Papers by Samantha Godwin
Columbia Human Rights Law Review, 2015
This article advances an interpretive account of parental rights and builds a normative case agai... more This article advances an interpretive account of parental rights and builds a normative case against them. This normative account considers how parental rights function in existing constitutional and family law, and assesses theoretical arguments that seek to justify them. This article begins by describing the most common, child-centered justification for parental rights: that parents are empowered in order to protect children’s best interests. I argue that these child-centered accounts do not justify the current legal regime governing parental rights. Instead, current parental rights are better understood as quasi-property interests, residual from historical traditions where children were more explicitly regarded as their parents’ property.The middle part of this article advances the thesis that the quasi-property functioning of parental rights is not a contingent feature of American law of parents and children. It is instead characteristic of granting parents separate autonomy int...
Journal of Ethics, 2020
Paternalism is widely viewed as presumptively justifiable for children but morally problematic fo... more Paternalism is widely viewed as presumptively justifiable for children but morally problematic for adults. The standard explanation for this distinction is that children lack capacities relevant to the justifiability of paternalism. I argue that this explanation is more difficult to defend than typically assumed. If paternalism is often justified when needed to keep children safe from the negative consequences of their poor choices, then when adults make choices leading to the same negative consequences, what makes paternalism less justified? It seems true that ordinary adults have capacities enabling them to promote their interests in ways most children lack. This can explain why paternalism is more often justified towards children than adults. What is not explained, however, is why paternalism would be justifiable for children, but not adults, when neither possess the relevant interest-promoting capacities-exactly the cases when paternalism towards adults might be considered. I argue that this dilemma undercuts capacities-based explanations for the belief that childhood is distinctively relevant for the permissibility of paternalism. I then address defenses of both consequentialist and deontological versions of the capacities-based explanation. Absent this capacities-based explanation, I argue that the intuition that less demanding justificatory standards apply to paternalism when directed at children than when directed towards adults presents unresolved problems for egalitarians.
Tennessee Law Review, 2018
Driverless vehicles present a core ethical dilemma: there is a public health necessity and moral ... more Driverless vehicles present a core ethical dilemma: there is a public health necessity and moral imperative to encourage the widespread adoption of driverless vehicles once they become demonstrably more reliable than human drivers, given their potential to dramatically reduce automobile fatalities, increase autonomy for disabled people, and improve land use and commutes. However, the very technologies that could enable autonomous vehicles to drive more safely than human drivers also imply greater moral responsibility for adverse outcomes. While human drivers must make split-second decisions in automobile collision scenarios, driverless car programmers have the luxury of time to reflect and choose deliberately how their vehicles should behave in collision scenarios. This implies greater responsibility and culpability, as well as the potential for greater scrutiny and regulation. Programmers must make premeditated decisions regarding whose safety to prioritize in inevitable collision scenarios—situations where a vehicle cannot avoid a collision altogether but can choose between colliding into different vehicles, objects, or persons.
With the recent bipartisan passage of the SELF DRIVE Act in the House and the rapid development of driverless vehicle technology, we are now entering a critical time frame for considering what priorities should govern driverless car inevitable collision behavior. This Article shall argue that prescribed “ethics” programing must be regulated by law in order to avoid the likely collective action problem of a marketplace that will reward “occupant-favoring” designs, despite a probable public preference (and arguable moral necessity) for occupant indifferent designs. This Article then considers a variety of different options for systems of driverless vehicle ethics programming. The most justifiable ethics programing system would be one where road users are discouraged from externalizing the dangers incurred by their transportation choices onto those whose transportation choices, if more widely adopted, would comparatively improve aggregate safety. This ethical programing system, which I term “incentive-weighted programing,” would promote public safety while also striking the most equitably justifiable balance between different road users’ interests.
Columbia Human Rights Law Review, Dec 2015
This article advances an interpretative account of parental rights and builds a normative case ag... more This article advances an interpretative account of parental rights and builds a normative case against them. This normative account considers how parental rights function in existing constitutional and family law, and assesses theoretical arguments that seek to justify them.
This article begins by describing the most common, child-centered justification for parental rights: that parents are empowered in order to protect children’s best interests. I argue that these child-centered accounts do not justify the current legal regime governing parental rights. Instead, current parental rights are better understood as quasi-property interests, residual from historical traditions where children were more explicitly regarded as their parents’ property.
The middle part of this article advances the thesis that the quasi-property functioning of parental rights is not a contingent feature of American law of parents and children. It is instead characteristic of granting parents separate autonomy interests in determining the path of their children’s lives. Parental autonomy rights displace and diminish consideration for children’s interests and objectify children. This article introduces the concept of “desire-contingent goods” and argues that parental autonomy rights are paradigmatically the right to choose desire contingent goods for children regardless of whether they are desired or not. This denies the equal importance of children’s desires, subjective experiences and perspectives on their own lives. As a consequence, basic doctrines in constitutional and family law cannot be reconciled with liberal and egalitarian commitments.
