1. Post, Stephen G., Nazi Data and the Rights of Jews, 6 J Law & Relig, 428, 429 (1988)CrossRefGoogle ScholarPubMed (citing interview in Cleveland Jewish News, 11 25, 1988, at 17)Google Scholar. Survivors of the experiments are divided on the question of using the data. Some advocate salvaging good from evil, while others feel anything short of complete rejection of the data would imply complicity in the experiments. See generally Segal, Nancy L., Twin Research at AuschwitzBirkenau, in When Medicine Went Mad: Bioethics and the Holocaust (Caplan, Arthur L. ed Humana Press, 1992)Google Scholar (“When Medicine Went Mad”) (reporting results of survey of experiment survivors).

2. By “Nazi data,” I mean data obtained from experiments on unconsenting subjects during the Nazi period. Most of these experiments were carried out in the camps, and many ended in death or grievous injury. For a review of these experiments, see Katz, Jay, Misuse of Human Beings for the Sake of Science, in When Medicine Went Mad (cited in note 1)Google Scholar. Some of those responsible for the experiments were prosecuted at Nuremberg. See Jackson, Robert H., The Nuremberg Case (1947)Google Scholar (Justice Jackson, then on leave from the U.S. Supreme Court, served as Chief Counsel for the U.S. in the Nuremberg Trials).

For general accounts of the role of science and medicine in the Holocaust, see Proctor, Robert, Racial Hygiene: Mẹdicine Under the Nazis (1988)Google Scholar; Muller-Hill, Benno, Murderous Science (1988)Google Scholar.

3. For example, Angell, Marcia, Editorial Responsibility: Protecting Human Rights By Restricting Publication of Unethical Research, in The Nazi Doctors and the Nuremberg Code 282, Annas, George J. and Grodin, Michael A., eds (1992)Google Scholar; Freedman, Benjamin, Moral Analysis and the Use of Nazi Experimental Results, in When Medicine Went Mad (cited in note 1, at 141)Google Scholar.

4. See, for example, Levine, Robert J., Ethics and the Regulation of Clinical Research 19–22 (Urban & Schwarzenberg, 1981)Google Scholar (discussing deterrence implications of nonuse); Greene, Velvel W., Can Scientists Use Information Derived from the Concentration Camps? in When Medicine Went Mad (cited in note 1, at 155)Google Scholar (applying principles of Jewish ethics to the question). See generally Moe, Kristine, Should the Nạzi Research Data Be Cited? Hastings Ctr Rep, 12, 1984 at 5 (reviewing literature on use/nonuse of the data)Google ScholarPubMed.

5. The article thus simultaneously argues for a non-use memorial and attempts to ground its novel style of argument.

6. Levine, (cited in note 4, at 20) (censorship); Greene, (cited in note 4, at 162) (“Banning access to data … smells faintly like the smoke of burning books ….”).

7. “That there is a real, local sacrifice involved in maintaining the concentration camp memorials can be seen in the periodic controversies which erupt over land use in and around the memorials. For example, “Developers Ignore Nazi Infamy,” Newsday, 08 11, 1991, at 13Google Scholar (describing debate over plans to locate a shopping center next to the site of the Ravensbruck camp, in former East Germany).”

8. See generally Winter, Steven L.An Upside/Down View of the Countermajoritarian Difficulty, 69 Tex L Rev 1890-1905 (1991)Google Scholar (discussing American legal and cultural views of parks and pleasure grounds).

9. Eliade, Mircea, The Sacred and the Profane 24 (Harcourt, Brace, Jovanovich, 1959)Google Scholar (“Sacred and Profane”); Douglas, Mary, Natural Symbols 7–8 (Pantheon, 1973)Google Scholar (“Natural Symbols”).

10. Similarly, Douglas notes the progression of symbolic or ritual behavior from an “efficacy orientation” (the attempt to influence the natural world) in more primitive societies to a “commemorative orientation” in modern cultures like ours. Id at 14.

