Glorfindel of Gondolin

Glenn Greenwald says he used to be a constitutional law and civil rights litigator in New York. But he doesn't need that background to make the following obvious point:

. . . a court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government. That's because, strictly speaking, the U.S. is not a "democracy" as much as it a "constitutional republic," precisely because constitutional guarantees trump democratic majorities. This is all just seventh-grade civics. . . .

Posted by Carey at 11:14 PM | Permalink | Comments (3)

I've gotten several email requests over the past few weeks from people who are trying to decide whether to pursue a career in law and/or medicine, asking what the professions are like and what the training for each of them entails. Since more people with the same question may find my blog but won't want to email me directly, I thought I'd post a generic version of what I've said about the subject here.

Keep in mind, of course, that my insight is limited. Yes, I've finished both law school and medical school, and I'm now a medical resident. This gives me an interesting perspective on the training programs for both professions. But remember that I've been practicing medicine for eighteen months as a resident. I've never practiced law. My knowledge of law practice comes from my time as a summer associate with a very large firm called Sidley Austin in Chicago, and from talking with law school friends that have been practicing in various capacities and places for eighteen months.

Nevertheless, that's still some pretty unique (*smirk* to you-know-who) experience, and I'm happy to share it.

Both professions are hugely diverse, and this makes it hard to generalize about them. In my opinion this also makes both fields very interesting -- there's a million little niches in each that
suit very different kinds of people.

With the disclaimer out of the way, let's move on to the generalizations:

Medicine is literally a hands-on profession. Most docs end up pushing on stomachs and listening to various organs with a stethoscope. True whether you're an emergency doc or an internist or a surgeon. Even the pathologists and the radiologists are probing individual patients in some way (dead patients and pictures of patients respectively).

The mental work that docs do is usually diagnostic -- pattern recognition -- which sometimes doesn't feel like "thinking." They gather all the data together, recognize from past experience what kinds of data are missing and what questions haven't been asked, and then fit all those data into the patterns they've got floating around in their head. This process of diagnosis is usually instantaneous. "Ok ma'am, you've been vomiting for two days, you've had an appendectomy several years ago, you're not a diabetic, and your abdomen is diffusely tender. Badda-bing, I think you've got a bowel obstruction." Why? Because it fits the pattern.

When you're doing this, it doesn't really seem to be a mental process in the same way that writing out an argument in the social sciences or humanities does. In fact, it can seem mindless. So much so that many docs feel they need to do something else to get their intellectual kicks -- research, philosophy as a hobby, health policy, whatever.

The plus side is that you are actually helping a real person who's standing in front of you (or curled up in the fetal position in front of you). You're doing something in the real world and you see the effects of what you do.

Contrast this with law: this is a writing profession. Lawyers deal with written documents and produce written documents, almost without exception. This can mean that the effects of what you do aren't so immediate as they are in medicine. As a lawyer, you certainly have no special manual skills like most
doctors do -- you can't put a central line into some guy'sneck, you can't do any kind of surgery. The skills you have are all about documents.

Even if you're a trial lawyer that argues to a jury, you're still dealing with words, arranged in a particular way, only this time delivered orally instead of on paper. Even trial lawyers spend the majority of their time going over written depositions, writing motions to the judge, etc. And most lawyers who don't do trials work almost exclusively in writing -- corporate lawyers drafting documents for deals, appellate lawyers writing briefs, government lawyers reviewing policies.

There's a lot of room to think, in the traditional academic sense, if you're a lawyer. (Not so much as a junior associate, but as you get more experienced.) You can strategize, persuade, marshal evidence, and all the other stuff that lawyers are famous for doing. It's not as free-wheeling as arguing with your friends about Barack Obama's health plan, but hey -- it's still an intellectual and creative kind of brain work.

The downside, in my opinion, is that the effects of what you do are often much more difficult to discern in law than they are in medicine. You slave away on a motion for weeks, and then the judge denies it. Or, worse, the motion is granted, but then your client settles. You have to use your imagination sometimes to believe that what you did had some direct effect on the world. True, in medicine the patient may still end up dead, but in general you'll see the effects of what you do in medicine more than you will in law.

If you hate being in a cubicle, realize that most of the really well-paid lawyers do
just that -- sit in a cubicle. Lawyers who like to be on their feet are usually prosecuting or defending small-time crime, or (occasionally) they make a name for themselves and work on the big stuff. But this is only one small niche within the legal profession. Most lawyers are desk-driving wordsmiths.

Then there are other factors. In my own biased opinion based on limited experience:

Lawyers are much better conversationalists than doctors.
Doctors can't write worth a damn, and they're less curious.
Most people in both professions are risk averse.
Lawyers are much more money and status conscious than doctors.
But the doctors who are money-conscious are insufferable.

One other thing I should mention: the road to getting a medical license is a long one. That shouldn't stop you if you want to do it, but you've got to be prepared for the long haul, and you have to enjoy the journey.

Speaking of school: in medicine, the trick is to get into *any* American medical school. There are relatively few of them, and they all have high admission standards. Law school is different. The trick for law school is to get into a *good* law school. There are a million law schools, and for most of them, all you need to do to get in is have a pulse and be able to sign for student loans.

What this means is that in medicine, so long as you get in, it doesn't matter where you go to med school. Sure, Hopkins would be nice, but if you don't like Baltimore you can go to your state med school and do just as well. In law, if you don't go to a good law school, you'll find your employment prospects limited when you graduate. Don't let the schools tell you any different: shoot for the best law school you can get into.

For a list of good law schools, see Brian Leiter's rankings. There are other rank lists out there and these rankings are absurd, but I've said a lot about that already and won't repeat myself here. These list just give you an idea of which schools will give you the most options as a graduate.

Remember, too, that you might want to consider why you want to enter either profession. The word on the street is that both lawyers and doctors don't have as much prestige as they used to. Practitioners of both professions are, more and more, becoming highly-paid employees, and there's nothing very highbrow about that. So if prestige is what you're after, think twice. Think about starting your own business, or becoming an artist. There's many more than two ways to skin a cat.

Posted by Carey at 11:11 PM | Permalink | Comments (3)

Just as no one ever expects the Spanish Inquisition, I'm sure no one ever expected that EMTALA would be used like this....

