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Law 310 Final Study Guide

by: SS

Law 310 Final Study Guide Law 310

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Law, Science, and Technology
Pat Kuszler

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Study guide for the Law 310 final, featuring all the notes from the lectures this quarter. If you missed a class, it's all right here!
Law, Science, and Technology
Pat Kuszler
Study Guide
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This 46 page Study Guide was uploaded by SS on Monday August 10, 2015. The Study Guide belongs to Law 310 at University of Washington taught by Pat Kuszler in Winter 2015. Since its upload, it has received 43 views. For similar materials see Law, Science, and Technology in Law at University of Washington.


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Date Created: 08/10/15
LAW 310 H STUDY GUIDE Course Intro 0 Science and Technology the Quest for Truth 0 Veracity as an aim and descriptive accuracy 0 Focus on progress sustainable progress leading to continued progress 0 Science strives to truth quotjunk science an anathema 0 Law the Quest for Justice and Social Order 0 Social order as an aim 0 Focus on process 0 Sometimes justice is not facilitated by truth 0 Use of science in determining guilt and innocence o Guilt and innocence are not absolutes and are not fully susceptible to scientific determination o Burdens of proof readily reveal lack of certitude 0 Justice often demonstrates adherence to moral justice rather than scientific truth 0 Science in the courtroom o Deconstruction of experts and determination of scientific quottruthquot I Exposure of biases 0 Provides opportunity for civic education about science and technology I Corollary potential to bring to light social and moral dilemmas emerging in society 0 Goal of Effective and Practical result to solve a controversy compensate victims or punish offenders of social norms 0 Use of Science in determining Regulatory Law 0 Science as means to determine how social goods are determined and distributed I Health care safe foods safe drugs education 0 Science as means to discourage or forbid social quotbadsquot o Addictive drugs alcohol tobacco bad behavior environmental harms 0 Use of science as opposed to other belief schemes 0 Science vs Nonscience 0 Science vs Religion 0 Science and Technology vs Individual Rights 0 The Brave New World of Assisted Reproduction 0 Privacy and Advanced Surveillance of Personal Activity Drones Satellites Email Cameras and the Net 0 Science and Technology Public Policy and Global Disparities o How to actualize the human right to access scientific promise Science in the Courtroom The Frye Standard o The Problem of Science in Evidence 0 What is science I Reproducible not by chance credible documented readily acceptable I Not susceptible to what we want it to be it just is o How do we determine that something some fact or some test is scientifically valid I Focuses on the natural world I Aims to explain the natural world I Uses testable ideas I Relies on evidence I Involves the scientific community I Leads to ongoing research I Benefits from scientific behavior 0 Why does it matter in the law I In the courtroom I In legislative process I In compensation for harm I In determining guilt and punishment 0 What science or quottruthquot can be used by the judge and jury in coming to a just result 0 The Problem with Evidence in Law 0 Federal and State systems 0 Most cases evolve in the state systems I Therefore 50 different rules regarding admissibility of scientific evidence 0 Different burdens of proof in criminal and civil law and different rules of admissibility of evidence 0 Admissibility of scientific evidence remains in evolution 0 Frye v US 1927 0 Facts of the Case I Criminal case in which the defendant s counsel sought to bring into court the result of a quotdeception test undergone by the defendant I This quotdeception test involved blood pressure monitoring while the subject is asked questions the premise is that systolic blood pressure will increase in a certain way if the subject is telling a conscious untruth 0 Why does the defendant s counsel want this to be admitted I Because this evidence might support the defendant s claim of innocence I A controlled way to get the defendant in front of the jury without the threat of direct testimony that is subject to cross examination 0 Why does the prosecutor not want this test admitted or redone in front of the jury I Belief that is not an accurate indicator of guilt or innocence I Belief that sympathy for the defendant could sway the jury I Strategically may figure that the defendant should get on the stand if they want to present their view to the jury o What does the court use as its standard for determining whether this test can be admitted I quotwhile courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs 0 General Acceptance Standard 0 Frye Standard 0 Dominant standard until 1990s But not an easy standard What is quotgeneral acceptance What does it apply to I The scientist I The scientist s novel method I The part of the scientist s method that is novel 0 General acceptance is more than mere relevance or simple helpfulness it generally speaks to a finding that is dispositive of a quottruthquot Who is the relevant scientific community and how do we determine who is part of it How do we prove general acceptance I Potential battle of the experts 0 State v Superior Court 0 Facts of the Case I Arizona man pulled over by cop for suspicion of drunk driving meandering within lane I Cop has driver do several sobriety tests 00 OO I Driver passes first 3 sobriety tests but flunks horizontal gaze nystagmus HG N test I HGN is allegedly associated with blood alcohol 0 Inability to track smoothly o Nystagmus at max deviation 0 Onset of nystagmus at an angle lt 45 0 Trial Court I Driver makes 2 motions to the Trial Court 0 Dismissal for lack of probable cause 0 Preclusion of HGN test from admission in trial I Driver successful in having HGN test excluded on grounds of inadequate general acceptance this leads to dismissal of the case in his favor because court linked this piece of evidence to probable cause 0 Arizona Supreme Court I First Supreme Court delinks the HGN test with the probable cause determination it holds that admissibility of the HGN test is not a prerequisite for the evidence necessary for probable cause I Second Supreme Court assesses the general acceptance of the HGN test 0 Note admissibility rests on Frye s quotgeneral acceptance standard I Frye analysis of the HGN test 0 Notes that this test is different from walking a straight line or standing on one foot 0 Depends on scientific not merely observational principles I Court notes that this HGN test is a welcome addition to many of the less consistent purely observational tests I The relevant community is not just law enforcement and criminal justice but also scientists who study and research in this area 0 Court takes a relatively expansive view of the relevant community 0 Narrowed only to relevant subsets though I Court ultimately finds that HGN barely meets the Frye standard 0 Minimal publications not refuted by subsequent research I Only 7 articles published only 2 in respected journals I Review of literature also likely flawed and somewhat limited 0 HGN post State v Superior Court 0 State v Witte 1992 found lack of general scientific acceptance on ground that most of the affirmative articles written by lawyers not credible scientists I Courts generally unwilling to credit general acceptance on the basis of quotforensics only communities 0 People v Leahy 1994 held admissibility of HGN an error for failure to establish general acceptance 0 State v O Key 1995 HGN acceptable test for establishing intoxication but not for assessing actual discriminate level of intoxication o The Ebbing of the Frye Standard 0 By the end of the 20th century Frye was beginning to show wear I Science increasingly complex I Courts finding it difficult for juries to apply I In reality multiple steps of evaluation which limited guidance on how to evaluate fairly at each step I The proper scientific field increasingly tough to determine 0 What part required general acceptance the explanatory scientific theory behind a particular technique or merely the technique or both 0 Who was reliable determinants of general acceptance experts scientific literature judicial opinions or a combination Was any one of these sufficient 0 Increasing complaints of quotcultural lag in judicial decisions 0 1975 Federal Rules of Evidence Rule 702 o quotIf scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge skill experience training or education may testify thereto in the form of an opinion or otherwise if I 1 the testimony is based upon sufficient facts or data I 2 the testimony is the product of reliable principles and methods and I 3 the witness has applied the principles and methods reliably to the facts of the case 0 Notably no mention of general acceptance 0 The Fraying of Frye 0 Post Federal Rule 702 Frye became increasingly embattled 0 Many states modified Frye incorporating some of the FR 702 factors I But little consistency I Time ripe for more significant change 0 Daubert v Merrill Dow 1993 would establish a new more comprehensive approach 0 However Frye retains relevancy in some jurisdictions Modern Standards for Scientific Evidence Daubert o The Twilight of Frye o Frye was the prevailing standard for most of the twentieth century 0 As science and technology became more robust and complex Frye was increasingly stressed 0 Criminal law cases could be solved using new science ie explosives case succinylcholine case but often the scientific area was narrow 0 quotGeneral acceptance hard to define in the brave new world of advanced science 0 The relevant scientific community hard to define I What about techniques that grew out of forensics and criminology professionals 0 Are they quotrea scientists Should their determinations be given the same credence as allegedly unbiased academic scientists I What about techniques grounded only in an academic lab science o Is translating them to the quotrea world situations of crime clean and easy 0 What is science As opposed to technology or crime scene techniques such a lifting fingerprints laser tracking of bullets As Frye frayed states began to try and fix its problems Frye Hearings so that the mess of admissibility wouldn t be played out in front of the jury 0 With Federal Rule 702 in 1975 states began to add some additional 702 to their standards for admissibility for scientific evidence o In 1993 a case arose that began to recast the standard Daubert v Merrill Dow Pharmaceuticals 0 Daubert v Merrell Dow 0 Case facts I Jason Daubert and Eric Schuller born with serious birth defects I Their parents sued Merrell in California court alleging that defects were caused by their mothers ingestion of Bendectin I In the past Bendectin had not been found capable of causing malformations in humans 0 Evidence that Bendectin was teratogenic I Teratogenic may cause a problem in the development of the fetus I Petitioners presented their own new info authored by experts proving that Bendectin can cause birth defects o In vitro test tube and in vivo animal studies 0 Pharmacological studies I I o quotReanalysisquot of previously published statistical studies 0 Supreme Court deferred to the Federal Rules because I They look at the Federal Rules of Evidence as a whole 0 First the standard for expert scientific testimony o Is the testimony grounded in scientific knowledge that will assist the trier in determining facts 0 Note the deference to the judge in determining admissibility o The Supreme Court sets four criteria for admissibility I Falsifiability through testing I Peer review demonstrated through publications I Known or potential error rate I General acceptance 0 Justices say they serve more as guidelines not rules but at least two should apply 0 Have the justices created a standard that is less of a quotfree for all than the Frye standard o Is the role of the judge in determining admissibility of evidence enhanced I The judge becomes the quotgatekeeper of evidence so yes o Is general acceptance required I Can be used in conjunction with other Daubert criteria not as the sole standard o Is Daubert a Frye or a Frye I Justice Rehnquist concerned with the general language and how the facts weren t addressed 0 Concerned that quotjunk science would make its way into the debate 0 Science showed that Bendectin caused birth defects in animals but not humans 0 Federal Rule 403 allows relevant evidence to be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion or misleading of the jury I This is a liability case not a case of negligence so we re only looking at strict causation 0 Post Daubert o Daubert places the judge in the position of determining admissibility before evidence is revealed to the jury I Are judges up to the task of understanding complex nuanced scientific issues I Or even fully understanding the criteria ie falsifiability I What about the Court s caution thatjudges should be mindful of all of the rules of evidence in determining the admissibility of scientific evidence 0 Justice Blackmun argues for the judge to play a big role in determining admissibility and reliability of the evidence I Believed Daubert was more permissive than Frye o In the aftermath of Daubert most scholars believe that the Daubert standard is more permissive and that quotjunk science has an easier entry into the courtroom o What are the limits of Daubert I Expert testimony by scientists I All scientific testimony Only scientific testimony about novel science Or natural science I What about testimony that is more technologic than scientific I Expert testimony on science 0 General Electric v Joiner 1997 0 Case Facts I Robert Joiner was an electrician I Alleges he was exposed to harmful fluid filled with PCBs subsequently diagnosed with lung cancer 0 Was a heavy smoker though which could have caused his cancer 0 District Court said the case was inadmissible because Joiner couldn t prove causation o The Eleventh Circuit reversed the decision because new federal rules permitted the evidence to be admitted Held District court to a different set of standards than they d used Judge too stringent overly abused his discretion as gatekeeper o The Supreme Court said that the judge has an enormous role in determining admissibility of evidence in this case the judge didn t overstep his bounds 0 Got lung cancer but couldn t make a credible case for causation so no compensation was offered 0 Kumho Tire Co v Carmichael 1999 0 Case Facts Carmichael s tire blew out killing one of his passengers Crash the result of a tire malfunction Strict liability in this crash Brought in a quottire expert is there science on tires Is this scientific testimony Is there a scientific methodology about tires 0 District Court found Carmichael didn t maintain his tires very well even his tire expert said so Decided that Daubert only covers scientific evidence not technicalspecialized knowledge 0 Experiential knowledge inadmissible 0 However under Daubert the judge can call in an expert o Kumho involved technical knowledge of tires is this reliable Is this science The Daubert Trilogy Impact 0 The Daubert Trilogy set forth a new standard for admission of scientific testimony Expanded and enhanced the role of the Judge as Gatekeeper to admissibility 0 Set the standard for reviewing the judges action at abuse of discretion a standard that is very deferential and respectful