been accepted by the Dean of the Medical School. They have now been transmitted, with another set of appeals, to the Provost of the university. The Provost has been trying to appoint a panel of the faculty to review the appeals but has yielded to Needleman’s complaints about the composition of various suggested panels of his fellow faculty members.
3 In accordance with the University of Pittsburgh policy, we have been given the report and recommendations of the hearing board. Ironically, one line of inquiry that the board pursued had not been anticipated in our report, and the members of the board were unaware that we had important documentation that might have helped in the resolution of the specific issue.

In the meantime, Needleman has released a statement saying that he was found not guilty of misconduct. This decision followed from the definition of scientific misconduct the board was required to use. He has not, to our knowledge, circulated the final report to the public.
From a legal standpoint, inquiry/investigation procedures for misconduct investigations have not been adequately defined by NIH or, in this particular instance, by the University of Pittsburgh. They are, as might be expected, neither fish nor fowl, as evidenced by their susceptibility to manipulation by Needleman who, as a result of their inadequacy, was able to run afoul of good common sense and propriety during the investigative proceedings. Based on this experience, it is imperative that henceforth such procedures be comprehensively and accurately defined, both substantively and procedurally, to ensure that all involved are aware of the requirements and know what to expect in such proceedings.
Delegation of Authority
Under the existent policies prepared by NIH for OSI (now Office of Research Integrity [ORI]), a misconduct inquiry/investigation can be delegated to the university that is the present location of the scientist under scrutiny. The first legal question such a mandate raises is whether a decision to request an investigation at a university, other than that where the questioned conduct occurred, can adequately deal with the examination of conduct and activities engaged in at another university and thereby restricts the investigators’ ability to obtain competent evidence over a broad range of inquiry. Investigatory panels have no capability to seek and obtain evidence formally from the other school. 5 Concomitant is the issue of whether the potential political value of a nonoffensive outcome — effectively a not guilty finding — at the present school can affect the adequacy or results of the investigation on behalf of OSI (ORI). It is hoped that this would not be the case, but venue and politics have been known to affect the outcome of proceedings.
4 Although most of this article reflects the experiences of Scarr and Ernhart, this section was written primarily by Geneson.
5 Follow-up study data on the 1979 sample ( Needleman, Schell, Bellinger, Leviton, & Allred, 1990) are located at Harvard University, as are data from a prospective study for which Needleman is co-principal investigator.
Inadequate Authority
Assuming the best, the process by which a university will proceed remains fraught with questions and pitfalls. What should be — if there were adequate procedural safeguards and authority — essentially a private inquiry, done in confidence to protect both the subject of the investigation and the witnesses to the wrongdoing, can, as in the Needleman situation, deteriorate into an unusual and inappropriate public hearing. A potentially useful nonpublic investigative hearing in this instance was turned into guerrilla theater that did not reflect the panel’s actual investigative efforts, which occurred both before and after the public “event.” Moreover, the creation of a public proceeding generates the need for the panel — acting in its role as a special master 6 — to assume instead the role of judge, a responsibility for which it is neither charged nor equipped.
In the Pittsburgh open hearing, despite the chairperson’s best effort, Needleman was abusive of and inappropriate in his conduct toward witnesses Scarr and Ernhart. Of course, because of the nonformal nature of the proceedings, the chairperson had no specific authority to control and no apparent experience in controlling this quasi-judicial proceeding. What should have been effectively a grand jury 7 inquiry conducted in private, without external influences, with its results presented to a final arbiter — the Dean — for review and response, deteriorated, at least externally, when it was forced to interact with the public and media. 8 Such is the consequence of inadequate procedural safeguards.
Litigation Versus Investigation
Another aspect is the interaction of the investigative process with the “regular” legal system. First, the question must be addressed as to whether NIH can, in fact, “downstream” its investigative responsibility and any legal authority that its right of investigation might carry. There is no identifiable predicate suggesting that it can legally delegate this responsibility and concomitant authority to another entity — no regulation, not even a policy statement. Without formal
6 A special master is a person or, in this case, a group whose unique background and/or knowledge makes them useful as a designated fact finder to whom a judge or other legal authority can delegate the responsibility and procedural authority to investigate and report on specific matters.
7 A grand jury is a deliberative body whose work is done in secret and whose responsibility is typically to investigate and determine whether there is adequate evidence in support of bringing formal charges for trial.
8 In a tribute to their professionalism and skills, the chairperson and board carried on in the investigation very effectively and did as thorough a job as was possible given the procedural limitations.
authority to investigate, a university’s panel and witnesses remain susceptible to lawsuits predicated on any number of legal theories, without the protection of qualified legal immunities 9 that go with such proceedings when authorized under law. In this case, Needleman, in fact, sued everyone in sight except, remarkably, the complaining witnesses. Further, the ability to sue over the existence, much less the conduct, of the investigation simultaneously with its occurrence created the possibility of legal blackmail, which effectively would have been unavailable if the investigation had used its own independent legal authority.
No Power to Compel
Next, the question must be considered as to whether the NIH, a delegated university, or the accused should be granted the power, through some legal vehicle, to compel witnesses’ appearances for sworn testimony and production of relevant records. In the Needleman case, only moral suasion was available to the panel, effectively precluding any substantive inquiry into the underpinnings of the Needleman study’s population, testing methods, blinding, and so on irrespective of whether this was part of the investigative panel’s mandate. Moreover, testimony not under oath is intrinsically suspect, because dissembling carries no penalty, particularly in this type of investigation in which self-protection and protection of career and reputation in the scientific community are the order of the day.
From a procedural standpoint, despite intellectual skill and expertise, university professors do not instantly become judges without portfolio just because a panel is created to investigate and they are appointed as investigators. Without the development of comprehensive procedures to handle the investigative process and proceedings, due process and legal procedures are abandoned, not necessarily by design but by unfamiliarity. 10 To obviate this
10 The Administrative Procedures Act (the “APA”), Title 5 United States Code, Sections 701 et seq., enumerates in detail the processes and procedures for judicial review available to a person aggrieved by the decisions or actions of an agency of the United States. It is not reasonable to suggest that the government can, at its whim or discretion, empower universities with judicial authority under the APA. Alternatively, if the school’s investigative process were to be in tandem with the government agency, or if legislation were enacted to create a legal “right of action” for universities to seek judicial enforcement of investigative procedures done at the government’s direction, the procedures available in other matters under the APA might be an effective model for misconduct investigations.
9 Qualified immunities are legal protections that inure to an individual or entity as a result of the legal proceedings in which they take part or as a function of the job they hold. Examples are the qualified immunity of witnesses in court proceedings to be effectively immune from suit for their truthful testimony, the broad immunity from suit with which a prosecutor is cloaked for his or her actions in the scope of his or her duties, and the limited immunity an employer enjoys in being able to evaluate his or her employee candidly.

