Rule, Supremacy, and Sway

When the Oklahoma State Trooper came upon the scene on November 13, 1974, it seemed apparent enough that the 28-year-old woman had died in a sleeping-driver accident.  There were no other automobiles involved and the pattern of evidence was classic. 

But the facts surrounding the death of Karen Silkwood were suspicious.  Her blood contained 0.35 mg / mL of methaqualone (Quaalude), roughly double the level needed to induce drowsiness.  While it might have been possible to dismiss the accident as resulting from a young woman in the 1970’s ingesting too much of a common-enough recreational drug, there were too many other contextual factors over the preceding week for such a conclusion to be readily accepted. 

When she died, Silkwood had been returning from a meeting of the Oil, Chemical, and Atomic Workers’ Union, and was on her way to meet a journalist.  It is believed that she had been gathering evidence on behalf of her union to support a claim that her employer — the Kerr-McGee plutonium fuels production plant — was engaging in negligent safety practices.  She was by then known as somewhat of a troublemaker.  Already earlier that summer, she had testified about improper safety practices at the company to the Atomic Energy Commission. 

On three distinct occasions during the week before her accident, Silkwood found herself contaminated by plutonium.  The incidents required not only that she undergo decontamination procedures but that her apartment and roommate also be subjected to them.  Many of her belongings needed to be destroyed during the course of the decontamination procedures.  The source of the plutonium contamination remains unclear.  Many believe that Silkwood was a victim of retaliation for her whistle-blowing efforts, while others claimed that she had deliberately contaminated herself as part of an orchestrated effort to generate negative publicity for the company. 

After her death, Silkwood’s father brought an action against the plutonium plant, during which a jury that considered the detailed facts rejected the theory that she had deliberately contaminated herself.  Indeed, the jury awarded $505,000 in compensatory damages and $10 million in punitive damages under Oklahoma state law.  But that decision was not to be the end of the case.  There was an important conflict between federal and state law that ultimately needed to be resolved by the Supreme Court of the United States. 

Under the federal system of the United States, the Supremacy Clause of the U.S. Constitution requires that “the laws of the United States … shall be the supreme law of the land … anything in the constitutions or laws of any State to the contrary notwithstanding.”  Such preemption means that when there is a conflict between federal and state law, the federal law prevails.  And in the Silkwood case, there was a relevant provision in the Atomic Energy Act, which had been passed by Congress in 1954.  In that act, Congress granted the Nuclear Regulatory Commission (then the Atomic Energy Commission) exclusive authority to set safety standards in the nuclear industry.  Barring some minor lapses, Kerr-McGee had generally complied with those federal regulations. 

When the Court of Appeals for the Tenth Circuit heard the case, it reduced the total award to a mere $5000 (the amount of the property damage when Silkwood’s belongings were destroyed), finding that Oklahoma state tort law had been preempted by the federal Atomic Energy Act. 

The case illustrates the dramatic consequences that can result from the act of federal preemption in specific areas — a difference in result between $5000 and one well in excess of $10 million.  Last week, the Supreme Court of the United States considered another case that turned very much on the issue of federal preemption, but this time in the context of the so-called “Vaccine Court.”  A few months ago, I commented on the case here, just before oral arguments were to be heard. 

Created in 1986 by passage of the National Childhood Vaccine Injury Act, the Vaccine Court has a very limited and specific role:  it applies a form of “no fault” system to the adjudication of injuries that result from the administration of vaccines.  The court was created in response to vaccine-related tort actions, most particularly in response to use of the diphtheria, tetanus, and pertussis (“DTP”) vaccine, which was being blamed for an increased incidence of certain developmental disorders in children.  There was a real concern that the potential tort liability for vaccines was driving vaccine manufacturers from the market, and that this was at odds with the government’s public-health objectives. 

The creation of the Vaccine Court and a no-fault system of adjudication gave vaccine manufacturers a concession by limiting their liability in a highly predictable way.  While the structure of the system was successful in stabilizing the vaccination market, the clear downside is that the no-fault nature of the program may provide insufficient safety incentives to vaccine manufacturers and that some of those who are injured by vaccines are significantly limited in their legal recovery, often limited to recovering awards that are significantly less than their actual damages.  Those who suffer the greatest harms would very much like to have access to state tort laws as an avenue for recovering their full damages and it is difficult not to be sympathetic to those innocent children who had reactions to vaccines that significantly impair the quality of their lives. 

There is an important similarity between regulations of safety practices in the nuclear industry and the administration of the Vaccine Court — in both cases, Congress’s decision to preempt a portion of state tort law potentially has the effect of barring people who suffer from very real injuries from recovering their full damages.  In passing this kind of legislation, Congress presumably believes that a broader purpose is served by excluding legal options that would otherwise exist.  The task of the Supreme Court when confronted with such cases is, though, to decide the precise scope of what Congress has preempted and whether it is constitutionally permitted to do so. 

