Abstract glitch with word SCAM on 100 Dollar bill. Concept art for Online scam.

Rethinking Senior Scams?

By James Toomey

Many people, including, it seems, most advocates for law reform, assume that older adults are uniquely vulnerable to scams, and indeed that senior scams are a unique social problem demanding a unique legal solution. But in “The Age of Fraud” (forthcoming in the Harvard Journal on Legislation, winter 2023), about which I’ve blogged here before, I reported the results of an empirical study suggesting that, in fact, younger adults were as much as three times more likely to engage with scammers during the first year of the COVID pandemic than older adults.

One possible implication of this finding — if indeed it is generalizable — which I discuss but don’t commit to in the paper, is that more people are more vulnerable to scams — and the polished tactics of psychological manipulation used by scammers — than has been generally appreciated. But if scams are not a bounded problem of those who are in some sense more psychologically vulnerable (as older adults are thought of in, at least, the popular imagination), we might want to rethink scams — what they are, how we fight them, and how we treat and think about their victims.

Read More

Cell culture.

A New Theory for Gene Ownership

By James Toomey

The story of Henrietta Lacks is surely among the most famous in the history of bioethics, and its facts are well-known. Ms. Lacks sought treatment for cervical cancer. After conducting a biopsy on her tumor, her doctors learned that her cancer cells reproduced uniquely effectively. Without her knowledge or consent, her doctors derived from the cells the HeLa cell line — the world’s first immortal human cell line, worth billions and a driver of the biotechnology revolution. Lacks died in poverty.

No doubt her doctors’ behavior was not consistent with today’s standards of informed consent. But another question has remained more persistently challenging — did the doctors steal something from Lacks? Did she own the cells of her tumor? Or, perhaps more precisely, because few argue that HeLa is really the same thing as Lacks’s tumor cells, did she own the genetic information contained in her tumor?

In a new paper, Property’s Boundaries (forthcoming in the Virginia Law Review, March 2023), I develop a theory of what can and cannot be owned to answer these kinds of questions — pervasive in bioethics, from debates about ownership of organs to embryos. My conclusion, in short, is that because the essence of the idea of ownership is a relationship of absolute control, anything that can be the subject of human control can, in principle, be owned. But that which we cannot control we cannot own. From this perspective, Henrietta Lacks owned the cells of her tumor, and the tumor itself. But the genetic information within them — facts about the universe subject to no human control — simply cannot be owned, by her or anyone else.

Read More

Colorful lottery balls in a rotating bingo machine.

Equalizing the Genetic Lottery?

By James Toomey

Kathryn Paige Harden’s The Genetic Lottery: Why DNA Matters for Social Equality is a thoughtful, thorough, and well-written book about the compatibility of behavioral genetics with progressive ideology. Weaving together her own fascinating work in genetics with Rawlsian political philosophy, Harden’s book is necessary reading for anyone interested in inheritance or politics — which, I suppose, is everyone.

The basic argument of the book is that the so-called First Law of Behavioral Genetics is correct — everything is heritable. Harden supports this claim with a wealth of research in genetics over the past few decades, with an emphasis on her own contributions (“within a group of children who are all in school, nearly all of the differences in general [executive function] are estimated to be due to the genetic differences between them”). More importantly, Harden does not think this fact has the implications for normative politics that many, particularly on the left, worry it does. The fact that some genetic profiles cause higher general intelligence — or anything else — does not mean those who have them are better or more deserving of society’s bounty and social prestige. We can, and should, adopt “anti-eugenic” policies designed to make better as much as possible the lives of the genetically “unluckiest.”

Accepting Harden’s descriptive premises, I find her political theory basically right. But the book elides a crucial distinction in left-leaning political thought that, I think, misses something about why so many on the left find the prospect of the heritability of mental characteristics so troubling, and which perhaps diminishes the book’s ability to persuade its target audience (which, frankly, is not me, having been already convinced on much of this by The Blank Slate).

Read More

Call from unknown number on iPhone.

The Surprising Shape of COVID Fraud

By James Toomey

When the world went into lockdown in March 2020, many commentators noticed that social isolation could offer scammers an unprecedented opportunity to take advantage of people’s fear and loneliness. But they didn’t anticipate that fraud would generally affect a range of age groups. Indeed, much like the virus itself, the risks of frauds and scams related to the COVID pandemic were thought primarily to affect older adults.

This assumption seems to have been wrong. Recently, I conducted a study on the prevalence of scam-victimization during the pandemic across age groups. Specifically, I recruited two populations — one of adults between 25 and 35 and one of adults over than 65—and asked whether they had been contacted by people making specific fraudulent promises during the pandemic, and whether they’d engaged with the scammer by giving personal information, sending money, or clicking a link. In the study populations, the younger group engaged with scammers three times more frequently than the older group — a disparity that was statistically significant and persisted regardless of how I sliced the data.