problem, it is necessary that the panel assume more effectively the role of special master and be provided with adequate guidance in the processes and procedures of an investigation of this type. In this regard, the university’s scientific integrity officer and his or her legal counsel become important in developing and tailoring the process and procedures to follow the actual tenets of the law, it is hoped, under the direction and/or guidance of a trained prosecutor/investigator — either from NIH or retained by a university.
Finally, the procedures in terms of appellate review must be more accurately defined. The ability to appeal a panel’s findings indefinitely under a university’s policies is a patent circumvention of the investigation’s process and effect. If scientific misconduct or any variation thereof — a lesser included offense — is found by the investigative body, the conduct must necessarily be disclosed, if only to undermine the perpetrator’s effectiveness in continuing to attempt to influence improperly the scientific community. Indefinite litigation over a panel’s findings serves no purpose except to dilute the value of the investigative process and its results.
The authority of the hearing board was circumscribed, and it was necessarily handicapped by an inadequate legal foundation for effectuating the procedures and processes to fulfill its mission. It is thus not surprising that the Needleman investigation was incomplete. Without the authority to compel document production, witness appearances, and sworn testimony of what actually occurred during the crucial period of Needleman’s creation/evolution of the data set, the board was obliged to accept the data set as valid. Given the problems with other information and representations both within the study and given to the board to “support” the study, such concessions may not be warranted. This limitation of the investigation is important, because the credibility of further analyses depends on the integrity of the data collection procedure.
Albeit, the board did evaluate comprehensively the accuracy or inaccuracy of some of the key representations about the study’s methodology made by Needleman and others. In large measure, the board’s effectiveness was very much a result of the hard work and skill of its members and their staff, which helped to make up for the failings of the inadequately defined and inadequately empowered system under which they were required to work. With this said, serious considerations should be given to legally defining, formalizing, and improving the scientific misconduct investigative system and its processes. It is foolish to assume that any given investigative panel would display the judiciousness shown in this instance.
Furthermore, the board did not and could not fulfill the broader mandate of fully investigating Needleman’s research from the inception of the 1979 study ( Needleman et al., 1979) to the present. 11 The investigation was limited to the 1979 study data provided by Needleman and to the major publication we had questioned following the 1990 Ernhart-Scarr visit to his office. There was no investigation of the 1990 follow-up study, which used the same subject pool as the 1979 study, or of the ongoing Boston prospective study for which Needleman is co-investigator. There was also no investigation into unexplained recent alterations of a widely reproduced graph of data from the 1979 study ( Needleman, Leviton, & Bellinger, 1982). Other publications of questionable data also failed to receive scrutiny. Undoubtedly, with adequate legal empowerment, the investigation would and could have fulfilled the more comprehensive mandate.
What Is Misconduct?
Several times during the hearing, members of the board expressed concern about the differentiation of misconduct and poor science. The definition of misconduct is a thorny issue ( Hamilton, 1992). Tort law ( Goodstein, 1992) requires the proof of five elements in cases of civil fraud. Two of these, reasonable belief by a plaintiff and resulting damage, are not generally critical for research fraud. The other elements are (a) the representation was false, (b) the defendant knew that the representation was false, and (c) that the defendant intended to induce belief in the representation. The requirement of proof of intent to misrepresent (i.e., that the misrepresentation is deliberate) makes this a stringent definition.
In addition to plagiarism, fabrication and falsification of data, the present NIH-NSF definition ( Department of Health and Human Services, 1989) includes “other practices that seriously deviate from those that are commonly accepted within the scientific community for proposing, conducting, or reporting research,” which does not specify intent. This definition is also included in the University of Pittsburgh Research Integrity Policy. This definition is broad and could sweep into it deviations based on a reasonable difference of opinion about methods and/or creative scientific innovation.
A proposed revision ( American Psychological Association, 1992 , p. 6) nar-
11 The Research Integrity Policy of the University of Pittsburgh states, “Consideration shall be given by the hearing board to the review of all research with which the respondent is involved.”
rows the definition of research fraud to avoid this problem and to require demonstration of intent: “evidence of plagiarism, the fabrication or intentional falsification of data, research procedures or data analysis; or other deliberate misrepresentations in proposing, conducting, reporting or reviewing research” (italics added). The shift from deviation, which may reflect a difference of opinion about research strategy, to misrepresentation should be helpful in determining scientific misconduct in specific cases.
Fraud as Misrepresentation
The only evidence we have seen of possible fabrication or embellishment of data in Needleman’s work is an unexplained revision, with new data points added, of a previously published graph. Needleman has also failed to report the results of other research when the results were not favorable. Underreporting may also be considered scientific misconduct ( Chalmers, 1990) because it misrepresents research results. There were certainly clear deviations from usual and customary practice in the conduct of the 1979 study. Do the deviations in this work reflect an honest difference of opinion about methods? In the introduction to the 1979 article, Needleman et al. acknowledged principles of methodology that were quite appropriate. Nonconcordance between these principles and the published report was noted shortly after its publication ( Ernhart et al., 1981). Needleman’s deviations were not creative-at least not in a positive sense. His deviations from ordinary scientific practice produced reports that misrepresented the research results.
Intellectual Misconduct
Science recently discussed the effect of intellectual passion on the behavior of scientists ( Marshall, 1992 , p. 621). Scientists interviewed acknowledged that intellectual conflicts of interest are pervasive.
The key difference among scientists, they said, is not between those who have conflicts and those who do not, but in how the potential conflicts are handledwhether the researcher has the detachment required to be the severest critic of his or her own work — in the absence of that self-reflection, an advocate becomes so deeply invested that it’s almost impossible to let go, even in the face of contrary evidence.
Extending this line of thought, Goodstein (1992) suggested that the perpetrators of fraud think they know the answer and that they simply take shortcuts-help things along, so to speak. Following usual and customary procedures may be seen as slowing things down, particularly if the results are not as expected.
A scientist may rationalize an unwillingness to be self-critical because of a belief that his or her conclusions represent underlying “truth.” This kind of prejudgment is suggested in a statement ( Needleman, 1983 , p. 243) explaining the age difference between the high- and low-lead groups: “I wanted my technicians to get some experience with normal children, so I arranged, without their knowledge, for the first group of children to be low lead children.” An absolutist and unquestioning posture on the effects of lead is seen in most of Needleman’s public statements. Needleman’s views stand in marked contrast to the more balanced approach taken by others ( Fulton et al., 1987 ; Smith, 1989 ; Winneke, Brockhaus, Ewers, Krämer, & Neuf, 1990).
We sent our report ( Ernhart & Scarr, 1990) to NIH-OSI for investigation because we believe that we have an affirmative obligation as scientists and as members of the academic community to speak out against improper and deliberately misleading practices in the conduct and reporting of research.
In contrast to some other whistleblowers, we are established scientists and tenured professors. We believed our risk of truly serious reprisals to be much lower than that experienced by whistleblowers who are less established in the sciences. Nevertheless, this situation has been costly in anxiety, time, and money. These costs are not as severe as the loss of research positions that some whistleblowers have faced, but they are real.
We have been subject to a number of egregious actions overtly due to our role in this matter. Several letters, which falsely asserted that Ernhart was in conflict of interest by her actions in the matter, were written by the officers of the International Society of Environmental Epidemiology, of which she is a member. The society’s letterhead was used to distribute these defaming letters to government officials, to members of Congress, to administrators at the University of Pittsburgh, and to members of the society. 12 Descriptions of other letters, some for publication in newspaper letters columns, are omitted from this report. These letters, along with a rude and sexist parody in a newspaper and an anonymously sent cartoon, are too bizarre to describe.
During the inquiry period, Scarr was invited to submit a manuscript on low-level lead exposure to The Harvard Mental Health Letter. The manuscript was rejected, however, as being “too political.” Other manuscripts have been given unusually severe reviews. A very serious concern is the possibility of biased reviews of grant applications.
12 This letter also asserted that epidemiological statisticians, and not psychologists, should evaluate Needleman’s research. Needleman’s analyses, conducted by a psychologist, consisted primarily of t tests, correlations, and analyses of covariance.