of the judge Laid out the four criteria for admissibility but left the judge in charge of which ones he or she uses The Daubert Standard can be applied in technical as well as more scientific evidence questions 0 Reliability of science or tech key 0 702 subsequently modified to echo Daubert The Vaccine Challenge 0 The Public Health History of Immunization Jacobsen v Massachusetts The compelling case for public health power The tremendous success of vaccines o The end of small pox o The ebbing of childhood killers o The near defeat of polio The impact of the individual rights movement 0 Decreased public health government power 0 A byproduct of the civil rights awakening and the Great Society 0 The Immunization Crisis of the 1980s Vaccines are what is known in the law as quotunavoidably unsafe The best of technique and science cannot absolutely guarantee complete safety of these biologic substances Many developmental delays and childhood diseases have their onset or are recognized in early childhood the same time in which immunizations are administered Immense rise of liability cases allegedly due to vaccine injury and biologics firms simply stopped producing The National Vaccine Childhood Injury Compensation Act 1986 0000 O O 0 Set up to provide a level of certainty for both vaccine manufacturers and victims Essentially a nofault system rebuttable presumption of causation Now covers 15 common vaccines Individuals with injuries can seek compensation for injuries that appear on a list of known alleged vaccine injuries and there is a scheduled S compensation pain and suffering capped at 250000 Those with nonschedule injuries can recover but must prove actual causation Under the Act the cases are heard by a Special Master essentially this is a trial court run by an appointed Master who functions as a judge I Gives rise to issue of special courts Decisions by the Special Master are appealable to the US Court of Appeals Cost of the program is funded through an excise tax upon each dose of vaccine 0 The Autism Debate 0 O O O O A Disorder not on the schedule Autism frequently manifests in early childhood It is increasingly prevalent or at least increasingly diagnosed In 1998 Andrew Wakefield a British Scientist claimed to have proven scientific link between MMR vaccine and autism Use of the vaccine plummeted and immunity waned Cases claiming autism as a vaccine injury skyrocketed and ultimately required a special body and approach by the Special Masters 0 3 Cases Science Autism and MMR 0 Special proceeding set up to look at the science and the linkage between autism and MMR I Vaccine Rule 3b provides the special master with the authority to figure out a way to address claims I In many ways the form of the special proceeding echo class action suits where a few named plaintiffs are the bellwethers for the entire class Here the goal was to address the huge number of claims with very similar fact patterns and determine whether the causation link between MMR vaccine and autism was scientifically valid What was the science in terms of research linking the two I Peer Review publications demonstrating cause and effect 0 Reliable Repeatable I Experts Cedillo v Secretary of HHS I Child with developmental delays and gastrointestinal problems appearing at about 16 months I Issue was thimerosal I Link between thimerosal and immune problems in contention battle of experts I Issue of persistent measles virus and its impact also considered I Case generally about causation and reliability Hazlehurst v Secretary of HHS I Child with autism had received thimerosal vaccines I While Cedillo had focused on general causation evidence and its reliability Hazlehurst focused on both general and specific causation 0 Was there a medical theory of causation causally linking the vaccination to the injury 0 Was there a logical sequence of cause and effect 0 Was there a proximate temporal relationship o Is there a preponderance of the evidence that the injury may be due to other unrelated factors I 23 experts I The special master found the scientific evidence did not support the speculations of the petitioners experts many of whom used the Wakefield data as a starting point I On the HHS side the experts were more credible had numerous well documented and designed studies 0 Snyder v Secretary of HHS I Child with seizure disorder and several other problems case complicated by fact that child has a genetic disorder with these same symptoms I Upshot was that no compensation from Vaccine fund causation issue alternate cause for alleged harm o The Three Cases I Folded in Daubert analysis to the proceeding notably the peer review and analysis of expert testimony I Cedillo Scientific inquiry focused on reliability of findings and scientific theories posed by Cedillo found lacking reliability I Hazlehurst even more intensive causation analysis I Snyder Issue of alternate causation I CORRELATION CAUSATION Eyewitness Identification The Scientific Paradox o ReScientific Evidence 0 New innovations in getting to the quottruthquot in complex cases 0 Hottubbing I Requiring the experts on both sides to meet with the judge as mediator to determine what they agree on and what precisely they disagree on 0 Joint memo to judge 0 Goal is to avoid time and effort byjudge and parties exerted on evidence and data that is not is dispute and focus on the specific issues that pertain to the dispute 0 Eyewitness Estimator variables 0 Estimator variables are inherent I Is not under the control of police and criminal justice personnel I Are linked to inherent capability of the witness 0 Le kids those with unique susceptibilities to suggestion elderly FAS naivet 0 Four categories I Witness characteristics I Characteristics of event I Characteristics of the testimony I Ability of testimony evaluators to distinguish between accurate and inaccurate testimony 0 Characteristics of the Witness 0 Gender of the witness does not impact the capacity of the witness to identify a perpetrator I Although females may be slightly more likely to both identify and to be mistaken but it is slight 0 Age is an issue in ability of eyewitness to identify I Kids and elderly are nearly as able to identify a real culprit than younger adults but far more likely to misidentify when there is not a real culprit in the lineup 0 Intelligence not a factor except at the very low end and then the pattern is similar to that of kids and elderly 0 High selfmonitors are more susceptible to cues those with chronic anxiety make fewer mistakes in ID 0 Race is an enormous factor I People are much more likely to misidentify a face of another race or ethnic group I This effect has persisted over several decades despite increased civil rights consciousness Scientists posit and have proven that people are better able to identify others similar to themselves This is reflected in the exoneration cases mistaken id involves crossracial ide 0 Characteristics of the Event 0 Amount of Time the perpetrator is seen Increased time of observation of perpetrator increases chance of eyewitness identification More critical is the amount of attention the witness was paying to the event at the time and the value the witness places on the event And the awareness of criminal activity 0 Lighting conditions when seeing perpetrator Low light impairs identification 0 If and what disguise is the perpetrator wearing Even simple disguises impair eyewitness identification May be partially overcome by having all those in the lineup employ the same disguise Photo lineups suffer from lack of contemporaneous photo 0 Distinctiveness of Perpetrator s face and appearance Faces that are very attractive or very unattractive are more identifiable than those who are average But the exact parameters of this factor have not been fully determined However it is likely that this is far more fragile than estimated Loftus shows that face matching is very unreliable 0 dependent on pose face forward neutral and smiling and angled o Witnesses may ID not on face but on external features 0 Even with most ideal circumstances face matching poor Presence or absence of a weapon weaponfocus effect 0 Presence of a weapon likely decreases capacity of a witness to identify the perpetrator attention drawn to weapon 0 Conflicting evidence but likely that weapon and associated stress impairs memory and leads to loss of detail 0 Characteristics of Testimony 0 Does certainty of the witness increase likelihood of correct eyewitness identification Most research says NO Certaintyaccuracy ratio even worse with poor witnessing conditions low light lack of awareness of criminal activity Confirmatory feedback and repeated questioning on a point may enhance certainty and further distort eyewitness identification 0 The speed of eyewitness identification is positively correlated to correctness 1012 seconds More time and perseveration on identification less likely to yield correct identification 0 How do others influence eyewitness identification and testimony Loftus has shown that suggestion even at a very subtle level can influence an eyewitness testimony Memory is very malleable o How do others jurors assess testimony of eyewitnesses Generally there is a tendency to overestimate eyewitness testimony accuracy Inability to critically assess variables that might affect the certainty 0 System Variables 0 Those variables that are introduced through the criminal justice process both before and after the eyewitness identifications How are the lineups constructed I Is the alleged perpetrator in the lineup initially or later I How is the lineup presented I How are the witnesses instructed prior to and during the lineup I What is behavior influencing and how can it be minimized Construction and Content of Lineup 0 Selection of the quotFillersquot those who are not suspects are known innocents but serve as foils or distractors I Should be similar to the description of the suspect so that the alleged perpetrator does not quotstand out o Protects the innocent suspect but may lessen chance of identification of the real perpetrator I Use of the suspect as a guide to select fillers as opposed to fittoeyewitnessdescription approach 0 Later is preferable and prevents backfire effect associated with choosing fillers on basis a suspect who turns out to be innocent Lineup Presentation I Traditional Lineup suspect with fillers I Use of Blank lineup prior to second lineup with alleged culprit in second 0 Improves accuracy of identification and allows opportunity to discard witnesses whose ID will likely not be valid because they have identified an innocent in the first one I Sequen alUneup 0 One at a time o Prevents relativejudgment decision 0 Where witness may pick the one closest to the perpetrator in appearance even though that individual is innocent or a filler 0 But reduces identification of perpetrator present lineups I Elimination Lineup 0 Witness first eliminates those who are not the perpetrator and then evaluates the one left separately 0 Work best with children Impact of the lineup administrator I Behavior Influence when the administrator knows who the real suspect is and who the fillers are 0 Such administrators often inadvertently communicate their knowledge or views to the eyewitness 0 Especially problematic in sequential lineups 0 May fortify false certainty I Current recommendation is that the law enforcement personnel engaged in the case not administer the lineup but rather have another not engaged in the case do so Perpetrator present traditional lineups particularly problematic when there is a quotlaxquot approach to Hneups I Where there is little evidence let alone probable cause that the suspect is the actual perpetrator I And there is also likely behavior influence by the administrators I Law enforcement departments with quotlaxquot as opposed to quotstrictquot criterion for constructing and administering a lineup 9 times greater mistaken identification Prevention of mistaken ID and testimony from eyewitness is promoted by a quotstrictquot rather than a quotlaxquot approach to handling witnesses and lineups I Procedures need to minimize the suggestion to witnesses including immunizing against such suggestion by having uninvolved police personnel conduct the lineup and deal with the witnesses I Inclusion only of viable suspects with a quantum of evidence or probable cause in a lineup o Manson v Brathwaite o 1977 Supreme Court Case that set forth two pronged test for admissibility of eyewitness ID I Were the police procedures used in getting the ID impermissibly suggestive I How does the ID stack up against five factors opportunity to view the perpetrator the witness s attention to the criminal the accuracy of the witness s description prior to the ID time between the crime and the ID and certainty o Loftus argues that three of the five factors are irretrievably tainted by suggestive police procedure I Witness reliability should be the key determinant 0 Perry v New Hampshire 0 2011 Supreme Court case reconsidering the issues admissibility issues for eyewitness ID and question of whether admissibility of eyewitness ID should be subject to pretrial screening 0 Case to resolve conflict between State v Henderson and New Jersey v Chen I Henderson found Manson criteria inadequate indicators of reliability and susceptible to suggestion by police I Chen modified to include suggestion by lay persons also a threat to reliability Perry identified as thief appealed his conviction arguing that the evidence was unreliable Supreme Court held that I The potential unreliability of a type of evidence does not alone render its introduction at the defendant s trial fundamentally unfair I The fallibility of eyewitness evidence doesn t warrant an admissibility hearing unless improper state action is involved 0 Court declined to extend pretrial screening beyond its current use I Reliability could be tested and addressed through the present safeguards notablyjury instructions 0 Eyewitness scientist testimony was permissible to counter the eyewitness ID 0 Eyewitness science has shown all suggested safeguards to be inadequate though I Emphasized that Manson was meant to deter improper procedure by police 0 Court did not address suggestions impacting eyewitness ID outside of police context 0 Online sources of influence increasingly contaminate eyewitness testimony o The Science of Eyewitness Identification and Testimony 0 Most virtually all of the science underlying eyewitness identification and testimony has been undertaken by cognitive and social psychologists 0 Studies of face matching laboratorycontrolled studies of eyewitness ID and retrospective case review all add up to a lot of doubts about eyewitness ID 0 It has been an uphill struggle for the existing science to be incorporated into law enforcement practice 0 Social Media and the Risks of Expanded Witness Contamination o The growing influence of social media increases the risk that an eyewitness may be susceptible to suggestion both before and after the initial ID 0 The witness may initiate their own online investigation that may further an misidentification and fortify or taint their testimony the witness may be a quottargetquot to those affirmatively seeking to affect the testimony 0 Others jurors and victims Chen may use social media as source to validate eyewitness ideas 00 Fingerprints Bite marks and Handwriting Analysis 0 Handwriting Analysis 0 Viewed as technical prior to Kumho but now analyzed using 702Daubert approach 0 Case by case review byjudges on the reliability and applicability of Daubert factors to the handwriting analysis I US v Prime 431 F3d 