The Faculty Lounge

How Should We Think About Whether To Donate Our Leftover, Non-Identified Tissue to Research?

Proposed changes to the federal Common Rule that governs most human subjects research would ask patients for the first time to decide whether to allow their non-identified, leftover tissue to be used for research or thrown away. For that choice to be meaningful, the public needs to be aware of the nature, risks, and benefits of biospecimens research, and of what the proposed changes will—and will not—do. In my latest Forbes essay, "No, Donating Your Leftover Tissue To Research Is Not Like Letting Someone Rifle Through Your Phone," I consider the power of analogies and other reflections on a recent New York Times op-ed on these proposed changes by Rebecca Skloot, author of The Immortal Life of Henrietta Lacks.

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways From Maine DHHS v. Hickox

UPDATES (11/9/14): NPR reports that Hickox's boyfriend  has withdrawn from nursing school and that the two will move out of the state after Nov. 10. Alas, in so reporting, NPR claims that Maine had "sought a court order to require [Hickox] to stay indoors." Apparently NPR doesn't read TFL (or court petitions). Meanwhile, I found this recent JAMA news report about what we do and don't know about Ebola enlightening. Both links via Ross Silverman on Twitter (@phlu). Finally, thanks to Christian Turner for plugging the post on the latest episode of the always interesting Oral Argument podcast.

The case I mentioned in my last post, Maine Department of Health and Human Services v. Kaci Hickox is no more. Hickox and public health officials agreed to stipulate to a final court order imposing on Hickox the terms that the court had imposed on her in an earlier, temporary order. Until Nov. 10, when the 21-day incubation period for Ebola ends, Hickox will submit to "direct active monitoring" and coordinate her travel with Maine public health authorities to ensure that such monitoring occurs uninterrupted. She has since said that she will not venture into town or other public places, although she is free to do so.

Below is a detailed account of the case, which suggests the following lessons:

1. As Hickox herself described it, the result of her case is a “compromise,” reflecting neither what Hickox nor what Maine initially wanted.
2. That compromise was achieved by the parties availing themselves of the legal process, not through Hickox’s civil disobedience.
3. The compromise is not easily described, as it has been, as a victory of science-based federal policy over fear-based state demagoguery. By the time the parties got to court, and perhaps even before then, what Maine requested was consistent with U.S. CDC Guidance, albeit a strict application of it. What Hickox had initially offered to do, by contrast, fell below even the most relaxed application of those guidelines, although by the time the parties reached court, she had agreed to comply with that minimum.
4. The compromise applies only to Hickox, and was based on a stipulation by the parties to agree to the terms that the court had temporarily imposed after reviewing a limited evidentiary record. Additional evidence and legal arguments that the state might have raised in the now-cancelled two-day hearing could have resulted in a different outcome.
5. A substantially different outcome, however, would have been unlikely under Maine’s public health statute. Indeed, it is not clear that Maine’s public health statute allows public health authorities to compel asymptomatic people at-risk of developing Ebola to do anything, including comply with minimum CDC recommendations.
6. “Quarantine” is a charged, but ambiguous, term. It allows us to talk past one another, to shorthand and needlessly politicize a much-needed debate about appropriate policy, and to miss the fact that the CDC Guidance in some cases recommends what could be fairly described as a "quarantine" for people like Hickox and requires it for asymptomatic people with stronger exposure to Ebola (but who are still probably less likely to get sick than not).
7. It’s not clear who has bragging rights to Ebola policy "grounded in science," or what that policy looks like.

Above the (Public Health) Law: Healthcare Worker Deception & Disobedience in a Time of Distrust

Addendum and updates (latest: 4 pm, 10/31) added below

 

A physician shall . . . be honest in all professional interactions, and strive to report physicians . . . engaging in fraud or deception, to appropriate entities.

 

—AMA Principles of Medical Ethics

 

 

This is a troubling series of news reports about deception and defiance on the part of some healthcare workers (HCWs) in response to what they believe to be unscientific, unfair, and unconstitutional public health measures:

(1) Ebola Aide Doc: I'm Not Telling My Team To Tell The Truth

Gavin Macgregor-Skinner, an epidemiologist and Global Projects Manager for the Elizabeth R. Griffin Foundation, who has led teams of doctors to treat Ebola in West Africa, reported that he "can't tell them [his doctors] to tell the truth [to U.S. officials]" on Monday's "CNN Newsroom."

“At the moment these people are so valuable . . . I have to ensure they come back here, they get the rest needed. I can't tell them to tell the truth at the moment because we're seeing so much irrational behavior,” he stated. “I've come back numerous times between the U.S. and West Africa. If I come back now and say ‘I've been in contact with Ebola patients,’ I'm going to be locked in my house for 21 days,” Macgregor-Skinner said as his reason for not being truthful with officials, he added, “when I'm back here in the US, I am visiting US hospitals everyday helping them get prepared for Ebola. You take me out for three weeks, who’s going to replace me and help now US hospitals get ready? Those gaps can't be filled.” 

He argued that teams of doctors and nurses could be trusted with the responsibility of monitoring themselves, stating, “When I bring my team back we are talking each day on video conferencing, FaceTime, Skype, text messaging, supporting each other. As soon as I feel sick I’m going to stay at home and call for help, but I’m not going to go to a Redskins game here in Washington D.C. That's irresponsible, but I need to get back to these hospitals and help them be prepared.

