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The California aftermath of Maryland v. King begins (in a small way)

Today the Ninth Circuit ordered supplemental briefs in Haskell v. Harris:

Filed order (ALEX KOZINSKI, HARRY PREGERSON, M. MARGARET MCKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, MILAN D. SMITH, JR., N. RANDY SMITH and PAUL J. WATFORD) The parties are ordered to file supplemental briefs on the application of the Supreme Courts decision in Maryland v. King, 569 U.S. ___ , No. 12-207 (June 3, 2013), to the resolution of this case. Appellants shall file their brief no later than 21 days from the filing date of this order. Appellees brief shall be filed within 21 days of the filing of appellants brief. Appellants may file an optional reply brief within 7 days of the filing of appellees brief. The briefs shall not exceed 2500 words.

So the briefing schedule goes out to 7 weeks from today:  August 13 (unless I’m getting my business days versus calendar days confused – too long, happily :), since I litigated).  No indication of additional oral argument, but I suppose that may come after the panel has read the briefs (or may not).

No word yet from the California Supreme Court on Buza.

Maryland (v. King) Corrections Department: David Kaye on Bertillonage

In a recent post on the Maryland v. King case, I criticized the Court’s reference to Bertillon measurements, or Bertillonage, as “a thoroughly debunked form of proto-eugenics.” In correspondance, however, David Kaye, an expert on forensic science at Penn State Law (and co-author, with Hank Greely, on an amicus brief in the King case) has suggested that my criticism may be too harsh. Read the rest of this entry »

Maryland v. King – The California Farce

Forensic DNA is serious business, as are U.S. Supreme Court decisions.  (Well, except for some of the dissents.)  That’s why I was so tickled to discover a California sequel to Maryland v. King that, with all due respect to the individual defendant involved, to whom it must seem tragic, reads like a farce.  Herewith, the story of arrestee DNA and George Shirakawa, Jr. Read the rest of this entry »

Maryland v. King – The Coming California Sequels

“Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.”

Karl Marx, The Eighteenth Brumaire of Louis Napoleon

If quoting a Marx, I usually go with Groucho, not Karl, but this one makes for a good exception.  Maryland v. King, the Supreme Court’s decision that mandatory collection of DNA from people arrested for “serious crimes” does not violate the Fourth Amendment, is not a tragedy.  I have blogged about Maryland v. King, as has CLB fellow Jake Sherkow, and we’ve even recorded a mini-podcast on the case, to be posted on this site in a few days.  One aspect, mentioned at the end of the mini-podcast, does deserve some special attention – the California angle, where this case has both a serious, though probably not “tragic” aftermath in California, and a farcical one.  This post examines the serious implications of Maryland v. King for California’s arrestee DNA collection law, concluding that it probably, but not certainly, validates it, at least as to federal constitutional issues. The next post lays out the farce. Read the rest of this entry »

The Global Alliance

Today, an international set of institutions is announcing the launching of a “Global Alliance” for advancing research in genomic medicine.  Over seventy institutions – from the National Institutes of Health to the Wellcome Trust to Genome Canada; from universities such as Stanford, Oxford, UC San Francisco, Toronto, Chicago, Cal Tech, McGill, and Michigan; to centers like the Broad Institute, MD Anderson, and BGI-Shenzen – have joined as founding members.  I was fortunate enough to participate in one of the early meetings on this effort, held in January 2013 in New York City, and have been following its progress closely ever since.  I think it has the potential to be important – both for science and for research ethics. Read the rest of this entry »

Podcast No. 9

Hey, CLB Podcast listeners–we’ve got No. 9 for you. This month, we feature Hank Greely with…

Fellow Jake Sherkow on Bowman v. Monsanto, the patented soybean seed case;
Hank with soon-to-be former fellow Matt Lamkin on MERS and pandemic fatigue;
Fellow Jake Sherkow on patenting the gut microbiome;
and himself on de-extinction.

You can hear the podcast, here:

And special thanks always to David Preston, our sound engineer, editor, mixer, producer, and more!

The Supreme Court decision in Maryland v. King – Meh

Late in Voltaire’s book, Candide, we meet a Venetian nobleman called Signor Pococurante, who, as his name indicates, cares little for anything – great art, excellent music, brilliant literature, beautiful gardens, or gorgeous women.  With regard to the Supreme Court’s two DNA cases this term, I feel a bit like Signor Pococurante – I don’t much care.  (Happily, I do not share his disdain for other good things.)

The Supreme Court released its decision today in Maryland v. King, finding, by a five to four vote, that Maryland’s statute requiring people arrested of certain felonies to provide a DNA sample at arrest, so that the arrestee’s DNA profile could be included in the state, and ultimately federal, DNA forensic database does not violate the Fourth Amendment to the federal constitution.  And, rather oddly, I find I don’t much care.  Here’s why. Read the rest of this entry »

Maryland v. King: A Mouthful of Contradictions

The Supreme Court’s opinion in Maryland v. King came out earlier today, concerning whether the Fourth Amendment permits the collection of DNA samples upon arrest. In an interesting 5-4 split (with Breyer joining the conservative wing, and Scalia the liberal one), the Court answered in the affirmative. And while I agree with the opinion on public policy (and scientific) grounds, its legal analysis leaves something to be desired. Read the rest of this entry »

Podcast No. 8

Hey, CLB Podcast listeners–we’ve got No. 8 for you. This month, we feature Hank Greely with…

Fellow Jake Sherkow on the Indian Supreme Court Gleevec decision;
Fellow Matt Lamkin on disability law and social realities;
and himself on the ethical issues surrounding the sequencing of the HeLa genome.