Jack Goldsmith, now a law professor at Harvard, used to head the Justice Department's Office of Legal Counsel.  He's famous for having retracted John Yoo's "torture memo" of August 1, 2002, on the grounds that it was "legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary." [p. 151]

One of the ways that it was flawed, Goldsmith reveals in his book about his time at OLC, was its definition of torture.  According to the memo, in order for pain inflicted on a prisoner to amount to torture, it "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."  Goldsmith doesn't think this assertion had very much legal authority to back it up.  Which isn't surprising, given that the description of pain was not derived from any authority having to do with torture, but instead was lifted from EMTALA's definition of the kind of pain severe enough to constitute an "emergency medical condition" triggering a requirement for most US hospitals and doctors to provide certain kinds of medical treatment.  Goldsmith calls this use of EMTALA's language in the Torture Memo  "clumsy definitional arbitrage" that "didn't seem even in the ballpark" for definining what kinds of severe pain might amount to torture [p. 145]

Fascinating.  Creative use of authority like this is why some lawyers make the big bucks, are given top-level jobs in government, and occasionally suffer professional humiliation.

Posted by Carey at 02:52 PM | Permalink | Comments (0)

There are some issues that irreconcilably divide the world's people into one side versus another. Pro-life or pro-choice. Cats or dogs. Beach or mountains.

Pro- or anti- Anthony Ciolli.

Me? I think the decision by Ciolli's old law firm to rescind its offer of employment is nauseating. Not unexpected, but nauseating. At least Ciolli never claimed to be something he wasn't. Hypocrisy wasn't one of Ciolli's sins, but a biglaw firm preaching primly about "the kind of language exhibited on the message board" that Ciolli was affiliated with, while at the same time doing what most biglaw firms do -- whore itself out for absurd amounts of money defending corporate clients that harm people in ways far worse than Ciolli ever did -- is nauseatingly hypocritical, if rarely remarked upon.

Now, I don't know everything about the AutoAdmit scandal. I don't know exactly what was posted by the people who were eventually sued by Rosen/Lemley/et.al. I certainly don't know whether the plaintiffs in the lawsuit couldn't get a job because of what was posted on AutoAdmit, or because their grades sucked. But as a former poster on the previous iteration of AutoAdmit (when it was still run by the Princeton Review), I believe that participants on this board have clear warning about what kind of juvenile/infantile/potentially dangerous climate they're getting into when they post there. And they have to be idiots not to know that the kinds of employers they're angling to attract -- risk-averse and often hypocritical Biglaw firms -- might act stupidly and take what was posted on AutoAdmit as an excuse not to hire them, for whatever reason.

Even, allegedly, because some anonymous poster calling himself The Ayatollah of Rock-n-Rollah said that the plaintiff had a lesbian affair with the admissions director at Yale Law School. To believe that even a Biglaw firm would take that claim seriously is a stretch. Look, a lot of things were said about me by fools and morons when I posted on xoxohth.com. That was one of the things that made it fun. But when a biglaw firm didn't give me a job, I assumed (naively, perhaps), that it was because they had other applicants that they liked better than me, for substantive reasons, like, say, law school grades and an enthusiasm for golf. Suing xoxo would have been too embarrassing to contemplate. Apparently, not for everyone.

I admit, I'm a mountain guy. I like cats. I'm pro- legal abortions (but not because I'm "pro-choice" -- that's the worst justification in the world for fighting to keep abortion legal). And I'm a free-speech guy. No one should think getting a Biglaw job is such a shoe-in that "it must have been those xoxo posters who ruined it all for me." I bet if your resume were a bit stronger you'd have gotten a few more offers. Or, conversely, you should have realized that the hiring committees at Biglaw firms really are stupid enough to pay attention to some anonymous dumb ass calling himself Pauliewalnuts.

Posted by Carey at 12:32 AM | Permalink | Comments (0)

If I were still in law school (and not post-call on the trauma service), this article from the novelist and occasional current-affairs commentator Mark Helprin would have provoked a long post many days ago: A Great Idea Lives Forever. Shouldn’t Its Copyright?

Helprin makes the provocative, because so seldom-heard, argument that copyright terms extending to 70 years after the death of the author just aren't long enough:

Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

But alas, wisdom demands that I grab a beer, curl up in bed with my book for half an hour, and go to sleep. I'm back in the hospital again tomorrow....

Posted by Carey at 07:29 PM | Permalink | Comments (0)

"Free speech" is universally acknowledged in this country to be a good thing, and it seems obvious that it is. Which probably explains why, when George Will wants to attack a proposed rule change making it easier for workers to join a union, he chooses to characterize the rule change that he doesn't like as an "assault on corporate speech." Will suggests by the accusation that the new rules would be un-American or vaguely unconstitutional, but the question for us is: is Will correct?

The House is scheduled to vote on a bill this week that would change the procedure for establishing unionized workplaces. Under the new rules, union representation would be established whenever a majority of workers sign a card declaring that they want a union. Currently, unionizing requires a formal secret-ballot election supervised by the National Labor Relations Board.

I'm far from understanding all the subtleties of these proposed rule changes, but suffice it to say that union organizers think the new procedures will make it easier to organize workers (which is why they support them), and employers agree (which is why they oppose them). There are many arguments that can be made for and against the rule changes -- many involve the extent to which workers would be exposed to pressure from either employers or from union organizers; others involve the benefits and costs to our economy that a more unionized workforce would entail. George Will, however, knowing the power that the idea of "free speech" has in our country, chooses to attack the rule change as an "assault on corporate speech."

We should be suspicious of Will's argument, for many of the same reasons that this sentence of Will's just sounds odd: "[McCain-Feingold's] speech restrictions -- applauded as virtuous by the (exempt) media -- have legitimized talk about "drawing lines" to circumscribe the speech rights of entire categories of Americans, in this case employers."