Other adverse events appear to be due to prejudice related to taking on the role of whistleblower. Suspicions about our motives arose continually in interviews with the press and even from colleagues who wondered why we would ever become involved in such a mess.
We have been the recipients of considerable ugliness, in the hearing and elsewhere, from Needleman. He repeatedly charges in all possible forums that we are employees of the lead industry. We should not have to make a statement of denial. This is slander. But we are not the only ones who have suffered his insults. In his response to the inquiry panel, Needleman ( 1991 b, p. 2) tried to discredit the panel members, all competent professors and researchers, by charging that their report “is superficial, incomplete, tendentious, shallow in its scholarship, naive and incorrect in its application of statistical principles, and wrong in its conclusions.”
In his lawsuit ( Needleman v. Healy, 1992), filed while the investigation was underway, he charged that two members of the investigation board had “an appearance of impropriety,” one because he “served in a high level position in a professional organization” with Scarr and the other because he reviewed evidence for a tobacco company regarding an experimental cigarette (p. 16). He further argued that the members of the board, who are renowned experts in research design, statistics, child development, neurology, environmental science, and sociology, were not qualified to evaluate his work. Despite such exaggerations, Needleman has managed to convince some otherwise responsible scientists, as well as reporters, of his allegations. Some reporters have ignored or distorted responses to their questions and have suggested that we acted out of some kind of personal vendetta.
Our families have been supportive, but they have not been untouched. One of Scarr’s daughters was told by a professor that her mother was “slime.” This kind of attack hurts. We also worry that our families will be hurt by the mounting costs.
One of the few positive features of this situation is that the publicity has resulted in the receipt of letters, phone calls, and after-lecture comments from pediatricians, psychologists, public health officials, and others who say that they were concerned about problems they saw in the Needleman work but had not known that anyone else had made similar observations. The irony of this is that, for the most part, these are not people who are doing research on the topic. With a few exceptions, other lead-effects researchers who have discussed in private the problems we have seen have been very reluctant to speak up. One indicated candidly that he did not want to jeopardize his research support. We sympathize with him.
We have each had the support of loyal friends, people who know us and know that the ugly claims are not so. Furthermore, we have each other for occasional “handholding.” We were able to retain the services of David Geneson, a highly competent attorney who has been very supportive. We have needed these supports.
The inquiry report indicated that our suspicions of possible misconduct were quite reasonable. The members of the panel, who had more access than we had to the materials, shared our skepticism about the methods for the selection and classification of subjects and the choice of covariate models. Even though our observations were supported, we doubt that the reprisals have ended.
Much is being written at present about misconduct in research. There are those ( Abelson, 1992) who believe that traditional methods such as peer review and an increased emphasis on the mentoring of junior scientists may be sufficient to decrease misconduct. The problems that have surfaced in this and other cases involving well-known researchers would probably not have been averted by increased emphasis on these remedies. Reviewers of grant applications and of manuscripts submitted to journals can evaluate only the information they are given by the investigator. Deliberate misrepresentation is difficult to detect when one cannot examine the sources of the information.
In most cases of misconduct, the evidence of wrongdoing would not come to light without reports made by whistleblowers. In view of the risks to whistleblowers, it seems likely that a considerable amount of misconduct is never reported. The costs and tribulations to the whistleblower can be severe ( Committee on Government Operations, 1990), and there are few rewards other than the sense that one has done what is right. Teich and Frankel ( 1992 , pp. 21-23) stated that reporting misconduct contributes to science and should be viewed in this light rather than as a betrayal of a colleague. Deceptive work harms all scientists and, as in the present case, can have important societal repercussions. We hope that this article and others in this issue will contribute to a change in attitude toward those who do not look away when they observe apparent violations of ethical procedures in research.
Teich and Frankel further recommended that the allegations of scientists who speak out be taken seriously and explored effectively. Our report was taken seriously by OSI and by the ORI at the University of Pittsburgh, which conducted a valuable investigation, despite the lack of clear legal procedures. Much as we dislike regulation, judicial procedures, and bureaucracy, however, the difficulties involved in resolving some cases, including this one, point to a need for carefully structured policies and procedures that enable thorough investigation and protect the rights of all involved.
Abelson, P. H. ( 1992 ). “Integrity of the research process”. Science, 256,1257.
American Psychological Association. ( 1992 ). “Advisory committee proposes changes in PHS response to scientific misconduct, fraud charges”. Science Agenda, 5(3), 6.
Atkinson, S. E., Crocker, T. D., & Needleman, H. L. ( 1987 ). The importance of specification
uncertainty and intolerance to measurement error in a study of the impact of dentine lead on children’s IQs. International Journal of Environmental Studies, 29,127-138.
Chalmers, I. ( 1990 ). “Underreporting research is scientific misconduct”. Journal of the American Medical Association, 263,1405-1408.
Committee on Government Operations. ( 1990 ). Are scientific misconduct and conflicts of interest hazardous to our health? (101st Congress, 2nd session, 19th report). Washington, DC: U.S. Government Printing Office.
Department of Health and Human Services. ( 1989 ). Responsibilities of PHS awardee and applicant institutions for dealing with and reporting possible misconduct in science: Final rule Federal Register 54 (August 8): 32446-32451.
Emhart, C. B., Landa, B., & Schell, N. B. ( 1981 ). Subclinical levels of lead and developmental deficit-A multivariate follow-up reassessment. Pediatrics, 67,911-919.
Emhart, C. B., & Scarr, S. W. ( 1990, October ). Report on the research of Dr. Herbert Needleman based on samples reported in the 1979 article in the New England Journal of Medicine. (Available from C. B. Emhart, Department of Psychiatry, MetroHealth Medical Center, Cleveland, OH 44109 or from S. W. Scarr, Department of Psychology, University of Virginia, Charlottesville, VA 22903)
Fulton, M., Thompson, G., Hunter, R., Raab, G., Laxen, D., & Hepburn, W. ( 1987 ). Influence of blood lead on the ability and attainment of children in Edinburgh. Lancet, i,1221-1226.
Goodstein, D. ( 1992, March 2 ). “What do we mean when we use the term ‘science’ fraud?” The Scientist, pp. 11, 13.
Hamilton, D. P. ( 1992 ). “Reorganization of OSI now a reality”. Science, 256,1383.
Hoke, F. ( 1992, June 22 ). “NAS scientific misconduct report draws harsh criticism”. The Scientist, pp. 3, 10.
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Needleman, H. L. ( 1981 ). Studies in children exposed to low levels of lead ( Report to the Environmental Protection Agency, Contract 68-02-2217, EPA Document 600/1-81-066).
Needleman, H. L. ( 1983 ). “Low level lead exposure and neuropsychological performance”. In M. Rutter & R. R. Jones (Eds.), Lead versus health (pp. 229-248). Chichester, England: Wiley.
Needleman, H. L. ( 1991 a). “Lead control”. Science, 254,500-501.
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Needleman, H. L., Gunnoe, C., Leviton, A., Reed, R., Peresie, H., Maher, C., & Barrett, P. ( 1979 ). “Deficits in psychological and classroom performance in children with elevated dentine lead levels”, New England Journal of Medicine, 300,689-695.
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Women in the military Mon, 20 Apr 2015 14:50:06 +0000 The Role of Women in the Armed Forces of NATO Countries: Military Constraints and Professional Identities.