Read More

Los Angeles, California, United States. June 23, 2021: #FreeBritney rally at LA Downtown Grand Park during a conservatorship hearing for Britney Spears.

There’s More to Decision-Making Capacity than Cognitive Function

The Health Law, Policy, Bioethics, and Biotechnology Workshop provides a forum for discussion of new scholarship in these fields from the world’s leading experts. Though the Workshop is typically open to the public, it is not currently, due to the COVID-19 pandemic. However, many of our presenters will contribute blog posts summarizing their work, which we are happy to share here on Bill of Health.

By James Toomey

The doctrine of capacity is a mess.

From Britney Spears’s high-profile struggles to establish her own capacity to the countless, quiet challenges of so many older adults, the doctrine of capacity, which requires people to have the cognitive functioning to understand the nature and consequences of a decision in order for it to be recognized in law, is vague, normatively and medically challenging, and inconsistently applied.

This is a big deal — at stake in every capacity case is whether, on the one hand, an individual may access the legal rights most of us take for granted, to enter into contracts, buy or transfer property, or get married or divorced; or, on the other, whether the legal system will ratify a decision the “real person” never would have made.

Read More

Close up of a mosquito sucking blood on human skin. This mosquito is a carrier of Malaria, Encephalitis, Dengue and Zika virus.

Responsibly Developing Gene Drives: The GeneConvene Global Collaborative

By James Toomey

Researchers believe that gene drives could eliminate vector-borne diseases such as malaria, by modifying mosquito species or eradicating those that carry disease, kill off invasive species, and combat the growing problem of pesticide resistance.

A gene drive is a technique for genetically modifying entire species of wild organisms. Genetically modified individuals of the species are released into the wild, so as to raise the probability that a particular gene will be passed onto the species’ progeny via reproduction.

Over the course of many generations, the gene — even if detrimental — can spread to an entire population.

But as of now, this is all hypothetical. No gene drive has been tested in the wild, and many people are skeptical that they should ever be used.

The GeneConvene Global Collaborative, a project of the Foundation for the National Institutes of Health, was started this past July to promote the responsible development and regulation of gene drive technologies. It brings together researchers, regulators and stakeholders around the world to develop best practices for gene drive research and implementation.

Because of my prior writing on this topic, I participated in GeneConvene’s fall webinar series and spoke with scientists there about the project. Read More

Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Book Review: Mary Ziegler’s ‘Abortion and the Law in America’

By James Toomey

If you want to understand America, you must understand our politics of abortion. And if you want to understand our politics of abortion, you must read Mary Ziegler’s recent legal history, “Abortion and the Law in America: Roe v. Wade to the Present” (2020).

In comprehensive detail and in a singularly fair and thoughtful way, Ziegler tells the story of American regulation of abortion from the Supreme Court’s historic Roe v. Wade decision to the present, and looks ahead to an uncertain future. Through vignettes of activists who have dedicated their lives to one side of the debate or the other, Ziegler shows that, notwithstanding the superficial constancy of the abortion debate — one side proclaiming the constitutional, essential rights of the fetus, the other the similarly irreducible right of bodily autonomy — the character of the debate, and the kinds of arguments made, have shifted over the course of the last fifty years.

Read More

Cartoon of contact tracing for COVID-19.

To Combat the COVID-19 Pandemic, the US Should Crowdsource Contact Tracing

By James Toomey

As states across the U.S. contemplate another lockdown to curb rising COVID-19 infections, it’s clear that we need to do something differently this time to ensure that our sacrifices are not wasted when we emerge.

To that end, we should try a crowdsourced, privately-run, anonymous, voluntary, and collaborative approach to contact tracing.

We’ve heard it countless times and in countless ways: the United States has failed at contact tracing. The technique, which has been effective at limiting transmission in many other countries, has plainly failed to contain the spread of the virus here.

Read More

Worn-down sign with a WHO sign that reads "Attention Ebola!"

Trump Can and Should Stop the Kivu Ebola Outbreak

The second-biggest outbreak of Ebola in history has been raging for eight months in eastern Congo. Notwithstanding the truly heroic efforts of the Congolese government, international aid agencies, and the Congo’s U.N. Peacekeeping force, it’s getting worse. As of April 16, 833 people have died.

Ebola is now appears to be a preventable disease. A vaccine completed at the tail end of 2014 West African outbreak has been highly effective where used, although experimental evidence is lacking. Read More