The existence and extent of pain is an enormous issue in the legal system – in part because we often have no good objective ways to check a witness’s claims. But pain is, ultimately, in the brain. Can neuroimaging help? Dr. Sean Mackey’s research revolves around treating and understanding pain. He will discuss the prospects for “detecting” pain through neuroimaging. Lisa Douglass, Director of the Law School’s Social Security Disability Project, will comment on the implications of his research for the legal system.
On April 26, 2012, the CLB will host UC Berkeley’s Jack Gallant and Vanderbilt Law School’s Nita Farahany to discuss Dr. Gallant’s groundbreaking work using fMRI to decode and reconstruct people’s visual experiences. To get a sense of Dr. Gallant’s work, take a look at the video above, which shows how Dr. Gallant has used fMRI to reconstruct what subjects are seeing as they watch movie clips. Dr. Farahany will discuss the legal implications of technologies that can peer inside the human mind.
This event is free and open to the public, and will take place from 4:30-6:00 on April 26, 2012 in room 190 of Stanford Law School. Please RSVP by sending me an email.
This post is by Adam Hepworth, a 2L at Stanford Law School and a CLB student fellow.
Should we require someone convicted of jumping over a subway turnstile to give DNA to a state law enforcement database? New York became the first state to do just that in March when the legislature passed a bill requiring individuals convicted of most misdemeanors to give a DNA sample. Previously, the state limited its DNA collection to individuals convicted of felonies and a handful of serious misdemeanors (like those relating to sexual abuse). The new law is startling because of how many more individuals will be required to give DNA samples; but at the same time, it comes as no surprise: state and federal governments have been ratcheting up DNA database laws for the last decade. Read the rest of this entry »
(This is the fifth in a series of posts about oral arguments before the Supreme Court on the Affordable Care Act. These posts were commissioned by, and first appeared on, Stanford Medical School’s Scope blog. For more posts on health reform in the courts, click here.)
So, what does it all mean?
When?
First, set your alarm clocks for late June. The Court never lets its decisions be known before the official release of the opinions, but it always tries very hard to release opinions during the term they are argued; otherwise it re-argues them (not something it will want to do with this case!). The opinions can be released as soon as they are ready, but the more complex the case and the greater the number of separate opinions (dissents and concurrences), the longer the process takes. It would have hard to get a more complex case than this one and I suspect a lot of Justices will want to put in their own two cents. Read the rest of this entry »
(This is the fourth in a series of posts about oral arguments before the Supreme Court on the Affordable Care Act. These posts were commissioned by, and first appeared on, Stanford Medical School’s Scope blog. In this post, Hank Greely answers questions about the Affordable Care Act submitted by readers. For more posts on health reform in the courts, click here.)
Max asks: You mentioned your support of the individual mandate. Is this a legal or personal view – or both?
Both. As a legal matter, I think the Court’s precedents are most easily read as finding this within the Commerce Clause. After all, just a few years ago the Court, with the glowing agreement of Justice Scalia, held that growing marijuana in California, with California materials, for sale and use in California, involved interstate commerce. The idea that this is requiring people to participate in commerce is a little different, so there is no direct precedent, but I think the Court would have to make more new law to find it unconstitutional than to find it constitutional. Read the rest of this entry »
(This is the third in a series of posts about oral arguments before the Supreme Court on the Affordable Care Act. These posts were commissioned by, and first appeared on, Stanford Medical School’s Scope blog. For more posts on health reform in the courts, click here.)
Unlike each of the last two days, today’s argument covered two distinct issues. The morning was devoted to severability: if the Court finds that some of the Act is unconstitutional, what should it do with the rest of it? The Court devoted the afternoon to the Act’s Medicaid expansion, asking whether it was an unconstitutionally coercive use of Congress’s undoubted spending power. Both discussions were messy, but interesting. Read the rest of this entry »
(This is the second in a series of posts about oral arguments before the Supreme Court on the Affordable Care Act. These posts were commissioned by, and first appeared on, Stanford Medical School’s Scope blog. For more posts on health reform in the courts, click here.)
Today saw 120 minutes of argument on the constitutionality of the individual mandate part of the Act. I should note that I have taken a public position on this issue and in favor of the individual mandate – I am a signer of the “Brief of 104 Health Law Professors as Amici Curiae in Support of Petitioners (Minimum Coverage Provisions).” That may color my view of today’s argument – or, perhaps more likely, as correlation does not imply causation, some underlying frame of my mind may color both my joining that brief and my view of today’s argument.
Before I talk about that argument, I need to point out the limits of argument. I had the pleasure and privilege of serving as a clerk to Justice Potter Stewart nearly 35 years ago (lower Pleistocene). I strongly suspect that what I observed then is still true today. Oral argument is just one step, and not a very important one, in how cases are decided. That process starts with the papers seeking to convince the Court to hear, or not to hear, the case and is followed, more importantly, by the parties’ briefs (joined, in this case, by scores of amicus briefs). In my year at the Court, I would guess that the oral argument changed the result in only one case all term. Read the rest of this entry »
(This is the first of several posts about oral arguments before the Supreme Court on the Affordable Care Act. These posts were commissioned by, and first appeared on, Stanford Medical School’s Scope blog.)
This week the Supreme Court is devoting an impressive six hours of argument, over three days, to the Affordable Care Act. Four different federal Courts of Appeal had reached decisions about various provisions of the Act; the Court asked to hear arguments about four specific issues:
Does the Anti-Injunction Act keep the Court from deciding the constitutionality of the individual mandate until the various penalties imposed by various parts the Act are actually imposed (probably in 2014)?
Is the “individual mandate” within the powers the Constitution confers on the Congress?
Does the Act’s required expansions of State Medicaid programs violate the Constitution? and
If some provisions of the Act are unconstitutional, are those provisions “severable,” allowing the rest of the Act to go into effect, or “inseverable,” forcing the whole legislation to fall? Read the rest of this entry »
The Court in Prometheus highlights that determining subject matter eligibility under section 101 is now a necessary inquiry of patentability. Some had argued that other requirements of patentability, such as novelty and nonobviousness, could do the work of section 101 in a more predictable and objective way. Now, section 101 becomes a gatekeeper, despite its difficulty in application, particularly by examiners that may be ill-equipped to determine whether an application of a natural law is significant enough to make it patent eligible or if it too broadly preempts use of a natural law.
Despite the reinvigoration of section 101, the Court’s decision risks tainting the eligibility determination with the analysis of novelty and nonobviousness. In asking whether the application of a natural law is significant enough or has some inventive concept that is different enough from the natural law, the Court seems to blur the inquiries that it classifies as distinct. This risk is magnified by the Court’s dissection of the claims, removing the parts that pertain to natural laws, and asking whether the remaining parts of the claim were already known in the art.
Although the Prometheus decision relates to process claims, it may still affect the Myriad composition of matter patents related to isolated human DNA. Composition claims may be excluded under section 101 as covering products of nature, unless the invention requires human intervention, making such claims patent eligible. In this context, the policy reasons for rejecting the Prometheus process claims seem particularly relevant to Myriad’s composition claims: “the underlying functional concern here is a relative one: how much future innovation is foreclosed relative to the contribution of the inventor.” Additionally, the recent trend moving away from strict distinctions between composition and method claims suggests that Prometheus may have some bearing on Myriad’s composition claims.
Click here for more CLB commentary and analysis of the Prometheus decision.
Granted, vacated, and remanded in light of . . . Prometheus.
ASSN. FOR MOLECULAR PATHOLOGY V. MYRIAD GENETICS, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Federal Circuit for further consideration in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ___ (2012).
So, what, inquiring minds wonder, will the Federal Circuit make of the BRCA 1 and BRCA 2 patents this time?
Click here for more CLB commentary and analysis of the Prometheus decision.
