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On the 237th Anniversary

On July 3, 1776, John Adams wrote  a letter from Philadelphia to his wife, Abigail, back home in Massachusetts.  It ended with this passage.

“The Second Day of July 1776, will be the most memorable Epocha, in the History of America.

I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.

You will think me transported with Enthusiasm but I am not. — I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. — Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Days Transaction, even altho We should rue it, which I trust in God We shall not.”

He got the date wrong, choosing the date Congress passed the Lee resolution, proposed in early June by Richard Henry Lee, on instructions from his home state of Virginia,

Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

Instead the country ended up celebrating  the date, still a day in the future as he wrote, when Congress adopted its statement of the reasons for its resolution, its Declaration of Independence.

Adams was not a great president and, it seems to me, not a very nice man.  But he had his moments.

The country he helped found is not, in spite of its frequent assumption to the contrary, the only country in the world.  It is an outsized mixture of good and bad, of hope achieved and hope denied.  The older I get, the odder it seems.  But it is mine.  And it too has its moments.  Like the Fourth of July.

Happy and Glorious Fourth to you all.  (Including even my Canadian friends)

Hank Greely

VIDEO: De-Extinction: Ethics, Law & Politics

We’ve recently posted video from our conference, held on May 31st, on, De-Extinction: Ethics, Law & Politics. You can check out those videos on our YouTube channel, here–or watch the individual presentations below. For your convenience, we’ve divided the conference into six separate videos, titled: (1) Welcome & Introduction/Science; (2) Environmental Law & Related Issues; (3) De-Extinction and Conservation Biology; (4) Lunch with Stewart Brand; (5) Other Legal Issues; and (6) Justice, Hubris, and Moral Issues. Read the rest of this entry »

Myriad: Some Initial Thoughts

It has been a busy day digesting and commenting on the Myriad decision. As part of a collaborative effort with Stanford’s Medical School, I posted some initial thoughts on the case on Scope that we’re cross-posting here at CLB. I’ll have some more detailed (read, Hank-length) thoughts earlier next week. But for now, I think this provides a good overview of the decision and some of the questions it leaves unresolved. Read the rest of this entry »

A Side Note on AMP v. Myriad Genetics: The Curious Concurrence of Justice Antonin Scalia

Jake Sherkow has posted an excellent discussion of the majority opinion in Myriad and its likely implication. Not being a patent lawyer, I’m happy to defer to his expertise (especially since I almost entirely agree with his analysis).  But there is one odd little aspect to the case I do want to comment on, and that does not a patent’s lawyer’s expertise:  Justice Scalia’s concurrence in part and concurrence in the judgment.

JUSTICE SCALIA, concurring in part and concurring in the judgment .

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

Some (I’m talking to you, Mark Joseph Stern in Slate) have argued that this is a nice, light example of judicial humility from Justice Scalia, to be chuckled over, if not applauded. I disgree.

For one thing, Justice Scalia has joined, or written, opinions with scientific facts without making similar disclaimers.  In his important majority opinion in Kyllo v. United States, he wrote

Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth–black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images.

So does he know from personal experience that “virtually all objects emit” infrared radiation? (Or, for that matter, that “indoor marijuana growth typically requires high-intensity lamps”)?  If not, does he believe either of those statements?  And if so, on what basis does he believe those comments about infrared radiation, but not the discussion of DNA by Justice Thomas in Myriad?

Part of it is Scalia being a ham (something easy for me to recognize).  But, to the extent he is saying “the Court shouldn’t pretend it knows about the science,” I think what he says is both wrong and harmful.

First, the opinion doesn’t make sense without that discussion.  The Court approves patents, at least as far as the entry-level question of patentability under Section 101 for cDNA. Well, what IS cDNA?  Scalia’s paragraph-long opinion ends

“It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that  complementary DNA (cDNA) is a synthetic creation not normally present in nature.”

How can he even affirm that without believing something about DNA?  Is he telling us that he is just taking it on faith?  I’m willing to accept that he doesn’t, and doesn’t have to, “understand” it, but it seems to me that he has to believe it to reach his conclusion, and the “it” he has to believe encompasses a lot of the Court’s discussion of DNA, which he so airily dismisses.

But what REALLY bothers me about the opinion is the, both explicit and implicit, endorsement of the idea that

Hey, we’re judges – we don’t need no stinkin’ science. We don’t have to worry our heads about this science stuff. That’s what those other, different [and perhaps implicitly “lesser,” because, after all, they aren’t announcing The Law] breeds are for.

This idea reinforces the worst form of the divide between ”The Two Cultures.”  British novelist – and scientist – C.P. Snow delivered an influential lecture by the title in 1959 and wrote up his idea about the humanistic and scientific cultures several times.  In one form of the essay he wrote

A good many times I have been present at gatherings of people who, by the standards of the traditional culture, are thought highly educated and who have with considerable gusto been expressing their incredulity at the illiteracy of scientists. Once or twice I have been provoked and have asked the company how many of them could describe the Second Law of Thermodynamics.   The response was cold: it was also negative. Yet I was asking something which is the scientific equivalent of: Have you read a work of Shakespeare’s?

I now believe that if I had asked an even simpler question — such as, What do you mean by mass, or acceleration, which is the scientific equivalent of saying, Can you read? — not more than one in ten of the highly educated would have felt that I was speaking the same language. So the great edifice of modern physics goes up, and the majority of the cleverest people in the western world have about as much insight into it as their Neolithic ancestors would have had.

(Snow’s examples, by the way, provide some interesting support for the idea that physics was the queen of the 20th century sciences – biology seems to be gaining in the 21st.)

Besides, I believe Supreme Court justices should be able to understand issues around DNA to the depth of Justice Thomas’s opinion (about the depth of a good high school biology course), just as they should be able to understand how early Louisiana courts interpreted the Napoleonic Code should that be necessary or how what market concentration means should those be important to their cases. Judges are generalists who are supposed to be quick learners so they don’t have to decide cases without understanding, at least to some minimum level, facts crucial to their resolution.  Justice Scalia should be embarrassed by, and ashamed of, his confession of ignorance – though I’m guessing he’s not.

And that may be what bothers me the most – the sense, possibly unfair, that Scalia is actually proud that he doesn’t understand (or necessarily believe) high school biology.

Maybe I’m just feeling grumbly, but Scalia’s concurrence seems to reflect a smug nonchalance about science that no one making important decisions in, or for, our society can afford.

Hank Greely

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: