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Chickens and Eggs

August 30, 2010 By Leave a Comment

When I was in law school, there was a contracts case that everyone loved:  Frigaliment Importing Co. v. B.N.S. International Sales Corp.  They loved it because the judge who wrote the opinion spelled out in the first sentence of the opinion what the issue was:  “The issue is, what is chicken?” 

It seems that not all chicken is the same.  Young chickens are suitable for broiling and frying while older, heavier chickens are only suitable for stewing.  When the supplier delivered the older, less desirable chickens pursuant to a contract, a dispute was launched in which the parties argued whether “chicken” referred to any animal of that species or whether it referred more narrowly to the more desirable young chickens.  This 50-year-old decision can be read here.   

As pollsters have known forever, and as law students quickly learn on the path to becoming attorneys, the ability to frame an issue is very often decisive.  It puts the person who needs to make a decision in the “right” frame of mind so that he is much more naturally led to the decision that is desired.  Mr. Clinton famously attempted this tactic when he was facing impeachment as President.  When asked about the truthfulness of his statement with respect to his relationship with Ms Lewinsky that “there’s nothing going on between us,” he very calmly explained to the grand jury that “[i]t depends on what the meaning of the word ‘is’ is.” 

Well, of course.  That cleared things up very nicely. 

Whether one supported Mr. Clinton or not, the audacity of his statement was striking.  But it also happens to have been correct.  The interpretation of his statement did, in a literally strict way, depend on what the full semantic meaning of “is” is.  Still, it was a lawyer’s answer. 

Last week, the fate of federal funding of an important avenue of scientific investigation hinged on a similarly couched issue:  What is “research”? 

The Dickey-Wicker Amendment is a rider that has been attached to each of the Labor, Health and Human Services, and Education appropriations acts every year since 1995.  It has been enacted by both Democratic-controlled and Republican-controlled legislatures, together with the signature of Clinton, Bush, or Obama, depending on the specific year of enactment.  Its wording has been approximately the same each year: 

“None of the funds made available in this Act may be used for … (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero ….” 

Embryonic stem-cell research has received a great deal of attention in recent years because of the pluripotency of the cells — they have the ability to be guided into growth of any type of cell that exists in the human body.  The list of diseases that could potentially be treated with such versatility is long, although research is still in its very early stages:  the first human clinical trials using stem cells were approved only in 2009 by the Food and Drug Administration for treatment of individuals suffering from spinal-cord injuries. 

Although suggestions were published in 2006 of a method of extracting stem cells from embryos without destruction of the embryo, almost all embryonic stem-cell research has required the use of stem cells derived from destroyed embryos. 

And this is where the interpretation of the word “research” in the Dickey-Wicker Amendment becomes relevant.  In 1999, the National Institutes of Health determined that embryonic stem-cell research was exempt from the Amendment because the stem cells are not themselves embryos and “research” on the stem cells, isolated from the process of deriving them, does not result in the destruction of embryos.  Mr. Bush, in an attempted Solomonic decision issued in 2001 when he was President, appeared to accept this basic interpretation:  He permitted stem-cell research to continue on lines that already existed at the time of his statement because the embryos had already been destroyed but prohibited the development of new lines that would require the destruction of embryos. 

Last week’s decision by the federal District Court for the District of Columbia rejected even the Bush compromise.  The court refused to parse the individual acts of “research” separately.  Instead, the Court determined that “the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed.  This prohibition encompasses all ‘research in which’ an embryo is destroyed, not just the ‘piece of research’ in which the embryo is destroyed.”  Accordingly, a Preliminary Injuction was issued prohibiting the use of federal funds to support embryonic stem-cell investigations.  The full opinion can be read here.  