1147 9th Cir 2005 a case involving counterfeit documents and illicit purchases used handwriting analysis to determine that handwriting on counterfeit money orders was the defendants judge conducted Daubert hearing and applying Daubert found handwriting expert testimony admissible I US v Hidalgo 229 F supp 2d 961 D Ariz 2002 document examiner not permitted to testify that handwriting on questioned document was in fact handwriting of defendant but could testify to mechanics and characteristics of handwriting his methodology and his comparisons of similarities and dissimilarities between the writings I US v Fujii 152 F Supp 2d 939 ND 2000despite long history of being accepted handwriting analysis does not meet reliability standards and peer review studies by unbiased academics and practitioners are lacking Bite marks 0 Bite mark evidence was used in the Ted Bundy serial murder case key was the fact that Bundy apparently had very crooked teeth 0 PreDaubert bite marks generally met the Frye test of acceptability and have been used in numerous cases 0 Case law since Daubert has been less willing to accept bite marks virtually no cases have found bite marks to meet standard of Daubert 0 Moreover there are a significant number of exonerations associated with bite mark evidence 0 Currently bite mark evidence is undergoing new scrutiny 0 National Academy of Sciences report in 2009 questioned reliability of bite mark identification I Noted no scientific research associated with expert testimony I Dentition not unique in the same way as DNA or fingerprints I May have utility for exclusion purposes o In 2011 NAS testimony to Senate noted bite marks are so far from scientific validity that it is not worthy of research funding 0 May have use in quotclosed situations where the universe of defendants is small 0 May have use in situations where there is a marked abnormality in dentition I Something very unique to an individual s dentition Voice AnalysisVoice Spectrograph 0 Based on the theory that each person s voice is unique a product of vocal cavities and vocal articulators resulting in unique frequencies and intensities 0 Advanced technology has provided much more specificity sophistication and scientific accuracy and the trend is toward acceptance even under Daubert o Frye cases on voice spectrometry I US v Franks 511 F2d 25 6th Cir 1975 voiceprint evidence was admitted as generally accepted under Frye I Reed v State 391 A2d 364 Md 1978 similar voiceprint evidence failed to pass muster as having achieved general acceptance I State v Coon 974 P2d 386 AK 1999 voice spectrographic evidence admissible in Alaska meeting the Daubert standard Hair Analysis 0 Hair comparisons are a combination of a patternrecognition process and a stepbystep analysis of a questioned hair and a known sample I Microscopic comparison by a skilled examiner looking at color and structure 0 Can t usually be deemed an exact match unique only to one individual but can be consistent with or exclusionary 0 There have been wrongful convictions associated with hair evidence 0 National Academy of Science Report I 1 No scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in the population I 2 There are no uniform standards on the number of features on which hairs must agree for an examiner to declare a match I 3 The categorization of hair features is largely subjective and depends heavily on examiner proficiency and practical experience I 4 The report finds no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA 0 Hair evidence useful support in concert with other evidence DNA but not conclusive on its own 0 Fingerprints and Handprints 0 Various probabilities of fingerprints being unique to an individual I Francis Galton 1 in 64 billion I 1999 Meagher Budowle amp Ziesig 1 in 1097 Known that identical twins don t have identical fingerprints A few people have no fingerprints or very faint ridges Alteration of prints on purpose or by chance 1909 British case in which a convicted burglar argued that the fact that the only thing connecting him to the crime was a fingerprint and unsuccessfully sought to overturn conviction 0 People v Jennings 96 NE 1077 III 1911 first time court admits fingerprint evidence case cites British case and found use of fingerprints in general and common use in finding villains 0 Fingerprint evidence generally accepted by the time of the Frye decision in 1923 0 Post Daubert there has been a focus on accuracy of fingerprint analysis can it meet the Daubert standard I US v Havvard 260 F 3d 597 7th Cir 2001 found latent fingerprint ID to meet Daubert standard affirming admissibility determination at the lower court 0 US v Llera Plaza I Found that forensic fingerprint D did not meet the stringent Daubert tests noting that uniqueness of the ridges is not the same as accuracy fingerprint D analysis not a science 0 US v Llera Plaza reevaluated Llera and found that fingerprint analysis is technical in nature similar to Kumho and found fingerprint analysis could meet the necessary screens for admissibility 0000 0 Fingerprint Analysis Today 0 ACEV Standard the E is significant the Evaluative function I The strength of modern finger print analysis subject to verification by another as a safeguard I Values that rest on authority or explanation are flawed 0 So is the V I Values and therefore conclusions should rest on the data in the print and other people s ability to recognize that the data looks and functions in the same way 0 ACEV has supplanted the old point standard 0 AFS provides technologic assistance but in the end matching needs to be verified by fingerprint analysis experts 0 Generally admissible and usually not subject to a FryeDaubert hearing I TechnicalScience as in Kumho and Llera 2 0 Many scholars are skeptical and argue that fingerprints should be subject to much more scrutiny and more of a scientific analysis Fingerprints at the Intersection of Science and Law 0 Define the terms 0 O 0 Friction Ridge Skin specialized skin on palm side of the hands and plantar side of the feet having ridgesfurrows synonymous with fingerprint Latent Print unintentional reproduction Known Print intentional reproduction 0 Friction Skin Formation O O In humans friction ridge skin begins to form during the 7th 10th weeks of gestation Volar Pads I Appear around 6th or 7th week of gestation I Regression corresponds with ridge formation I Symmetry determines ridge path pattern type 0 Loop arch whorl Differential Growth I Random determines ridge events By the 24th week in utero fingerprints are fully formed Uniqueness I Complex variables DNA Environmental unlikely to be reproduced and is considered unique Persistence I Skin cells originate deep flatten dry out and are sloughed quot60day cycle Due to the nature of their formation and biology fingerprints are considered unique and persistent permanent 0 Why are fingerprints used for identification 0 They are unique and permanent o How do you make a fingerprint identification 0 ACEV I Analyze I Compare I Evaluate I Verify 0 Step 1 Find a latent fingerprint and analyze it I The goal ofan analysis 0 Account for initial conditions 0 Determine objectivity of information reliability of information suitability for comparison I Initial Conditions Factors contributing to latent print appearance 0 Environmental conditions anatomical aspects pressure distortion deposition pressure development medium matrix substrate I Analyze impression sizeshape areas of distortion ridge flow ridge events individual ridge paths aggregate last 3 features including spatial relation and sequence I Suitable for Comparison 0 Yes Compare AFIS Subject 0 No End process I What about disagreements 0 Generally there s a default to suitability Step 2 Find an exemplar print and it side by side with your latent I Find a starting point focal point target group Step 3 Track the agreementdisagreement of location sequence direction shape Step 4 Prediction until satisfaction Step 5 Scrutinize all aspects of case seek consultation andor testing if necessary 0 Step 6 Record conclusion document I Available conclusions 0 Individualization fingerprints match 0 Exclusion fingerprints don t match 0 nconclusive cannot conclude match or no match 0 Incomplete need more or better data 0 Step 7 Give case to a verifier for review I Total scrutiny of data and documents 0 Step 8 Resolve any disagreements I Disagreement of kind IND v EXC I Disagreement of degree IND vs INC 0 Step 9 QampA Publish findings via report What s the problem with fingerprint identification 0 The problem with fingerprint identification is that it s not based solely on the physical properties of the fingerprint but the attitudes that people have about those properties 0 It s Evaluative I What is an Evaluation 0 Is vs Oughtshould o A question of good vs better vs bad vs worse 0 A moral question I An evaluation is not solely o Similarity o Explanation 0 Confidence 0 Ridge events are not natural kinds they re defined by people I No natural predictive model of ridge event distribution I Naming and frequency aside not all ridge events are equally significant Significance is contextual I While value can have its roots in the physical properties of the print it takes human ability Includes algorithms to recognize it 0 Theory of Value Historical I Trust me I m an expert o I can t explain it but I know it when I see it I Appeal to authority not data 0 Theory of Value More Recent I Atlas I Info Rests on Examiner I If it s similar it s valuable I If it s not similar but you can explain it it doesn t matter it s still valuable I If you can t explain it then it s a problem 0 One discrepancy rule 0 Theory of Value Future Industry I Probabilistic I Based on behavior not nature I Never not zero I All models are wrong some are good 0 Theory of Value Boyd I Foundational I Each leg of the chair is objective and demonstrable I Testable I If you have to explain it it s a problem shortens the chair s leg I Value derives from object properties physical and how those objects function PhysicalSocial o Objectivity independent feature extraction 0 Justification charted conclusion 0 Scrutiny blindnonblind conclusion testing 0 Fingerprint identification is evaluative 0 Values that rest on authority or explanation are flawed they should rest on the data in the print and other people s ability to recognize that the data looks and functions in the same way 0 No common measure of value o Is fingerprint identification a science 0 Science quothaving knowledge concerned with methods of producing knowledge Empirical and rational I Reductive properties of the whole are determined by the properties of the parts I Deterministic causality is determined by preceding events knowable or unknowable 0 International Association for Identification 1973 I quotNo scientific basis exists for requiring that a predetermined minimum number of friction ridge features must be present in two impressions in order to establish a positive identificationquot 0 Fingerprint identification is a human ability rooted in evolutionary functions of the brain 0 Traditional reductive scientific methodologies combined don t work on the brain beliefs or behaviors o Studying the performance of examiners doesn t translate to case work Performance is a person level activity 0 Much like climate science the factors are too complex to be predictive of individual cases Much more study is needed and the limitations of human ability should be constrained through good policy 0 What does any of this have to do with admissibility 0 Pre NAS Report lines of attack I Uniqueness I Permanence I No Point Standard 0 Post NAS Report lines of attack I General Acceptance not met I Reliability I Vague methodology I No known error rate Fingerprints have been used in court for over 100 years and were unchallenged for a long time o The role of the court is to act as gatekeeper for expert testimony 0 Most often courts deny a FryeDaubert motion but allow those questions to be asked on the stand 0 Lie Detectors Scientific Perils of Polygraphs o Lie Detectors History 0 Frye actually followed a long and contentious debate on use of physiologic monitoring 0 Golam reading historical review of I Debate on what is science I Debate on what is credible research I Enormous competition between philosophers physiologists psychologists and medicine on if and how physiologic measurement can be calibrated and be predictive o Frye ushered in the general acceptance standard I Applied it to a rudimentary form of lie detector this was the brainchild of Charles Moulton Marston a rather eccentric Harvard prof I Case important not only for the standard I Also for the fact that it begins to bring these kind of technicalscientific tools into the courtroom o Lie Detectors and Daubert 0 Can Lie Detectors in any form satisfy the Daubert Criteria I Is the science subject to testing scientifically repetitively I Has it been subjected to peer review I Is there a known error rate I Is it generally acceptable Generally polygraph tests can be admitted upon stipulation of the parties There is not a per se exclusion US v Crumby 1995federal bank robbery case I Overruled per se exclusion US v Galbraith 1995 held that lack of general acceptance not necessarily dispositive and applying Daubert found polygraph evidence admissible US Elekwachi 1997 found Daubert factor met even general acceptance citing acceptance by the relevant community polygraphers Much hinges on the qualifications experience and credibility of the polygrapher Lie Detectors used more commonly to impeach or corroborate another witness I US v Crumby 1995 held that polygraph evidence could be used to impeach or corroborate a witness as testimony as to general truthfulness and character witnesses could testify that the witness took the test However detailed information on specific questions and responses not admissible US v Posado 1997 polygraph evidence OK in case where defense offered prosecution opportunity to participate evidence offered in a pretrial hearing and there were inconsistencies in the evidence presented by law enforcement Many more cases however still find lie detector evidence inadmissible Disclosure of the fact that the defendant or witness has taken a lie detector test is also an issue I It leads to a desire for more and so many courts don t allow this in I It may constitute an error this may be seen as an error that would allow for retrial or reversal of the case I State v Perry fact that lie detector results are not admissible must be coupled with inadmissibility of fact that defendant took the test 0 Lie Detectors in the Investigation 0 0 May be used to eliminate suspects or differentiate between suspects However a positive response is not a sign of actual guilt even if examiner and law enforcement believes response corroborative evidence is typically sought and is necessary I In criminal cases most examiners believe they can determine whether the individual is involved in the criminal enterprise and the extent of the involvement I This is useful for focusing the investigation even if not admissible evidence Lie Detectors may be used in the course of plea bargaining where an assessment of the extent of the alleged perpetrators involvement is helpful May be used to at least for the moment exclude someone from suspicion but not binding I If later evidence rules the guy back in May be used to corroborate psychiatric testimony for example in the case of exclusion of a confession was coerced o Lie Detectors Physiologic Monitoring amp Sentence Mitigation 0 State v Pierce Pierce a convicted sex offender up for probation subjected to a polygraph test and