Employers -- the "category of Americans" that Will has in mind -- apparently includes not just Bob Smith down the block who owns a plumbing supply company, but also PepsiCo and Wal-Mart. It's reasonable to ask whether the virtues of free speech enjoyed by individual citizens and human beings are equally as virtuous when applied to behemoth corporations that are "persons" in a legal sense only. Corporations are constructs formed for the sole purpose of concentrating more capital in one place than any single human being could ever possess, are non-existent apart from the hundreds of thousands of individual human beings that invest in and are employed by the corporation (all of whom presumably have opinions of their own that cannot be said to be Pepsi's "opinions"), and are, to the extent that we can speak of them as single entities, single-mindedly devoted to the pursuit of monetary profit to an extent far greater than any of the real human beings that collectively make it up. You shouldn't expect to reason with a corporation in the same way that you can reason with a human being. You can't "persuade" it like you can persuade the individual who may be its CEO.

It's a simple point, really. It's why we can call the same words uttered by our neighbor Fritz "persuasion," but when they're uttered by the Government we call it "propaganda." One of the reasons Americans love free speech so much is precisely because we think that allowing individuals to voice their opinions protects us from the overbearing influence of messages delivered from on high -- usually by the government. The question is, is "corporate speech" in the context of union organizing more like government propaganda or more like discussing the issues of the day with the lady who waits tables at Bennigan's? George Will may have a good point about the union organizing rules, but his equation of "corporate speech" with free speech generally is much more suspect.

Posted by Carey at 07:14 PM | Permalink | Comments (0)

Should drug manufacturers, assuming they meet all the labeling requirements imposed by the FDA, be subject to liability for failing to meet more extensive or different labeling requirments imposed by the states?

This article in the NEJM ($), criticizing the FDA's new labeling regulations, buries its most important paragraph deep in the middle of the piece:

The most troubling aspect of the FDA's new plan, however, has nothing to do with providing information to prescribers. In an unusual move after the end of a five-year period of comments on the initial rule, the agency used the passage of the new labeling regulations to quietly add a new section to its preamble that will make it extremely difficult for anyone to bring legal action against a drug manufacturer for harm caused by one of its products.

Whether you find this troubling or not will depend on what you think about the trustworthiness of the FDA and drug manufacturers, the appropriateness of private lawsuits in areas subject to extensive government regulation, and the relative role of state and federal law.

For years, the pharmaceutical industry had sought to pass legislation that would prohibit litigation over adverse effects as long as the medication was approved by the FDA; Congress has consistently rejected this idea. But after the comment period for the new labeling regulation had closed, language was added to the final rule stating that any FDA-approved label, "whether it be in the old or new format, preempts . . . decisions of a court of law for purposes of product liability litigation."

Drug manufacturers would love for Congress to explicitly preempt state laws governing drug labeling, but so far, Congress has chosen not to do so. There's nothing that explicitly prevents states from passing drug labeling laws that impose more extensive requirements on drug manufacturers than imposed by the FDA under the federal Food, Drug, and Cosmetic Act.

Usually when an industry wants federal preemption of state laws, but can't convince the Congress to go along, the industry relies on the doctrine of implied preemption to argue that courts should refuse to enforce state laws anyway. Their argument is that when Congress legislates extensively about a given subject, it has implicitly exercised its power to preempt state law. State legislation on the same subject, even if it doesn't actually conflict with federal requirements, would alter the federal regulatory regime in ways that Congress would never have intended.

This doctrine leaves the preemption decision to the courts. But federal agencies do influence the final decisions about implied preemption, and that's why this new language from the FDA is important. When courts are presented with the argument that federal law implicitly preempts state law, they will often grant some deference to the interpretation of that federal law by the agencies charged with implementing it. For example, if the FDA interprets the Food, Drug, and Cosmetic Act to preempt state labeling requirements, it's more likely that a court will find that state law is preempted. That's why this part of the article is misleading:

Beginning at the end of this month, the new regulations would preempt nearly all action by patients in state courts against drug manufacturers for unanticipated injuries resulting from the use of their products. This immunity would apply even if a company failed to warn prescribers or patients adequately about a known risk, unless a patient could prove that the company intentionally committed fraud — a very hard test to meet.

The FDA's opinion about preemption isn't itself legally binding, but it does make it more likely that the courts will go along with drug manufacturers' preemption arguments.

Is any of this a good thing? There's a strong case to be made that in the absence of any state law to the contrary, a state jury shouldn't be able to hold a drug manufacturer liable for a "failure to warn" in a case where the manufacturer complied with FDA labeling requirements. The FDA does rely on clinical trial data to determine what warnings are appropriate. Its judgments shouldn't be routinely discarded by lay juries.

However, things are different when a state passes a specific law requiring warnings in addition to those imposed by the FDA. Contrary to what the FDA suggests, a drug's "safety" isn't something objectively inherent in the drug, and that can be objectively determined in scientific studies. Does a 1 in 5 chance of constipation make a drug unsafe? A 1 in 300 chance of a heart attack? Although the statistical likelihood of adverse side effects can be objectively measured, the safety of a drug is in the eye of the beholder. There's no reason why the FDA's decision that some risks are insignificant enough to be left off a warning label should prevent states from requiring that these risks be disclosed anyway. At least, not until the Congress decides to explicitly preempt state laws that require this additional disclosure.

The FDA argues that "State-law attempts to impose additional warnings can lead to labeling that does not accurately portray a product’s risks, thereby potentially discouraging safe and effective use of approved products or encouraging inappropriate use and undermining the objectives of the act." But this just amounts to an assertion that what's "appropriate," "safe," and "effective" is exclusively a matter for the FDA to decide -- and Congress hasn't explicitly given it this authority.

Implied preemption arguments should be approached skeptically, especially in cases where Congress has considered and declined to exercise its power to expressly preempt state law. The FDA's arguments for preemption should be treated even more skeptically, since they essentially restate the position of the drug manufacturers that has not succeeded in Congress.

The new regulations are here: www.fda.gov/OHRMS/DOCKETS/98fr/06-545.pdf.

Posted by Carey at 02:07 PM | Permalink | Comments (0)

I'm not one of those people who thinks that watching a baby get born is such a miraculous and transformative experience -- I'm just not that transfixed. So I suppose it isn't surprising that the debate over home births and midwives doesn't matter much to me one way or the other. Feminism, the medical establishment, the miracle of birth. . . yawn. If the state made home births illegal, or if they went to the other extreme and stopped regulating midwives altogether, I'd get along either way.

What really gets my goat, though, is that a mom or a newborn baby would encounter an unexpected problem and because of some yawner of a law, not get the emergency care that they need. This is why the prize for the best argument against prosecuting unlicensed midwives goes to:

"The current law, Ms. Welch said, drives midwives underground. "I don't want to have a midwife hesitate to take a woman to the hospital because she is afraid she will be arrested," she said.

Posted by Carey at 05:11 PM | Permalink | Comments (0)

Here's a simple test for ranking the federal circuit courts of appeal according to how liberal or conservative they are:

Step 1: Shepardize Lawrence v. Texas, 539 U.S. 558 (2003) on Lexis. Or use Westlaw if you prefer Pepsi.

Step 2: Count how many times each circuit follows Lawrence. Count how many times each circuit distinguishes Lawrence.

The most liberal circuit is the one that follows Lawrence the most. That'd be the Ninth Circuit, following Lawrence twice and distinguishing Lawrence once. The most conservative circuit is the Fourth, distinguishing Lawrence three times and not ever following it.

I know, I know; you're going to say that it's silly to draw any conclusions from such a small number of cases, and that the value of my little test depends completely on what you mean by "liberal" and "conservative." To which I say, no test is perfect -- but at least mine is simple.

Posted by Carey at 09:14 PM | Permalink | Comments (3)

An LA Times editorial calls for bringing executions out into the open:

Like the crimes for which it is a punishment, the death penalty is an affront to civilized society. It should not be reformed — it should be abolished. But if California is going to keep at it, let's try a reform that will remind us what we are doing while at the same time making sure, without help from a doctor, that the condemned prisoner is really dead. The state should convene a firing squad — and be certain to schedule the execution for prime time.

Regardless of whether you support or oppose the death penalty, I think this is a good idea. Watching executions won't change the minds of many diehard supporters or opponents of the death penalty. But it would challenge those of us who've ignored the issue to make a decision. It would force all of us to confront the reality of what the state is doing in our name.

The point is to encourage us to take responsibility for what we do. We can't do that until we know just what it is we're doing.

Posted by Carey at 08:22 PM | Permalink | Comments (3)

Via Prof. Bainbridge, here's a fun quiz:

You are the Golden Rule! You presume that the legislature would not want to apply the statute to achieve an unreasonable or absurd result inconsistent with its purpose. It's not what's on the surface that matters for you, and you try to do what's best in any given situation. You're a bit unpredictable, but you don't mind.


Which Canon of Statutory Construction are You?
brought to you by Quizilla

Posted by Carey at 11:06 PM | Permalink | Comments (0) | TrackBacks (1)

Perhaps meaning to reassure those of us who still believe that separation of powers is a good idea, Vice President Dick Cheney had this to say about the warrantless domestic wiretapping that his administration insists is lawful:

"The entire program undergoes a thorough review within the executive branch every 45 days. After each review, the president determines once again whether or not to reauthorize the program. He has done so more than 30 times since Sept. 11, and he has indicated his intent to do so as long as our nation faces a continuing threat from Al Qaeda and related organizations."

Forgive me if I remain suspicious. Apart from the fact that this kind of unilateral declaration of unfettered authority by any president would be frightening, this isn't just any president -- it's George W. Bush. If he's anything, Bush is unreflective and unrepentant, two qualities that in many cases are fine ones for a leader to possess, but aren't exactly what you want in a leader with unchecked power.

It's also not very reassuring to know that the review of these secret wiretaps is being conducted by an administration that would compel a retired Army colonel with as much experience in government as Larry Wilkerson to say:

"This is really a very inept administration. As a teacher who's studied every administration since 1945, I think this is probably the worst ineptitude in governance, decision-making and leadership I've seen in 50-plus years. You've got to go back and think about that. That includes the Bay of Pigs, that includes -- oh my God, Vietnam. That includes Iran-contra, Watergate."

If I misunderstand Hewitt, would someone please let me know where he thinks the limits on Presidential power lie? Surely he'd be in favor of some limits--just in case the mob should go crazy and actually elect President Hillary Clinton.

The argument that the NSA wireless wiretapping is illegal is much more persuasive. The Bush administration has fired back with a 42-page "white paper" defending itself. Should be a good source of blog fodder for weeks.

Meanwhile, Osama bin Laden is rattling the sabers again. We should of course protect ourselves. Of course, we should destroy Al Qaeda. Also, of course, we shouldn't let these terrorists frighten us into giving up our system of government checks and balances that helps to protect us from domestic tyranny. Sadly, we are well on our way to letting them do just this.

Posted by Carey at 09:39 PM | Permalink | Comments (1)

When a state or city government decides to give a big corporation a tax break in order to persuade it to relocate, everyone yawns. When the Maryland legislature votes to require Wal-Mart to spend more on health care for its workers, it's immediately accused of "legislative mugging" by none other than the Washington Post. Something's wrong with this picture.

If it's OK for a government to hand out goodies to a specific corporation, then why isn't it OK for the government to impose burdens on a specific corporation? If one is acceptable, than the other should be also. Even better: if one is bad, than the other is too.

As an aside, the Maryland legislature in this case hasn't even singled out Wal-Mart. It voted today to override Gov. Ehrlich's veto of legislation that would require all employers with more than 10,000 employees in Maryland to spend 8% of its payroll on health benefits for its workers or compensate the State. As it happens, of the four employers that are subject to the requirements, only Wal-Mart does not currently meet them. So, yes, only Wal-Mart will have to scramble to comply with the new law, but it's not "unfair and overbearing," and it's certainly not specific to Wal-Mart. As critics of the bill have pointed out, Wal-Mart is free to avoid the requirements by reducing their workforce in Maryland to fewer than 10,000 people. That's the difference between this bill and one that says "Wal-Mart shall. . . ."

But -- to get back to my main point -- even if the bill had targeted Wal-Mart, I fail to see the difference between this and a decision by the state of Michigan to give company-specific tax breaks to Delphi and Visteon. Both measures are corporation-specific. Both, say the politicians, are for the benefit of their respective states. The only difference is that in one case, a specific corporation is subject to special burdens, while in the other it's given special exemptions from burdens. Either both are OK, or they're both not.