Is the court correct?  As much as I personally support investigations into the use of embryonic stem cells because of their tremendous potential in the treatment of disease, I have difficulty faulting the Court’s decision.  Mr. Clinton’s attempt to parse the semantics of “is” with extreme fineness fails what attorneys frequently refer to as the “blush test” — it may be technically correct, but if the argument cannot be made without getting red in the face, its technical nature goes beyond reasonable limits.  In Frigaliment half a century ago, the court concluded that “chicken” was properly construed by the broader term and not in the narrower way that the buyer had conveniently attempted.  And to construe “research in which a human embryo or embryos are destroyed” as not including investigations on cells that are obtained through destruction of embryos seems more to be a similarly convenient contrivance than it is giving true effect to words of the statute. 

But I feel it is worth providing some final comments about stem-cell research.  It may well be that current law prohibits federal funding of such research, but such laws may be changed by Congress.  And they need to be changed.  As things stand, there is no prohibition on the creation of embryos that are never to mature into full human beings.  Indeed, excess production of embryos during in vitro fertilization is part of a technique that has allowed countless women to have children that they would never have been able to produce without such techniques, bringing joy and a sense of personal fulfilment to their lives.  The number of frozen embryos in cryogenic facilities around the United States is estimated to be approaching 1,000,000.  It is unrealistic to prohibit the destruction of those excess embryos and, indeed, there is no blanket legal prohibition on their destruction.  Instead, the only prohibition that now exists is in allowing the destruction that is going to take place anyways to aid research that holds near-miraculous promise for treating untold numbers of suffering individuals. 

To me, it is the purposelessness of that kind of destruction that is the real affront to human dignity.

Filed Under: Biology, Federal Regulation, Legal, Scientific

The Test of Democracy

August 24, 2010 By 2 Comments

I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think; but I am not going to say anything that I do not think. I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.

Words are powerful. 

The words above were uttered by Eugene Debs on June 16, 1918 as part of a speech in which he urged resistance by American men to the military draft of the first World War, and praising those who had been imprisoned for obstructing it.  He was not prudent enough.  Despised by President Wilson, his words earned him charges under the newly passed Espionage Act, leading to his imprisonment and stripping of his U.S. citizenship.  At the time, every branch of government supported this suppression of speech:  the Espionage Act was passed by the legislative branch, was enforced by the executive branch, and Debs’s conviction was upheld by the judicial branch.  In a unanimous opinion, the Supreme Court found that his First Amendment rights had not been violated by punishing him for his words.  Ironically, it was Justice Oliver Wendell Holmes who authored the opinion — the same man who reminded us that the “very aim and end of our institutions is just this:  that we may think what we like and say what we think.” 

The full text of Debs’s speech can be read here.

The brief Supreme Court opinion can be read it its entirety here. 

Debs was a socialist, who had four times before run for the office of President of the United States.  He would run for a fifth time in 1920, from his jail cell, and win nearly one million votes.  Many view the level of support he received as an expression of disapproval by the people of the United States against a policy that has been described as the greatest infringement on liberty in the history of that country.  Under the Espionage Act and its companion, the Sedition Act, hundreds of people were imprisoned, including the poet E.E. Cummings, who spent months in a military detention camp for speaking openly of his lack of hatred for the Germans. 

The Sedition Act was repealed in 1921, but provisions of the Espionage Act remain very much in force today.  And its relevance is potentially even stronger today because of the technological advances that have vastly increased the ability of speakers to reach listeners.  The rise of the Internet has made it easy for all of us to express our thoughts — in writing, through sound recordings, and even with video that was barely conceived of at the time of the Act’s original passage. 

As is well known, it was about a month ago that WikiLeaks, a web site generally acknowledged to have been founded by Australian Julian Ansage, published some 76,000 classified U.S. military documents relating to operations in Afghanistan; it has promised to release an additional 15,000 documents soon.  It claims to adopt a practice of “principled leaking,” with the goal of holding governments accountable for their actions by providing a measure of protection to those who leak sensitive information.  It provides a platform for activists that could not have existed even a short time ago, and there is no doubt that it will continue to evolve as governments struggle with how to address its activities. 