a penile plethysmograph test which both demonstrated his continued attraction to children probation denied o Penile Plethysmograph testing has been used in assessing whether a sex offender can be considered for supervised release I But there must be a finding that it is a reliable indicator in the specific case DNA in the Courtroom 0 Application of forensic DNA testing 0 Links an individual to a crime scene or criminal act 0 Exonerates suspects o Identifies victims of mass disasters 0 Proves paternity o Catching black market trade think the elephant lab 0 Birth of DNA profiling o 1984 Jeffries quotIs it possible to tell people apart using DNA 0 VNTRs I Variable numbertandem repeats I Like writing the same word over and over I Bases 1080 letters long repeated up to 30 times I ntronsnoncoding regions I Increased rate of mutations I Human genome 99 same 1amp variable I Half of VNTRs from mother half from father 0 The Pitchfork Case 0 1986 Richard Buckland admitted to the rape and murder of a teenage girl 0 Authorities asked 5000 local men to provide bloodsaliva samples 0 DNA led to exoneration of Buckland and conviction of Colin Pitchfork 0 Florida v Andrews 0 Limited evidence needed DNA evidence to prove identity 0 Lifecodes did paternity testing but tested DNA for this case 0 Frye Standard and relevancy approach I Expert testimony I Relevancy approach wanted to include cuttingedge technology 0 Defense pushback o WesleyBailey combined hearing 1987 I Ample opportunity for peer review I Few endorsements by experts I Lacking open access to the materials used to conduct DNA testing 0 Michael Baird I Conflict of interest Had lots of shares in Lifecodes 0 DNA Exoneration o Osborne Ruling I Convicted 1993 filed complaint in 2003 I Osborne was accused based on eyewitness testimony hair analysis and DQ Alpha testing 0 DQ Alpha looked at markers with less variability said quotonly a certain percentage of the population can share this profile I Catalyzed court to establish procedural due process right to DNA 0 Innocence Project I 75 convicts exonerated wrongly identified through eyewitness testimony I 40 of all DNA exoneration cases yield actual perpetrator I 43 innocent 42 guilty 15 inconclusive 0 DNA Profiling o Isolate DNA 0 Process and Analyze 0 Compare and Interpret 0 DNA Samples 0 Any probative biological sample 0 Crime scene or suspect DNA 0 Discarded DNA I Washington v Athan o Athan suspected of rape and murder 0 Investigators got him to lick an envelope got his DNA from the saliva 0 Police are allowed m deception in investigations I Always followed up get search warrant to get a verifiable DNA sample 0 Familial DNA I More DNA similarities between relatives I BTK case 0 Dennis Raide BTK killer active from 1970s to 2005 0 Used his daughter s DNA to compare with crime scene sample close but not perfect 0 Privacy Issues I Can police gather samples from previously innocent people to see if they might have committed a crime Fishing without grounds I Justice Alito quotDNA is the fingerprint of the 21St century I Justice Roberts quotCould you get DNA from someone pulled over on the street 0 Methods 0 RFLP restriction fragment length polymorphism PCR polymerase chain reactions STR short tandem repeat mtDNA mitochondrial DNA YSTR short tandem repeat on the Ychromosome mtDNA PCR 0 YSTR 0 Technical Issues 0 Signal versus noise I DNA mixtures I Degraded and trace samples I Blob 00000 0 CoDIS o 1996 FBI lab launched nationwide forensic science effort I Established core STR loci I 13 CoDIS Loci highly variable regions I Requires sufficient database 0 The National DNA Index NDIS contains over I 11548720 offender profiles I 1303454 arrestee profiles I 601664 forensic profiles Brain Imaging Technologies Determination of Intent and Sentence Mitigation 0 Brain Imaging Technologies History and Tools Xrays 1895 Measure tissue density and portray it in black and white lucent areas that are cavities or fluid vs dense tissue like bone I Only real imaging tool until late 20th century Angiography visualization of the blood supply to the brain but injecting radioopaque dye into the blood stream and following on xray Ultrasound a technology that seemed to show promise but turned out that the skull distorted the sound waves Computerized Assisted Technology the CAT scan developers received the Nobel Prize in Medicine in 1979 I Numerous xray beams are passed through the brain at different angles and sensors determine that tissues within the brain absorb differently I May be used with or without contrast dye I First clue we had about aging of brain and realtime pictures of masses like brain tumors 0 Brain Technologies in the Courtroom O 0000 John Hinckley was 25 at the time he attempted to assassinate President Reagan Ultimately charged on 13 counts and ultimately was found not guilty by reason of insanity Numerous psychiatric experts testified providing several serious psychiatric diagnoses Among the pieces of evidence was a CAT Scan allegedly showing atrophy of parts of the brain Hinckley was and remains confined at St Elizabeth s Psychiatric Hospital in DC I After 30 years he is allowed some home visits 0 Brain Imaging Technologies 0 Laser Ultrasound a second generation technology that is used to track blood flow in the brain non invasively I Used primarily in trauma cases Positive Emission Tomography PET measure physiologic function of brain but tracking exogenously administered positronemitting tracing agents can trace vascular activity in the brain and the damage and response of brain tissue I Certain tracer agents have been developed with affinities to certain kinds of brain tissue I Creation of the positronemitting tracers requires a cyclotron Single Photon Emission Computerized Tomography SPECT similar to PET but used a stable radio isotope and doesn t need a cyclotron I Obviously more limited utility Magnetic Resonance Imaging MRI uses radiofrequency waves to probe and measure tissue without use of radioactive isotopes I Nobel Prize in 2003 I Much more sensitive tissue portrayal Functional MRI shows activation of motor and cognitive tissues and can detect abnormalities of function I Shows brain in action I Uses a contrast media that reflects the blood flow and utilization of oxygen in the brain tissue MRI I Structural MRI measures the nuclear magnetic resonance of water protons to create a computerized three dimensional image of brain I Diffusiontensor MRI DTMRI used to visualize white matter tracts connecting different parts of the brain DTI Diffusion Tensor Imaging I Diffusionweighted MRI DWMRI shows whether brain tissue has been damaged due to insufficient blood flow to the tissue used in strokes I Perfusionweighted MRI shows areas of the brain in which blood flow has been altered O I DiffusionPerfusionweighted MRI Together used to estimate the quotischemic penumbra the tissue that has suffered from reduced blood flow but has not yet died This tissue is the target of intensive therapy for patients who have suffered an ischemic stroke Magnetic Resonance Spectroscopy MRS focuses on magnetic resonance signals from molecules other than water used to identify size and stage of brain tumors 0 Brain Fingerprinting O O O A new generation of EEG that claims to have greater resolution and more nuance than the EEG I Long known that EEGs exhibit changes to certain stimuli but pretty nonspecific Brain fingerprinting claims to be the electronic version of fMRI Critics argue it s a version of the lie detector with all the same problems 0 Juvenile Justice Historically O O 0 Until the 19th century kids were treated the same as adults 1817 Society of the Prevention of Pauperism I First to argue that juveniles should be treated differently than adults I Founded the NY House of Refuge that addressed juvenile crime or delinquency through education vocational training and work farms Women s groups active in arguing that law treat juveniles differently from adults I Brain doesn t work the same way in juveniles 0 Lack mensrea quotguilty mind need action and intent to be convicted I Led to the firstjuvenile court system in Chicago in 1899 The Chicago Juvenile Court system was modeled on the concept of parens patrie I the state should act in the role of parent and seek to act in the best interests of the child I But in this system juvenile lacked many of the rights of adult offenders Age of majority established at 16 later raised to 18 Key Principles I Kids have different needs than adults and need adult guidance I Kids have inherent human rights that should be protected and ensured I Almost all kids can be rehabilitated I Children are everybody s responsibility By 1925 46 states 3 territories and DC had all established juvenile court systems largely modeled on the Chicago system 1960 s brought procedural due process into the juvenile justice arena I In re Gault and Kent v US juveniles have a right to a hearing right to counsel and right to protect against selfincrimination 1970s and 80s juvenile crime began to be viewed as more like that of adults I Shift from protection and rehabilitation to punishment 0 Modern Juvenile Justice 0 Rejection of treating juveniles differently I In 1998 twothirds of Americans thought children even those under 13 should be prosecuted as adults for murder I 1999 25 would treat kids under 12 as adults in cases of violent crime 47 States and DC have moved to make their system punitive in cases of serious crimes and treat juveniles as adults 21 States treat juveniles as adults in property crimes I Indeed more property crimes are transferred to adult criminal court than violent crimes General Trend has been toward treating juveniles as adults move toward punishment and away from rehab 0 Brain Imaging and Juveniles 0 Many of the static and functional imaging techniques demonstrate that juveniles brains work differently 0 Brain scientists have shown that juvenile brains have different white and gray matter tracks from those of adults I The frontal lobes undergo massive changes in adolescence and are the last to fully mature I Frontal lobes are key in planning organization and cognitive functioning understanding of risk and goaloriented thinking Developmental Psychology and Juveniles O 0 Developmental Psychology research tallies with what we know of brain function through imaging I Adolescent behavior exhibits impulsivity emotionality risktaking risktaking exacerbated in groups I Executive processes like impulse control foresight planning do not manifest until late teens or even twenties Developmental psychologists are positing that brain function is more key than hormones in adolescent behavior Kids with lifethreatening diseases frontal lobes mature faster I They have to make decisions with big consequences When can you depend on scans as an accurate portrayal Scientific Evidence and Brain Imaging O O 0 Under Daubert brain imaging is I Admitted as corroborative evidence I Generally accepted in the scientific community followed Daubert rules but still not really accepted in court except as corroborative evidence I Experts can disagree though I Peer literature I Functional MRI probably can t be linked to a certain behavior Brain imaging is most like lie detectors in that I Interpretation and experience are key I No definite limits between behaviors I Not enough data If admissible it s I Not really a gold standard harder to quantify more corroborative than anything I Will probably become more accepted in next 30 years as technology advances Supreme Court Cases 0 O 0 Thompson v Oklahoma 1988 I Barred execution of offenders under the age of 16 Stanford v Kentucky 1989 I Upheld the possibility of capital punishment for offenders who were 16 or 17 years old when they committed the capital offense Penry v Lynaugh 1989 I Upheld death penalty for mentally retarded convicted of capital crime Atkins v Virginia 0 O O 18 year old Daryl Atkins and his friend abducted shot and killed a person while seeking to rob him Atkins charged with murder and armed robbery convicted and sentenced to death During the penalty phase of the trial evidence was introduced showing that Daryl had an IQ of 59 and school records to match On appeal the question was whether the death penalty was appropriate for someone whose capacity to understand the import of his actions was dubious The Supreme Court 63 determined that imposing the death penalty on someone of limited mental capacity violated the Eighth Amendment forbidding cruel and unusual punishment Roper v Simmons 2005 0 Christopher Simmons 17 tied up a woman raped her robbed her I Thought about it beforehand fully premeditated even bragged about it later 0 Evidence pretty overwhelming Simmons confessed performed videotaped reenactment for prosecution o Mitigating factors had no criminal history was under 18 o The jury recommended the death penalty and it went back and forth until it hit the Supreme Court 0 Supreme Court decided Simmons was too young to deserve the death penalty I Lacked the maturity to understand what was going on I Developmental psychologist and neurologists testified to this 0 No brain scans involved in case 0 What are the limits of punishment for minors who commit violent crimes and can t understand the impact of their actions 0 PostRoper o Scholars argue that even though our understanding of the brain through our brain technologies is still evolving it is clear that individuals under 18 are certainly not fully brainmature 0 However nuanced understanding individuation of the images remains in relatively early evolution 0 Roper Atkins and brain function research have combined to reinvigorate the debate on juvenile justice I Growing pendulum swing back to treatment and rehabilitation as opposed to punishment adult style Science in LawMaking and Regulation The Tobacco Story 0 Science in Lawmaking o What are the concerns about science being presented to our lawmakers I Legislators can make laws that deeply affect our lives if affected by junk science can make decisions uninformed by public good I Judicial branch doublechecks if an implemented law is contrary to personal rightssciencetruth o Lawmaking 0 Generally addresses how the state functions vis a vis citizens I Usually this governance focuses on public good 0 Examples Traffic and motor vehicle laws laws school attendance environmental safety food and restaurant safety public health I Legislation also governs how we as citizens interact with other citizens o Facilitating fairness in transactions governing economics sale and inheritance of property family law 0 Tobacco o The Tobacco plant dates back to 6000 BC in the Americas 0 Use of tobacco dates back to the early CE and was used by smoking chewing and in enemas by ancient aboriginals and Mayans o 1492 Columbus discovers tobacco and brings it back other explorers of the time affirm the use of tobacco as snuff and inhalation 0 16th Century wide dispersal of tobacco by sailors around the world 0 17th century tobacco begins to be cultivated around the world I Pipesmoking prevails I Notably even in 1603 there were concerns about the health effects 0 Physician complained to James I that it should be limited to physician prescription 0 1604 James increases the import tax on tobacco o 1606 advertising of tobacco and marketing Countries and leaders around the world seek to profit from the tobacco trade 18th Century Snuff Tobacco becomes popular even among royalty 1790 Lorillard creates first US national ad campaign through posters in post offices 0 19th Century Cigars become popular 0 Ladies quotseegaritosquot 1806 Lewis and Clark expedition celebrated Christmas with gifts of tobacco 1827 Smoking