UPDATE: Here is the CNN video of his remarks.

(2) Ebola Doctor 'Lied' About NYC Travels

The city’s first Ebola patient initially lied to authorities about his travels around the city following his return from treating disease victims in Africa, law-enforcement sources said. Dr. Craig Spencer at first told officials that he isolated himself in his Harlem apartment — and didn’t admit he rode the subways, dined out and went bowling until cops looked at his MetroCard the sources said. “He told the authorities that he self-quarantined. Detectives then reviewed his credit-card statement and MetroCard and found that he went over here, over there, up and down and all around,” a source said. Spencer finally ’fessed up when a cop “got on the phone and had to relay questions to him through the Health Department,” a source said. Officials then retraced Spencer’s steps, which included dining at The Meatball Shop in Greenwich Village and bowling at The Gutter in Brooklyn.

 

UPDATE 11PM, 10/30: A spokesperson for the NYC healh department has now disputed the above story, which cites anonymous police officer sources, in a statement provided to CNBC. The spokesperson said: "Dr. Spencer cooperated fully with the Health Department to establish a timeline of his movements in the days following his return to New York from Guinea, providing his MetroCard, credit cards and cellphone." . . . When CNBC asked again if Spencer had at first lied to authorities or otherwise mislead them about his movements in the city, Lewin replied: "Please refer to the statement I just sent. As this states, Dr. Spencer cooperated fully with the Health Department."

(3) Ebola nurse in Maine rejects home quarantine rules [the WaPo headline better captures the gist: After fight with Chris Christie, nurse Kaci Hickox will defy Ebola quarantine in Maine]

Kaci Hickox, the Ebola nurse who was forcibly held in an isolation tent in New Jersey for three days, says she will not obey instructions to remain at home in Maine for 21 days. "I don't plan on sticking to the guidelines," Hickox tells TODAY's Matt Lauer. "I am not going to sit around and be bullied by politicians and forced to stay in my home when I am not a risk to the American public."

Maine health officials have said they expect her to agree to be quarantined at her home for a 21-day period. The Bangor Daily News reports. But Hickox, who agreed to stay home for two days, tells TODAY she will pursue legal action if Maine forces her into continued isolation. "If the restrictions placed on me by the state of Maine are not lifted by Thursday morning, I will go to court to fight for my freedom," she says.

On the evolving Hickox situation, it's unclear whether — as Hickox herself has suggested — she is already under a mandatory home quarantine order, which she is threatening to defy by leaving her house on Thursday morning and (unless it's been lifted) suing, or whether — as her attorneys say — she is currently under no such quarantine order and is free to leave her house at any time (but is choosing to rest for a couple of days). In any case, Maine has clearly said that it is prepared to get a court order to enforce (or impose) a quarantine order.

 

More after the jump...

 

Whose Business Is It If You Want To Induce a Bee To Sting Your Penis?

You might think that the answer to this question is obvious. Obviously, it's your business, and yours alone, right? I mean, sure, maybe it would be considerate to discuss the potential ramifications of this activity with your partner. And you might want to consider the welfare of the bee. But other than that, whose business could it possibly be?

Well, as academic empiricists know, what others can do freely, they often require permission to do. Journalists, for instance, can ask potentially traumatizing questions to children without having to ask whether the risk to these children of interviewing them is justified by the expected knowledge to be gained; academics, by contrast, have to get permission from their institution's IRB first (and often that permission never comes).

So, too, with potentially traumatizing yourself — at least if you're an academic who’s trying to induce a bee to sting your penis in order to produce generalizable knowledge, rather than for some, um, other purpose.

Earlier today, science writer Ed Yong reported a fascinating self-experiment conducted by Michael Smith, a Cornell graduate student in the Department of Neurobiology and Behavior who studies the behavior and evolution of honeybees. As Ed explains, when, while doing his other research, a honeybee flew up Smith's shorts and stung his testicles, Smith was surprised to find that it didn't hurt as much as he expected. He began to wonder which body parts would really smart if they were stung by a bee and was again surprised to learn that this was a gap in the literature. So he decided to conduct an experiment on himself. (In addition to writing about the science of bee stings to the human penis, Ed is also your go-to guy for bat fellatio and cunnilingus, the spiky penises of beetles and spiders, and coral orgies.)

As Ed notes, Smith explains in his recently published paper reporting the results of his experiment, Honey bee sting pain index by body location, that

Cornell University’s Human Research Protection Program does not have a policy regarding researcher self-experimentation, so this research was not subject to review from their offices. The methods do not conflict with the Helsinki Declaration of 1975, revised in 1983. The author was the only person stung, was aware of all associated risks therein, gave his consent, and is aware that these results will be made public.

As Ed says, Smith's paper is "deadpan gold." But on this point, it's also wrong.

Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 2)

In Part I of this little series, I laid out some of the statistics regarding the scope of the problem of depression and anxiety among lawyers and law students.  Before I tell my story, I want to spend a little time talking about why these diseases are so prevalent among lawyers.    

