The Faculty Lounge

Taboo Trades Podcast: Payment, Exploitation, & Clinical Trials with Holly Fernandez Lynch

In this episode, Holly Fernandez Lynch and I continue our discussion of clinical research ethics with co-hosts Rahima Ghafoori and Caroline Gozigian (UVA Law '23). In this Part 2 of our interview, we focus on questions of payment, exploitation, and trust. As a reminder, in Part I, Holly introduced the basic regulatory framework governing clinical trials, with a focus on laws and rules impacting payment. She also discussed the benefits of and concerns about human challenge studies, and shared some historical examples.

 

 

Holly Fernandez Lynch, JD, MBE, is Assistant Professor of Medical Ethics in the Department of Medical Ethics and Health Policy at the Perelman School of Medicine (PSOM), University of Pennsylvania. She has a secondary appointment as an Assistant Professor of Law at the University of Pennsylvania Carey Law School.

A lawyer and bioethicist by training, Professor Fernandez Lynch’s scholarly work focuses on Food and Drug Administration (FDA) pharmaceutical policy, access to investigational medicines outside clinical trials, clinical research ethics, and the ethics of gatekeeping in health care. Her specific areas of expertise include Institutional Review Board (IRB) quality, payment to research participants, research prioritization, pre-approval access pathways (e.g., Expanded Access, Emergency Use Authorization, and Right to Try), and efforts to balance speed and certainty in drug approvals, including pathways that rely on post-approval trials such as accelerated approval.

Beat It on Down the Line

"Beat It on Down the Line" was written by the great Jesse Fuller, who performed it as a one-man band on 12-string guitar, harmonica, kazoo, high-hat cymbal, and fotdella (a six-string upright bass of his own invention and construction, played with his right foot). It was covered by the Grateful Dead on their first album, and most covers since have been of the Dead's version.

Unusually, this post begins with two audio clips because (1) I cannot find a video of Fuller performing this song, and (2) I really like the tambourine coming in on the third verse of the Dead's recording -- at 1:44. It is probably my single favorite moment in the entire Grateful Dead oeuvre -- which for some reason was not used in their live performances. There is also a video clip of Fuller at the bottom of this post.

Symposium Announcement—The Federal Income Tax: Racially Blind but Not Racially Neutral

Lawyers, Zeal, and the Unpopular Client (Part IV)

Guest post by Michael Ariens:

            This is the fourth of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).

            Philip Graham, the newspaper publisher trained in law at Harvard, spoke to the members of the Association of the Bar of the City of New York in late 1951. He reminded his audience that they were crucial to protecting individual liberty. That duty included representing those accused of conspiring to overthrow the government, as in United States v. Dennis, and those accused of associating with Communists. Graham concluded “the legal profession has substantially failed to meet its proper obligations of supporting individual freedom.” Graham lay the blame on the commercialization of the legal profession, as too many lawyers considered themselves “a part of his client rather than a part of the law.” If this was the route lawyers were going to take, Graham argued they needed to dispense with the charade that they were “guided by a sense of public responsibility higher than the ordinary self-interest of the business men and merchants.”

Poker Strategy

Poker often resembles litigation, in that both involve decision making with incomplete information. When it comes to strategy, poker players have an advantage over lawyers, because they play, observe, or simulate nearly identical hands dozens or hundreds of times in nearly experimental conditions. Here is an example of poker wisdom, explaining how mistakes are made and how to avoid them:

 

Lawyers, Zeal, and the Unpopular Client (Part III)

Guest post by Michael Ariens:

            This is the third of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).

            The January 1948 issue of the ABA Journal re-published a December 2, 1947 letter to the editor of the Boston Globe by Supreme Court Justice Felix Frankfurter. Frankfurter wrote praising the professional life of the recently-deceased Boston lawyer, Arthur D. Hill. Frankfurter wrote to clarify in the public record the circumstances of Hill’s decision to agree to serve as counsel to Nicola Sacco and Bartolomeo Vanzetti during “the final stages of that affair.” (They were executed in 1927.) Frankfurter, then a Harvard Law School professor, believed the defendants were innocent. In Frankfurter’s rendition, their lawyer William Thompson needed to withdraw because he “had exhausted his energy in his powerful devotion to the cause of the men.” Some appellate process could be taken on behalf of Sacco and Vanzetti, and Frankfurter was asked to inquire whether Hill would be willing to represent the convicted defendants. Frankfurter recounted that when he approached Hill, he informed him that his work “would have to be solely as an exercise of the public profession of the law, for it would have to be done without a fee.”   Hill agreed it was “a perfectly honorable thing” to assess the record and determine whether a lawyer might proceed to press any remaining legal issues. The unpopularity of Sacco and Vanzetti in Massachusetts was irrelevant to his assessment.

            Hill looked at the record and agreed to represent the men. In The Legacy of Sacco & Vanzetti (1948), the authors conclude that, though the record is fragmentary, Hill spoke “with great force” in requesting a new trial. He was unsuccessful.

               Frankfurter believed the lesson of Hill’s decision to represent two very unpopular clients demonstrated the best of the American legal profession. His letter ended with a long quotation of what Frankfurter said Hill told him: Hill declared that he would take a $50,000 retainer to represent a wealthy person convicted of murder who sought some legal relief. In this case, “I do not see how I can decline a similar effort of Sacco and Vanzetti simply because they are poor devils against whom the feeling in the community is strong and they have no money with which to hire me. I don’t particularly enjoy proceedings that will follow, but I don’t see how I can possibly refuse to make the effort.”