11. Eliade, , Sacred and Profane, (cited in note 9, at 22)Google Scholar.

12. For example, Id at 26-27, 33-34.

13. Id at 26, 63.

14. Freed, James Ingo, The United States Holocaust Memorial Museum: What Can It Be? (press release, 1990) (emphasis added)Google Scholar. For a review of Freed's design, see Muschamp, Herbert, Shaping a Monument to Memory, N Y Times, 04 11, 1993, Sec 2 at 1Google Scholar. The Holocaust Memorial Museum opened on April 26, 1993. See Schemo, Diana JeanA Place to Remember, to Touch the Unbearable N Y Times, 04 18, 1993, at 22Google Scholar.

On the relation of art and architecture to the sacred, see Eliade, MicealSymbolism, the Sacred and the Arts 105–30 (1985)Google Scholar.

15. Eliade, , Sacred and Profane (cited in note 9, at 75)Google Scholar.

16. Id at 68.

17. Indeed, one might look at the Nazi data controversy as a struggle between the competing time orientations of “progress” and “remembering.” See Id at 75 (opposing circular, sacred time to linear, progress-oriented, secular time). In modern societies, which have gravitated toward the ideal of progress, it is more difficult to articulate the need for memorials.

18. Id at 101.

19. But recall from the introduction (see pages 1-2), that the kind of morals meant here are a broader sort—usually captured by the phrase “values.” Further, memorials do not usually convey value messages in the abstract; they situate particular social events (for example, AIDS or the Holocaust) within a value framework. A more precise formula might thus read, “a memorial is an aesthetic mode of conveying the relation of a social fact to a conception of the good.”

20. Especially the Anglo-American world, using the concept of aesthetics in this connection might be thought inappropriate. See, for example, Freed (cited in note 14) (architect asserting he found it impossible to “aesthetize” the holocaust in designing U.S. Holocaust Memorial Museum). However, I am employing a broader sense of the word, which goes beyond concepts of beauty, ideas about harmony and proportion, and so on. See, for example, Adorno, Theodor, Aesthetic Theory (1984)Google Scholar. Indeed, Freed himself, as many other memorial designers, ultimately did employ his aesthetic faculties in designing the museum (for example, upon entering the museum, the visitor faces a wall with a huge crack running through it, “to symbolize the rupture in modern society brought about by the holocaust”). See Freed (cited in note 14); Muschamp (cited in note 14, at 32) (reviewing the “symbolic” and “abstract” elements of Freed's museum design). The memorial at Dachau, for instance, includes a very moving sculpture which uses elements of barbed wire and the sinister posts which enclosed the camp. This use of aesthetics, in the service of memorial, is not at all inappropriate, and is indeed central to memorializing itself. Aesthetics is no more necessarily linked to the beautiful than morality is to the good.

21. Douglas, Mary, Purity and Danger 128 (1966)CrossRefGoogle Scholar; Natural Symbols (cited in note 9, at 20-21); Geertz, Clifford, Ideology as a Cultural System, 218–20, 229, in The Interpretation of Culture (Geertz, Clifford, ed Basic Books, 1973)Google Scholar.

22. As mentioned in the introduction, this Article is primarily interested in what using or not using the Nazi data would say about us as a society. The point made in the text is that answering that question necessarily involves an exercise of aesthetic reason. Arguing about the symbolic meaning of a social event is in this sense very much like arguing about the meaning of a work of art.

There are other ways in which symbols acquire meaning. Durkheim, for example, described the way in which meanings are created and reinforced through ritual. Durkheim, Emile, The Elementary Forms of the Religious Life, in Durkheim on Religion 103, 111, (Pickering, W.S.F., ed & trans, 1975)Google Scholar. But in a largely de-ritualized society, see Douglas, , Natural Symbols (cited in note 8, at 14)Google Scholar, aesthetic interpretation is the more important feature.

23. Eliade, , Sacred and Profane (cited in note 9, at 12)Google Scholar.

24. Freed (cited in note 14).

25. Cf Nussbaum, Martha, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (Cambridge Press, 1986)Google Scholar; Gilligan, Carol, In a Different Voice (Harvard U Press, 1982)Google Scholar; Nagel, Thomas, Mortal Questions (Cambridgte U Press, 1979)Google Scholar.