made easier with the invention of the match 0 20th Century Cigarette becomes primary mode of smoking although snuff and cigars remain International tobacco conglomerates form 1906 FDA Act prohibits sale of adulterated foods and drugs nicotine is on the list initially but is removed after lobbying by the now large tobacco industry 1910 US per capita adult cigarette consumption is 138 per year 1911Duke s American Tobacco Co controls 92 of the world s tobacco business Supreme Court dissolves Duke as a monopoly and splits it into 5 companies 1930 US has a per capita smoking rate of 977 cigarettes 1938 Researchers at Johns Hopkins report that smoking shortens life span 1938 FD amp C Act supercedes1906 FDA 0 Definition of a quotdrugquot includes quotarticles intended for use in the diagnosis cure mitigation treatment or prevention of disease in man or other animalsquot and quotarticles other than food intended to affect the structure or any function of the body of man or other animals WWII Tobacco becomes a protected crop cigarettes in GI rations 1940 US per capita rate at 2558 cigarettes per year 1940 JAMA links smoking to increased incidence of coronary artery disease 1930s1970s Vigorous advertising of tobacco products in print radio and TV 1942 Rose Cippolone then 17 begins to smoke 1950 JAMA publishes study linking smoking and lung cancer 1953 Study shows that painting cigarette tar on mice results in tumors 1950s on There are a flurry of lawsuits brought against big tobacco all unsuccessful 1964 Surgeon General Report documenting dangers of tobacco to individual and public health 0 Tobacco Litigation The Early Cases 0 Mid20th century plaintiffs brought cases on several theories Negligence Lartigue v RJ Reynolds 1963 proof of negligence difficult contributory negligence statute of limitations issues Breach of Warranty mpied and Express paintiffs had difficulty showing that they relied on the quottruthquot alleged to in the ads Strict Liability Assumption of risk 0 Tobacco Regulation 0 Cigarette Labeling and Advertising Act of 1966 required warning of health risk on the cigarette pack 2 edged sword Provided shield for liability preempted actions for failure to warn gt affirmative assumption of risk 0 1970 Pubic Health Cigarette Smoking Act prohibition of cigarette advertising and more rigorous warnings on package 0 Increased state law limiting access by minors and designating smoke free areas 0 Tobacco Litigation 0 Cippolone v Liggett Group Inc 1992 I Cippolone lost at the lower court on ground that action was preempted by the Cigarette advertising act but Supreme Court held that if plaintiff could show tobacco industry had withheld knowledge about tobacco dangers her suit could proceed I Cippolone died 0 Tobacco Regulation 0 1996 the FDA issued the quotFDA Rulequot which asserted its authority over tobacco I David Kessler then the head of FDA thought the FDA should be able to regulate tobacco because it was a quotproductquot a drug and a delivery device that affected the human body 0 The Tobacco Companies challenged the FDA s authority and ultimately the Supreme Court agreed in FDA v Brown amp Williamson in 2000 0 Tobacco Litigation in the wake of Wigand 0 Medicaid as Plaintiff I 1994 Mississippi Attorney General Michael Moore announces the filing of a suit against the tobacco industry It seeks to recoup 940 million the state spent treating sick smokers I Many other states follow bringing suits in the following few years I Wigand is a witness in many of these cases testifying to the deceptions engineered by tobacco industry 0 1998 Master Settlement in which Tobacco Industry companies settle with the remaining 46 states who still have pending suits I restrict their advertising sponsorship lobbying and litigation activities especially those targeting youth I disband three specific quotTobaccoRelated Organizations I Make available to the public documents related to dangers of tobacco I Create and fund the National Public Education Foundation dedicated to reducing smoking among young and educating re health dangers of smoking I Make annual payments to the settling states in perpetuity 0 Tobacco Next Generation Cases 0 2000 Grady Carter v BampW first guy to win on grounds that BampW hid the known info about addiction thus no preemption and SOL tolled 0 21st Century Tobacco Regulation 0 2009 Family Smoking Prevention and Tobacco Control Act giving the US Food and Drug Administration FDA comprehensive authority to regulate the manufacturing marketing and sale of tobacco products 0 This act provides the legislative authority that the Supreme Court found lacking o Obesity and Soda Pop 0 Growing data on the impact of obesity on individual and population health 0 Advertising and Access militate towards increased obesity I Advertising especially to kids I Supersizing I Healthy foods inaccessible to impoverished 0 Bloomberg and the Big Gulp Battle 0 NYC ban on Big Sodas enacted as administrative regulation by Board of Health under Bloomberg I Vigorously opposed by small businesses and soda manufacturers I Fought through the courts Ultimately in June 2014 NY Court of Appeals determined that this provision was an administrative overreach by the Board of Health 0 Obesity and Soda Pop 0 How can law and regulations address obesity Is there anything to learn from tobacco I Bigger and more difficult to regulate than tobacco I Could put labels on it might have a negative effect on people I Bloomberg had a good idea but went about it in the wrong way 0 Infectious Diseases 0 Vaccination I Prevent outbreaks from starting in the first place 0 Requires vaccine and experience in using it 0 Screening to identify those who are infectious I May require some form of compulsory testing across a large population I Screening is also used in addressing issues like drug use 0 Compulsory testing 0 Treatment after the disease has been contracted which results in risk to contacts gt contact tracing 0 Typical Arguments Against Vaccination o Vaccines are dangerous true in fact we consider than unavoidably so often side effects or sequelae present unexpectedly I But the risk is small compared to the risk of contracting the disease 0 Lots of Rightsbased arguments I Interference with parental rights interference with child rights interference with religious practice or belief interference with parental ethical stance or philosophy 0 Tragedy of the Commons 0 Critical overuse of a desirable item tragedy results when full access diminishes the resource 0 Tragedy of the Anticommons when something advantageous is held close by each individual and the benefit that might have been realized is curtailed 0 Mutual Coercion Sharing of the risk and the benefit I Compulsory vaccination imposes small risk on all while conferring herd immunity I Freerider holdouts get benefit without the risk 0 Immunization History 0 Required Vaccination and Immunization I Jacobsen v Massachusetts City of Cambridge s need to protect the citizenry through mandatory smallpox vaccination trumps Jacobsen s constitutional rights with respect to his bodily integrity I In the hundred years since Jacobsen decided individual rights enhanced and now there are large numbers of children and adults opting out of required vaccination and immunization o Immunization Case Law 0 Zucht v King I Challenged mandatory vaccination of kids pursuant to municipal health department order I Argued that this deprivation of liberty should have due process at a higher level I Court held that the police power delegation to the municipality was valid and that the compulsory vaccination was justifiable in school setting 0 Lepage v State I No particular religious objection just a general moral allegedly faithbased concern about exposure to blood products I Vaccination condones quotimmoral behavior I Court find no authority for an inquiry into the religious underpinning and health depth as overstepped in questioning sincerity of belief 0 Brown v Stone I Father cited deep religiously oriented opposition to immunization for his kid I Alas the church officer testified that this view was not part of religious dogma I Court held to allow exemption in this case would violate equal protection 0 Jones v State 2001 I Medical waiver from Hepatitis B immunization I Blanket waiver with little specificity O I Health Dept does not accept I Court finds statutory language does not require specificity and that the Doctor s broad attestation is enough Boone v Boozman 2002 I Religious waiver from Hepatitis B immunization I Statute speaks to recognized religious beliefs of recognized church I Mothers objection does not correlate to recognized religious denomination 0 Federal Government Vaccine Initiatives o Arose out of vaccine shortage brought on by high costs associated with vaccine liability O O 0 National Childhood Vaccine Injury Act 91986 I Essentially a no fault liability program coupled with incentives to encourage vaccine production Comprehensive Childhood Immunization Act of 1993 I Provided access to free vaccines Despite incentives and consumer safeguards immunization rates have fallen 0 Required Vaccination and Immunization Exceptions O O 0 Religious often requires little substantiation of adherence to tenets of the religious group merely an attestation I Berg v Glen Cove City School District found religious exemption valid buoyed by long term history of refraining from medical care I But See Brown v Stone reigious example not persuasive when minister testified that it is not part of the religious doctrine Medical requires signature of physician but usually no justification I Jones v State example Philosophical usualyjust the parent s or adult individual s signature attesting to a philosophical dispute with the requirement 0 Washington Law 0 O 0 Washington recognizes all three exemptions and has viewed all three very broadly in the past By 2005 about 41 claimed exemption but wide variation with some eastern WA towns as high as 46 exempted many used the philosophical exemption I Private schools particularly lax What happened Pertussis outbreaks measles outbreaks flu outbreaks I 462 cases Pertussis in 2011 4268 in 2012 In 2011 Washington State had the highest vaccine exemption rate in the nation Now requires a licensed health care provider to sign a Certificate of Exemption for a parent or guardian to exempt their child from school and child care immunization requirements The signature verifies that the provider gave the parent or guardian information about the benefits and risks of immunization Kindergarten exemption rates for required immunizations dropped to 45 percent for the 20112012 school year compared to 60 percent in 20102011 and 62 percent in 20092010 But by 92013 child vaccination rates had begun to decline and once again lag behind national rates 0 Paternalism and Measles O Whose rights are at issue I Rights of the kid Is the child the index person I Is the parent the arbiter of the kid s rights 0 What if the parents are not acting in the best interests of the kid 0 Do parents quotownquot the kid I What is the role of the state 0 Can or should they supersede the parents when the parents are not acting in the kid s best interests 0 Can or should they supersede the parents when public health is at risk o Measles and Immunization 0 What s law got to do with it 0 Can our legislatures address this problem I Are they or should they be required to use science 0 What about private action I Those injured against those who caused the harm I Can Mickey Mouse help Law Science and Religion Evolution vs Intelligent Design 0 Religion Science and Law 0 Nation founded on freedom of religion and revolution against being forced to adhere or respect one religion over others 0 First Amendment The Establishment Clause states that Congress shall make no law quotrespecting an establishment of religion 0 Lemon v Kurtzman 1971 the Supreme Court ruled that government may not quotexcessively entangle with religion I Laid out criteria to determine when a religionrelated law can or cannot be constitutional 0 Religion and Evolution 0 1788 James Hutton argued persuasively that earth was millions of years old 0 1859 Darwin s Origin of the Species posited a process of evolution that had required millions of years and in which quotGodquot had little role I Darwin s theory placed humans as just another step in the evolutionary voyage I Darwin did not experience as much opposition as might have been expected I Moreover theologians found ways to accept some of the aspects of evolution using a variety of reconciliatory quotgapquot explanations o Particularly devout religious leaders railed against Darwin but most simply worked around the science of evolution 0 Often they accepted some of Darwin s work regarding the earth and evolution of creatures but exempted humans from the story as created by God through ensoulment 0 Many accepted Darwin s work as science and readily argued that the Bible is a moral guide and not in competition with science 0 1920s William Jennings Bryan led an antievolution movement although he and his followers were not so different than the theologists of the previous century 0 Bryan became a political leader with fundamentalist beliefs with respect to the origin of humans whom he saw as totally different than animals I Humans touched with quotgracequot I Didn t value minorities or the enfeebled as much as White People they had quotless grace I Bryan s followers were primarily in the South and the movement sought to strike down teaching of evolution in schools 0 Religion Law and Evolution 0 1925 Scopes Trial State of Tennessee v Scopes I Scopes is a teacher who allegedly taught evolution to his students in violation of the Butler Act which forbid teaching of any theory contrary to biblical story of Creationism I Scopes is defended by Clarence Darrow the State of Tennessee by William Jennings Bryan who argued vigorously and famously for 2 hours before the judge called a halt I Darrow argued he was prohibited from entering the evidence which of course spoke to the science of evolution 0 Scopes is convicted but later the conviction is vacated 0 Scientific Creationism o The rise of the quotscientific creationists I Began in the 1960s with the publication of quotThe Genesis Flood I Core beliefs are that the earth is a lot newer than people think only about 10000 years old and was created in 24 hours I Argument is that a universal flood created a false fossil record 0 Creationists argue that the Bible is endemic in thermodynamics protein structure and virtually all science 0 Creationism in the Court 0 1968 Epperson v Arkansas I Arkansas statute that prohibited teaching of evolution in public schools was establishment of religion law pushing religious belief and a violation of the Constitution 0 Creationists then focused on having creationism taught in addition to the science of evolution 0 1987 Edwards v Aguillard I Louisiana law allowing creationist theory to be taught along with evolution was still unconstitutional because it sought to advance particular religious beliefs 0 The Rise of quotIntelligent Design 0 Of Pandas and People The Central Question of Biologic Origins 1989 I Authored by creationists essentialy repackaging creationism as quotintelligent design 0 The Intelligent Design argument is that because science cannot fully explain the diversity of life some intelligent agent must be guiding us 0 Kitzmiller v Dover 2005 o In 2004 the Dover Area School District chooses a new science textbook there is lots of debate as the chosen book is a traditional science book 0 Shortly thereafter 60 copies of Of Pandas and People I are