Even among the strongest advocates of free-speech rights, there has always been angst over whether there should be limits to those rights.  Most thoughtful people believe there should be, and many believe that WikiLeaks steps over the line.  The Pentagon, for instance, has alleged that those involved with publication of the “Afghan War Diary” have “blood on their hands” because of consequences to individuals named in the released documents that flowed from their leak and publication.  The U.S. government has suggested that those involved with WikiLeaks might be prosecuted under the Espionage Act. 

How successful would they be? 

Even without considering the considerable difficulty that may exist in establishing jurisdiction, there has been an evolution in the way speech issues are viewed.  While there are a number of bases under which suppression of speech is considered justified in modern times, they generally derive from the harm doctrine, which is a principle that says that freedom of speech should not extend so far that it causes certain direct harms to others.  Holmes’s famous example of falsely shouting “Fire!” in a crowded theater is clean illustration of the doctrine that most accept, although it becomes more difficult to draw the appropriate line when the harm is less direct or less choate. 

When Daniel Ellsberg and Anthony Russo released classified documents to the New York Times for publication in 1971 — the so-called “Pentagon Papers” — the U.S. administration argued that they were guilty of treason under the Espionage Act.  Irregularities in the government’s case led to a mistrial so it remains unclear whether a conviction might have succeeded in a properly constructed case.  But in considering whether the government could restrain the New York Times from printing the leaked material, the Supreme Court struggled deeply with the issue.  So much so that the nine justices produced ten opinions!  (To be fair, there was a single per curiam opinion and each justice also wrote separately.)  Those opinions can be read here.

Ben-Gurion famously said that the test of democracy is freedom of criticism.  Perhaps the most important aspect of being free to speak is the right to criticize the government, particularly a government like the United States that formally rejects that its authority derives from a monarchy or other heriditary structure but is instead founded on the basis that its power derives directly from “the people,” in whose name it acts.  And there is the crux of the issue, particularly if we accept that our right to speak out is legitimately constrained by the harm doctrine. 

In the early cases involving the Espionage Act, the infringement on speech was direct.  Eugene Debs was imprisoned because of his criticism of government policy involving the draft and his advocacy of resistance to that policy.  It is difficult to imagine his conviction being upheld today.  Even acknowledging that his criticism and incitement to resistance could lead to harms, those potential harms are sufficiently displaced from his speech that it would be hard to sustain its suppression — if we did, the same logic could be applied to almost any criticism of the government because all such criticism at least has a remote possibility of causing harm. 

In the WikiLeaks incident, the issue is not direct criticism of government policy.  But at the same time, and as WikiLeaks would no doubt point out, it is impossible to formulate a full criticism of policy without an accurate understanding of the underlying facts.  The question ultimately is whether the cost of the leaks is too great — or whether the cost of suppressing them is too great.  And there is no easy answer to that.

Filed Under: Constitutional Law, Legal

Embers of the Dead

August 17, 2010 By Leave a Comment

The very thought that a man could do it to his own family is horrific.  And yet we know there are people like that.  Twisted and cruel, without respect for the true dignity of human life.  Such men deserve to be punished, and many think that only the ultimate punishment of death is fitting when evidence of the horror is so plain. 

What could really go through a man’s head as he takes charcoal starter fluid and spreads it within his home?  Spreads it especially near his children’s bedroom and near the front door so that when he ignites it it will be that much more difficult to rescue the children being burned alive inside? 

There was no one with Cameron Todd Willingham in his home to see him spreading the starter fluid, but there was evidence that he had done so, and this evidence was considered at his trial.  Char patterns on the floor in multiple spots in the shape of puddles.  Melting of the aluminum threshold at the front door that was a morbid reminder of the extreme heat generated.  The presence of crazed glass that confirmed the extreme heat of the fire.  All of these were things that arson science said were  characteristics of fires started deliberately with the use of accelerants. 

The science just happened to be wrong.

 Although the National Fire Protection Association published a seminal report as early as 1992 that dispelled much of what had been thought to be understood about the science of arson detection, it has taken many years for those conclusions to become accepted.  The fact is, though, that many of the earmarks that arson investigators confidently believed to be conclusive evidence of arson are, in fact, also caused from accidental fires. 

