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This article depicts the incoherence of present drug, alcohol and tobacco policies and describes the emergency of a "new paternalism" which, if implemented, would push alcohol and tobacco policies toward the preventive public health and welfare model which now dominates thinking about drug abuse policy. Then drawing on the normative perspectives of law and political philosophy, the author suggests that governmental efforts to modify unhealthy personal choices can be justified and that a compelling logical case against the new paternalism will not be found in the libertarian tracts of liberal political philosophers or of the modern Supreme Court. Instead, the author contends that the case for or against restrictive policies aiming to reduce overall consumption of alcohol and tobacco and other unhealthy behaviors, will be made on the facts—how much impact, if any, will they have on consumer behavior and, ultimately, on health care and social service costs? In this connection, the author canvasses the various ways in which formal governmental action, through law, can be utilized to implement a lifestyle-modification policy. Finally, the author raises a series of residual doubts about the new paternalism; even if lifestyle-modification is a legitimate and defensible approach for improving the health of the citizenry and for reducing health care costs, it may also be a prescription for oppression.

Our goal in this paper is to assist state courts and legislatures as they try to carry out the task that Atkins requires of them promoting fairness and accuracy in the assessment and adjudication of mental retardation. After addressing the definition ofmental retardation in Part I, we focus on its assessment in Parts II and III, highlighting several key requirements of a scientifi-cally and clinically adequate assessment. Part II addresses the assessment of deficits in intellectual functioning, particularly on the measurement of intelligence as represented by an intelligence quotient. Appropriate IQ tests must be used, and the scores must be interpreted in accordance with professional practice, taking into account the scores' statistical meaning, the standard error of measurement, and other factors that affect subjects' performance on these tests and the interpretations of their scores. Part III addresses deficits in adaptive behavior, the second key component of a diagnosis of mental retardation. Adaptive behavior is difficult to measure and the scientific community's understanding of the construct is not nearly as advanced as its understanding of IQ. We offer guidance on how to operationalize theconcept of adaptive behavior and how to give it meaningful consideration in Atkins adjudications. Part IV briefly addresses the practical significance of the requirement that mental retardationbe manifest before the age of eighteen. Finally, Part V discusses the role of expert testimony and the necessary qualifications for experts testifying on the issue of mental retardation in death penalty cases.