by Helena Carreiras

The fight to fight and lead wars has until very recently always been considered an exclusively masculine prerogative. With the exception of war heroines and mythological figures, women have effectively taken part in combat only in exceptional circumstances. The “disarmament” of women is prevalent in most societies, even when different forms of female involvement in military operations have been recorded. Where women have been involved in war, it should, of course, be noted that, despite the importance of the roles they performed, women tend to “disappear” from historical accounts of military enterprises (cf. Hacker, 1981).

Even when women participated in military conflicts as combatants, at the end of the war they were expected to give up military roles and return to the domestic sphere. As stated by M. Segal, “what has happened in the past in many nations is that when the armed forces need women, their prior military history is recalled to demonstrate that they can perform effectively in various positions. There is a process of cultural amnesia regarding the contributions women made during emergency situations, until a new emergency arises and then history is rediscovered” (Segal, 1993:84). Moreover, as studies on female fighters throughout history show, when women enter the military domain, it is usually the definition of these particular women that alters, while broader conceptions about women, war, or masculinity are left intact (Macdonald, 1985).

This pattern has, however, been subject to a considerable transformation in recent decades. From the early seventies, most Western armed forces began to admit women. Contrary to historical precedents, this inclusion of women has not occurred in wartime and, no longer auxiliaries, women have risen progressively in military rank, been trained much as men are, and performed functions in areas that are not traditionally feminine.

The challenge these trends have meant to the military establishment is illustrated by former U.S. Joint Chiefs of Staff Chairman J. Vessey’s observation that “the influx of women has brought greater change to the U.S. military than the introduction of nuclear weapons” (Carrol, Hall, 1993:19).

These changes are usually considered to relate to two wide-reaching social processes in Western democratic societies: the reshaping of military institutions following the end of the Cold War and the changing model for women’s social participation, with parallel transformations in the cultural framework regulating the symbolic system of gender relationships.

In this paper, one particular question will be under scrutiny: the constraints on women’s integration that relate to the structure and policies of the armed forces. Using empirical information produced in NATO countries–especially Portugal–during the past two decades, it will also address the problem of women’s institutional identity and its relation to organizational policies.

Military Constraints and the Politics of Women’s Integration in NATO armed forces

The process described above has been taking place in different rhythms and organizational configurations in the various NATO countries. Indeed, women’s access to certain military positions, namely those related to combat, access to military academies or positions of power inside the ranks is very uneven, and women are still, in fact, largely absent from decisionmaking spheres regarding defense and military issues.

However, by the end of the present decade, despite a strong heterogeneity regarding integration policies, all NATO countries, with the exception of Italy, will have admitted and generally increased the number of women in their armed forces.(2)

Various aspects of military organizational structure have always had a major impact on women’s military roles. Some are macro level variables such as the national security situation or the effects of technological change in society and inside the armed forces. Others are organizational processes in terms of force structure and military accession policies. Despite the decisive influence of other macro-social variables in creating the conditions that have justified the military appeal to women, the origins of the process inside the armed forces are of a relatively more instrumental nature: admission of women has usually been the fruit of recruitment difficulties followed by an imperative need to enlarge the armed forces’ social base. In the words of M. Janowitz, “To a considerable extent, the increasing use of women as support personnel came slowly in military units because women were thought of as a personnel pool that could replace men. Then men could assume combat and front-line duties” (Goldman, 1982:xii). This was specifically the case in the United States, where the end of conscription and the institution of an all-volunteer force raised the concern that the services would not be able to meet their recruitment needs (Binkin, Bach, 1977:10; Holm, 1992:246). It should of course be noted that recruitment difficulties alone cannot justify the observed shift from the strict auxiliary status to a full military integration and the expansion of jobs and career opportunities for women in the armed forces. In other words, while evaluating patterns of women’s integration inside the military, it is also important not to under-evaluate the effective impact of the changing pattern of women’s social and political participation in the direction of greater equity, at least with regard to the formal and institutional criteria for their participation. It is, interesting to note, however, that women have, in effect, constituted a kind of work-force reserve, which the armed forces had to mobilize in order to face the lack of qualified personnel available in the labor-market. Even if present circumstances differ from historical precedents in that women have now acquired full military status and have extended employment opportunities, the impact of the economic factor has always been present and sometimes was even determinant in their military mobilization, as it was during the first and second world wars (cf. Hacker, 1981; Addis, 1994). Growing technological requirements, development of sophisticated arms systems and management principles as well as the increasing tendency to military, professionalization (all-volunteer forces) have all contributed to the demand for more qualified personnel and stressed the armed forces dependency on society at large. In sum, as Segal has stressed, “the demands for military personnel seem to be the single most important factor in women’s military involvement …” (Segal, 1995:760).

Ideological and cultural factors have also been identified to explain recruitment difficulties: in a context where the armed forces suffer from a crisis of legitimacy that makes military life less attractive to young people and lowers the prestige of the military profession, opening the ranks to women “represents an increase of available resources and the possibility to recruit educated personnel at lower costs, due to the gender differences in the labor market” (Reynaud, 1988:30). Moreover, to the technological and cultural aspects a third demographic factor should be added, that is, declining birth rates, which were among the factors that influenced mid-term military personnel policies at the beginning of the process.

Therefore, the relevant question is to evaluate the weight of all these factors and their interaction with other societal variables in concrete historical situations; indeed, recruitment difficulties have not emerged with the same intensity in different countries, depending, for instance, on the existing system of military service–conscript or volunteer; nor has the process followed similar patterns, had identical rhythms, sequences, or results. It is thus crucial to distinguish between the first recruitment of women or the increase in their numbers and the conditions and circumstances for statutory change (equalization of status, hierarchical progression, uniforms, salaries, suppression of all-female corps, etc.); access to jobs, specialties, and combat positions; and opening up of military schools and academies to women.

Women’s Recruitment, Force Structure, and Military Accession Policies

Recent studies have clearly confirmed that shortages of qualified men tend to increase reliance on women to fulfill military recruitment needs. Some authors have strongly argued that nations considering a transition from conscription to a volunteer system tend to include plans to expand women’s military participation. These are the conclusions of Haltiner’s study concerning the end of mass armies in the West, which emphasize the importance of the Women Ratio (WR, the percentage of women compared with the total armed force) as “an excellent indicator of the Army format.” Since all countries included in this study recruit women on a volunteer basis and volunteers are mainly assigned to technologically complex tasks that cannot be fulfilled by conscripts serving on a short-term basis, the WR is also an indicator of the technological standard of a particular force. In addition, the fact that women are generally overrepresented in the air force and navy suggests that WR may also serve to measure the structural differentiation of a nation’s armed forces.