One of the more eloquent “whys” for the high incidence of depression among lawyers was contained in an opinion piece by Patrick Krill (a lawyer, clinician and board-certified counselor) that accompanied the CNN article on lawyer suicides.  As Patrick put it, “lawyers are both the guardians of your most precious liberties and the butts of your harshest jokes[; i]nhabiting the unique role of both hero and villain in our cultural imagination….”  Patrick explained that the high incidence of depression (and substance abuse, which is another huge problem) was due to a number of factors but that “the rampant, multidimensional stress of the profession is certainly a factor.”  Further, “there are also some personality traits common among lawyers — self-reliance, ambition, perfectionism and competitiveness -- that aren't always consistent with healthy coping skills and the type of emotional elasticity necessary to endure the unrelenting pressures and unexpected disappointments that a career in the law can bring.” 

Patrick’s discussion of this issue really stuck a cord with me.  Practicing law is hard.  The law part is not that hard (that was the fun part for me), but the business side of law is a bear.  Finding clients, billing time, and collecting money, are just a few aspects of the business of law of which I was not a big fan.  Keeping tasks and deadlines in dozens (or hundreds) of cases straight and getting everything done well and on time is a constant challenge.  The fear of letting one of those balls drop can be terrifying, especially for the type A perfectionist who is always terrified of making a mistake or doing a less than perfect job.  Forget work-life balance.  Forget vacations.  Every day out of the office is another day you are behind. 

Plus, as a lawyer (and especially as a litigator), no matter how good a job you do, sometimes you lose.  That inevitable loss is made worse by the emotion that the lawyer often takes on from his or her client.  Almost no client is excited to call her lawyer.  Clients only call, of course, when they have problems.  Those problems can range from the mild (for example, a traffic ticket) to the profound (like a capital murder charge).  But whatever the problem, the client is counting on the lawyer to fix it.  Every lawyer I know takes that expectation and responsibility very seriously.  As much as you try not to get emotionally invested in your client’s case or problem, you often do.  When that happens, losing hurts.  Letting your client down hurts.  This pain leads to reliving the case and thinking about all of the things you could have done better.  This then leads to increased vigilance in the next case.  While this is not necessarily a bad thing, for some lawyers this leads to a constant fear of making mistakes, then a constant spike of stress hormones that, eventually, wear the lawyer down.  The impact of this constant bombardment of stress hormones can be to trigger a change in brain chemistry that, over time, leads to major depression.    

Depression is a subtle and insidious disease.  By the time you are sick enough to recognize that you have a problem, your ability to engage in accurate self-evaluation is significantly impaired.  It is a strange thing to know, deep down, that something is wrong with you but to not be able to recognize the massive changes in yourself.  Helping yourself at that point is often impossible.  Unfortunately, those suffering from depression become expert actors who are extremely adept at hiding their problems and building a façade of normalcy.  Eventually, it takes all of your energy to maintain this façade.  The façade becomes the only thing there is.   

Depression is not a character flaw.  It is not a weakness.  It is not a moral failing.  You cannot “just get over it.”  No amount of will-power, determination or intestinal fortitude will cure it.  Depression is a disease caused (in very basic and general terms) by an imbalance and/or insufficiency of two neurotransmitters in the brain: serotonin and norepinephrine.  In this way, it is biologically similar to diabetes, which is caused by the insufficiency of insulin in the body.  As a disease, depression can be treated – and treated very effectively.  But it takes time and it takes help – personal help and professional help.

And now we get to the personal part.  Don’t say I didn’t warn you.

Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 1)

Back in January, CNN ran a piece entitled “Why Are Lawyers Killing Themselves.”  In general, the piece focused on a spate of lawyer suicides in Kentucky and other states over the last several years.  Most of the suicides (15 since 2010) in Kentucky were seemingly successful lawyers.  One was a relatively young (37) and popular adjunct professor at NKU’s Chase College of Law. 

Outside of Kentucky, another prominent lawyer suicide was Mark Levy, the chair of Kilpatrick Stockton’s Supreme Court and Appellate Litigation Practice in D.C.  Mr. Levy was a top Supreme Court advocate, having argued 16 times before the Court and, in January 2009, won a 9-0 victory for DuPont in an important ERISA case (Kennedy v. Plan Administrator, 555 U.S. 285 (2009)).  However, in April 2009, as the economy tanked, Kilpatrick Stockton informed Mr. Levy that his services were no longer needed.  So, Mr. Levy came to work on April 30, 2009, sat down at his desk, activated the “out of office” auto-reply feature on his email account and shot himself in the head.  Chillingly, the “out of office” message Mr. Levy activated that morning was as follows:  “As of April 30, 2009, I can no longer be reached. If your message relates to a firm matter, please contact my secretary. If it concerns a personal matter, please contact my wife.”  (See Richard B. Schmitt, “A Death in the Office,” ABA Journal, Nov. 2009, at 30-31). 

Here in North Carolina, one of the founders of King & Spalding’s Charlotte office, who was profoundly successful; a prominent litigator in McGuireWood’s Raleigh, N.C. office; and numerous quietly successful small town lawyers have committed suicide in recent years.

The common thread running through most of these suicides?  Clinical Depression (a/k/a “major depressive disorder”). 