26. This discussion draws in a loose way on Goffman, Erving, Frame Analysis (Harvard U Press, 1974)Google Scholar, in which the author describes the way such social cues prestructure the way we perceive not just moral situations, but all forms of experience.

27. See Burt, Robert A., Taking Care of Strangers 72–92 (Free Press, 1979)Google Scholar (discussing Milgram experiments). I do not mean to imply that moral behavior can be reduced to action in response to social cues—a very cynical viewpoint. But by the same token, it is a statistical certainty that many of the same people who would help dig your car out in a snowstorm would give you lethal shocks in the situation created by the Milgram Experiments.

28. See Post (cited in note 1, at 430) (Nazi experiment survivor saying, “By 2020, there will be no more survivors … [without some form of reminder] Who will be there to say ‘No’?”).

29. This list is meant to be evocative rather than exhaustive. Further, it is somewhat slanted in that it contains categories which are relatively easy to look at functionally. It does not include, for instance, the role memorials play in simply helping us grieve—admittedly an important purpose of Dachau, the AIDS quilt, and the Vietnam War Memorial.

30. See note 6.

31. On the scientific value of the Nazi data, see notes 50-55, 58-59 and accompanying text.

32. See Levine (cited in note 4, at 20); Greene (cited in note 4, at 162).

33. Greene (cited in note 4, at 170) (“they tried to burn the bodies and suppress the data. We must not finish the job for them.”); Jay Katz, forthcoming book, see note 55; Levine (cited in note 4, at 20). As argued in section III., this contention is quite wrong—indeed, one of the contributions of the concept of memorial will hopefully be to move discussion beyond the false dualism of “use” vs. “censorship.” Far from being a form of repression, non-use could be the best means of remembering.

34. See Douglas, , Natural Symbols (cited in note 9, at 14)Google Scholar.

35. Eliade, , Sacred and Profane (cited in note 9, at 16–18)Google Scholar.

36. See Beiner, Ronald, Political Judgment (U Chicago Press, 1983)Google Scholar (describing judgment as a faculty involving a creative synthesis of logical thought and personal experience).

37. “This is not to say that the camp memorials are never critcized. Sadly enough, some have even been desecrated. See “With Visit, German Diplomat Hopes to Reassure Israel; Mideast,” L.A. Times, 11 17, 1992, at A12Google Scholar.

38. See generally Katz, Jay, Experimentation With Human Beings (Russell Sage Fdn, 1972)Google Scholar (describing various unethical experiments done on children, minorities, prisoners, soldiers, the retarded, and the poor).

39. See Page 1409, condition “d”.

40. Marking out the extreme case can “found a world,” in Eliade's words. Eliade, , Sacred and Profane (cited in note 9, at 22)Google Scholar. Marking out the depths to which science can descend—by creating a non-use memorial—could be an important way to found the world of ethical commitments within the realm of science. It could anchor science within the general scheme of social values. According to Eliade, the rituals of sacralizing open channels of communication between the sacred and our daily world. Id at 26. I believe that memorializing through non-use could open similar channels between science and society.

41. See Freed (cited in note 14).

42. See, for example, Freedman (cited in note 3, at 150) (“to make a statement, you make a statement, you don't fail to make a statement”). But surely inaction can often be poignant—think of anything from hunger strikes to the refusal of one nation to “recognize” another under international law.

43. This line of argument is drawn from distinctions like those made in Ackerman, Bruce, Private Property and the Constitution (Yale U Press, 1977)Google Scholar, and Dan-Cohen, Meir, Decision rules and Conduct Rules: On Acoustic Separation in Criminal Law 97 Harv L Rev 625 (1984)CrossRefGoogle Scholar. Ackerman distinguishes between the “ordinary observer” and the “scientific policymaker,” while Dan-Cohen distinguishes between legal rules addressed to the lay public (conduct rules), and rules addressed to officials specially trained to apply and implement legal standards (decision rules). Both distinctions are based on the differentiation of modern society into expert-bureaucratic spheres which are intellectually inaccessible to outsiders (i.e., the rest of society). With regard to the Nazi data, the world of scientists stands in similar relation to the public at large.