A negative correlation has been identified between the degree of women’s participation and the mass-army format: “the higher the WR, the lower is the mass army format of a force and the higher the degree of organizational role differentiation and specialization” (Haltiner, 1998:54). Consequently, the author anticipates that “the degree of women’s participation . will only substantially increase if conscription is abolished and the personnel will have to be recruited entirely on the labor market” (Haltiner, 1998:60). The author further believes that the existence of conscripts is the largest obstacle to an increase of the Women Military Participation Ratio. Whether this belief is sustainable is a question for empirical scrutiny, and may be subject to criticism. Segal, for instance, describing the same global tendency, claims that, “regardless the method of accessing personnel, the crucial determinant of the number of women brought into the armed forces is whether the supply of men meets the number needed to fulfill the military’s mission(s). The greater the need beyond available male labor, the greater the number of women” (Segal, 1995: 766).

One should of course notice that indicators like the Women Ratio refer to a limited aspect of women’s military participation, that is, their relative numbers, leaving undiscussed qualitative variables such as the specific roles that women are assigned to within military forces. These are sometimes considered to depend more on other types of variables such as cultural values on gender equality (Segal, 1995). In any case, the fact that, in general, modern nations with volunteer forces (notably Canada, the United Kingdom, and the United States) have also been increasing women’s military roles more rapidly than those with conscription seems to be undeniable.(3)

Other aspects of force structure help to explain women’s involvement in military operations. The Combat to Support Ratio and the nature and utilization of the reserves are among the most important. It has been noted that women’s involvement is negatively affected by the proportion of combat jobs. As seen before, technological developments account for a major trend toward a higher proportion of support personnel in the armed forces. The likelihood of international deployments presents an additional factor. While warfare at home can count on civilian infrastructures, engagements away from home require the deployment of support personnel. Segal has argued that as long as women remain mainly occupied in support functions, their number and roles will to rise as the number and proportion of personnel with primarily support functions rises (Segal, 1995:764). The impact of this variable on women’s roles may, however, vary depending on which positions are open to them and which ones they actually fill.

The second variable–the structure of the reserves–is closely articulated to the combat-to-support ratio. Segal has developed the hypothesis that “to the extent that support functions are concentrated in the reserves, compared to active duty forces, women will have higher representation in the reserves. The greater the reliance on reserves for support in wartime mobilization, the greater women’s participation in such mobilization” (Segal, 1995:765). She illustrates this effect with the case of the United States during the Gulf War, when women constituted larger percentages of reserve forces deployed than active duty forces. Identically, in Canada women constitute a larger percentage of the reserves than active duty personnel. Whether the prediction of a co-variation between increasing support functions and women’s involvement will hold true in the future also depends on how certain new organizational trends develop. As a result of mission redefinition and multinational deployments to peacekeeping operations, a renewed emphasis on operational tasks has been observed. The same trends are affecting the specific role of the army, which seems now to regain some of its former importance, in comparison to the other branches (Boene, Dandeker, 1998). These changes, if prevalent, may function as countervailing forces to the increase in support functions and thus contribute to limiting women’s participation.

Institutional Orientations and Women’s Professional identity

In the previous section it has been shown that the extent to which the armed forces of most western countries have increased the recruitment of women has depended largely on military requirements such has the volunteer character of force structure and military accession policies (even if these aspects are themselves ,affected by global macro-social and organizational trends). Moreover, women’s military roles have been enlarged in the context of growing technical specialization and “occupational” pressures within the armed forces, during the last three decades. This tendency is congruent with the assumption that the role of women is extremely limited in an institutional type of military organization, while the shift towards a more occupational pattern is associated with expanding employment opportunities for women. Empirical research has indeed shown that the armed forces of Western countries have regularly increased the number of women in their ranks during the last two decades. A strong relation has been revealed to exist between this tendency and the degree of specialization of the armed services (namely the growing need for qualified personnel to fulfill new technically demanding functions). Results of early research have revealed that the goal of rising the force qualification had indeed been met, at least in the case of the United States. The American experience has, in fact, demonstrated that women’s presence promoted an increase in educational levels, as on average women who volunteer to the armed forces are better educated than men. The country’s ability to maintain an all-volunteer army was even considered to depend on the effective use of female labor (Binkin, Bach, 1977:71).

Most of the researchers who have dealt with this problem have thus tried to understand how organizational change interacted with individual orientations: if at macro and meso analytical levels the trend towards occupationalism seemed to characterize both civil-military relations and organizational recruitment policies, what happens with women’s orientations? What kind of values do women bring to the military? Is it possible to identify, among them, a specific value pattern when compared with their male counterparts? Are women motivated by economic related aspects, by an institutional sense of calling, or by “pragmatic professionalist” values?

It has been predicted that, due to their usually disadvantaged position in the labor market, women would tend to adopt, more than men, a “market oriented” approach, seeking to maximize economic advantages in terms of salaries, fringe benefits, or job security. Despite the fact that historically women have always proved to be “institutionally” driven, conceiving military service as a vocation or a “calling” (as it was the case of military nurses during the World Wars I and II), the new context is seen as potentially revealing a different motivational pattern. “According to the occupational thesis, variables such as wages and unemployment are critical in explaining enlistment, attrition, and reenlistment. If these variables are effective at predicting female military participation patterns, they would certainly support the contention that women are attracted to the armed forces for occupational reasons” (Shields, 1988:103).

Empirical research carried out in Europe and the United States during the 1980s seemed, however, to highlight an opposite tendency. Drawing on the results of studies on enlistment motivations, Patricia Shields shows that, paradoxically, women don’t see the armed forces as another employer but rather are attracted by unique characteristics of the military such as discipline and adventure. One of these studies, conducted by Shields on American military women, revealed that the possibility of travel and the feeling of being different from civilian women were among the most important motivations for enlistment: “Theirs wasn’t just another job–it offered excitement, adventure, discipline and structure” (Shields, 1988, p. 104). While job security is a relevant reason for enlistment, the more “institutional” characteristics of the armed forces (absent in the context of other civilian organizations) are dominant. E. Reynaud pointed to the same effect in the case of the French military, underlying the weight “the search for a structured environment and an organized life” as well as the need to escape routine had among women’s motivations (Reynaud, 1988). In a study of the first one thousand women to join the Portuguese Armed Forces (including officers, noncommissioned officers, and lower ranks) carded out in 1993, these results have also been confirmed to a certain extent (Carreiras, 1997). In this research, 16 indicators were used to measure I/O motivations. The results are shown in Table 2.