anonymously donated 0 School board again has acrimonious debate and adopts a science curriculum that includes teaching of intelligent design 0 Intelligent Design fails the Daubert Analysis I Not science and cannot be adjudged a valid accepted scientific theory as it has failed to publish in peerreviewed journals engage in research and testing and gain acceptance in the scientific community 0 Also fails the Lemon test I A governmentsponsored message violates the Establishment Clause of the First Amendment if 1 it does not have a secular purpose 2 its principal or primary effect advances or inhibits religion or 3 it creates an excessive entanglement of the government with religion4 it has effect of imposing a religious view in violation of the establishment clause 0 Also violates the State Constitution Climate Change Science and Law 0 Science and Technology Studies researches o The social processes through which scientific and technical knowledge is created evaluated challenged spread transformed and fitted into social relations 0 The ways people use reconfigure and contest scientific knowledge and technology 0 The normative issues entangled in scientific and technological developments 0 The place of science and technology in the modern world 0 Epistemology o The branch of philosophy that examines the nature of knowledge its presuppositions and foundations and its extent and validity o How do you know what you know 0 Objectivity as a tool not a state 0 quotMaking objectivity takes hard work That work is culturally situated contested and enacted at multiple sites and organizational levels Science as a social construction 0 quotThe most takenforgranted features of scientific knowledge such as objectivity intelligibility and truth itself are social achievements that can be documented through careful inquiry Science as performance art o If you have something you want to say you need to deliver it in the right way 0 Connection between public sphere science and expert testimony Hooray for Peculiar America 0 US has a peculiar system quotview from nowhere ties into that 0 quotModeling and quantification hide professional judgment behind the seeming objectivity of formal simulations and mathematical representations Compare to UK and Germany 0 UK I The eminentchair model pick an quoteminent chair they head the conversation I Elitist root but modern twist 0 Germany I The enquirycommission model I quotEpistemic authority comes about through the inclusion of all legitimate points of view Wildermuth s takeaways from Jasonoff 0 Science and objectivity are not arbitrary but they are socially placed and constructed 0 When science meets law in the US argument ensues and performance matters 0 Logos and ethos are at the regulatory dance pathos is mostly off to the side I Ethos trust the speaker What Massachusetts v EPA is not about 0 Climate change denial at least not overtly 0 It s increasingly untenable to overtly deny climate change 0 Over the next 100 years the same amount of water will fall differently and warmer than before What Massachusetts v EPA is about 0 Does the Clean Air Act allowrequire the EPA to regulate greenhouse gas emissions as an air pollutant 0 Do the petitioners even have standing to bring the suit Standing 0 Article III of the US Constitution sets up the judicial system 0 Judicial power extends to all cases and controversies between US and others or between two different states I Supreme Court and other courts won t hear cases where there s no conflict I Can ask the Supreme Court for advice to get a formal opinion Most federal environmental laws have citizensuit provisions that allow individuals or groups to act as quotprivate attorneys general They can sue either the polluter directly or an agency that is failing to carry out a nondiscretionary duty More than one rule but 0 Standing is the big one o Increasingly challenged increasingly lost 0 Tied up very closely with science Basic Elements of Standing 0 Injury 0 Causation show that the person you re accusing caused the injury 0 Redressability chance for a refund Why does it matter o It matters in all federal lawsuits No standing no suit 0 But it is especially relevant in environmental law Just ask the Supreme Court 0 Sierra Club v Morton 1972 o The Sierra Club challenged the US Forest Service s decision to allow Disney to build a ski resort in the Mineral King Valley 0 Has a quotspecial interest in preserving wild places 0 Court votes down failed the injury test because the suing party wasn t actually injured I Aesthetic and environmental injuries could cause standing though 0 Lujan v Def of Wildlife 0 Contesting a provision in the Endangered Species Act 0 Fish and Wildlife Services decided not to regulate other countries actions 0 Two women signed affidavits I Going to harm them because they want to see the endangered animals again on their next trip I Had no tickets and no distinct plans to go so no standing 0 The case that defined elements of standing in the Supreme Court I Injury in fact invasion of concrete particularized actual imminent legally protected interest I Causal connection between injury and conduct complained of must be traceable I Must be likely that injury will be redressed by a favorable decision 0 Baseline for assessing standing in federal environmental cases 0 quotspecial solicitude to states lower more relaxed standards 0 Massachusetts v EPA judges extend quotspecial solicitude to Massachusetts I Injury loss of shore land to rising water levels I Causal connection EPA not monitoring tailpipe emissions gt global warming o 36 of greenhouse gases come from tailpipe emissions I Redressability big enough if the US does this others will too 0 US cars dictate lots of car technology used around the world 0 Both discussed cases 0 Science and law not seeing each other well 0 Each one s standards and rules don t really comply with the other s Law and Reproduction Personhood and Parenthood in the Brave New World of Assisted Reproductive Technology 0 Assisted Reproductive Technologies 0 Sperm Donation I Sperm are donated although the service associated with the donation may be compensated I Donation may be anonymous sperm bank or not anonymous I Once donated sperm banked until use in 0 Artificial Insemination o Invitro Fertilization I Design Capacity I Sperm banks typically maintain a profile of donor including physical characteristics health education racial and ethnic background 0 Egg Donation I Like sperm eggs are donated although the service is compensated at a higher rate I Egg harvesting requires considerably more service than sperm donation I Like sperm eggs are marketed with respect to traits I Once donated Requires GIFT ZIFT or Invitro I Eggs do not store well longterm o Embryos I Most commonly created invitro O O o Insemination may be enhanced using ICSI o Implantation of Nuclear DNA into donor oocyte cytoplasm I Once created can be frozen Can be tested for genetic disease 0 PGD I May even be treated to allow triple parentage in cases where the child could contract a mitochondrial disease created with nuclear DNA from mom sperm mDNA from donor I UK House of Commons recently approved regulation of this process I In the US the infertility industry is essentially unregulated Invitro fertilization I Has become the most common technique outpacing the earlier GIFT and ZIFT procedures I Success rate varies 2030 for each try I Expensive often gt 25000attem pt 0 charges for PGD another several thousand S I Used in cases of infertility when couples seek preimplantation genetic testing when a surrogate mother is used Surrogate Motherhood I Women serve as gestational mothers to assist infertile couples or prospective parents I Fulfills dreams of parenthood for couples or nontraditional families unable to have child I Fraught with complications emotional ethical societal and legal 0 Prenatal Testing 0 0 Ultrasound began in the 1960s safest for mother and child Amniocentesis I Maternal age I Risk of genetic chromosomal or morphologic abnormality Chorionic Villus Sampling I may be done earlier but more risk Maternal Serum testing for alphafetoprotein AFP I Metabolic indicator for neural tube disorders anencephaly and Down syndrome Maternal Serum Fetal Cell Recovery Noninvasive prenatal diagnosis I Allows for the retrieval of shed fetal cells which are then referred for genetic testing 0 Full realm of genetic testing is possible 0 What does ART offer prospective parents O 0000 Opens the door to parenthood I For the infertile I For single parents I For nontraditional parents Opportunity for early diagnosis of medical and genetic problems and sometimes for early treatment Opportunity to avoid pregnancy which will result in birth of baby with medical problems I For some this allow them to sidestep abortion decision Opportunity to optimize traits of child I Positive eugenics Opportunity to prepare to care for a child with a disorder Is knowledge power Is aiming for perfection a just and ethical goal The Downside I Uncertainty and Confusion I Attachment difficulty 0 The Tentative Pregnancy Devaluation of disabled or less than quotperfectquot kids 0 Both within the family and society High cost and debt economic crippling in quest for better kid 0 What does ART offer society 0 Opportunity to address and avoid disease and disability Thus decreasing societal costs 0 Help decrease the incidence of genetic diseases and fetuses with morphologic abnormalities ie TaySachs disease ie Neural Tube Defects 0 Further understanding of how technology may improve individual and population health 0 The Downside Potential revival of negative eugenics devaluation of the disabled or less quotperfectquot Increasing disparities and social injustice Dehumanizing the miracle of birth Pushing the limits have we gone too far 0 ART and Family Law 0 Who are the Parents Genetic parents contributors of DNA 0 Sperm Egg and potentially cytoplasm of another Egg Gestational Mother not necessarily genetically related Intended parents at least 1 often 2 sometimes more 0 Parenthood Constructs Classic Parenthood Marriage and the Unitary Family Genetic Parenthood Parents determined by genetic contribution GestationalSurrogate Parenthood determined by gestation and biologic sustenance during pregnancy Intended Parenthood Determined by who decided to have a child with or without genetic or gestational connection Alternative Family Structures and Parenthood Collaborative parenthood not embracing classical unitary family approach 0 Legal Confusion 0 Who are the Parents Genetic parents contributors of DNA 0 Sperm Egg and potentially cytoplasmmitochondria of another Egg Gestational Mother not necessarily genetically related Intended parents at least 1 often 2 sometimes morecan theoretically be 6 or more Performing parents who acts as parent and fulfills role for the child 0 What is Legal Parenthood o Classically Legal Parenthood determined using the Unitary Family standard 0 Children born within a marriage have as their legal parents the married couple Presumed genetic bond 0 Michael H v Gerald D 91 US 110 1989 Validated the quotUnitary Family definition Typically this quotUnitary Family approach is also found in civil codes around the world 0 Genetics the Holy Grail in Establishing Parenthood 0 Should genetic connection be the determinant of parenthood o What about spermegg donors who don t wish to be legal parents but merely donated spermeggs Sperm donor siblings Donor sibling registry Sperm and egg donor family trees 0 Robert B v Susan B 135 Cal Rptr 2d 685 6th Dist 2003 I Single woman seeks to become mother using anonymous sperm inadvertently given sperm of man seeking to become a father with his wife he asserts parental rights over the child born to the single woman 0 Pregnancy and Parenthood the GestationalSurrogate Mother 0 Sometimes the surrogate mom is the gestational mom sometimes not 0 Women serve as gestational mothers to assist infertile couples or prospective parents I Fulfill dreams of parenthood for couples or nontraditional families unable to have child 0 Celebrated case of Baby M 537 A 2d 1227 NJ 1988 surrogate mom is also genetic mom and refuses to relinquish child after birth I Surrogate contracts not recognized in manyjurisdictions I Concern of exploitation of women baby factories o Intended Parenthood Does intent matter 0 In re Marriage of Buzzanca 72 Cal Rptr 2d 280 Cal Ct App 1998 I Couple decide to have child using assisted reproductive technologies donor gametes surrogate mother but before child is born couple divorces Husband of couple refuses to support child Neither egg donor nor gestational mom lay claim to the child Who are the legal parents with duty to support child I Intended mom would take it but wanted intended dad to pay support I Court said that the intended mom did want the kid and the intended dad had a legal duty to the child despite the divorce not the dad s genetic child and the dad isn t married to the mom anymore but he had the intent to have the kid Changing his intent wasn t the kid s fault o FunctionalDe Facto Parenthood o In re Nicholas H 120 Cal Rptr 2d 146 2002 I Man functions as father to child his former live in girlfriend leaves behind years pass biological parents completely abandon child but child is loved and cared for by this man who functions as parent Can he be recognized as a legal parent 0 In the kid s best interest to stay with his quotdadquot so dad gained legal parenthood rights 0 Can be a parent so long as they function as one o In re Parentage of LB 155 Wn2d 679 I Lesbian couple have child with one providing egg and gestation and friend providing sperm partner cares for the child functioning as parent After several years lesbian couple separate Does the partner have any parental rights 0 Using Nicholas H as a precedent declared expartner a de facto mother 0 Kid saw her as his mom 0 Summary 0 Science is taking parenthood further away from the unitary family model towards a quotcollaborative reproduction model 0 Society is creating an everincreasing universe of potential parents and models of parenthood including an ever increasing number of single parents and families not adhering to unitary family approach 0 Genetics and gestation matters but legal trend is towards recognition of intent and demonstrated performance as a parent equally pivotal in determining parenthood Human DNA Cells and Tissues Person Property and Patent 0 Property Personhood Public Commons 0 Property Something that can be sold something that can be held as an asset something that has tangible value something that is owned I Tragedy of the anticommons o Personhood Individuality identity autonomy agency human with rights human potential embryo sphere of privacy private domain O 0 Public commons resources owned in common public goods water natural resources life commons human genome public domain quotIn every deliberation we must consider the impact on the seventh generation Great Law of the HoquoB 0 Moore v University of California 0 0 Case Facts I Patient John Moore has hairy cell leukemia and goes to UCLA for treatment I Doctors remove spleen as part of treatment In this cancer spleen is markedly enlarged but Moore s spleen is extraordinarily large I Doctors seek to research the properties of Moore s spleen and find that the cells secrete a lymphokine I Research follows to see if cells and lymphokine can be used to create innovative cancer treatments I Moore continues to be seen has chemo many samples of tissues taken After several years research yields patent and Mo cell line that is sold for research use Moore finds out that his spleen cells have become valuable and