The Supreme Court did ultimately consider the Silkwood case, and reversed the appellate court to reinstate the large damages award.  A copy of the court’s decision in Silkwood can be read here.  But in the case decided last week, the Court upheld the framework of the Vaccine Court, holding that all design-defect claims against vaccine manufacturers are preempted.  A copy of that decision can be read here.  Why the difference? 

The answer is simple— the decisions hinged critically on the statutory language chosen by Congress, with the Court determining that it was Congress’s intention to exclude all avenues of recovery for faulty designs of vaccines except through the Vaccine Court.  The question remains, though:  Given what we know about the safety issues that exist with vaccines, the effect on public health of having them administered, and the impact on manufacturer behavior resulting from its insulation from state tort liability, is Congress’s choice a wise one or a foolish one?

The Right Most Valued

As you prepare to head off on vacation, you run through the list you have diligently prepared to make sure you haven’t forgotten anything.  Clothes for all kinds of weather, something nice to wear when you find a good restaurant, toiletries, and so on.  You check that the water is turned off, that you have left detailed notes for the petsitter, that your mobile phone is charged.  And, these days, you check for compliance with security restrictions:  that you haven’t accidentally put your eyedrops in your carryon bag, that all your liquids are in tiny bottles, that they are neatly packed in a quart-sized bag. 

At the airport, things do not go quite as well as you expect.  You’re standing in the security line, watching your shoes, your jacket, your sweater, your jewellery going through the x-ray scanner as men acting under the authority of the government scan you with detectors, examine your identification, look for telltale signs of nervousness.  Perhaps they even profile you based on the clothing you wear, the shade of your skin, and your age, even though they never admit it. 

One of them comes over to you as you move to retrieve your things from the plastic bins.  He asks you, “Are these your items?”  You’re uncertain why he’s asking but you acknowledge that they are.  “Do you have anything in your bag that you’re not supposed to,” he asks.  You say you don’t, but why is he asking?  He holds up a vial containing white powder.  “Did this come out of your bag?”  You can feel your palms turn sweaty and a lump forms in your throat.  Your voice cracks a bit when you say no, making you worry that it’s all going to make him more suspicious.  His face is serious, accusing.  “Are you sure?” 

It is only after he has frightened you that he confesses it’s just a joke. 

Too funny. 

What I have described is not fantasy.  In January of this year, an employee of the Transportation Security Administration engaged in this prank multiple times with passengers he knew were innocent.  My objective in highlighting the story is not to blow it out of proportion — people do engage in pranks, some of which are inappropriate, and they properly acknowledge that their judgment was poor when they consider things more soberly.  Instead, my objective is to remind us that the employees charged with implementing security at airports are human and the risk that they will act maliciously is not simply hypothetical. 

This is of real concern as the government continues to deploy full-body scanners at airports as part of its security procedures.  The scanners are technological marvels and it’s hard not to remember Arnold Schwarzenegger being scanned by something eerily similar in the movie Total Recall.  Innocent people simply wanting to travel from one location to another — and without the government having any specific reason to suspect them of wrongdoing — are now expected to allow themselves to be scanned in a way that generates images of their naked bodies through their clothes.  Reassurances that privacy protections are in place — by having the viewing officer remote from the scanner, by including imaging techniques that blur facial features, and by implementing a policy requiring deletion of the images — do not really strike at the heart of the privacy concerns.  Even with these protections in place, extremely personal details of people’s bodies are displayed to government agents: colostomy appliances, penile implants, evidence of mastectomy or testectomy, and more. 

Already it is known that many images have been saved, contrary to the policy.  At least one federal security screener in Miami has already been arrested in a conflict that arose when a coworker mocked images of his naked body generated by one of the scanners.  That story can be read here.  A security worker at Heathrow airport was subject to discipline when he made lewd comments about a coworker who was accidentally imaged by a scanner.  That story can be read here.  

The deployment of full-body scanners has been challenged in litigation that raises a number of arguments in asserting that they are unlawful.  First, the lawsuit alleges that the scanners violate the Fourth Amendment’s guarantee that people have the right “to be secure in their persons … against unreasonable searches and seizures.”  It is well-settled that airport security by itself is not an “unreasonable” search that violates the Fourth Amendment.  But there is a significant difference between having passengers walk through magnetometers to detect metal before subjecting them to a more thorough search and requiring that every passenger have their unclothed body imaged.  To be constitutional, airport searches must be “minimally intrusive,” “well tailored to protect personal privacy,” and “neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives.”  Do full-body scanners meet these criteria? 

Perhaps most interesting about the lawsuit, though, is its allegation that the program violates the Religious Freedom Restoration Act.  This act prohibits the government from burdening the exercise of a person’s religion, even from generally applicable rules.  Many religions make physical modesty a part of their doctrine and rules that force all aircraft travelers to violate their beliefs regarding modesty may well violate the statute. 