Table 2. Military Women’s Motivations for Enlistment–Portugal (1994)

Motivations                               Important       Not        

Institutional factors (core dimension)                               
  Attraction to discipline and the                                   
  structured atmosphere of the armed                                 
  force                                       87.9         12.1      
  Will to serve my country                    87.2         12.8      
  Possibility of developing a                                        
  prestigious activity                        84.5         15.5      
  Access to a good civic training             79           21        

Occupational factors                                                 
  Possibility of a safe job                   74.5         25.5      
  Better professional opportunities                                  
  than in civilian life                       75.4         24.6      
  No employment alternatives                  42.1         57.9      

Institutional factors (life-style                                    
  Possibility of doing something                                     
  different previously closed to women         84           16       
  Escape routine and live an active                                  
  life                                         68.7         31.3     
  Attraction for the uniform                   57.6         42.4     
  Possibility of traveling and                                       
  knowing other places                         48.8         51.2     

Circumstantial factors                                               
  Leave parents' home and                                            
  start an independent life                    24.3         75.7     
  Military influences among friends or                               
  family                                       29.1         70.9     
  Failing access to university                 21.1         78.9     
  Possibility of training/education                                  
  without financial burden                     20           80

Source: Carreiras, H. (1997) Mulheres nas Forcas Armadas Portuguesas, Lisboa, Cosmos. These data indicate that some of the items included in the core “institutional” dimension have acquired major importance. “Attraction to the discipline and the structured environment of the armed forces” is indeed the reason most commonly given to justify the enlistment decision. It is immediately followed by the “will to serve my country” and the “possibility to develop a prestigious activity.” One of the “life-style” dimensions of institutional factors has also a strong weight: “the possibility of doing something different, previously closed to women.” As in the earlier cases cited, Portuguese military women seem to have been attracted by the uniqueness of the armed forces more than by mere circumstantial factors or the search for labor/economic security. More than a job or an “occupation,” military service is above all a challenge and a distinctive activity where structure and innovation coexist. That seems to be the main conclusion, but occupational dimensions are not absent: almost three-fourths of the women still consider job security or the chance to find better professional opportunities than in civilian life an important reason to join the armed forces. If only the initial motivations to enlistment are considered, it is thus possible to identify the common presence of “institutional” and “occupational” features, a pattern that has been defined in theoretical approaches as “pragmatic professionalism.”

It should of course be noted that such tendencies might vary depending on the positions individuals occupy within the organizational structure. Traditionally, officers trained in military academies and schools or those in combat-oriented positions tend to score much higher on institutional features than do other personnel. Even if women are under-represented at the top of the hierarchy, they may be expected to develop institutional orientations as they move into higher ranks. To the extent that they are excluded from these positions, their future “institutional” orientation may be diluted. Referring to career combat soldiers, Shields argues that “the values that tie these men together and produce unit cohesion are institutional. Hence, as long as women are excluded from this inner circle, their institutional orientation in average, will not reach its full potential…. the military is giving women a message that undermines female institutional values and, by implication, promotes an occupational orientation” (Shields, 1988:110).

The Portuguese case is an example in which it is indeed possible to observe an interesting tendency when the question of change over time regarding motivations or expectations is addressed. Corroborating previous research findings, the results of this study have also highlighted a stronger emphasis on the core dimension of institutional values by women cadets of military academies–those who will become officers–as well as by those in “operational” specialties (pilots, paratroopers, air police). Despite this tendency, these groups of women are exactly those among whom greater awareness of obstacles to women’s integration has been reported. Moreover, even if these data do not allow a longitudinal analysis, it was also possible to identify an increase in critical evaluations over time. The longer a woman had served in the military, the more likely she was to report being discontented, considering leaving, or anticipating problems in the near future.

Considering the existence of both types of motivations, a hypothesis has been raised that explicitly addresses the possibility of change: institutional orientations may not be sustained or at least may suffer some erosion in the absence of material/economic incentives. Especially for those women who remain in the military and proceed with their military careers, the maintenance of high levels of institutional affiliation may thus depend, to a large extent, on the existence of guaranties in the fields of material security and economic reward. This supposition does not apply exclusively to the case of military women. In an analysis of the potentialities of the I/O model in policy making, Wood has argued that only if minimum material requirements are met will individuals accept the hardships associated with the military, as long as they perceive themselves as working for the common good of society (Wood, 1988). To the extent that the objective is diluted or material conditions are considered to be particularly deficient, their commitment will suffer and they will tend to adopt the occupational orientation characteristic of the specialist.

In the case of military women, however, the conditions under which a specific orientation may develop–and potentially influence role performance, career paths, attrition, or reenlistment decisions–are related to other variables that seem to affect them in ways not confronted by men. It is thus important to ask: which factors influence changes in professional orientations? What are the effects of institutional location (rank, type of job, etc.) and social characteristics (age, class, race)? What relationship is there between motivational patterns/expectations and women’s carrier development? Beyond the scope of policy decisions that define women’s roles at the organizational level, social structure dimensions, such as family and maternity, as well as cultural aspects must be considered. Some of these variables are crucial to explain women’s military roles and should be under particular scrutiny in future comparative studies on women’s presence in military organizations.

Table 1. Women in NATO forces (1998/99)(*)

Country                      Total number          %                 

Belgium                          3121             7.2                
Canada                           6663            10.8                
Czech Republic                   1646             7                  
Denmark                           912             5                  
France                          27092             8.1                
Germany                          3810             1.1                
Greece                           6155             3.8                
Hungary                          2172             4                  
Italy                              --            --                  
Luxembourg                        (**)          (**)                 
Netherlands                      4073             7.4                
Norway                            891             5.04               
Poland                            167           (**)                 
Portugal                         2954             6.2                
Spain                            3486             3.4                
Turkey                            754           (**)                 
United Kingdom                  16146             7.7                
United States                 220 000            14.4

(*) Numbers refer to active duty forces (**) Information not published

Source: The Advisory Committee on Women in the NATO Forces, Women in the NATO Forces–year in review 1998, Brussels, 1998


(1.) Sociologist, Assistant Professor at ISCTE (University of Lisbon) and researcher at the European University Institute (Florence). E-mail:

(2.) Recently, however, there have been attempts in some countries to limit the number of women in the ranks, as well as to impose new exclusionary regulations, concerning, for instance, the prevention of marriage among military personnel or mixed-sex groups during military operations (Moskos, 1998).

(3.) The often-cited case of Israel, where both men and women are conscripted, is also a good example of the severe limitations to women’s military roles. Israeli women are not allowed to participate in combat; they fulfill strictly support functions.


Addis, E., Sebesta, L., Russo, V., (eds.) (1994) Women Soldiers, Images and Realities, Basingstoke, Macmillan.

Binkin, Martin, Bach, Shirley, (1977) Women and the Military, Washington, The Brookings Institution.

Boene, B., Dandeker, C., (1998), Les Armees en Europe, Paris, La Decouverte.

Carreiras, Helena, (1997) Mulheres nas Forcas Armadas Portuguesas, Lisboa, Cosmos.

Carroll, Berenise, HALL, Barbara W., (1993), “Feminist perspectives on women and the use of force”, in Ruth H. Howes, Michael R. Stevenson (ed.), Women and the use of Military Force, Boulder, Lynne Rienner Publishers.

Fads, Jonn H., (1988), “The social psychology of military service and the influence of bureaucratic rationalism”, in C. Moskos, F. Wood (ed.), The Military: more than just a job?, Washington, Pergamon-Brassey’s.

Goldman, Nancy L., (ed.), (1982) Female soldiers: combatants or noncombatants? Historical and contemporary perspectives, Westport, Greenwood Press.

Hacker, Barton C., (1981) “Women and Military Institutions in early modern Europe: a reconnaissance”, Signs: Journal of women in culture and society, vol. 6, No. 4.