According to the American Psychiatric Association and numerous other sources, depression is the most likely trigger for suicide.  Lawyers, as a group, are 3.6 times more likely to suffer from depression than the average person.  Of 104 occupations, lawyers were the most likely to suffer depression.  (Both of these statistics are from a Johns Hopkins University study to which I cannot find a link). 

Further, according to a two-year study completed in 1997, suicide accounted for 10.8% of all deaths among lawyers in the United States and Canada and was the third leading cause of death.  Of more importance was the suicide rate among lawyers, which was 69.3 suicide deaths per 100,000 individuals, as compared to 10 to 14 suicide deaths per 100,000 individuals in the general population.  In short, the rate of death by suicide for lawyers was nearly six times the suicide rate in the general population.  

A quality of life survey by the North Carolina Bar Association in the early 1990s, revealed that almost 26% of respondents exhibited symptoms of clinical depression, and almost 12% said they contemplated suicide at least once a month.  Studies in other states have found similar results.  In recent years, several states have been averaging one lawyer suicide a month. 

What is worse is the state of our students.  According to a study by Prof. Andy Benjamin (U. Wash.), by the spring of their 1L year, 32% of law students are clinically depressed, despite being no more depressed than the general public (about 8%) when they entered law school.  By graduation, this number had risen to 40%.  While this percentage dropped to 17% two years after graduation, the rate of depression was still double that of the general public.  (See http://www.lawyerswithdepression.com/law-school-depression/). 

These statistics, which likely have not improved in recent years, are terrifying.

In the months since CNN ran its story, I have (unsuccessfully) tried to shake the feeling that we (as lawyers, law professors and the mentors of a generation of law students) missed out on a valuable opportunity to more fully address an issue that is critical to the legal profession.  So, when the opportunity to post here came along, I decided to revisit this issue and to do so in a personal way. 

I will admit to being a bit nervous about even raising this topic.  (Given the nature of many anonymous internet commenters, I think most people would be hesitant to bare even a minute portion of their souls online and attempt to engage with a very serious subject, only to be subject to snarky or mean-spirited attacks.)  Plus, mental illness and suicide are not comfortable subjects for most people.  There remains a very real stigma attached to mental illness.  Many people believe that suffering from clinical depression, anxiety disorder, bipolar disorder, or a host of other mental illnesses is a character flaw or a weakness.  Having one of these diseases has been seen as something of which the sufferer should be ashamed.  This attitude has been in place for too long for people to easily change their perceptions and opinions. 

However, as lawyers and law professors, we must to do more.  It is clear that our students need us to do more.  When you are depressed, you feel so terribly alone.  You feel different.  You feel ashamed.  You feel weak.  You feel like you will never feel better and that you can never be the person you want to be. 

If 40% of our students feel this way, we must do more.  They look up to us.  They see us as role models and mentors.  They see us as strong and successful and confident.  They need to see that suffering from depression or anxiety or bipolar disorder will not curse them for all time and destroy their lives.  These are treatable diseases, not character flaws.  They need us to be brave and be honest. 

A few law professors have publically “come out” (so to speak) about their struggles with mental illnesses: Prof. Elyn Saks at Southern Cal (schizophrenia, via The Center Cannot Hold: My Journey Through Madness (2007)); Prof. Lisa McElroy at Drexel (anxiety disorder, via an article on Slate); and Prof. James Jones at Louisville (bipolar disorder, via an article in Journal of Legal Ed.).  They were all tenured when they did so.  

And then there is me: an untenured, assistant professor with five kids, who left a generally successful practice career to teach at Charlotte School of Law.  So, anonymous internet commentators be damned . . .

My name is Brian Clarke.  I am a father, a husband, a lawyer and a law professor.  And I suffer from major depressive disorder and generalized anxiety disorder. 

So there you have it.  While I have been “out” at Charlotte Law and have spoken publicly about my disease, this is the most wide-open forum in which I have come out. 

In my next post, I will share my story (a piece of public soul baring that you should not miss!).  In the third (and mercifully final) post in this little serial adventure, I will discuss the role my struggles with depression and anxiety have played (and continue to play) in the classroom. 

[FYI, as this is a serious topic, I will moderate any comments to this post and delete anything I deem inappropriate or off topic.]

Justice Scalia's Dissent in Windsor & Why Everyone Should Learn Indian Law

I was reading Justice Scalia's dissent in Windsor the other night and came across a statement that was wrong in regard to whether the Court had decided a previous case in which the plaintiff and defendant were not adverse.  There is a very clear example from federal Indian law that contradicted his statement that the Court has never decided such a case, yet no one, as far as I could tell, cited it in the briefs or in any of the opinions.  This experience reminded me how important Indian law is, even for those who don't practice or teach it.

Specifically, Justice Scalia says "[w]e have never before agreed to speak--to 'say what the law is--where there is no controversy before us."  United States v. Windsor, 133 S. Ct. 2675, at 2700 (Scalia, J., dissenting).  So convinced is he of this proposition that he repeats later on, "[t]he majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below."  Id. at 2702.

Yet, in Menominee Tribe v. United States, 391 U.S. 404 (1968), Justice Douglas, writing for the majority, explains:  

" The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts.  On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed."  Id. at 407 (emphasis added).