Willingham was convicted of murder and executed by lethal injection by the State of Texas on February 17, 2004.  Last year, the New Yorker published an article by David Grann that examined the evidence in light of modern understanding of arson science, concluding that there was no evidence for arson that can be sustained under modern critical examination.  His full article can be read here. 

To be sure, there was other evidence considered at Willingham’s trial in addition to the forensic arson evidence that pointed to his guilt, but the conclusions of the arson investigators were a substantial factor in his conviction.  So much so that the modern understanding of what was found at his home is undeniably sufficient to raise a “reasonable doubt” whether he was guilty of the crime for which he was executed. 

Many are concerned that this case is just a hint of a gross injustice that has been inflicted on many men.  Flawed arson science has been applied in at least hundreds of cases and probably thousands of cases so that it seems likely at least some of those convicted were, in fact, innocent. 

In discussions about the legitimacy of the capital punishment, one of the arguments that those opposed frequently make is that  the death penalty is final; there is no way to correct an error if it is later discovered and at least restore a portion of life to the person convicted.  This argument is very often dismissed.  Surely, the counter-argument goes, there are cases where the evidence is so strong that there can be no doubt at all the person is guilty.  Those are the cases in which it should be applied, proponents say.  After all, those accused are given many, many opportunities to refute the evidence against them, so much so that the appeals of their convictions routinely take a decade or more.  Indeed, in the case of Kansas v. Marsh in 2006, Justice Scalia dismissed criticism of the death penalty in the United States as coming from “sanctimonious … finger-waggers” and suggests that there has not in recent years been “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.” 

But there was that level of certainty in the Willingham case, seemingly backed by the best scientific understanding of those who examined the evidence.  And still the conclusion seems to have been wrong.  Last month, the Texas Forensic Science Commission acknowledged in a preliminary report that there were flaws in the arson evidence that was used in the case.  But the controversy has not ended.  The Commission’s founding chairman, Samuel Bassett, was removed from that position in an abrupt move by the governor of Texas, Rick Perry.  In a memorandum to the Commission publicized in the last few days, Bassett has urged that the investigation into flawed arson science be expanded:  How long has such flawed science been applied?  Did the Fire Marshall’s Office wait too long in adopting more modern scientific standards? 

These are not questions whose answers we should fear.  Indeed, answering them is critical to moving forwards in a positive way.

Filed Under: Chemistry, Constitutional Law, Legal, Physics, Scientific

My Very Excellent Mother Just Served us Nine … What?

August 12, 2010 By Leave a Comment

When I was growing up and learning about the planets of our solar system, many children used a mnemonic like the title of this post to remember the order of the planets, finishing it with something like “Pizzas” or “Pies.”  It was something we all accepted as part of the natural order of the universe — that we live in a solar system that has nine planets, with us on the third. 

But on August 24, 2006, the International Astronomical Union (“IAU”) finally provided a formal definition of a planet and poor Pluto did not make the cut.  There are only eight planets that orbit our Sun.  Some of the reaction to the change was strongly negative.  Petitions were organized online to implore the IAU to reconsider its decision and to reinstate Pluto to its “rightful” place as a planet.  Protests were held, with people marching with placards proclaiming that “Size Doesn’t Matter” and wearing T-shirts announcing their “Protest for Pluto.”  The State of New Mexico — where Clyde Tombaugh was working when he discovered Pluto in 1930 — passed a resolution declaring that Pluto will always be considered a planet when in the skies of New Mexico.  Illinois — where Tombaugh was born — did the same thing a couple of years later.  A resolution was introduced in California denouncing the IAU for “scientific heresy.”  And many astronomers I know, who remembered with deep fondness how they discovered the sky as children, felt a sentimentally wistful loss at the change.  Even now, four years after the IAU decision, protests are still occasionally being held. 

It is heady stuff, whether Pluto is rightfully part of the club of planets or not. 