You can hear the podcast, here:

Purdue Pharma & OxyContin: Regulatory Gamesmanship? A Debate

Recently, the FDA declared that it was no longer accepting applications for generic formulations of Oxycontin. The reason? Because Purdue Pharma, OxyContin’s manufacturer, had developed–and received approval for–an “abuse-resistant” formulation of the drug. Whether this is an example of regulatory gamesmanship or the fruits of incentivizing public safety is up for debate. With that in mind, the CLB blog is proud to host a short  debate between CLB Fellow, Jake Sherkow, and Duquesne School of Law Professor, Jacob Rooksby.

The format is simple–each has ~500 words of opening statement followed by ~250 words of rebuttal. You decide which Jacob is right. (Or if both are. Or, if neither.) As Jacob Rooksby is the away team, he gets to bat first, while Jake Sherkow gets “last licks.” Read the rest of this entry »

Podcast No. 7

Hey, CLB Podcast listeners–we’ve got No. 7 for you. This month, we feature Hank Greely with…

– SLS 1L, Amanda Rubin, on the annoucement of President Obama’s Brain Map Initiative;
– SLS 1L, Roland Nadler, on the electrifying work of transcranial direct current stimulation;
– Fellow Jake Sherkow on the less electrifying, but still very important, Amgen v. Connecticut Retirement Plans case decided by the Supreme Court;
– and himself on mice with human neurons.

You can hear the podcast, here:

(And music bumper information can be found here.)

Mini-Podcast with Shubha Ghosh

CLB recently had the pleasure of sitting down with Shubha Ghosh from the University of Wisconsin for a mini-podcast to talk about his recent book, Identity, Invention, and the Culture of Personalized Medicine Patenting. You can hear the mini-podcast here:

Ryan Calo on Brain-Computer Interfaces and Privacy

Dr. John Ioannidis on The (Un)Reliability of Biomedical Evidence

AMP v. Myriad Genetics Oral Argument Recap

Today’s oral arguments in Association for Molecular Pathology v. Myriad Genetics were wide-ranging–and often-times confusing. Almost all of the Justices seemed struggled with basic principles of laboratory genetics, and several seemed hung up on various points of basic patent law. Nonetheless, Myriad’s composition claims–that is, gene patent–claims seem in jeopardy. Whether that jeopardy will translate into five or more votes, however, remains to be seen. Read the rest of this entry »

Mini-Podcast with Andrew Torrance

CLB recently had the pleasure of sitting down with Andrew Torrance from the University of Kansas for a mini-podcast to talk about law and the biosciences. You can hear it here:

Patenting Cancer Vaccinations

Elvina Chow

On February 10, 2013, Nature Medicine published an article, which discloses that the partially disabled cowpox virus, known as JX-594, has been shown to combat cancer. Scientists have manipulated the vaccinia virus by removing the self-replicating gene and inserting another gene that helps recruit immune cells to cancerous tumors, thereby creating the engineered virus JX-594. Read the rest of this entry »

Yet More Mini-Podcasts

As a coda to our Law and the Biosciences workshop this year, we have mini-podcasts from our last three speakers: Carl Elliot from the University of Minnesota, Alta Charo of the University of Wisconsin, and Nita Farahany of Duke University. You can find them here:

Breaking News – White House Announces "BRAIN" initiative

“Brain Research Through Advancing Innovative Technologies” will be the subject of over $100 million in federal investment.  DARPA will contribute $50 million, NIH $40 million, and NSF $20 million.   They will partner with the Allen Institute ($60 million), Kavli Foundation ($4 million), Salk Institute ($28 million), and Howard Hughes Medical Institute ($30 million).  It’s not clear what all these dollar figures really mean, but it almost certainly beats a poke in the eye with a sharp stick.

BRAIN is to be led by two prominent neuroscientists:  Bill Newsome at Stanford (great scientist, good guy) and Cori Bargmann at Rockefeller University (don’t know her, though know her name).

BRAIN is to have an ethics component, to be handled (initially?) by the President making requests to the President’s Commission for the Study of Bioethical Issues (PCSBI).  PCSBI has at least two members were versed in neuroethics and law and neuroscience:  Nita Farahany and Jonathan Moreno.  In the long run I think any one general bioethics commission won’t prove adequate – I’d prefer “let a hundred flowers bloom,” though that requires water, fertilizer, and (of course) money for those flowers.  But this is astart.

Here’s the White House announcement:  White House.

Here’s a useful NY TImes article about the project:  NYT.

How important this will turn out to be, of course, remains to be seen. It is not a commitment at the level of the Human Genome Project, but there doesn’t seem to be the same kind of target available as there was for the HGP. I’m optimistic – but that’s probably just my brain talking.  :)

Hank Greely

CORRECTIONS MADE:  I not only misspelled Dr. Bargmann’s name, but I placed her at the wrong university in Manhattan – she is at Rockefeller University.

CLB's Jacob Sherkow on Mayo v. Prometheus and the Method of Invention

The CLB’s own Jacob Sherkow has a great piece on The Yale Law Journal Online analyzing a little-noticed, but potentially very significant, aspect of the Supreme Court’s recent decision in Mayo v. Prometheus:

The Mayo Court’s novel test for patent eligibility—whether or not an invention involves “well-understood, routine, conventional activity, previously engaged in by researchers in the field”—focuses on how an invention is accomplished rather than what an invention is. That concern with the method of invention poses several normative, statutory, and administrative difficulties. Taken seriously, the “how” requirement will likely have broad effects across all levels of patent practice.

You can find the article here.  It’s well worth the read.