feels that he has been duped and ripped off because he was not informed that his spleen and its cells might have value Moore sues doctors and Univ of California alleging 13 causes of action including conversion of property several others property related claims unjust enrichment lack of fully informed consent and breach of fiduciary duty Moore couldn t quotownquot his spleen cells after they were removed so all claims regarding ownership conversion and title failed I Supreme Court of California determined that the State of California automatically assumes ownership of infectious waste eg Moore s spleen on public health grounds Doctors did fail in their fiduciary duty failed to provide informed consent 0 One Possible Construct Level of Displacement O Level of person complex sum total of parts functioning as an individual unit with rights of free will and the rights of publicity Res nullius a functional body unit when removed from a person is res nullius belonging to noone but held in trust by those who care for it in this state until transplanted into anotherat which point it is owned by the new person Res commune omnium cells or tissue are taken from the body with the intent of removing them permanently I no longer owned by the individual from whom they were derived I become the common property of all humans I can be used and transformed with work giving the worker a claim to the newly created changed cell or tissue 0 Henrietta Lacks and the HeLa cell 0 O O O O Henrietta Lacks was a patient seen at Johns Hopkins in 1951 with a virulent cervical cancer Like all cancer patients Henrietta Lacks cancer cells were collected for research Informed consent as a medical and legal doctrine did not exist Human subjects protections were in their infancy The research aim was to create a reliable supply of cultured human cells for use in research 0 HeLa Cells and Dr George Gey O 0 Dr George Gey was the researcher seeking to culture cells Henrietta Lacks cancer cells became the first cells that could be reliably and repeatedly cultured o HeLa Cells and How They Grew O Hela cells were cultured and have been distributed all over the world in fact they are spectacularly prolific 0 Dr Gey did not patent the cells or processes and distributed them freely to the global research community Hela cells have been critical in the development of many vaccines including polio and other cellbased therapies Dr Gey saw them as a public commons resource 0 Greenberg v Miami Children s Hospital Research Institute 0 Case Facts I Canavan Disease is a rare genetically mediated disease autosomal recessive that results in neurodegeneration and death there are currently no effective treatments I Families of patients with Canavan Disease dismayed at the lack of research on this rare disease contacted researchers at Miami Children s Hospital Research Institute I Families donated DNA and provided financial resources to the researchers to identify the genetic mutation I Researchers successfully identified the mutations and created a test to detect it I Researchers patented the process as is typical in such academic research I Canavan families sued alleging many of the same claims that Moore alleged in his suit I Claims included the same conversion claims asserting theft of property lack of informed consent unjust enrichment and breach of fiduciary duty 0 No breach of fiduciary duty the families weren t patients so the doctors weren t obligated to tell them anything not enough of a trustdriven relationship 0 No expectations of or duty to provide informed consent 0 No duty to donors the families gave away their cells freely 0 Court found researchers guilty of unjust enrichment o Canavan families donated money so they should get a share of the profits 0 DNA and its mutations can t really be owned 0 The Genetic Alliance Model 0 O O 0 Families and patients who know that they have genetic mutations banded together Mission quotGenetic Alliance engages individuals families and communities to transform health Among other things it seeks to have a role in genetic research beyond being passive donors Rather they seek to be engaged in the research and be part of the research team I And have a role as patentowners of innovations flowing from research involving their donors 0 Patent Principles 0 An intellectual property right granted by the government to an inventor quotto exclude others from making using offering for sale or selling the invention throughout the United States or importing the invention into the United States for a limited time in exchange for public disclosure of the invention when the patent is granted Goal of Patent system is to publicize innovation so it can be used but also to incentivize inventors to make new discoveries Utility patents may be granted to anyone who invents or discovers any new and useful process machine article of manufacture or composition of matter or any new and useful improvement thereof Design patents may be granted to anyone who invents a new original and ornamental design for an article of manufacture Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant Requirement of Novelty I Prevent the prior art from being patented again I Prevent patenting of things that occur naturally Requirement of Nonobviousness I Invention should be sufficiently inventive and transformative 0 Requirement of Utility I An invention is quotusefulquot if it provides some identifiable benefit and is capable of use 35 USC 101 Patenting and the Public Interest 0 Researchers seek to patent their discovery as early as possible both to protect their intellectual property and preserve their competitive edge in the market of tomorrow 0 Forecloses access to scientific information by other scientists working in the field a Licensing fees may increase overall costs of downstream product 0 Ultimately patents arguably could retard chance of new discoveries rather than facilitate them 1980s Technology Transfer Provisions 0 Provide opportunity for remuneration to University and researcher I StevensonWydler Act 1980 I BayhDole Act 1980 I Federal Technology Transfer Act of 1986 0 Designed to stimulate quotpurequot researchers to do research that would result in a public benefit 0 Increasingly pervasive academicprivate industry partnership 0 quotCooperative Model of research now wellentrenched the Kept University I Less pure less inventive more profitdriven I Drawn research away from lifesaving research and toward lifestyle research Patenting and the Public Interest 0 Ironically Universities increasingly hold patents with an aim of economic advantage 0 Unlike Japan and the EU the United States does not prohibit patenting when it would negatively impact public order morality or public health Diamond v Chakrabarty o Researcher working with pseudomonas bacilli genetically modified it to be able to break down oil I Very serious bacteria less infective once edited I Used to respond to oil spills o Is it patentable I It s alive Can you patent a life I Fits the criteria of novelty nonobviousness utility and transformative 0 Supreme Court ruled it could be patented 54 0 Opened floodgates to patent human cells I 20 of the human genome has been patented Challenges of Genetics Research 0 In using human DNA researchers are venturing into area that is intuitively more intimate and personal arguably also involved indigenous and ethnic rights as well 0 BRCA12 became one of the earliest gene disease associations to yield a genetic test I Tests for hereditary breastovarian cancer I This mutation is primarily found in Ashkenazi Jewish descendants although not exclusively Association for Molecular Pathology v Myriad Genetics 0 Can the gene sequences related to BRCA12 be patented I Are they patentable or are they naturally occurring 0 Myriad argues that they sequenced the genes their mutations and associated diagnostic tests moreover Myriad rigorously sought to enforce exclusivity of its patent I Opposition argues that genes and gene mutations are products of nature and should not be patentable o The Myriad case requires us to reevaluate our beliefs on what is a product of nature and what is a product of research o Myriad and many researchers argue that they have in effect created the gene sequence by isolating and identifying it cleaving it away from its enmeshed site within the larger DNA sequence and chromosome 0 But while they have excised it they have not created it Certainly the women who carry this gene and mutation have a stronger claim But they are the very people who had to pay exorbitant test fees to learn whether or not they carry the mutation 0 At District Court level court held isolated gene and mutation not patentable Federal Circuit reversed finding that the chemical cleavage of the DNA sequence from the chromosome created an isolated piece of DNA that was distinct from the whole ironically the PTO argued against the very patent it had originally granted 0 The BRCA12 sequence is a mutation essentially a product of nature like many wonders of nature and science it may be deeply enmeshed in the larger organismbut surely that doesn t make it less natural 0 There is no transformation of the sequence or mutation just revelation 0 Subsequently a writ of certiorari granted vacating Federal Circuit decision and remanding back to Federal Circuit for reconsideration in light of the Prometheus case o In summer 2012 the Federal Circuit substantially reinstated its earlier opinion which allows for the patentability of the BRCA12 genes 0 Meanwhile the European scene has also been tumultuous I After granting Myriad a patent in 2001 the EPO subsequently revoked the patent later that same year Myriad appealed and has since been allowed to patent genetic sequences and diagnostic methods for detection of a predisposition for breast and ovarian cancer o In June 2013 the Supreme Court held that quotseparating that gene from its surrounding genetic material is not an act of invention the DNA sequence itself is not patentable 0 But complementary DNA cDNA the DNA that is synthesized from a messenger RNA template in a reaction catalyzed enzymes in the lab is patentable 0 Post Myriad Changes the landscape and arguably refutes many prior patents on genetic sequences There are plenty of opportunities to manipulate recombinate and create novel methods and products from DNA that are patentable thus research and development will not be chilled 0 Research will likely be facilitated by access to gene sequences that may have been isolated by others and use them for research that will yield more knowledge therapies and innovations diminish gene monopoly Privacy Perils on the Desktop 0 Do we have a right to privacy 0 The internet at privacy 0 Right to privacy 0 British common law protects from I quotonly the physical interference of life and property 0 Interest in privacy grew as a result of the growth in print media 0 Justices Warren and Brandeis I Thought cameras would cause privacy problems I Taking a photo infringes on people s privacy 0 quotThe Right to Privacy 1890 0 Does the existing law protect individual privacy What is the nature and extent of such protection I quotNow that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party the protection granted by the law must be placed upon a broader foundation Privacy amp Freedom 1967 0 Alan Westin believed people have the quotright to control edit manage and delete information about themselves and decide when how and to what extent information is communicated to others Katz v US 1967 0 US Supreme Court case discussing the nature of quotright to privacy 0 FBI recorded Katz s conversations on a pay phone and used the recording to convict him 0 The ruling extended the Fourth Amendment protection to all areas where a person has a quotreasonable expectation of privacy Constitutional Basis o The Fourth Amendment ensures I quotthe right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized Privacy Act of 1974 o quotNo agency shall disclose any record which is contained in a system of records by any means of communication to any person or to another agency except pursuant to a written request by or with the prior written consent of the individual to whom the record pertains Electronic Communications Privacy Act ECPA 0 Title protects wire oral and electronic communications while in transit 0 Title II the Stored Communications Act SCA protects communications held in online storage I To access any emails under ECPA you need a warrant or a subpoena Modern Tort Law 0 Tort law injurycivil cases based on injury makes sure the victims are compensated o quotInvasion of privacy is a commonly used cause of action in legal proceedings 0 Categories of invasion of privacy I Intrusion of solitude I Public disclosure of private facts I False light I Appropriation Riley v California 0 San Diego college student David Riley was pulled over for expired tags 0 Police seized his phone used a photo on the phone to convict him in a driveby shooting 0 Defense argued that even flipping through photos on a smartphone draws on a multitude of data that is quotintrinsically intertwined in the device in such a way that implicates the Fourth Amendment Inadequate protection 0 When applied to information stored online protections far weaker I Fourth Amendment defines the quotright to be secure in spatial terms that do not directly apply to the quotreasonable expectation of privacy in an online context I Lacking consensus over expectations of privacy Third Party Doctrine 0 Users entrust the security of online information to a third party 0 knowingly revealing information to a third party relinquishes Fourth Amendment protection in that information Cost of Free 0 You are paying in other ways I Marketing 0 Facebook I 1 billion monthly active users I 118 billion 84 from ads 0 LinkedIn Marketing Solutions I 631 Million 0 Twitter I Uses promoted tweets based on you 0 Unless you re paying for it you re not completely private 0 Federal Trade Commission FTC Act 0 Prohibits quotunfair or deceptive practices in or affecting commerce No need to prove intent o Patchwork Laws 0 US laws concerning privacy are relatively patchwork developed by sector 0 Challenging to determine which laws apply to which activities 0 Types of Information 0 Personally identifying information PII I Information that can be used to identify an individual 0 Nonpersonally identifying information NonPII I When linked with other information this can become PII 0 Web 20 0 Networking Facebook Skype Twitter 0 Content sharing Wikipedia YouTube Tumblr o Locationbased services Fouquuare 0 Internet Privacy 0 The right to personal privacy concerning the storing repurposing provision to third parties and displaying of information pertaining to oneself via the Internet 0 Risks to Internet Privacy Tracking 0 Device fingerprinting I IP Address 0 Cookies 0 Location I Recent study 15 out of 30 apps shared physical location with an ad server 0 Risks to Internet Privacy Posting 0 Data never forgets a face I Scanning in the name of cyber security I Researchers at Carnegie Mellon University combined image scanning cloud computing and public profiles from social networking sites to identify individuals in the offline world 0 Social profiling I Cost of free 0 Third party disclosure 0 Invasive privacy agreements I quotMostly open The default sharing mode is public I quotMostly closed The default sharing mode is private 0 Risks to Internet Privacy Law Enforcement 0 Law enforcement prowling the networks 0 Maxi Sopo charged with bank fraud escaped to Mexico and set his Facebook profile to private caught him by observing his friend list on Facebook 