While I argue that this line of thought does not undermine the case for a non-use memorial, it is perhaps quite appropriate to an early attempt at memorializing the Nazi experiments: the Nuremberg Code. Written rather than concrete, technical rather than easily accessible, it eventually died a technical death (it was succeeded by other codes like the World Medical Association's elsinki Declaration of 1964 and the U.S. Rules and Regulations for the Protection of Human Research Subjects, 45 CFR § 46.101–.404 (1983)Google Scholar, which through minor adjustments greatly lessened protection of research subjects). On the erosion of the Nuremberg Code, see Katz, Jay, The Nuremberg Consent Principle Then and Now, in The Nazi Doctors and the Nuremberg Code (cited in note 3, at 231–35)Google Scholar. On the stunning lack of effect the Nuremberg Code has had in U.S. courts, see Annas, George J., Mengele's Birthmark: The Nuremberg Code in United States Courts, 7 J Cont Health L & Pol'y 17 (1991)Google ScholarPubMed.

44. Kor, Eva Mozes, Nazi Experiments as Viewed by a Survivor of Mengele's Experiments, in When Medicine Went Mad (cited in note 1, at 7)Google Scholar.

45. Cf U.S. Library of Congress, Center for the Book, Nazi Book Burning and the American Response (1988)Google Scholar.

46. A German term meaning “mournful labor,” or more loosely, “repentance,” which describes what many Germans feel to be a necessary process in the continuing aftermath of the Holocaust.

47. Eliade, , Sacred and Profane (cited in note 9, at 68–75)Google Scholar. Thus the requirement that a memorial be based on a physical substrate, (cited in note 23 and accompanying text), does not apply here.

48. Cf Proctor, Robert, Value-Free Science? Purity and Power in Modern Knowledge (Harvard U Press, 1991)Google Scholar.

49. See Angell, (cited in note 3, at 282); Katz, Misuse of Human Beings (cited in note 2).

50. Cf for example, Alexander, Leo, Medical Science Under Dictatorship, 241 N Eng J Med 39 (07 14, 1949)CrossRefGoogle ScholarPubMed; Vigorito, Sara Seiler, A Profile of Nazi Medicine, in When Medicine Went Mad (cited in note 1, at 9)Google Scholar (“A Nazi doctor was a physician turned inside out”).

51. See generally Biaggioli, Mario, Writing the History of Science in the Camps (unpublished manuscript, 1992Google Scholar; on file with author) (reviewing the literature in this question).

52. See Moe (cited in note 4, at 6) (discussing views of NEJM editor Arnold Relman, U.S. Holocaust Council member Seymour Siegel, and philosopher Alan Buchanan). The idea that unethical science must lead to scientifically invalid data is a category confusion the converse of which is the “naturalistic fallacy” spoken of by philosophers (the latter states you can't get from is to ought; the former, that you can't get from ought (the experiments ought not have been done) to is (the data is faulty)).

53. Only once this category mistake is recognized and avoided are we in a position to analyze the scientific method employed by researchers like Mengele and Rascher. While there is certainly much to criticize in their scientific method, see, for example, Berger, Robert L., Comments on the Validation of the Dachau Hypothermia Experiments, in When Medicine Went Mad (cited in note 1, at 109)Google Scholar; Jay Katz and Robert S. Pozos, The Dachau Hypothermia Study: An Ethical and Scientific Commentary, in Id at 135, their errors are not so fundamental as to put them entirely outside the realm of “science.”

54. Proctor, Racial Hygiene (cited in note 2). Proctor persuasively describes the interrelationship of genetic science and Nazi ideology. One poster reproduced in his book proclaims Hitler the “Doctor of the German People.” Id at unnumbered page facing page 51.

55. See Jay Katz's forthcoming book on human experimentation (forthcoming Yale U Press). One author has called the strategy of seeing Nazi doctors as not “real” doctors or scientists a “bracketing strategy,” in order to indicate the subtle way in which such a viewpoint eliminates the contemporary relevance of their evil. Biaggioli, (cited in note 51, at 520). Indeed, the fact that powerful social forces operate to mask the contemporary relevance of the Zazi experiments suggests that a memorial is needed all the more.