The decision of the IAU is one that emblemizes how brutal science rightfully is as new information and understanding is developed.  Old ideas that no longer fit with modern evidence and knowledge are to be summarily executed in favor of concepts that do comport with what we have learned through our investigations into nature.  And even though some astronomers felt some nostalgia, they also know that this ruthlessness is a necessary part of the scientific method that they embrace. 

I was reminded of Pluto — and of both the strict demand that science has for evidence and its willingness to reject old ideas wholesale — when I read the decision in Perry v. Schwarzenegger, the federal court decision from last week holding that prohibiting same-sex marriages violates both the due-process and equal-protection clauses of the federal Constitution. 

One of the strongest reasons for opposition to same-sex marriages is rooted in the traditions of this and other countries that marriages are between one man and one woman.  Those traditions very much reflect a moral and often religious view of what marriage is, and a judgment that homosexuality is “wrong.”  But as Thomas Jefferson famously noted in his 1802 letter to the Danbury Baptists, the United States seeks to maintain a “wall of separation” between church and state through the First Amendment to the federal Constitution.  As the judge in Perry noted, a “state’s interest in an enactment must of course be secular in nature.” 

And so the judge — who interestingly had difficulty with his original appointment by Ronald Reagan because he represented the U.S. Olympic Committee in prohibiting use of the term “Gay Olympics” — demanded that there be some evidence that a legitimate state interest is promoted by limiting marriage to opposite-sex couples.  Like the IAU and Pluto, it would not be enough that there was a long history of such a limit, and the evidence had to be real and solid. 

There are many reasons that have been suggested by those who are opposed to same-sex marriage and that were considered in Perry.  The interest of the state in promoting procreation.  The commonly held belief that children’s emotional development is most stable when raised in a household with both a father and a mother as role models for each sex.  The risk that opening up marriage to same-sex couples will erode its value, even in perception, of providing stability for heterosexual couples.  If true and supported by evidence, it is difficult to argue that these are not legitimate interests of the state. 

But that is where the proponents of a traditional definition of marriage fell short.  Much evidence from social scientists was presented during the trial that these reasons are not supported by evidence — that children develop emotionally with as much strength when raised by same-sex or opposite-sex households and that relaxation of restrictions on the physical characteristics of parties who marry is unlikely to erode the respect that heterosexual couples have for marriage.  A strong analogy was made to the 1967 decision of the Supreme Court in Loving v. Virginia that miscegenation laws banning interracial marriage were unconstitutional. 

It is widely accepted that the parties wanting to preserve the traditional definition of marriage did a poor job in presenting their case during trial, even as the judge nudged and implored them to do better and to present their case more persuasively.  They didn’t call nearly as many witnesses as the other side and the witnesses that they did call were less well-credentialed and credible.  There is still a significant belief that some of those interests articulated in support of limiting marriage to opposite-sex couples do actually have evidence among social scientists.  And no matter which side one falls on the issue, we should all acknowledge one fundamental fact:  the contrary evidence deserves to have been presented in its strongest and most persuasive form.  It is when the strongest possible evidence is considered and still found to be lacking — just as the IAU did with Pluto — that we have the greatest confidence in decisions, particularly when they seem to run counter to tradition and intuition.

The full opinion in Perry can be read here.

Filed Under: Astronomy, Constitutional Law, Legal, Scientific, Social Science

Fraud and Falsehood Dread Examination But Truth Invites It

August 6, 2010 By Leave a Comment

My title today is a quotation by the English poet Samuel Johnson, who is perhaps most famous for his 1755 Dictionary of the English Language, which set the standard for modern lexicography. His expression of the role of examination is one that rings loudly for scientists, who have a history and culture of presenting their results openly through publication so that they may be examined by others. This is one of the great strengths of science and it is not unfair to say that it has been responsible for the deep respect that scientists generally enjoy for the integrity of their work and their tremendous advancements in knowledge.

But scientists are human. They are subject to the same kinds of pressures that are put on people in all professions to achieve professional respect and accomplishment. And sometimes the temptations to engage in questionable scientific practices are too great to resist.

