Deborah Hellman

When is Discrimination Wrong?

Deborah Hellman — Wed, 09 Nov 2011 12:26:09 PST

A law requires black bus passengers to sit in the back of the bus. The U.S. Food and Drug Administration approves a drug for use by black heart failure patients. A state refuses to license drivers under age 16. A company avoids hiring women between the ages of 20 and 40. We routinely draw distinctions among people on the basis of characteristics that they possess or lack. While some distinctions are benign, many are morally troubling.

In this boldly conceived book, Deborah Hellman develops a much-needed general theory of discrimination. She demonstrates that many familiar ideas about when discrimination is wrong—when it is motivated by prejudice, grounded in stereotypes, or simply departs from merit-based decision-making—won’t adequately explain our widely shared intuitions.

Hellman argues that, in the end, distinguishing among people on the basis of traits is wrong when it demeans any of the people affected. She deftly explores the question of how we determine what is in fact demeaning.

Claims of wrongful discrimination are among the most common moral claims asserted in public and private life. Yet the roots of these claims are often left unanalyzed. When Is Discrimination Wrong? explores what it means to treat people as equals and thus takes up a central problem of democracy.

Money and Rights

Deborah Hellman — Fri, 23 Sep 2011 08:28:29 PDT

This article looks at when constitutionally protected rights are interpreted by courts to include a concomitant right to spend money to effectuate the underlying right and when they are not. It concludes that there are two strands in our constitutional law: the Integral Strand, in which a right includes the right to spend money and the Blocked Strand, in which it does not.

Physicians as Researchers: Difficulties with the "Similarity Position"

David Wasserman et al. — Fri, 23 Sep 2011 08:25:47 PDT

Money and Rights

Deborah Hellman — Mon, 09 May 2011 06:18:16 PDT

This chapter looks at when constitutionally protected rights are interpreted by courts to include a concomitant right to spend money to effectuate the underlying right and when they are not. It concludes that there are two strands in our constitutional law: the Integral Strand, in which a right includes the right to spend money and the Blocked Strand, in which it does not.

Of Mice but Not Men: Problems of the Randomized Clinical Trial

Samuel Hellman et al. — Thu, 31 Mar 2011 10:23:16 PDT

What Makes Genetic Discrimination Exceptional?

Deborah Hellman — Wed, 23 Mar 2011 12:36:44 PDT

Money Talks but It Isn't Speech

Deborah Hellman — Thu, 08 Apr 2010 07:40:26 PDT

This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these other rights, this Article notes that sometimes constitutional rights generate a penumbral right to spend money and sometimes they do not. Thus the fact that money facilitates the exercise of a right is insufficient to show that the right includes a penumbral right to give or spend money. The first contribution this Article makes is to identify this question: when do constitutional rights generate a penumbral right to spend money? The second contribution this Article makes is to provide an answer. When a right depends on a market good for its exercise, the right generates a penumbral right to give or spend money. When a right does not depend on a market good for its exercise, the right does not include a penumbral right to spend money. Using this account, this Article argues that the right to give and spend money in connection with elections need not be protected as speech under the First Amendment.

Willfully Blind for Good Reason

Deborah Hellman — Thu, 19 Nov 2009 05:45:57 PST

Willful blindness is not an appropriate substitute for knowledge in crimes that require a mens rea of knowledge because an actor who contrives his own ignorance is only sometimes as culpable as a knowing actor. This paper begins with the assumption that the classic willfully blind actor – the drug courier - is culpable. If so, any plausible account of willful blindness must provide criteria that find this actor culpable. This paper then offers two limiting cases: a criminal defense lawyer defending a client he suspects of perjury and a pain doctor who suspects his patient may be lying about her pain. The paper argues that each of these actors is justified in cultivating ignorance about his client’s or patient’s truthfulness. If this is right, then a good theory of willful blindness must distinguish these cases. The article argues that neither Husak & Callender’s motivation-based account of willful blindness nor the recklessness account is able to do so. The paper proposes the following alternative: contrived ignorance constitutes culpable blindness when the decision to remain blind or to cultivate blindness is not itself justified. This Justification approach meshes with our institutions about willfully blind drug couriers as well as willfully blind lawyers and doctors.

Prosecuting Doctors for Trusting Patients

Deborah Hellman — Wed, 23 Sep 2009 09:36:59 PDT

In an escalating phase of our country’s war on drugs, doctors treating patients in pain are being prosecuted for drug trafficking under the Controlled Substances Act. While doctors surely can be guilty of drug trafficking when they sell drugs for money, lately some doctors have been prosecuted for violations of a statute that requires knowingly distributing or dispensing controlled substances in an unauthorized manner for simply being willfully blind to the fact that their patients were reselling the drugs. While willful blindness may be an apt substitute for knowledge in the traditional drug courier scenario, doctors in these cases are often willfully blind for good reasons. The doctor’s professional role obligations – of loyalty and confidentiality – may limit the doctor’s ability to investigate her patient and direct the doctor to adopt an attitude of trust. If doctors treating patients in pain rightfully trust their patients, then the doctor’s willful blindness doesn’t make her culpable. This conclusion is important for two reasons. First, it illustrates something overlooked about a philosophically complex area of criminal law theory. This analysis helps to answer the question: when is the willfully blind actor equally culpable as the knowing actor. Second, the discussion in this paper shows that recent prosecutions of doctors which rely on willful blindness as a substitute for knowledge erroneously hold these doctors criminally responsible for conduct that is morally justified and as such commit a grave moral wrong.

Evidence, Belief, and Action: The Failure of Equipoise to Resolve the Ethical Tension in the Randomized Clinical Trial

Deborah Hellman — Mon, 24 Aug 2009 12:38:50 PDT

Judging by Appearances: Professional Ethics, Expressive Government, and the Moral Significance of How Things Seem

Deborah Hellman — Thu, 06 Aug 2009 05:35:34 PDT

Two Types of Discrimination: The Familiar and the Forgotten

Deborah Hellman — Thu, 06 Aug 2009 05:35:34 PDT

This essay argues that current Equal Protection doctrine fails to recognize an important conceptual distinction between two types of discrimination. Current doctrine is inadequate, according to the author, because it treats all discrimination cases as if they were instances of only one of these types. As a result, the Supreme Court mistreats discrimination cases of the forgotten variety. The author draws a distinction between proxy and non-proxy discrimination. Proxy discrimination uses the classification in the law as a means to reach a set of persons with a different, correlated trait. Non-proxy discrimination, by contrast, aims at the set defined by the classification itself. Because each has a distinct aim, each requires an examination of different moral issues. The author argues that current Equal Protection doctrine is suited for proxy discrimination only. Non-proxy cases are forced into an inappropriate doctrinal scheme with two unfortunate results. First, the Court focuses its attention on irrelevant issues and second, the Court fails to address the real and important issues that cases of non-proxy discrimination present. At the close of the Essay, the author sketches a new theory for non-proxy cases and demonstrates how this theory casts familiar issues like affirmative action and single-sex education in a new light.

Is Actuarially Fair Insurance Pricing Actually Fair? A Case Study in Insuring Battered Women

Deborah S. Hellman — Thu, 06 Aug 2009 05:35:33 PDT

Pushing Drugs or Pushing the Envelope: the Prosecution of Doctors in Connection with Over-Prescribing of Opium-Based Drugs

Deborah Hellman — Thu, 06 Aug 2009 05:35:29 PDT

The Expressive Dimension of Equal Protection

Deborah Hellman — Thu, 06 Aug 2009 05:35:29 PDT

The Importance of Appearing Principled

Deborah Hellman — Thu, 06 Aug 2009 05:35:28 PDT