56. See Director Agrees not to Film Inside Auschwitz Memorial, N Y Times, 02 13, 1993 at 4Google Scholar (describing an agreement between director Steven Spielberg and the World Jewish Congress, which objected to Spielberg's plans to film the movie “Schindler's List” inside the camp).

57. For example, Eliade, , Sacred and Profane (cited in note 9, at 54–58)Google Scholar.

58. See notes 52 & 53 and accompanying text.

59. See note 53 (Berger, Katz & Pozos). One author has rather pointedly debunked the hypothermia data's value to contemporary cold water search and rescue efforts: “Do we not know with reasonable accuracy how long someone can survive after capsizing in freezing water? And we would not search for survivors even after this approximated time period?” Post, (cited in note 1, at 431).

60. For example, Levine (cited in note 4, at 20-21). One author has gone beyond the concern with censorship and scientific freedom and claimed that non-use of the data might lead us to forget them, and the experiments, more quickly. Katz, forthcoming book (cited in note 55). While this is an admirable concern, I believe the conclusion drawn to be mistaken. There is a fundamental difference between subjecting the Nazi experiments to scrutiny for the purpose of understanding their ethical flaws, and how those flaws are relevant to us today, and on the other hand taking the data and using them in the course of normal contemporary science. The fact that we have taken the buildings at Dachau out of the normal stream of daily use does not at all mean they will gradually slip from our minds; indeed, quite the contrary is true. Why should we suppose it will be otherwise with the data?

61. I will discuss my suggestions for determining whether any other unethically obtained data should not be used, see part IV. A below, at 420-23.

62. See Kalven, Harry A. Jr., A Worthy Tradition: Freedom of Speech in America, (Kalven, Jamie, ed (Harper & Row, 1988) (discussing libel doctrine)Google Scholar.

63. Beecher, Henry, Ethics and Clinical Research, 274 New Eng J Med 1354 (1966)CrossRefGoogle ScholarPubMed. Under the exclusionary rules, evidence obtained in violation of these constitutional amendments is inadmissible, no matter how inculpatory it might be. The rules one thus a limit on the use of ill-gotten gains. Although the rationale for the rule is deterrence of future police misconduct rather than memorializing, they do have the basic structure of foregoing a pragmatic gain (convicting a criminal) in order to reinforce a symbolic (constitutional) value.

64. The right to private property is no more absolute than the right to free speech. The Constitution allows the government to take private property for public use, upon payment of just compensation. US Const, Art V. The German constitution directly states that property, although a right, also imposes duties. German Basic Law, art 19.

65. See Angell (cited in note 3, at 281-82) (describing role of groups of editors such as the International Committee of Medical Journal Editors (ICMJE) in setting policy on whether to publish unethical research). Dr. Angell herself is a case in point: an advocate of non-publication in certain circumstances, she is also Executive Editor of the New England Journal of Medicine.

66. The institutional issues concerning non-use memorials are discussed in more detail below, at 420-23 in Part IV.A.

67. For example, Jonas, Hans, The Imperative of Responsibility: an Ethics for the Technological Age (U Chicago Press, 1984)Google Scholar (Jonas opposes the “scientific imperative” with the dictum, “progress is optional”).

68. Sadly, it goes almost without saying that numerous unethical experiments have been conducted since the Nazi period and the subsequent promulgation of the Nuremberg Code-many in the United States. See generally Katz, Experimentation With Human Beings (cited in note 38).

69. See Jones, James H., Bad Blood: The Tuskegee Syphilis Experiment (expanded ed, Free Press, 1993)Google Scholar; Katz, forthcoming book (cited in note 55); Brandt, Allan M., Research and Racism: The Case of The Tuskegee Syphilis Study, Hastings Ctr Rep, 12 1978, at 21Google Scholar.

70. See Rockwell, Donald H., et al, The Tuskegee Study of Untreated Syphilis: The 30th Year of Observation, 114 Arch Int Med 792 (1964)CrossRefGoogle ScholarPubMed, and earlier research articles cited therein.

71. This could be either because a memorial would not be very valuable, or because using the data could be a source of great practical benefit.