Haltiner, Karl W., (1998) “Mass Armies in Western Europe”, in Vlachova, Marie (ed.) The European Military in Transition, Nomos Verlagsgesellschaft, BadenBaden.

Holm, Jeanne, (1993) Women in the Military: an unfinished revolution, Novato, Calif., Presidio Press (revised edition).

Howes, Ruth H., Stevenson, Michael R., (1993) Women and the use of Military Force, Boulder, Lynne Rienner Publishers.

Macdonald, Sharon, et. al. (ed.), (1987), Images of women in peace and war, London, Macmillan.

Moskos, C., Wood, F. R., (ed.) (1988) The Military: more than just a job?, Washington, Pergamon-Brassey’s.

Reynaud, Emmanuel, (1988) Les femmes, la violence et l’ armee, Paris, Fondation pour les Etudes de Defense Nationale.

Segal, David R., Sinaiko, H. Wallace, (1986) Life in the Rank anti File, Washington, Pergamon Brassey’s.

Segal, Mady W., (1993), “Women in the Armed Forces”, in R. H. Howes, M. R. Stevenson, (ed.), Women and the use of Military Force, Boulder, Lynne Rienner Publishers.

Segal, Mady, (1995) “Women’s Military roles cross-nationally Past, Present and Future.” Gender and Society, Vol. 9, No 6

Shields, Patricia, M., (1988) “Sex roles in the Military”, in C. Moskos, F. R. Wood (ed.), The Military: more than just a job?, Washington, Pergamon-Brassey’s.

Stanley, Sandra, Segal, Mady W., (1980) “Military women in NATO: an update”, Armed Forces and Society, vol. 14. No. 4.

Wood, Frank R. (1988), “At the cutting edge of institutional and occupational trends: the U.S. Air Force officer corps”, in C. Moskos, F. Wood (ed.), The Military: more than just a job?, Washington, Pergamon-Brassey’s.


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Year-Round SCHOOLING Essay Topic Mon, 20 Apr 2015 04:35:24 +0000 Seven Rules to YEAR-ROUND SCHOOLING


Research and Dialogue Make Implementation Possible

Readers of the daily newspaper weather pages know three things about Yuma, Ariz. Yuma stands last in the alphabetical listing of National Weather Service reporting stations. Yuma typically appears in the reddest portion of the national weather map. Yuma is often the nation’s hot spot.

Our local newspaper headline on June 27, 1990 read: “Heat Wave Continues to Hammer Yuma.” What the headline did not say was: “Wow! 122 degrees!”

As superintendent of an elementary school system in Yuma, I sat on a hot seat for other important reasons. I had to find ways to avoid overcrowded schools and improve student achievement. Moreover, I had to find solutions–hot weather or not–in a climate of sharply declining revenues.

Two short summers after our record-setting heat, a mid-summer newspaper headline stated: “Many In Crane Start School Soon.” In headline parlance, “soon” meant the following day.

Half-Baked Notions?

We had found a solution. In short, more than 5,000 students now attend our six schools on a single-track year-round calendar. Year-round means the traditional summer vacation is broken into parts and redistributed in segments throughout the year. A 45-15 schedule allows our students to attend school in four 45-day periods separated by 15-day intersessions (vacations).

Some believed we’d been out in the midday sun too long when we announced we planned to investigate a year-round calendar. Imagine year-round education in a community where the thermometer shatters 110 degrees for weeks on end, breaking the century mark at least four months annually. Some thought us half-baked to even consider this calendar change, but nevertheless we started school in mid-summer on a single-track modified 45-15 calendar.

Executive Director Charles Ballinger of the National Association for Year-Round Education cites our experience as an example of success under improbable circumstances. He has noted that if Yuma can have year-round schools in the hot, low desert climate of southern Arizona, one can implement year-round schooling anywhere.

Essential Steps

Year-round education can be implemented anywhere–when the community is ready. That’s what this story is about. Is the community–in our case, a farming community producing most of the nation’s winter lettuce, cauliflower, and broccoli–ready to abandon the nine-month agrarian school calendar? Will a community break from tradition to gain better student achievement, a reduced tax burden, and/or less crowded schools?

Our decision to make this radical move was considered carefully over three or four years. The decision emerged after extensive research and considerable community dialogue. As we reviewed, cussed, discussed, and shaped a workable year-round education plan, I came to realize some essential rules to bring effective implementation in an unsure community.

* Implementation Rule No. 1: Do your homework before seriously initiating the idea of year-round education with your community.

Before you talk about year-round education, know what this concept means. Know how a year-round education structure can work. Know the difference between single-track and multi-track. Understand 45-15, the Orchard Plan, Concept Six, and other typical year-round education calendars. Know major drawbacks. Know the difference between real problems and false perceptions.

Our dialogue with parents and staff started with literally dozens of general questions, such as:

* How can we keep energy costs to a minimum during the hot summer months?

* How is a concentrated physical cleaning of a school to be done?

* How are classrooms shared?

* How will classes be organized?

* What assurance do we have about siblings being on the same track?

* What happens to interscholastic athletic programs?

Be prepared to respond to a broad array of questions. We had reasonable replies, but we assigned a community task force the responsibility to investigate and give answers.

A Public Process

* Implementation Rule No. 2: Involve your community in making recommendations about a possible year-round conversion.

To involve our community we met with residents. We talked to parents. We held public forums. We met in schools. We spoke in homes. We sent information home with students. We talked to staff. We brought the governing board along, step by step. We published our findings for all to read and review. We answered question after question. We researched year-round education until we knew more than the experts. (Then we picked expert brains to be confident we hadn’t missed anything.)

We formed investigation teams of parents, citizens, business representatives, and staff members. Participants were selected for their open minds, not for their positions on year-round education. We did the things the textbooks suggest.

We used an NAYRE publication, Yea r-Round Education Resource Guidebook, which provides some basic guidelines for moving toward a decision. We adapted those guidelines to our circumstances. In all, five community-based teams helped at various stages in the decision-making process. These teams recommended whether, when, and how to move to year-round education.

* Implementation Rule No. 3: Form a support group to solidify acceptance about the recommendations, since every proposed action has detractors.

As we approached a board decision, four of the five board members told me they supported the year-round education recommendation. While unanimity is preferred, one board member had declared opposition at the outset. Everyone understood well in advance there would be one negative vote.

Then I blundered. I failed to follow Implementation Rule No. 3. Even after a small, vocal, well-organized opposition emerged, I believed the recommendation was secure. Indeed, I actually discouraged formation of a pro-recommendation group. I thought the decision for year-round schooling was firm. After all, board members had told me they supported the recommendation.

My failure to form a support group resulted in much heartache. Voices in opposition forced additional public meetings. We had to poll for parental preferences. Letters to the editor became heated. Board support wavered. Hope for a clear board vote in support of the recommendation appeared dead. While governing board views about the value of year-round education had not changed, the political landscape had!

Rallying Colleagues

* Implementation Rule No. 4: Should your path become rocky, encourage those you trust and respect to tell you like it is.

I told my management team that I was discouraged by eroding board support. I considered throwing in the towel. Collectively they said “no!” Principals and directors, certified and classified, understood that year-round education meant better schools. Year-round education would bring better facilities, more learning by our children, and substantial tax reductions or tax avoidance over the years.