This could have been an incredibly useful case for the majority opinion (and the plaintiff's argument), and knowing about it and distinguishing it could have strengthened Justice Scalia's dissent, but apparently it was on no one's radar, which demonstrates I think just how marginalized federal Indian law is.  

Justice Scalia, for his part, has, at least in the past, controversially suggested that he doesn't need to decide Indian law cases based on precedent, so perhaps there is little reason, in his view, for him to be well-versed in the precedents.   In a 1990 memo to Justice Brennan, he is reported  to have said:  "[O]ur opinions in this field have not posited an original state of affairs that can subsequently be altered only by explicit legislation, but have rather sought to discern what the current state of affairs ought to be by taking into account all legislation, and the congressional 'expectations' that it reflects, down to the present day."  Philip P. Frickey, "A Common Law for Our Age of Colonialism: the Judicial Divestiture of Indian Tribal Authority over Nonmembers," 109 Yale L.J. 1, 63 (1999) (emphasis added).  And, of course, it wasn't just Justice Scalia's oversight--apparently no one thought to raise or distinguish Menominee Tribe.  

But Windsor is evidence of why federal Indian law is important, even if you don't expect to teach it, practice it, or decide cases based on it.  It relates to other areas.   Not only do the cases include structural constitutional issues like the case or controversy requirement, but federal Indian law, contrary to most people's perceptions, is a very broad subject.  Issues of taxation, criminal jurisdiction, civil jurisdiction, civil rights, administrative law, environmental law, and child welfare all come up with some regularity.

And that's just the beginning.  There's also the fact that federal Indian law is incredibly interesting in it's own right, and it provides important insight into our government and society.  Felix Cohen, the primary architect of the field, once explained:  "'Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians . . . reflect[s] the rise and fall in our democratic faith."   Rennard Strickland, "Indian Law and the Miner's Canary:  The Signs of Poison Gas," 39 Clev. St. L. Rev. 483, 483 (1991).  If you want to learn about white fear, for example, just read a Supreme Court case about tribal jurisdiction.  Jurisdiction cases such as Oliphant v. Suquamish Indian Tribe, Plains Commerce Bank v. Long Family Land & Cattle, Nevada v. Hicks, and Justice Kennedy's concurrence in the judgment and Justice Souter's dissent in United States v. Lara are replete with concerns (sometimes implicit but always readily perceptible) that tribes will not treat non-member litigants fairly.  Sometimes I wonder why all of this concern exists.  And then America's history of interaction with tribes pops into my head and explains it.  Assimilation, termination, extermination have all been official U.S. policies with respect to tribes.  As a psychological matter, the fear is understandable.

Along with white fear, you can see the cases in a broader context and think about our government's hypocrisy.  While the Court worried about potential unfairness to nonmember litigants in tribal courts, and denied tribal jurisdiction as a prophylactic measure to prevent it, American officials were busy waterboarding and otherwise torturing non-citizens suspected of terrorism, and the federal courts seemed eager to avoid hearing about it. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009); El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007); Ann E. Tweedy, "Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States V. Lara: Notes Toward a Blueprint for the next Legislative Restoration of Tribal Sovereignty," 42 U. Mich. J.L. Reform 651, 707 n.274 (2009).

 And beyond of all these macro issues, federal Indian law, given its variety and complexity, is endlessly interesting.  Not to mention that working for tribes is an incredible learning experience and one of the best jobs out there.

3L Nuggets: 2. Are typos the enemy?

The legal profession takes a strong stand against typos.

I will admit that as a history graduate student, I thought the research and the writing would speak for themselves. The occasional typo or style slipup, while I would try to catch them when I proofread, would not faze me too much.

For more than two years now I have seen hawkeyed professors and firm partners find even the smallest typographical error with a kind of typo omniscience that puts the fear of the almighty into law students everywhere.

This is especially the case when it comes to legal citation, when a misplaced apostrophe or comma is an easy sin to commit.

Indeed, legal professionals can make a strong argument when pressed on the importance of eliminating even the smallest typos:  Lawyers need to care about such things because they have clients to represent and judges to persuade.

Clients see carelessness that ignores how important the case is to them and how much money they are spending on your services. Judges see an insouciance that keeps them from trusting you. How can they be sure you are citing cases properly and advancing credible arguments when you reference a “squid pro quo” exchange?

I will say that I read and reread what I write many more times and much more carefully than I did before law school. Will I catch everything? Maybe not. Maybe there's a typo in this very post! But if I don’t, at least at this point it won’t be because I don’t care. This is another area where law school successfully indoctrinates the law student.

Can you spot the difference between the italicized and regular period? . .

Anyone out there want to defend the occasional typo? One argument I can think of is that spending hours checking for typos can increase legal costs and make law less efficient. 

I’m No Fourth Amendment Expert, But…

UPDATE 11/7/13, 1:50 pm: Thanks to MacK for providing a link to Eckert's motion for partial summary judgment in the comments below. That motion cites much of the search warrant affidavit, but Ken White at Popehat has now posted and analyzed the affidavit itself.