72. Cf Stewart, Richard, Regulatory Law, in The Genetic Revolution 212, 233 (Davis, Bernard D. ed Johns Hopkins U Press, 1991)Google Scholar (“[a] liberal state attempts to maintain neutrality among competing conceptions of the good by focusing on pragmatic considerations”). See also Douglas, , Natural Symbols (cited in note 8, at 14)Google Scholar. Both authors argue that the more pluralistic a society becomes, the less likely it is that symbolic action will be deemed important—because there will be less agreement on the meaning of symbols.

73. But it has plenty of company. See, for example, Rothman, David J., Were Tuskegee and Willowbrook Studies in Nature?, Hastings Ctr Rep, 04, 1982, at 5, 6–7Google Scholar (describing Willowbrook Study, in which unknowing, retarded patients were intentionally infected with Hepatitis in order to study the disease).

A number of the worst experiments have been conducted by the U.S. Armed Forces. See, for example, United States v Stanley, 483 US 669 (1987)Google Scholar (soldier was unknowingly dosed with LSD as part of secret U.S. army testing program); Note, Defending an Indifferent Constitution: The Plight of Soldiers Used as Guiney Pigs, 31 Ariz L Rev 633, 639–45 (1989)Google Scholar (reviewing U.S. military program of testing the effects of nuclear blasts and various drugs on unwitting soldiers).

74. Additionally, a comparison of the value of the scientific information derived from the two sets of experiments should be done. That, sadly, is beyond the competence of this author. As is the case with the Nazi experiments, the Tuskegee Study's methodology has been criticized, calling into the question the value of the Tuskegee data for future scientists. Katz, forthcoming book (cited in note 55). Furthermore, the information gathered at Tuskegee is now of rather abstract interest, both because such experiments are obviously not repeatable, and because syphilis can be effectively controlled with modern antibiotics. Id.

Another issue not raised in the text involves the practical possibility of non-use in the context of an experiment which resulted in scientific papers over a forty-year period. See note 70. Although strict compliance with a non-use memorial would be difficult in this situation, a prospective ban on only the original Tuskegee articles could certainly be organized.

75. In criminal law, these two facets are captured in the terms “actus reus” and “mens rea”—act and mental state.

76. Tuskegee is hard to rank because it took place over forty years, during which time it became progressively more horrible. It actually began as a “demonstration project” intended to bring aid to the southern black syphilitics. Jones, (cited in note 69, at 57-60). When funds for that dried up, it became a short-term study of people who had a disease which couldn't be treated for financial reasons. Also, at that point the known treatments were much less efficacious than today. As early as 1942, however, the Study's researchers collaborated with local public health officials to keep subjects from being treated with an agent—penicillin—known to be effective. Letter from R.A. Vonderlehr, Asst. Surgeon General, to Dr. D.G. Gill, Director, Bureau of Preventable Diseases, Alabama Dept. of Public Health (July 10, 1942). Also, by that time the Study's researchers consciously planned to follow the subjects until their deaths, at which time autopsies could be performed. Letter From Murray Smith, M.D., U.S. Public Health Service, to R.A. Vonderlehr, Asst. Surgeon General (Nov 27, 1941). At this point, the only feature separating the study from the Nazi experiments was…[as in text].”

77. See Katz, forthcoming book (cited in note 55) (arguing that the Tuskegee Study could have become the source of a new code of ethics for human experimentation … an American Nuremberg Code).

78. See Jones (cited in note 69, at 220-41) (comparing biased attitudes to illness in Tuskegee Study and in current AIDS epidemic).

79. See Angell (cited in note 3, at 280-82) (describing efforts of journal editors to formulate such policies).

80. Publishing the data along with an ethical disclaimer, an perhaps giving the author a chance to rebut the ethical charges, is a widely-held, middle-of-the-road position in this debate. See, for example, Levine (cited in note 4, at 19-22).

81. In these examples, I will not be arguing the legitimacy of the views I present. I want instead merely to establish their existence and character, and then to identify features common to them all. Ultimately, of course, I am interested in evaluating their worth as a style of argument, but this will be done on a more general level.

82. In these examples, I will not be arguing the legitimacy of the views I present. I want instead merely to establish their existence and character, and then to identify features common to them all. Ultimately, of course, I am interested in evaluating their worth as a style of argument, but this will be done on a more general level.