This unanimous management team support led to a new plan. We knew families in our district were split between embracing year-round education and continuing the traditional pattern. Our solution, therefore, allowed every family to choose between a 45-15 year-round calendar and a nine-month calendar. This dual-track format was immediately supported by the board and the community. Opposition vanished.

Required to administer two tracks in each school, all principals accomplished the task willingly and enthusiastically. Despite the dual-track complication, our single-track 45-15 experience proved to be better than anyone could have hoped. Only then did year-round education cease to be some theoretical way to educate our students better.

Staff, parents, and students rallied to support the program. Most became convinced it was best for student learning. And those skeptics who were concerned about year-round schools in our hot summers? They too rallied to support the program.

* Implementation Rule No. 5: Develop a multi-year plan for moving toward and fully implementing year-round education.

While “field testing” our two-track experiment, we wrote a five-year plan. If year-round education worked successfully, how would we expand it?

The plan considered our new-found commitment to the year-round format, our anticipated student growth, and our projected annual bonding capacity. Members of the management team made a public presentation of the plan to the governing board. I stayed on the sidelines. The presentation clearly demonstrated to the community that year-round schooling was supported by all principals and administrators.

Statistical Studies

* Implementation Rule No. 6: Collect data on the issues that are raised within the community as you initiate year-round education, regardless of the size of your first program.

We addressed three major issues. These included the impact of the hot summer months, skepticism about whether a 45-15 schedule would improve learning environments, and questions about perceived prohibitive year-round schooling costs.

We surveyed. We reviewed records. We found that 45-15 students had no problem with the heat; they’d played in it all their lives. Teachers found students needed virtually no review time after intersessions; students appeared to be returning from long weekends.

Authentic assessment data seemed to support broader achievement findings. Electrical costs were within the range previously predicted by our community researchers. (Our schools already were airconditioned. Utility costs increased about 10 percent.) Added salary costs proved minimal as we employed a strategy of reordering work-year patterns to coincide with the new school attendance arrangement.

By collecting data on these issues, we verified the findings and predictions of those who had initially recommended year-round education. They were right. Year-round schooling can be implemented in the summer heat. It does appear to improve student learning and can be cost effective.

* Implementation Rule No. 7: Remain flexible, keeping focused on your real goals.

Year-round education was never our goal. Our two goals were to improve student achievement and delay, if not escape, overcrowded schools. Year-round education was selected as a means to those ends.

As opposition and obstacles arose, we easily worked around them since we weren’t committed to installing a specific year-round education model. We didn’t stray from our real goals. Year-round structure, timelines, participation, etc., shifted without loss of direction because we accommodated emerging concerns.

For instance, at one time or another we variously planned for a 60-20 calendar, separate year-round and nine-month schools, installing the Oxnard curriculum model, and a host of other proposed actions that never experienced the heat of a Yuma day. We remained wedded to finding a way to reach our goals.

Convincing Evidence

Year-round education was not a solution in search of a problem. We pursued year-round education vigorously only after investigations led us to believe student achievement would increase. We found evidence year-round students perform as well as, but usually better than, students on the typical school calendar.

The primary source for this conclusion was the Oxnard, Calif., Elementary School District’s longitudinal study in 1991. This study clearly demonstrates advantages for year-round education students. We were impressed since Oxnard’s demographics parallel ours. Each district serves a large student population of Mexican ancestry. A 1993 review of 13 studies by Leslie Six, a Southern California consultant hired by NAYRE, confirmed the Oxnard academic achievement findings.

Second, our investigators were convinced year-round education could increase classroom space despite restricted school budgets. A host of studies conducted in a variety of settings supported this conclusion, notably those in Jefferson County, Cob. (conducted internally in 1990) and Cherry Creek, Colo. (conducted by Price Waterhouse in 1991), as well as several in California districts (Visalia, 1988; Oxnard, 1991; San Diego City Schools, 1989). Our own experiences in two years lend support to these cost saving/cost avoiding studies.

We also understand the need for a policy spelling out the conditions that determine when a single-track school converts to multi-track. Our experience, confirmed by data from many districts, shows when a school exceeds its capacity by about 15 percent, it becomes cost effective to change to multi-track.

Within a year or two we expect to convert our junior high school from a single-track calendar to a multi-track calendar. With more than 1,150 students, the school is overcrowded. A magnet elementary school also will convert to multi-track because it exceeds its capacity by 15 percent.

Radical Change

Successful conversion to year-round education has helped the Crane Elementary School District attack two problems. The radical calendar change has led to better student learning and it gave us a means to handle significant student growth without increasing bonded indebtedness.

As you weigh a year-round format, consider the seven rules for implementation. You’ll have a stronger program and save yourself and your board members unnecessary heat (regardless of your local weather) when you are well prepared.

A Snapshot of a Movement
Involvement in Year-Round Education in U.S. Public Schools, 1993-94
Number of states 32
Number of districts 366
Number of elementary schools 1,627
Number of junior high/middle schools 171
Number of high schools 82
Number of special schools 25
Total of public schools 1,905
Total enrollment 1,407,377
Source: National Association for Year-Round Education

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Term paper online on Masculinity and Young Men’s Health Wed, 07 May 2014 16:25:14 +0000 Social norms marketing campaigns hold promise for addressing a variety of health concerns relevant to men, including men’s incorrect perception that most men are unconcerned about their health.

As an example of possible cognitive techniques that may be used for changing the thinking and behavior of the alcohol drinkers I would suggest to mention the figures of alcohol-related mortality in the integrated social marketing campaign, such as: “Almost 54 percent were from diseases attributed to chronic alcohol abuse; the rest were intentional or unintentional injury deaths. Two-thirds of the alcohol-related deaths were of males. Alcoholic men have a mortality rate that is two to six times higher than that of the average male.”

Then the information about the possible diseases and injuries connected with alcohol consumption should be mentioned: ‘Alcohol abuse increases the risk of cancer at several sites. Most notably, abuse is responsible for 75 percent of the deaths from cancer of the esophagus and 50 percent of those from cancer of the larynx and the lip/oral cavity/pharynx. It also contributes to cardiovascular, respiratory and digestive system diseases and to fatal mental disorders. Alcohol impairs physical and psychological functioning. It lessens visual acuity, diminishes motor control, slows reflexes and increases risk taking.’ (Courtenay ,2004)

Then in accordance to the principles of the social cognitive approach, the social skills training should be made. It means that individuals will be taught to behave in a different way, for instance they will be told that the substance use may be overcome and a lot depends on the persons perception and self control.

This kind of training aims to form the skills and motivation to allow drug and alcohol abusers to improve their functioning in social situations. It’s tremendously important instrument, because once the abusers are in the certain social situations they may subject to repeat of the previous pattern of the unhealthy behavior. So the goal is to suggest the new pattern, new behavioral options for the certain risky situations.  ‘At the root of many high-risk situations identified by substance abusers is a difficulty in interacting positively with other individuals (e.g., interpersonal conflict, social pressure). Enhancement of this skill is thought to have positive implications for maintaining substance use goals.’ (Courtenay, 2004)

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