0 Difference between privacy and security I To be secure we relinquish privacy eg airport security Drones and Robotics 0 Legal and policy aspects of robotics First Amendment Free Speech Clause 0 The school can t do anything if you make a harmful post about it from home it harms the school but it s not done in a public space Net neutrality can networks slow certain traffic down or make you pay more for certain sites 0 quotManaging their network 0 Can t really compete if you re a small startup not enough money When examining new technology ask What is essential or different about this technology What new human experiences does this technology create What s possible that wasn t before 0 Mensrea quotintending mind 0 Tort civil law eg medical malpractice etc The way you talk about something rhetorically will have an impact eg drones versus quotautomated vehicles Drones aren t the only danger mobile surveillance poses a threat as well 0 Camera balls 0 Legislation targets drones exclusively though quotMission creep you have a particular mission create surveillance infrastructure for that particular purpose and occasionally use it for another purpose 0 How to counter I Oversight let the police develop policies to regulate usage I Transparency hold the police accountable for their actions Fourth Amendment comes from the English abuse of American citizens rights 0 Prohibits unreasonable search and seizure I Is following someone with a drone quotsearchingquot I A police officer could do the same thing but using a drone puts officers in less danger US v Caro using tracking beacons or other technology is fine so long as it doesn t enter a private space US v Jones placed a GPS on the car 0 Officers got a warrant to affix a GPS to the bottom of the defendant s car 0 Had a 30day window in Washington DC exceeded the window then affixed it in Maryland not DC 0 Defendant convicted of drug running 0 Caro stated tracking beacons were okay so what was wrong with a GPS I Violates the Fourth Amendment 0 Car is private property police can t attach things to it o Physically attaching something to a vehicle is trespass 0 To trespass you need a warrant o All judges agreed this was a violation but had different reasons 0 Trespass o Violates reasonable expectation of privacy I Exclusionary Rule exclude illegallygathered evidence so there s not enough of a case against the defendant to convict them In the past you owned ad cielum ad infernum to heaven and to hell but today you only own the area above your property that you can reasonably use Going onto someone else s property even by accident is trespass The law is there to prevent you from taking matters into your own hands States should limit drones for privacy reasons Fourth Amendment but should continue to let them be used because you have the right to freedom of expression First Amendment Robots in Your Home 0 JiBo like an iPad but can swivel around and has a camera on it o Internetconnective robots I Can be hacked by malicious hackers I The company that created the robot can collect your information and data I Could be used by their owners for harmful purposes I The government can collect your data from its memory 0 What do you do if a robot commits a crime 0 It s like a tool but we tend to anthropomorphize it anyway 0 How do robots feel to us 0 Robots are designed to be anthropomorphic Feel like people not tools I You wouldn t interact with a robot s search engine the same way you would with Google 0 No one cares about how you interact with your dishwasher but lots of people will care about how you interact with your robot 0 The quotsocial valence of robots is new and different source of really interesting questions for the law 0 Do you ever experience solitude if you re around As all the time o If a robot commits a crime 0 Fox News and Rotten Tomatoes Stephen Colbert bot has accidentally slandered lots of anchors I Could be libel or slander but can t meet technical requirements for slander no mensrea o It would take massive advances in software and computing power to create Ultronlevel Al I Machine learning can get a machine to mimic something but not really become autonomous 0 Artificial general intelligence same computer program can do a lot of different things without extra input 0 Uses reinforcement learning plays over again until it becomes the very best 0 Far cry from Ultron though 0 Global Asymmetries in Accessing the Promise of Science 0 Brain Imaging and Lie Detection 0 Functional MRI offer a new wrinkle on the lie detector issue 0 There is growing research looking at how fMR pictures of the brain demonstrate truth versus lying or malingering o It has made it into court so far admitted only to mitigate sentencing on basis of identified psychopathology 0 Meeting the Daubert Test is a challenge why I ts error rates aren t very accurate but it s hard to get sample statistics I Need more comprehensive samples I Everyone s brain is different 0 Lots of research going on want to know if we ll ever meet the definitiveness that ll make MR meet Daubert standards I Always requires a very skilled interpreter o Drone Federalism 0 An quotarea of concurrent jurisdiction more than one party can regulate 0 Patent Law Drug quotCopyingquot and Global Good 0 Are Patents conducive to global health Or are they an impediment to global health I Against quotevergreeningquot can be used as a weapon against other companies new good drugs go to First World countries I For publicizes your knowledge incentive for continued research competitive quotbuilding blocks 0 Over the last 20 years there has been vigorous debate on generic drugs What are they I In an effort to extend the patent clock pharmaceutical firms are accused of quotevergreeningquot 0 Goal is to patent inventions as early and broadly as possible to close out others and use it as a platform I Does science give them the opportunity to exploit I Generics are cheaper and more available than brand name drugs 0 Some nations like Argentina largely operate a different system of copying 0 World Trade Organization Today 0 Kind of like the United Nations of trade 0 An agreement international trade where they agree to certain policies to facilitate trade between nations 0 Deals with three major agreementspolicies I GA39I39I39 General Agreement on Tariffs and Trade I GATS General Agreement on Trade in Services I TRIPS Trade Related Aspects of Intellectual Property Rights 0 Established minimum standards governing the scope availability and use of intellectual property rights 0 Extended patent term to 20yrs harmonize Nations agreed to put up an enforceable patent regime and honor patent rights of others 0 Developing nations given time to conform 0 Public health emergency exception subject to lots of discussion and clarification TRIPS o Developed industrialized nations found TRIPS not adequate to protect inventors I Argued that inadequate protection would chill innovation I Argued for a more protective TRIPS 0 Developing nations argued that TRIPS was too rigid and did provide sufficiently clear exceptions and measures to address critical public health needs I Argued for more robust public health emergency exceptions HIVAIDS hobbled most developing nations why would they go bankrupt to pay for expensive patented drugs TRIPS and Developing Countries 0 All WTO countries have to adhere to TRIPS provisions I Must set up a TRIPS compliant patent system 0 Although there have been multiple extensions provided for developing countries 0 This provision effectively was to knock out the big generic manufacturers India I What constitutes a public health emergency 0 Industrialized nations construe narrowly 0 Developing nations construe broadly Declaration on TRIPS Agreement and Public Health Doha 2001 o the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health Accordingly while reiterating our commitment to the TRIPS Agreement we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members39 right to protect public health and in particular to promote access to medicines for all In this connection we reaffirm the right of WTO Members to use to the full the provisions in the TRIPS Agreement which provide flexibility for this purpose Post Doha 0 December 2005 WTO approved changes to further public health I Extensions increased to 2013 and 2016 for least developed countries 0 December 2008 Workshop on TRIPS and Public Health for developing countries 0 As TRIPS and the Doha Public Health provision was still in process developing countries were already playing out the problems and need for clarification on the public health exception TRIPS and Access to Medications o TRIPS requires nations to install a patent regime and respect the patents obtained in other nations I antigenerics TRIPS thus seeks to limit production of and access to generics forestall parallel importing and provides patent owners with protection for their intellectual property Net result increased cost for meds TRIPS has a public health emergency exception this has been expanded and interpreted more broadly as a result of subsequent negotiations around TRIPS India Generic Pharmacy for the World 0 O 1970 India ceased granting patents on drugs During the next 35 years India became a generic manufacturer and a massive one generating drugs at a lower price for developing and middle income nations I 80 of AIDs drugs used in developing world come from India TRIPS required them to make a hard choice curtail blatant patent infringement if they want to have the benefits of the WTO trade agreements India has managed to blunt the impact by simply not giving Indian patent protection to many drugs I Gleevec example India s Supreme Court declined to find for Novartis the manufacturer on grounds that a previous drug whose patent life had run was merely being evergreened TRIPS Case Study ARVs in South Africa 0 O O 0 Late 90s HIVAIDS epidemic in South Africa led the new Mandela government to pass the Medicines and Related Substances Act which sought to provide low cost medicine to treat HIVAIDS patients essentially provided for compulsory licensing and parallel importing I South Africa buying from India which still did not have patent regime South Africa also seeking manufacture in country using compulsory license Pharmaceutical firms 41 companies sued arguing violation of TRIPs and unconstitutional taking Enormous global public relations issue for pharm firms ultimately firms dropped suit Drug companies ultimately cut a deal with South Africa and provided discounted and free drugs TRIPS Case Study Brazil 0 Brazil at the forefront of providing access to ARV drugs early on it initiated a national program to provide ARVs to each and every Brazilian with HIVAIDS Relied on ability to produce generic versions incountry but as it sought to become TRIPS compliant it was forced to purchase from pharm companies at great expense Ultimately Brazil successful at negotiating a much lower price for ARTs Illustration of how an emerging middle income country is caught in a WTO bind Wanting and needing to engage in world trade willing to put up a TRIPs compliant patent law but faced with worsening their access to medicines Under the Radar Argentina quotCopyingquot O O O O O 0 Mexico 0 O 0 Argentina is the third largest market for pharmaceuticals in Latin America Argentina does not enforce or grant pharmaceutical product patents Argentina s approach to drug access has used a workaround to the generic controversy making copies and renaming them with Argentinian brand names for marketing within Argentina Termed piracy by major international pharmaceutical firms and of course a violation of TRIPs which Argentina signed in 1994 Argentina s approach thwarted not only patent protection but also chilled access to generics which are absorbed into to copias system and not differentiated Vigorous complaints from the US and other nations and an economic crisis finally pushed Argentina into grudging compliance But the Argentinian market remain resistant to linking brand with patent Unlike Argentina Mexico is closely allied with the US through NAFTA Mexico has no major pharmaceutical manufacturer capacity unlike Argentina Generics have been widely introduced and marketed as separate from the patented versions 0 Drug prices are subject to regulation and thus lower than in the US I quotMexican drug runs 0 Environmental Disaster and Justice Bhopal 0 December 3 1984 40 tons of methyl isocyanate gas leak from a Union Carbide pesticide plant in Bhopal India 3800 people died immediately and another 20000 succumbed over time as a result of the poisoning 102000 suffered permanent disability Plant was sited in a densely populated very poor area of the city so most of the victims were socioeconomically disadvantaged Public health infrastructure weak at best Disaster ambulance chasers flooded Bhopal March 1985 India enacts the Bhopal Gas Leak Disaster Act I Made government the representative of the victims in all proceedings in and outside India Ultimately all the claims were placed under Indian jurisdiction Union Carbide settled with India for S470million a relatively small amount for such a big disaster as compared to for example asbestos injuries Union Carbide steadfastly refused to detail the causes of the accident and the lack of safe guards against leaks ultimately it abandoned the plant leaving behind a toxic waste site that has contaminated the aquifer o Sourcing and Safety Garment Industry 0 0 Bangladesh and Walmart Garment manufacturing in developing countries like Bangladesh and Cambodia are critical to the economic infrastructure Walmart Sam s Club are big customers Conditions are frequently poor and the factories are the modern day equivalents of sweat shops Walmart while acknowledging the fire and electrical dangers at the factory argued that it should bear no responsibility that it was a mere purchaser from a supplier o Sourcing and Safety Garment Industry in Cambodia 0 0 Under TRIPS Cambodia s access to drugs is limited especially cheaper versions of drugs that are either generic or accessed through parallel importing But under the other WTO Agreements Cambodia will be able to enjoy favored trade provisions Cambodia has a huge garment industry and is heavily dependent on being able to export these products Remember the WTO Agreements are a package 0 Law Science and Technology from a scholarly perspective 0 O O Engagements science and law linked by their mutual concern with rules and order I Underlying quotnaturalquot law harkens to nature and science I Law often seeks to enforce an natural order Authority and Competition I Jasanoff argues that science and law are the is and ought of human experience I Although both occupy and authoritarian position there is constant competitive jockeying 0 Law lag law typically lags behind science in embracing innovation 0 Inherent culture clash law s quest for justice science quest for truth 0 Peter Schuck would add Politics as a third culture the quest for social order 0 Crisis bring law and science into proximity time and time again 0 General Deference to science in the courtroom but with Daubert that deference is quaH ed o Coproduction law and science impact and involvement in changing social norms in knowledge societies Epistemology I Establishing knowledge using organized skepticism factfinding risk discourse and demarcation between aims ofjustice and politics 0 Science Law and Culture I Neither science nor law operate in a vacuum I The law and the interaction between law and science in culturally specific 0 Civil common religiously based systems


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