83. Ryan, Kenneth J., Tissue Transplantation from Aborted Fetuses, Organ Transplantation from Anencephalic Infants, and Keeping Brain-Dead Pregnant Women Alive Until Fetal Viability, 65 S Cal L Rev 683, 683–88 (1991)Google ScholarPubMed.

84. Arguments for animal rights have been made under all the traditional moral theories. Some have asserted, for instance, that animals have rights not to be mistreated because they can suffer. Singer, Peter, Animal Liberation 7 & passim (Random House, 2d ed 1990)Google Scholar. Others assert that animal rights should be based on animals' status as sentient or conscious. Rollin, Bernard E., Animal Rights and Human Morality 28, & 74 passim (Prometheus, rev ed 1992)Google Scholar.

85. See generally Calabresi, Guido & Bobbit, Philip, Tragic Choices (Norton, 1978)Google Scholar (discussing the valuation of human life—for the purposes of tort law, healthcare allocation, and environmental protection—as a form of “tragic choice”).

86. As to answering by default, cf Calabresi & Bobbit (cited in note 85, at 115) (there may be instrumental advantages to answering such questions without acknowledging what is being done—“noble lies” sometimes maintain social stability).

87. The use of the word memorial may seem odd here, but I use it to signal that phenomena like ridiculously large jury awards are not the norm, but are rather eruptions which break through the norm and call its integrity into question.

88. See Hornstein, Donald T., Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 Colum L Rev 562 (1992)CrossRefGoogle Scholar (arguing that environmental law should be based not just on risk assessment and cost-benefit analysis, but also on public values); see also Mostow, Peter, Reassessing the Scope of Federal Biotechnology Oversight, 10 Pace Envt'l L Rev 227 (1992)Google Scholar (similar point in context of biotechnology regulation); Note, Not By Risk Alone, 102 Yale L J 547 (1992)CrossRefGoogle Scholar (similar point in context of EPA's program of risk-based priority setting).

89. Habermas, Jurgen, “On the Pragmatic, the Ethical, and the Moral Employments of Practical Reason,” in Justification and Application: Remarks on Discourse Ethics (Cronin, Ciarin P., Trans. 1993)Google Scholar.

90. See notes 15-20 and accompanying text.

91. See note 25 and accompanying text, discussion of this point in context of memorials.

92. More precisely, “das Erhabene” is translated as “the sublime,” and refers to the quality of an object; awe or reverence are the corresponding subjective impressions. This term has been the subject of much study lately in Germany. See, for example, Das Erhabene: Zwischen Grenzerfahrung Und Gröbenwahn [the sublime: between border experience and megalomania] (Pries, Christine, ed 1989)CrossRefGoogle Scholar. On the notion that awe or reverence is a combination of moral and aesthetic experience, see Früchtl, Josef, Das Spiel der Vernunft und der Ernst der Kritik [the play of reason and the seriousness of critique], in Aesthetik im Widerstreit [aesthetics in conflict] 191 (Welsch, Wolfgang & Pries, Christine eds, 1991)Google Scholar.

93. Kant, Immanuel, Critique of Judgement (Pluhar, Werner S. trans., 1987)Google Scholar.

94. See, for example, Habermas, Jürgen, Theorie Des Kommunikativen Handelns, Vol II, 275–76, 489–548, 576 (1981)Google Scholar (English translation: Theory of Communicative Action, McCarthy, Thomas A. trans, 1984)Google Scholar.

95. Cf Ackerman (cited in note 43, at 10-20) (Ordinary Observer v Scientific Policymaker distinction).

96. “New social movements” is a common term in continental social theory. See generally Halfmann, Jost, Risk Avoidance and Sovereignty: New Social Movements in the Untied States and West Germany, 8 Praxis 14 (1988)Google Scholar.

97. See Habermas (cited in note 94, at II, 576).

98. See Caplan, Arthur C., The Doctor's Trial and Analogies to the Holocaust in Contemporary Bioethical Debates, in The Nazi Doctors (cited in note 3, at 258)Google Scholar.