Any legislative action that singles out a specific company is a bad idea. It blatantly violates the ideal of equal treatment under the law, and it invites corruption when the legislature gets into the business of handing out special goodies or dispensing special punishments. So I'd prefer not to see any company-specific legislation. But it's even worse when corporations take their yummy tax breaks and then complain about special requirements.

I'd like to say that the corporations can't have it both ways, but in this country, they often do.

Posted by Carey at 05:21 PM | Permalink | Comments (1)

Ever since the Bayh-Dole Act was passed, universities have scrambled to patent everything they could in the hopes of reaping rich rewards from the licensing revenues that are occasionally possible when you hold a lot of patents.

This article from JAMA ($) suggests that that revenue is not in fact very significant for the vast majority of universities, and that in many cases the costs of maintaining a technology transfer office to handle the patent applications and the licensing eats up any revenues that flow from technology licenses.

Only a few universities reap large net revenues from licensing. Surprisingly, these aren't always the universities that spend the most on research. Harvard? Stanford? Neither make a ton of money from licensing, at least relative to their research expenses. The universities that score big usually score big because they get lucky. For example, Florida State pulls in big cash because they have the patent on the anti-cancer drug Taxol. The University of Florida cashes in on the Gatorade trademark (wtf??).

The authors argue persuasively that, as a tool for motivating productive research, technology licensing hasn't had a huge effect in the U.S. They point out that other countries considering this model ought to worry that if they don't have a robust system of publicly-funded research, relying on technology licensing is more likely to slant research toward the benefit of the rich, who can pay large licensing fees. That this hasn't happened in the U.S. is probably because we still have a healthy amount of public research funding available.

Posted by Carey at 09:55 PM | Permalink | Comments (4)

It's not surprising that the American provisional authority in Iraq under Paul Bremer would rewrite Iraq's patent laws to allow for patents on plants. (See this and this.) But it raises the issue once more about whether plant patents are a good thing or not.

I understand why patents are useful. In cases where innovation costs a lot of money and/or where it's easy for an inventor to exploit his invention while keeping it secret, patents help inventors to recoup their development costs while ensuring that the public gains access to new information.

But I never understood why patents should be issued for plants, especially crop varieties like wheat and corn. Patents for plants seem less like a means of spurring innovation and more like a tool for redistributing political and economic power from one group of people to another, specifically, from farmers to corporate plant breeders. I don't see how doing this makes anyone other than the corporations better off.

First of all, I don't understand why developing innovative new seeds should cost a lot of money. When it comes to plants, nature takes care of innovation largely by itself. Farmers simply pay close attention to what kinds of plants grow best on their farms, and they save the seeds from those plants to cultivate again later. That kind of innovation is cheap.

Genetic engineering of crops, on the other hand, is expensive. But it's not obvious that this kind of innovation produces superior products. Genetic engineering produces many "new" kinds of tomatoes very quickly, but many of these are inferior plants. They aren't adapted well to the places where they're grown, and so they need lots of pesticides and fertilizers to keep them alive. Very often these varieties are engineered with specific features that are actively detrimental, such as an inability to reproduce, or a dependence upon pesticides and fertilizers. It's no coincidence that these innovations benefit the corporations that "invented" them; it's harder to see how these innovations benefit the society as a whole.

The argument for patents has never been simply that they promote innovation per se; it's always been that they promote socially useful innovation. It's hard to see how patents on plants do this.

Second, I don't understand why agricultural knowledge would suffer from excessive secrecy if patents on plants weren't available. Farmers have always benefitted by sharing their seeds with other farmers -- they've always had the incentive to exchange seeds in the hope of developing better varieties for their own farms.

Plant patents seem less about promoting innovation and knowledge than about shifting power from farmers to agribusiness. If farmers have to purchase seeds from biotech labs that they are forbidden to save or to trade, then the farmers have been deprived of a function which they have performed ably for centuries, namely, adapting their crops to the place where they farm. That function has been transferred to agribusiness, which performs it through biotech rather than by natural selection. I don't understand why this redistribution of power should be good for any society, including Iraq.

Am I just missing something?

Posted by Carey at 07:20 AM | Permalink | Comments (2)

Michael McConnell, Janice Rogers Brown, Edith Brown Clement, Edith Jones and Emilio Garza have all been "ruled out" by the White House for the next Supreme Court nomination, according to an article by Jan Crawford Greenburg in the Chicago Tribune.

The most likely candidates are Samuel Alito, J. Michael Luttig, Priscilla Owen and Karen Williams, with J. Harvie Wilkinson a "less likely choice."

Posted by Carey at 09:13 AM | Permalink | Comments (3)

Let's quickly tick off some recent instances where our trust in George W. Bush may have been misplaced. We trusted Bush to take homeland security seriously, and he gave us Michael Brown. We trusted Bush when he told us that Iraq was an imminent threat because of its WMDs, but there were no WMDs. Bush is now asking us to trust him about Harriet Miers, and for good reason, many of us aren't. Why, then, should we continue to trust him about Guantanamo?

Former Solicitor General Seth Waxman gave a lecture at the law school this week. He discussed the role of the judicial branch in the "Global War on Terrorism" (which he helpfully informed us is often abbreviated "GWOT") and suggested that the country might be better off if the courts changed their approach. Along the way, he read a chilling transcript from a hearing for a prisoner in Guantanamo that should make us all question the deference we've been willing to give to George W. Bush.

Continue reading "Stop trusting Bush about "enemy combatants"" »

Posted by Carey at 08:14 PM | Permalink | Comments (1)

In his post entitled "Do You Trust Him?" Hugh Hewitt attempts to placate conservatives disappointed with the Miers nomination by posing the following rhetorical question:

Wake up people: Do you really think W is going to elevate a friend who doesn't agree with him on the crucial issues of the day just because she's a friend?

Come on, Hugh. Everyone knows that there is no such thing as a person who simultaneously a) is a friend of George W. Bush, and b) disagrees with Bush on the crucial issues of the day.