The later portion of this article evaluates alternative theoretical justifications for parental rights. These include constitutional and philosophical arguments based on personal liberty and family privacy, as well as philosophical arguments based on relational rights, ethics of care, and the Lockean labor theory of value. These arguments all fall short and, in crucial ways, rely on denying children equal moral consideration. The article concludes with recommendations for legal reform.
Seattle Journal for Social Justice
Courts and lawmakers trust psychiatric expertise when making judicial and public policy decisions... more Courts and lawmakers trust psychiatric expertise when making judicial and public policy decisions concerning mental health, but is this trust well placed? This paper adopts a philosophy of science approach informed by medical research to evaluating the validity of psychiatric classification. This provides the basis for an interdisciplinary critical analysis of civil commitment law and use of psychiatric expert witnesses in light of legal evidence standards. This analysis demonstrates that involuntary civil commitment as it now stands is incompatible with broader due process and civil rights concerns and affords an unjustifiable evidentiary status to psychiatric diagnosis.
As improvements in neuroscience have enabled a better
understanding of disorders of consciousness... more As improvements in neuroscience have enabled a better
understanding of disorders of consciousness as well as methods
to treat them, a hurdle that has become all too prevalent
is the denial of coverage for treatment and rehabilitation services.
In 2011, a settlement emerged from a Vermont District
Court case, Jimmo v. Sebelius, which was brought to stop
the use of an “improvement standard” that required tangible
progress over an identifiable period of time for Medicare
coverage of services. While the use of this standard can have
deleterious effects on those with many chronic conditions, it
is especially burdensome for those in the minimally conscious
state (MCS), where improvements are unpredictable and often
not manifested through repeatable overt behaviors. Though
the focus of this paper is on the challenges of brain injury and
the minimally conscious state, which an estimated 100,000
to 200,000 individuals suffer from in the United States,
the post-Jimmo arguments presented can and should have
a broad impact as envisioned by the plaintiffs who brought
the case on behalf of multiple advocacy groups representing
patients with a range of chronic care conditions.
Northwestern Interdisciplinary Law Review, 2011
This paper advances a radical and controversial analysis of the legal status of children. I argue... more This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and stably arranged otherwise. My first conclusion from this analysis is that age-based classifications should not be presumed to be rational. From this point, the paper suggests an argument for treating children as a suspect class for the purposes of equal protection analysis. The paper further advances the claim that many of the ways children are legally discriminated against implicate their fundamental rights, and that many age-based classifications should therefore be subject to strict scrutiny and found unconstitutional. I then go on to analyze specific legal issues such as voting rights, corporal punishment, runaway children, and due process in juvenile justice using these considerations.
The Crit: A Critical Legal Studies Journal
Bioethics by Samantha Godwin
Clinical Ethics, 2023
The concept of medical necessity is often used to explain or justify certain decisions—for exampl... more The concept of medical necessity is often used to explain or justify certain decisions—for example, which treatments should be allowed under certain conditions—as though it had an obvious, agreed-upon meaning as well as an inherent normative force. In introducing this special issue of Clinical Ethics on medical necessity, we argue that the term, as used in various discourses, generally lacks a definition that is clear, non-circular, conceptually plausible, and fit-for-purpose. We propose that future work on this concept should address three main questions: what medical necessity is (i.e., what makes something medically necessary, as opposed to something else); what the concept does (what ‘work’ is it doing when invoked in different settings); and what should follow, normatively, from the fact that something is indeed medically necessary (on some plausible conception)?
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Papers by Samantha Godwin
With the recent bipartisan passage of the SELF DRIVE Act in the House and the rapid development of driverless vehicle technology, we are now entering a critical time frame for considering what priorities should govern driverless car inevitable collision behavior. This Article shall argue that prescribed “ethics” programing must be regulated by law in order to avoid the likely collective action problem of a marketplace that will reward “occupant-favoring” designs, despite a probable public preference (and arguable moral necessity) for occupant indifferent designs. This Article then considers a variety of different options for systems of driverless vehicle ethics programming. The most justifiable ethics programing system would be one where road users are discouraged from externalizing the dangers incurred by their transportation choices onto those whose transportation choices, if more widely adopted, would comparatively improve aggregate safety. This ethical programing system, which I term “incentive-weighted programing,” would promote public safety while also striking the most equitably justifiable balance between different road users’ interests.
This article begins by describing the most common, child-centered justification for parental rights: that parents are empowered in order to protect children’s best interests. I argue that these child-centered accounts do not justify the current legal regime governing parental rights. Instead, current parental rights are better understood as quasi-property interests, residual from historical traditions where children were more explicitly regarded as their parents’ property.