Consider one of the most notorious recent cases of scientific misconduct. The German physicist Jan Hendrik Schön was a rising star. At the age of 27, he was granted a Ph.D. from the University of Konstanz and hired by Bell Labs, at which the work for no fewer than seven Nobel prizes in physics has been performed. He published numerous papers in highly prestigious journals reporting astonishing breakthroughs in nanotechnology, notably the ability to produce a molecular-scale transistor. He won the Otto-Klung-Weberbank and Braunschweig Prizes in 2001 and the Outstanding Young Investigator Award presented by the Materials Research Society in 2002.

But when physicists examined his publications, they started to notice anomalies. Identical noise data for experiments carried out at very different temperatures. Schön said it was an accident. Then it was noticed again. And again. And again. Schön said he had destroyed his data because of space limitations on his hard drive and that he kept no laboratory notebooks, difficult rationalizations to accept and undoubtedly poor research practices. Physicists were unable to study his data directly and were unable to reproduce his results independently. Bell Labs launched an investigation and ultimately detailed evidence for 16 examples of scientific misconduct by Schön. His coauthors — prominent scientists who were exonerated of any misconduct themselves — were embarrassed and had their own reputations for scientific integrity called into question.

In the end, most of Schön’s papers were to be retracted by the journals that had published them, with the unanimous agreement of his living coauthors (one coauthor was deceased at the time of the retractions). He left Bell Labs in disgrace. The University of Konstanz revoked his Ph.D.. The Deutsche Forschungsgemeinschaft — the German Research Foundation — withdrew his right to vote in the Foundation’s elections and banned him from serving on its committees. He is not permitted to review proposals for the Foundation nor to apply for any of its funds.

While many like to point to the Schön case as a negative example, it is better seen as a positive example of how the system of scientific review operates to uncover and expose misconduct. The scientific community is rightly concerned about misconduct. Some recent studies have found that about 2% of scientists admit to having fabricated data and as many as 35% have admitted to other questionable research practices, ranging from serial publication of research in multiple journals or abusing anonymity as a peer reviewer to suppressing data inconsistent with their theories or violating articulated ethical standards in research on humans and animals. And there is evidence that the rate of scientific misconduct is rising.

Last week, the Second World Conference on Research Integrity was held in Singapore, in which scientists in different disciplines from nations around the world gathered to develop a global ethics code that it is hoped the scientific societies of individual nations will adopt. This is a positive step.

The final result of the ethical guidelines that the conference proposes is not yet available, but a review of the draft shows that it follows the basic structure of a legal constitution. That is, the document avoids addressing detailed minutiae of specific practices that are considered to be improper, but instead sets forth higher-level concepts. It is accordingly, like most legal constitutions, a short document.

For example, the draft statement on Data Management says only that “Researchers should keep a clear, accurate record of all research in a way that will allow others to verify and replicate the work they have done.” It is simple and to the point. It does not dwell on how records should be kept or the form of the data to be kept, nor the specific ways in which it should be made available to others. These are details that might genuinely differ among different scientific disciplines and in different kinds of research environments, and the simplicity of the statement gives the underlying principle strength.

The entire draft statement can be read here.

Is a global ethics code for scientists a good thing? I believe it is. Another of the strengths of science has been that it is international in character; for the most part, scientists willingly share the results of their research openly and widely without regard for national borders because the state of knowledge will advance more quickly that way. There are, to be sure, circumstances where governments impose secrecy restrictions and modern concerns about securing intellectual-property rights at times interfere with that posture, but a posture of openness is a general part of the culture of science.

The system of review that science uses worked effectively in the Schön case to expose the fraud and to take corrective actions with the research record. But the system can be improved and promulgation of a global code can serve as an important step in that improvement — by providing a clear statement agreed to by scientists all over the world that will educate students and others of practices that are acceptable in conducting research and in publishing the results of that research.

Filed Under: Legal, Physics, Scientific, Scientific Misconduct
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