The reason the hard-right social conservatives are worried about Miers is that, for good reason, they're beginning to doubt whether Bush is committed to anything beyond loyalty to his friends. If he did (these conservatives reason), Bush should have passed up a loyal friend with an asshat resume in favor of a McConnell or a Luttig -- a competent person with a proven record of supporting socially conservative values.*

The real gripe that Hewitt has with conservatives who don't like Miers is betrayed by the title of his post. Hugh Hewitt trusts Bush, and he thinks everyone else ought to trust him as well. Never mind Michael Brown; never mind Bush's willingness to tolerate the abasement of our armed forces by condoning torture in Guantanamo and Abu Ghraib. One wonders how bad Bush's performance would have to get before Hugh Hewitt would stop blindly trusting George W. Bush.

I suspect that this overenthusiasm for Bush is behind Hewitt's drivel about Miers being an "Article II-inclined justice" (whatever that means) who understands the "GWOT" (conservative code for "global war on terror"). Apparently, Hewitt thinks the best way to win the GWOT is to let a strong President do what he wants, and for the Article I and Article III branches of our government to get out of the way. I think that's just ridiculous, but it certainly does reinforce the impression that a nation of Hugh Hewitts would be a nation that would turn to fascism to defeat terrorism.

* I put aside the question about whether it makes sense to talk this way about judges.

Posted by Carey at 03:10 PM | Permalink | Comments (0)

We'll learn more about Harriet Miers in the next few weeks. But at first glance, she looks like an underqualified Bush crony.

It's not that she's unqualified; she's had a long career as a lawyer and it seems to have been a reasonably successful one. It's when you compare Miers with the other qualified candidates that she looks like a lightweight.

Bush could have chosen a competent and widely respected conservative like Michael McConnell. He could have chosen a competent and very devisive conservative like J. Michael Luttig. But no -- Bush passed over all these leading lights of conservative jurisprudence to nominate one of his friends from Texas.

Senate Democrats and those Republicans who value competent governance over blind party loyalty should tell Bush to find somebody else. We've seen what damage this president's crony picks can do to an agency like FEMA. None of us want a Michael Brown on the Supreme Court.

Posted by Carey at 08:32 AM | Permalink | Comments (0)

Most physicians who talk about "tort reform" today are talking about changing the mechanics of malpractice suits against doctors. I wonder, though, whether we're not overlooking some important issues that have nothing to do with malpractice liability caps.

Dr. Wax says the following:

Managed care plans require that a physician accept all patients who choose him, dictate how often he may see the patient, the amount he'll be paid and when, and, in many instances, what he can prescribe. They can rescind previously paid compensation at will, and do. In reality, HMOs are practicing medicine since they must approve every test, course of treatment, and referral to a specialist, yet they are rarely, if ever, legally responsible. Meanwhile, the physician is left to suffer the consequences of any malpractice suit.

Back in the late 90s this kind of complaint seemed to be a lot more common. Now, though, you almost never hear it anymore. The only issue that seems to matter these days is malpractice reform, specifically liability caps and the rising cost of malpractice insurance. What ever happened to the HMOs?

Continue reading "Tort reform and HMOs" »

Posted by Carey at 01:16 PM | Permalink | Comments (0)

Can the state of Montana impose testing requirements for mad cow disease that exceed those required by the USDA?

Montana Gov. Brian Schweitzer has said that regulators at the USDA are "a bunch of stooges" who have been bought by the big meat packing companies, and has criticized federal mad cow testing requirements as too lax.

The governor has ordered additional tests of Canadian cattle imported into Montana, which will be paid for by a $3- to $5-per head fee charged to the packing companies. Officials at the USDA say that these requirements may be an illegal burden on interstate commerce. Gov. Schweitzer claims that they are a necessary and permissible health and safety regulation.

May the state of Montana do this? Do these regulations unconstitutionally burden interstate commerce? Are they preempted by any federal statute?

I haven't looked too closely at the controlling precedent, but as far as I know the answer to the constitutional question may turn on whether the burdens on commerce imposed by the increased testing requirements outweigh the health and safety benefits for the citizens of Montana. Kessel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). If so, statements like this might come back to bite the governor:

Critics have said Schweitzer is embracing a protectionist policy, but the governor said he was concerned about Canadian cattle imports driving down the price of Montana cattle.

“Bottom line, I’m trying to keep family ranchers in business,” he said.

Posted by Carey at 07:05 PM | Permalink | Comments (0)

Evan Schaeffer has posted his defense of the jury's decision in the first Vioxx trial:

That was the promise of Vioxx, but it wasn’t to be. And now, as a result, a very small minority of commentators are calling for tort immunity for drug companies and discussing reforms to the jury system that would benefit drug companies. I think these ideas are radical and unnecessary. The tort system and the jury system may not be perfect, but they are certainly better than any of the alternatives, especially those involving granting favors to drug companies that might lead to even greater health risks.

Posted by Carey at 07:37 PM | Permalink | Comments (5)

Before we start to wring our hands about police insensitivity to cultural and language problems in a sting operation called Operation Meth Merchant that nabbed 44 indian-immigrant convenience store clerks in Georgia, we ought to ask ourselves -- again -- whether this war on drugs is doing more harm than good.

The operation was designed to enforce a federal law making it a crime to distribute any product with knowledge or with reasonable cause to believe that that product will be used to produce drugs. 21 U.S.C. 843(a)(6-7). Convenience store clerks, most of whom presumably do not harbor any aspirations of becoming police officers (or drug dealers), can be locked up for terms in excess of ten years because they sold legal products with legal uses to their customers, and didn't concern themselves enough with what the customers were going to do with these legal products after they left the store.

That's draconian on two levels. It harshly penalizes clerks when they merely do their own jobs, and don't try to do the jobs of DEA agents without pay. It's also draconian for customers, many of whom would like to be able to buy some cold medicine and some kitty litter without the sales clerk wondering what they're going to be doing with such suspicious products. "One's for my nose, and the other's for my cat's shit" is what I'd say if anyone asked. Or, better yet, "it's none of your business. What are you, DEA?"