The middle part of this article advances the thesis that the quasi-property functioning of parental rights is not a contingent feature of American law of parents and children. It is instead characteristic of granting parents separate autonomy interests in determining the path of their children’s lives. Parental autonomy rights displace and diminish consideration for children’s interests and objectify children. This article introduces the concept of “desire-contingent goods” and argues that parental autonomy rights are paradigmatically the right to choose desire contingent goods for children regardless of whether they are desired or not. This denies the equal importance of children’s desires, subjective experiences and perspectives on their own lives. As a consequence, basic doctrines in constitutional and family law cannot be reconciled with liberal and egalitarian commitments.
The later portion of this article evaluates alternative theoretical justifications for parental rights. These include constitutional and philosophical arguments based on personal liberty and family privacy, as well as philosophical arguments based on relational rights, ethics of care, and the Lockean labor theory of value. These arguments all fall short and, in crucial ways, rely on denying children equal moral consideration. The article concludes with recommendations for legal reform.
understanding of disorders of consciousness as well as methods
to treat them, a hurdle that has become all too prevalent
is the denial of coverage for treatment and rehabilitation services.
In 2011, a settlement emerged from a Vermont District
Court case, Jimmo v. Sebelius, which was brought to stop
the use of an “improvement standard” that required tangible
progress over an identifiable period of time for Medicare
coverage of services. While the use of this standard can have
deleterious effects on those with many chronic conditions, it
is especially burdensome for those in the minimally conscious
state (MCS), where improvements are unpredictable and often
not manifested through repeatable overt behaviors. Though
the focus of this paper is on the challenges of brain injury and
the minimally conscious state, which an estimated 100,000
to 200,000 individuals suffer from in the United States,
the post-Jimmo arguments presented can and should have
a broad impact as envisioned by the plaintiffs who brought
the case on behalf of multiple advocacy groups representing
patients with a range of chronic care conditions.
Bioethics by Samantha Godwin
With the recent bipartisan passage of the SELF DRIVE Act in the House and the rapid development of driverless vehicle technology, we are now entering a critical time frame for considering what priorities should govern driverless car inevitable collision behavior. This Article shall argue that prescribed “ethics” programing must be regulated by law in order to avoid the likely collective action problem of a marketplace that will reward “occupant-favoring” designs, despite a probable public preference (and arguable moral necessity) for occupant indifferent designs. This Article then considers a variety of different options for systems of driverless vehicle ethics programming. The most justifiable ethics programing system would be one where road users are discouraged from externalizing the dangers incurred by their transportation choices onto those whose transportation choices, if more widely adopted, would comparatively improve aggregate safety. This ethical programing system, which I term “incentive-weighted programing,” would promote public safety while also striking the most equitably justifiable balance between different road users’ interests.
This article begins by describing the most common, child-centered justification for parental rights: that parents are empowered in order to protect children’s best interests. I argue that these child-centered accounts do not justify the current legal regime governing parental rights. Instead, current parental rights are better understood as quasi-property interests, residual from historical traditions where children were more explicitly regarded as their parents’ property.
The middle part of this article advances the thesis that the quasi-property functioning of parental rights is not a contingent feature of American law of parents and children. It is instead characteristic of granting parents separate autonomy interests in determining the path of their children’s lives. Parental autonomy rights displace and diminish consideration for children’s interests and objectify children. This article introduces the concept of “desire-contingent goods” and argues that parental autonomy rights are paradigmatically the right to choose desire contingent goods for children regardless of whether they are desired or not. This denies the equal importance of children’s desires, subjective experiences and perspectives on their own lives. As a consequence, basic doctrines in constitutional and family law cannot be reconciled with liberal and egalitarian commitments.
The later portion of this article evaluates alternative theoretical justifications for parental rights. These include constitutional and philosophical arguments based on personal liberty and family privacy, as well as philosophical arguments based on relational rights, ethics of care, and the Lockean labor theory of value. These arguments all fall short and, in crucial ways, rely on denying children equal moral consideration. The article concludes with recommendations for legal reform.
understanding of disorders of consciousness as well as methods
to treat them, a hurdle that has become all too prevalent
is the denial of coverage for treatment and rehabilitation services.
In 2011, a settlement emerged from a Vermont District
Court case, Jimmo v. Sebelius, which was brought to stop
the use of an “improvement standard” that required tangible
progress over an identifiable period of time for Medicare
coverage of services. While the use of this standard can have
deleterious effects on those with many chronic conditions, it
is especially burdensome for those in the minimally conscious
state (MCS), where improvements are unpredictable and often
not manifested through repeatable overt behaviors. Though
the focus of this paper is on the challenges of brain injury and
the minimally conscious state, which an estimated 100,000
to 200,000 individuals suffer from in the United States,
the post-Jimmo arguments presented can and should have
a broad impact as envisioned by the plaintiffs who brought
the case on behalf of multiple advocacy groups representing
patients with a range of chronic care conditions.