Wednesday, December 15, 2004
Added to the SSRN database on Dec. 9: Daniel J. Gilman (Univ. of Maryland School of Law), Thou Shalt Not Kill as Defeasible Heuristic: Law and Economics and the Debate Over Physician-assisted Suicide, Oregon Law Review, Vol. 83, No. 4, Spring 2005.
ABSTRACT: Although the literature addressing medical decisions at the end of life is vast, surprisingly little of it has come from the perspective of law and economics. This article begins with a critical account of one of the very few law and economics-based discussions of physician-assisted suicide (PAS), that developed by Judge Richard Posner in his book, Aging and Old Age. Central to Judge Posner's account is a model of PAS as a sort of technological innovation. What this particular innovation is supposed to bring is a radical reduction in certain critical information costs attending end-of-life decision making. It is argued that Judge Posner's model - although innovative and instructive - is incomplete and, consequently, inadequate to the normative task of justifying a change in legal regime with regard to PAS. Certain cognitive issues are held to confound the already difficult task of securing bona fide patient consent. That prompts interesting questions about how to value inevitable errors in consent, questions examined in light of the risk management literature regarding valuation of life methodologies. It is argued that the PAS debate makes telling certain difficulties in such methodologies. It is also argued that we ought to adopt conservative standards with regard to attempts to legislate revisions in certain fundamental moral norms. Finding that Judge Posner and others have failed to meet such standards is an argument on behalf of what is, under the laws of most states, the status quo.
A working draft of this paper can be downloaded here. [tm]