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In my last contribution to this column (HCR, July-August 2000), I argued that the law of bioethics has repeatedly failed to achieve the hopes cherished for it. I presented evidence, for example, that most doctors breach the duty of informed consent, that advance directives do not direct patients' care, and that repeated legal attempts to increase organ donation have failed to find the success predicted for them. I closed that column by promising to try to explain this chastening experience. It would, of course, take a lifetime of columns to capture all the reasons the law of bioethics has so often disappointed. Here I want to discuss only one, albeit a crucial one: Legal regulation of human behavior is insistently difficult because human behavior and social institutions are bafflingly complex. It is maddeningly hard to mold that behavior and those institutions because they are shaped by many potent forces besides the law and because lawmakers so often cannot accurately identifY all those forces and devise reliable methods of altering enough of them in sufficiently precise and predictable ways to achieve the result intended. It is even hard for law to rule in its own house-for example, to shape litigation in useful ways. The law of bioethics illustrates both the general problem (influencing social behavior) and its particular instantiation (influencing legal institutions). Let me once again adduce empirical evidence to show how.


Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.