In the affidavit, Officer Chavez does allege that Eckert's posture was "erect" and that he "kept his legs together" — but also that: Eckert avoided making eye contact with the officer as he asked him for his license and registration; that Eckert's left hand was shaking as he handed Chavez the documents; that Eckert "stated that he had a problem with [Chavez] searching his person"; that the canine LEO, upon being walked around the outside of the vehicle, "alerted to the driver's side of the vehicle"; that the canine LEO, upon making entry into the cab of the vehicle "a short time later," alerted to the "driver's side seat"; and that the K-9 officer said that he "had dealt with Mr. Eckert on a previous case and stated that Mr. Eckert was known to insert drugs into his anal cavity and had been caught in Hidalgo County with drugs in his anal cavity."

UPDATE 11/7/13, 6:15 am: As I implied in the OP (which is now below the fold), and as I stated explicitly in my comment at 7:26 pm last night, "what primarily struck me as remarkable about the Eckert case is that the apparent bare (no pun intended) fact of buttock clenching could constitute probable cause of drug possession." Unfortunately, as I had acknowledged by 10:14 pm, after I had finally gotten around to reading the complaint,

it seems that, contrary to what I complained about above, and how the media has portrayed the case, there were, in fact, additional alleged bases for probable cause beyond the infamous clenched buttocks -- namely, a canine LEO that alerted to Eckert's car seat and one officer who claimed that Eckert was known to conceal drugs in his anal cavity.

To be sure, as I also noted in that 10:14 pm comment, "the complaint alleges that there were problems with the canine LEO known to the officers and that the officer who made allegations about Eckert's habit of drug concealment knowingly lied about this." And to be sure, even if there was probable cause for an initial one, or even two or three, searches, that doesn't resolve questions about the appropriateness of either the officers' or the doctors' roles in performing eight invasive-but-fruitless searches over the course of several hours. Still, I was initially moved to blog about this case primarily because of the absurdity of concluding probable cause from buttock-clenching-without-more. I maintain that that would indeed be absurd. Yet even the plaintiff's own complaint presents a much more complex (if not necessarily benign) picture of the alleged basis for the searches.

I wrote the OP entirely on the basis of the two media/blog reports that I linked to in the OP, both of which framed this as the Buttocks Clenching Case, and neither of which included a link to the complaint (both sources have since updated their posts to embed the complaint or include a link to it). A successful Google search for a publicly accessible copy of the complaint, and the resulting link to it, was a last-minute addition to the OP as I rushed out the door. I did glance at the first few pages, where I noticed that the suit covers an earlier traffic stop as well, something that I hadn't seen mentioned in the media reports on which I was relying. That fact alone should have alerted me to the likelihood that there was more to the story—even from the plaintiff's own perspective, as articulated in the complaint—than the media were reporting, and persuaded me to hold off on pressing the publish button.

As he promised in the comments here, Orin Kerr has offered early this morning a typically thoughtful analysis of the case over at VC. Read the whole thing, but for present purposes, this is worth highlighting:

Some media coverage on this case focuses on the line in the affidavit that the officer had apparently said that Eckert had a stiff posture and kept his legs together, which some blog posts are reporting as the sole basis for the warrant. The HuffPost article on the case offers this inflammatory opening line: “A New Mexico man is alleging abuse after authorities conducted three enemas, a colonoscopy, an X-ray and several cavity searches on him simply because he appeared to clench his buttocks.” As a result, a lot of folks in the blogosphere seems to be thinking of this as the “clenched buttocks” case (thus the title of this post, so people know which case I have in mind). But that seems like at most a very small picture of the alleged cause, and we don’t even know if that was in the affidavit. The likely basis for the alleged cause is mostly the drug-sniffing dog’s alert to the driver’s seat that is the likely basis for probable cause.

Orin ends his post by noting that although "some readers are going to be irate that I am providing a legal analysis on an emotional case, and others will be annoyed that I haven’t reached a clear answer," his "comparative advantage is analysis rather than emotion." I actually like to think that that is more often than not my comparative advantage as well, and I regret that it wasn't this time. Mea culpa.

My L.A. Times Op-Ed: In Defense of the Evidence-Based Nudge

The op-ed, which will appear in tomorrow’s print edition, is online here. It’s co-authored with Christopher Chabris (who happens to be my husband). Here—where I’m writing only for myself—I thought I’d say a bit about what motivated us and elaborate on a few points whose force may have been blunted by the process of condensing our thougts into our allottted 1,000 words.

The news hook for the article was an August memo leaked to Fox News in which the Obama administration announced that it is looking to hire behavioral scientists to help shape policy. Notwithstanding that the explicit model for this initiative is the U.K.’s “Behavioral Insights Team,” formed in 2010 by Conservative Prime Minister David Cameron, in the U.S., some on the right went completely off the rails about the Obama announcement.

A typical reaction was from Fox News’s Monica Crowley, who described the initiative as “really frightening,” “insane,” “outrageous,” “unconstitutional,” “an Orwellian horror show”—and all of the aforementioned mostly because, so far as I can tell, she believes that nudges constitute a form of “psychological warfare” akin to “what our military does to our enemies.” There are certainly legitimate criticisms of nudges to be made by both the right and the left, but that they are a form of Communist mind control is not among them. (For starters, even if nudges did rely on something like subliminal messages, those messages have been shown to have no effect on consumer behavior, much to the chagrin of marketers.)