The drug warriors will always tell you that methamphetamine is dangerous, and that it's bad for you. But the drug warriors can't seem to realize that this doesn't justify limitless law enforcement intrusion into other areas of our lives. So let's not be distracted by the cultural issues here. Even if all of the Operation Meth Merchant perps were white guys named Floyd from Atlanta, this sting operation and the law it was designed to enforce would still be a problem.

Posted by Carey at 10:12 AM | Permalink | Comments (2) | TrackBacks (3)

Ian Ayres lists the top six reasons why Connecticut's civil union rights for same-sex couples are substantively different from marriage rights. I don't know what this says about me or about my legal education, but my eye was caught by the lurking presence of my favorite (or not) federal statute, ERISA. Here's Ayres' #2:

2. The civil union statute may allow employers to deny benefits to same-sex couples who are joined in Civil Union but unmarried. "[B]y calling the status a �Civil Union,� a self-insured employer (and that includes most large employers) will have to amend its plans to include Civil Union spouses whereas married spouses would automatically be covered under self-insured plans that defer to a state-law definition of who is married." If the marriage exclusion were abolished, it is more likely that an employer would be prohibited from discriminating between same-sex and different-sex married couples.

Moving on: anyone who at any time in their lives has ever liked Rush, but who has rejected the group for whatever reason (succumbed to peer pressure, became a eunuch, or whatever) should check out some of the songs on Vapor Trails.

Earthshine is magnificent.

Posted by Carey at 10:05 PM | Permalink | Comments (2)

I'm disappointed that someone as erudite as Prof. Bainbridge feels that he has "no words of comfort to offer" to a person who sent an email to Bainbridge complaining that:

I now consider 1/3rd of our government, the unelected, permanent system of the courts, to be hostile to the good ....

Posted by Carey at 09:45 PM | Permalink | Comments (0)

Today promises to be another busy day.

In these few free moments I'd like to send you all to Nathan Newman's warning about the creeping federalization of health care policy.*

What's the next legislative atrocity coming down the pike from the GOP Congress? So many to choose from, but a sleeper is H.R. 525, labeled the "Small Business Health Fairness Act of 2005," which has a committee hearing this Wednesday. With a name like that, you know evil's afoot and the plan here is to exempt more health insurance plans from state regulation.

* * *

This bill is so bad that thousands of organizations oppose it, including the Republican Governors Association.

---------
*WARNING: those of you allergic to ERISA should premedicate yourselves first.

Posted by Carey at 09:41 AM | Permalink | Comments (0)

Seems like people in small towns don't like HIPAA because it mandates too much privacy, while at the same time, the plaintiffs in this Third Circuit case don't like HIPAA because it provides too little.

Me, I haven't looked too closely at HIPAA yet. My curiousity has been piqued.

Posted by Carey at 11:55 AM | Permalink | Comments (3)

I was skeptical that last week's legislation shifting some class-action lawsuits from state to federal court was really as consequential as the politicos on both sides of the aisle made it seem. Are the federal courts really so much more hostile to class-action plaintiffs than the state courts are? And if so, should it bother us?

I still don't have any answers, but after asking around at the law school, I do have some more information.

First, it's unclear whether removing class-action lawsuits from state to federal court actually favors defendants. Some studies have shown that win rates drop significantly when a case is removed from state to federal court on diversity grounds. See Clermont & Eisenberg, 83 Cornell L. Rev. 581 (1998). The question is, why? The difference might be due to increased costs for plaintiffs, or to less favorable procedural rules. It may be due to a case-selection bias -- the plaintiff's strongest cases are settled, and the weakest claims are removed. We can't tell from win rates alone whether federal court is actually more favorable to class-action defendants.

But let's assume for the moment that federal court makes a difference. The most troublesome explanation for this would be that the federal courts are populated with less sympathetic judges. "Less sympathetic" being in this case a euphemism for "politically slanted towards corporate defendants."

It does make some intuitive sense that the federal judiciary might be more hostile to class-action suits. Since the presidency has been held by republicans for most of the past thirty years, and since right-wing presidents can be expected to appoint judges whose rulings tend to favor big business, we might expect that the federal judiciary would be less indulgent of class-action plaintiffs than the state judiciary would be.

Do we really want to say that the federal judiciary is politicized? I don't want to say it. If any judges are going to be making decisions based on their political leanings, I'd rather it be an elected state judge who favors in-state plaintiffs and who can (theoretically) be given the boot, than a tenured-for-life Article III federal judge.

I'd like to think that most all judges, state and federal, aren't overt politicos and don't decide more than a tiny fraction of their cases under the influence of their own political beliefs. I'm also sure that at the margin, a judge's political leanings do make a difference. (See, for example, criticism of Justices Thomas, Scalia, and all the rest except O'Connor in Johnson v. California, the racial-segregation-in-prison case.) The political leanings of the federal judiciary, though, seem to me unlikely to have any real impact on the outcome of most class-action lawsuits.

So I suppose my point is this: there's good reasons for believing that last week's legislation is not going to make a whole hell of a lot of difference. And if it does, the reasons for it are not likely to be ones that worry me a whole lot.

But, still...

Why does the corporate lobby seem so thrilled? And does passage of this legislation suggest that more pernicious legislation is on the way -- like a federally-mandated cap on noneconomic damages in malpractice suits?

With the kind of Congress we've got now, I never really stop worrying altogether.

Posted by Carey at 08:12 PM | Permalink | Comments (1)

Because Tuesdays are so busy, I'll just send my readers here, so they may learn of the nefarious (non)activity of Utah's U.S. Attorney, Paul Warner. He seems to be hesitant to enforce federal law against a bunch of red-state hooligans who happen to also be state government officials.

(Oh, and the Supreme Court has agreed to hear the appeal of Oregon v. Ashcroft (now known, sadly, as Gonzales v. Oregon). Those dastardly feds are trying to enforce the federal Controlled Substances Act against a poor innocent blue state whose voters have legalized assisted suicide.)

Now I'm going to get some sleep. For some reason, I'm thinking I should be well-rested for my Federalism class tomorrow...

(EDIT -- The NYT provides some background on Gonzales v. Oregon.)