Airport security has a legitimate role and almost no one maintains that full-body scanners do not have a reasonable place in that security.  What is objectionable is the uniform use of such a personally intrusive scanning technology on people who have raised no suspicion that they have any intention other than wanting to board a plane so they can travel from one place to another.  Programs that make use of the scanners only when some suspicion exists — after detection of metal by a magnetometer, suspicious behavior, unusual ticket-purchasing patterns, and so on — would generate far less objection among travelers. 

Benjamin Franklin has been quoted so frequently since the grim events of September 11, 2001 that to quote him again seems almost trite.  But there is nevertheless truth in his warning, which rings especially cleanly in the way it reminds us that the issues we face today are really no different in kind from those faced by contemporaries of the framers of the Constitution:  “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”  If our own bodies do not define an essential liberty … then what does?

Embers of the Dead

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.

Fraud and Falsehood Dread Examination But Truth Invites It

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.

We’re All Going to Die

We knew the world would not be the same. A few people laughed. A few people cried. Most people were silent. I remembered the line from the Hindu scripture, the Bhagavad-Gita. Vishnu is trying to persuade the prince that he should do his duty and, to impress him, takes on his multiarmed form and says “Now I am become Death, the Destroyer of Worlds.” I suppose we all thought that, one way or another.

These were the words that J. Robert Oppenheimer used to describe the reactions of those who were present at the Trinity test site in New Mexico on the morning of July 16, 1945 when the first nuclear-fission bomb was detonated. One of the issues that had been considered when that bomb was being developed was whether there was any potential for catastrophic results, far beyond the level of devastation that was in fact witnessed when similar fission bombs were deployed a month later in Japan. Edward Teller, who would go on to promote the development of a fusion bomb, had raised the possibility that the temperatures produced by the explosion of a fission bomb would be sufficient to ignite the atmosphere, and thereby result in global catastrophe. The scientists involved in the Manhattan Project to develop the bomb concluded that such an occurrence was, in fact, impossible, and proceeded with the development of a device that still in many ways haunts the political environment of the planet.

More recently, a similar kind of concern has been raised with a different scientific project and in a different context. The Large Hadron Collider (LHC), recently built by the European Organization for Nuclear Research (CERN), is the most powerful particle accelerator ever constructed at a cost of some US$9,000,000,000. Expectations for its potential to shed light on some very fundamental questions in physics about the nature of matter are high, and of much interest in their own right. In particular, scientists hope that the LHC may eventually resolve one of the most important questions about the generation of mass through the Higgs mechanism by producing and detecting the so-called Higgs boson. Experimental identification of the Higgs boson has the potential for largely confirming the Standard Model of elementary particle physics.

But despite its scientific importance — or perhaps because of that importance — there have been a number of legal challenges to operation of the LHC, based mostly on the suggestion that the energies involved might produce small black holes that could swallow up the Earth. It is the stuff that makes up the plots of science-fiction thrillers and while those at CERN are hopeful that the accelerator could produce mini black holes, the danger has been dismissed by particle physicists because the black holes would survive only for very small fractions of a second.

The fact is that the various lawsuits have uniformly failed and on March 30, 2010, the LHC achieved record energy levels in colliding protons together without a hint of catastrophic results. This week, on June 28, 2010, CERN announced that the LHC had doubled the previous record for particle-beam collisions — it was previously held by the Tevatron at Fermilab in Illinois. The LHC is still running at only half the energy it was designed for, but it is hoped it will run at its full energy by sometime in 2013.

What does this say about the intersection of law and science? Scientists complain all the time that lawyers and judges lack the technical expertise to make decisions about which view of the science is correct. Indeed, they feel that far too often, legal decisions are made on the basis of an incorrect, biased, and alarmist view of the science. At the same time, the public is often distrustful of scientists because it believes that scientists get too caught up in the intellectual interest of a project, diminishing legitimate public concerns because they dislike interference in what they are doing. Robert Oppenheimer himself acknowledged this fervor that scientists can have in talking about the Manhattan project: “When you see something that is technically sweet, you go ahead and do it and you argue about what to do about it only you have had your technical success. That is the way it was with the atomic bomb.”

So what are judges who are confronted with such issues to do? To handcuff scientists in response to ignorant and irrational fears is clearly too drastic, especially given the historic benefits that science has had to Mankind. But it is equally too drastic to give scientists an unfettered license to investigate whatever they wish in the name of advancing knowledge when the risks are real and legitimate.

The best answer at the moment is to adhere to the centuries-old principles that have developed in deciding cases. Require that the challengers demonstrate the legitimacy of their concerns and apply balancing tests that evaluate the real level of risk — knowing that what we are talking about is risk and not certainty — against the potential benefit. This is precisely what the judges in the various lawsuits against the LHC have done, finding that the risk identified by the challengers is remote enough and the benefits provided by the LHC are great enough that it would be a mistake to shut it down.