The impetus for our piece, then, was to disabuse the Crowleys of the world (or at least that portion of them who are open to persuasion on this matter) of that notion, and then to offer some affirmative reasons why conservatives and libertarians should embrace the nudge (its preservation of all options in the choice set; its ability to incentivize personal responsibility; its efficiency), especially relative to its often perfectly viable alternative: the shove. (To that end, the piece was originally intended for a periodical with a right-of-center audience but wound up in the L.A. Times, where some of it may admittedly amount to preaching to the choir.)

In making our case...

What Do Zimmerman’s Calls to Police Show About His View of Black Men?

Updated below

Most of the trial of George Zimmerman (GZ) for the second-degree murder of Trayvon Martin (TM) overlapped with my vacation. I’m a trial junkie (yes, I watched large portions of the Casey Anthony and Jodi Arias trials, and am not ashamed to admit it), and much to my companions’ dismay, I spent quite a bit of my vacation time streaming the trial on my laptop or iPhone. I had paid very little attention to the case prior to trial but, like anyone with a pulse who consumes any media whatsoever, I became passively aware of the basic “facts” of the case: White wannabe cop GZ calls 911 to report “This guy looks like he’s up to no good. He looks black.” Shoots TM dead and emerges without a scratch on him. Stand Your Ground. #OhFlorida.

Watching (about 80% of) the trial, then, revealed several things to me, much as it did to others. GZ, it turns out, did not emerge unscathed from his encounter with TM, and in any event, the legal relevance of his actual injuries is not what many (mostly non-lawyers) believe it to be (me, commenting at Prawfs). The trial had precisely nothing to do with Stand Your Ground or any quirk of Florida law, and everything to do with the utterly banal legal rule (me, commenting at CoOp) that someone who reasonably believes that he or she is in imminent danger of great bodily injury or death may use deadly force — juror B37’s remarks notwithstanding. (I’m inclined to support repeal of the SYG laws that exist in some 20 states, but I’m not convinced that pretending that SYG had much or anything to do with this particular case is constructive; indeed, I fear using the Zimmerman case as the symbol of SYG undermines the credibility of those fighting to repeal such laws.) Even a provocation instruction to the jury likely wouldn’t have altered the outcome (me, commenting at Prawfs). GZ is white on his father’s side but his mother and uncle are first-generation immigrants from Peru with (relatively) dark skin for whom English is not their first language (and one of GZ’s great grandparents is apparently of African descent). GZ’s jury was not “all-white”. And so on.

I have been struck by the frequency with which many commenting on this case, including the public on social media — but also journalists, scholars, and lawyers, all of whom should prize fidelity to facts — have made bald, confident assertions, often without citing any evidence, and sometimes in direct contradiction to the available evidence. This is all the more startling in light of the egregious editing of Zimmerman’s call to police the night of the shooting made early on in the reporting of the case by NBC, which is the subject of a defamation lawsuit by Zimmerman.

An almost equally egregious error continues to be made by those who cite, in support of the proposition that GZ is clearly a racist, the “fact” that he racially profiled a seven-year-old black boy, calling 911 to report the child’s suspicious behavior. When George Mason Law Prof. David Bernstein read this claim repeated by a fellow law prof on a listserv (see part VI), it struck him as so implausible an action for any non-insane individual to have taken that he spent one minute with Google and discovered what should not be surprising to anyone who hasn’t already committed to a narrative of that night and decided that they have GZ’s number: it’s just flat wrong (more below). Shortly after reading Bernstein’s post, I myself encountered a law professor perpetuating the same myth, this time in a serious, edited publication, The New Republic (emphasis in original):

. . . Zimmerman was an edgy basket case with a gun who had called 911 46 times in 15 months, once to report the suspicious activities of a seven year old black boy.

As Bernstein notes, the confusion seems to be the result of carelessness by The Daily Beast, followed by reliance by other journalists, scholars, and lawyers on The Daily Beast rather than on primary sources readily available on the Internet. [Update 7/25/13: see this post for TNR's non-correction correction of this error. Update 7/26/13: The sentence has now been fully corrected and the errors and subsequent edits acknowledged by TNR.]

In post-trial discussions, most lawyers seem to agree that acquittal was the legally correct decision, given the evidence presented. However, many continue to wonder why the prosecution of GZ was so poor. The most obvious explanation, and one I have a lot of sympathy for, is that the factual case — especially for second-degree murder, but only marginally less so for manslaughter — was so weak. Why be surprised when a dog of a case barks? Still, at several points, prosecutors could have made better decisions. Why didn’t they? On CNN, Mark Geragos repeatedly suggested (to much eye-rolling from Jeffrey Toobin) that prosecutors “threw the case.” I find it fairly implausible  that the prosecution both (1) egregiously overcharged and may have withheld exculpatory evidence (me, commenting at Prawfs) and (2) threw the case. Perhaps if the parties doing the overcharging and those actually trying the case were operating entirely independently this would be possible, but what I’ve read suggests that Corey and de la Rionda are personally close.