Posted by Carey at 10:41 PM | Permalink | Comments (4)

I hope the folks in my Legal Ethics course this semester will enjoy the Legal Ethics Forum, a new blog I found thanks to Brian Leiter.

Posted by Carey at 07:51 AM | Permalink | Comments (3)

I'm not sure whether shifting more class-action lawsuits to federal court (via Howard Bashman) is really as bad as some Democrats are portraying it.

The idea is that state courts are much more likely than federal courts to award huge damage awards to class-action plaintiffs. Although there have been some recent examples of large awards in tobacco lawsuits, for example, I'm not sure why plaintiffs would be systematically disadvantaged in federal court. Maybe if the federal cases were decided by judges while the state courts used juries--but I don't know whether this is the case. Maybe the procedural rules are more favorable for defendants in federal court, because they give the judges more discretion, and federal judges just love big business. But this seems weird. I can't see juror bias being a whole lot different between the two court systems, either.

My skeptical half thinks that this legislation might be more effective as a way for members of Congress to build their pro-business bona fides (or pro-average consumer bona fides) than it is as a substantive piece of tort reform. This is, of course, the first piece of Bush's reform agenda to make it through Congress, which suggests it may be the least consequential.

Posted by Carey at 09:02 PM | Permalink | Comments (3)

I wasn't on the jury, so I won't second-guess their verdict. But I'm trying to put my finger on the reasons why Lynne Stewart's conviction bothers me.

Stewart was the lawyer who represented the "blind sheik" Omar Abdel Rahman. She apparently violated prison rules intended to prevent Abdel Rahman from communicating with his followers from prison -- for example, she read a statement from the sheik withdrawing his support for a cease-fire in Egypt to a reporter in Cairo. The government charged her with providing material aid to terrorism, while Ms. Stewart insisted that she was fulfulling her professional obligation to provide her client with zealous representation.

On one hand, I understand the importance of preventing terrorists like Sheik Abdel Rahman from inciting violence from prison. I can see how Stewart's violation of the rules could result in serious harm (although in this case it did not). Perhaps I'd be a lot more comfortable with the verdict if Stewart had been charged with something like endangering public safety by violating these rules.

I guess one of the things that bothers me is that Stewart's behavior doesn't obviously amount to "aiding and abetting terrorism." (By the way, I hope the charge was really of aiding "terrorists.") If someone can be guilty of aiding and abetting every time they do something that may conceivably benefit a terrorist, than it's not clear to me why virtually every American citizen shouldn't be convicted. I'm not sure why anyone in government who's ever done anything that might help terrorist recruitment (most of Bush's team) shouldn't be thrown in jail.

When our political climate allows John Ashcroft to sit before the Senate Judiciary Committee and, without being savagely rebuked, imply that anyone who doesn't support the Patriot Act is flirting with treason, we ought to worry when defense lawyers are convicted of aiding and abetting terrorism. Especially when no one alleges that any actual terrorist acts resulted from this supposed aiding and abetting.

I don't suggest that Stewart ought to escape punishment for violating the no-communication rules applied to Abdel Rahman. But I'm worried that her conviction for aiding terrorism is a little too much.

Posted by Carey at 09:32 AM | Permalink | Comments (2) | TrackBacks (1)

I got an email a few days ago from Ken Gordon, the Colorado State Senate majority leader (I'm on his listserve). He's got a fantastic idea to help wean those upper-income suburbanites off the government dole.

Continue reading "State senator has brilliant insight" »

Posted by Carey at 09:01 PM | Permalink | Comments (2)

Jeremy Blachman's reaction to the first session of a law school class called "Health Care Institutions" is one that I can sympathize with:

But it seems like the most interesting parts of some of the subjects we can study -- the most compelling pieces of the puzzle, the most engaging angles to look at -- are not the legal ones. I think talking about how to improve patient care is a lot more interesting than talking about the legal regime surrounding managed care health insurance programs.

Ordinarily, I would not have given two stones about managed care or ERISA. That all changed this summer when I was working for a managed care organization. The Supreme Court decided Aetna v. Davila in a way that preserved (and strengthened) the virtual immunity from liability that MCOs enjoy under ERISA for a very particular type of decision (a type of prospective utilization review). This kind of decision is one that often has profound consequences for the quality of patient care, and yet the Supreme Court had treated it as merely a decision about payment.

Bullshit, I thought. These are effectively medical decisions, and MCOs ought to be held accountable when they are made negligently. Unjust! Unfair! Meanwhile the managed care industry was practically peeing in their pants with excitement, which made it all worse.

Maybe I'm just fortunate that my experience last summer sparked an interest in ERISA. More likely I'm just weird. But I still think there's hope that Jeremy's class will get much more interesting in a few weeks.

Posted by Carey at 09:47 PM | Permalink | Comments (0)

Merck's recent string of bad news was extended by last Friday's ruling by the Federal Circuit invalidating its patent on once-a-week Fosamax:

Merck received yet another blow yesterday when a federal appeals court unexpectedly invalidated a patent on Fosamax, an osteoporosis treatment that is Merck's second-best-selling drug.

. . . The decision reverses an August 2003 ruling in Federal District Court in Delaware that upheld a patent on a once-a-week formulation of Fosamax. The patent on Fosamax in its original daily dosage expires in 2008. The vast majority of patients take the weekly dose, whose patent protection had been expected to last until 2018. Yesterday's decision means Merck could face generic competition for both the daily and the weekly versions of Fosamax as early as February 2008.

The CAFC rejected this argument, but it's not as patently absurd as it first seems (please forgive the pun). A patentee is "its own lexicographer," meaning it can define the terms in its claims however it wants. Merck argued that it wasn't just redefining the word "about." Instead, it defined the entire phrase "about 70 mg of alendronate monosodium trihydrate, on an alendronic acid basis" to mean "whatever amount of total compound is necessary to provide exactly 70 mg of alendronic acid."

The case may still have come out against Merck even if it had won this claim-construction argument, but the argument is still pretty fierce. There's a vigorous dissent from Judge Rader about the claim construction issue, and about the issue of Fed. Cir. deference to trial courts. If you're a patent law junkie, it makes for good reading.

Posted by Carey at 05:28 PM | Permalink | Comments (0)