A theory that is less sensational (indeed, banal) but more plausible is that the prosecutors, too, bought into the early narrative of the case — of a “white” bigot who targeted TM only because he was black, and killed him “not because he had to, but because he wanted to,” as prosecutors repeatedly put it during trial — that it led them to be overconfident and to assume that jurors would see what they saw. If you adopt that narrative, as the media did, and as many who “learned” about this case only through its filter, it becomes easy to see (to take just one example) the inconsistencies in GZ’s multiple tellings of events (which not only juror B37 but also most lawyers have described as fairly trivial) as “a string of lies” rather than as illustrative of how we know memory works (I wondered, in fact, why the defense didn’t bring a memory expert in to testify). This phenomenon is perhaps exacerbated by something like self-selection bias: the original prosecutor declined to bring charges, and a special prosecutor willing to charge and try the case had to be brought in. In addition, the prosecutor’s decision to forgo the grand jury indictment process may have been a missed opportunity to obtain valuable feedback about potential weaknesses in the state’s case.

In any case, now that most legal academics seem to agree that an acquittal was the correct decision as a matter of routine law, much of the focus, as reflected by President Obama’s comments (transcript) about the Zimmerman case this afternoon, has turned to the role that racial profiling may have played in the events of February 26, 2012. And that conversation, in turn, has focused on the allegedly racialized pattern of calls that GZ made to police over a number of years. At Prawfs, for example, various commenters discussed how many of GZ’s calls were made to report black males as opposed to people of other races, and whether the ratio would matter. Given the tendency of commentary about this case to contain factual errors and exaggerations, including among the most egregious one based on these calls (GZ’s alleged racial profiling of a 7-year-old black child), I thought it might be constructive to try to lay out the available evidence as the basis for conversation.

I myself don’t have a strong position on what GZ’s calls suggest about his view of black men. (So the post’s title is more of an invitation to readers to opine rather than a promise of things to come from me.) I do offer, after the list of his calls, some tentative thoughts about distinctions we might want to make among the calls in determining what the relevant ratio of black-to-non-black calls should be, and I’ll be very interested in what others have to say. I confess that I think these data, however we interrogate them, will give only limited insight into GZ’s habits (and even less insight into his attitudes and beliefs). As you’ll see below, we don’t know, for instance, the race/ethnicity of all of the individuals GZ reported. Nor do we know how many black (and white and Hispanic) males GZ encountered or observed in his neighborhood but did not report as suspicious. Still, given that many have drawn conclusions from GZ’s police call history and will continue to do so, better to do so from accurate factual predicates.

My primary purpose in this post, then, is to place the facts on this particular issue in the law prof blog domain so that conclusions that are drawn about GZ’s racial profiling — whatever those conclusions are — are based on the facts, as best as we can know them. (This post is limited to the phone logs that are receiving the bulk of attention and seem most relevant to the shooting. I have omitted other “facts” that have been alluded to in the media that may pertain to GZ’s views of race — e.g., racist comments about Mexicans he allegedly made on MySpace and, on the other hand, his apparent agitation to discipline the son of a white police officer who beat a black homeless man, and the Sanford Police Department GZ says covered it up.)

Science, Art, Policy, and the Importance of Good Science Communication

Recently, several media outlets, including NPR, the New York Times, and Big Think, have covered the story of Ph.D. student in Electronic Arts Heather Dewey-Hagborg, who makes 3-D "masks," or "portraits," of the faces of unknown individuals using the DNA they unwittingly discard on such things as cigarette butts and chewing gum. The media coverage has conjured an Orwellian dystopia for readers (check out the first few comments on the NPR piece for a sample). The artist herself apparently shares these concerns. In addition to her upcoming exihibit, Stranger Visions, she will be leading policy discussions on the implications of her art. She's also working with the Delaware medical examiner's office to try to identify the remains of a 20-year-old body.

The problem? As I commented over at Bill of Health, based on what she's said about her methods, they do not allow her to predict someone's face with anything but the crudest of guesses.

Matthew Herper of Forbes took my criticisms and those of others directly to the artist. I confess that her response does not make me feel any better. Even if you're "only" engaging in art, it seems to me that when that art has an obvious science policy message — indeed, one that you invite — you have some obligation to be clear about how "speculative," as she puts it, your art is. But when you decide to move from the world of art into the world of science, and to start leading policy discussions based on your speculative art and working with forensic examiners? Then you really have a strong duty to be very clear about what your work does and does not mean. Among other things, you should take care when talking to the media, and correct the media if they get it wrong. (This is, of course, a lesson that applies to all scholars, including legal scholars, not only to scientists.)

Yesterday, the Social Science Genetic Association Consortium, an international consortium that pools and conducts social science research on existing genome-wide association study (GWAS) data, and on whose Advisory Board I sit, published (online ahead of print) the results of its first study in Science. That paper — "GWAS of 126,559 Individuals Identifies Genetic Variants Associated with Educational Attainment" (plus supplemental data) — like much human genetics research, has the potential to be misinterpreted in the lay, policy, and even science worlds. That's why, in addition to taking care to accurately describe the results in the paper itself, including announcing the small effect sizes of the replicated SNPs in the abstract, being willing to talk to the media (many scientists are not), and engaging in increasingly important "post-publication peer review" conversations on Twitter (yes, really) and elsewhere — we put together this FAQ of what the study does — and, just as important, does not — show. So far, our efforts have been rewarded with responsible journalism that helps keep the study's limits in the foreground. Perhaps Dewey-Hagborg should consider issuing a similar FAQ with her speculative art.

[Adapted from a post and comments at Bill of Health]

Kudos to This American Life

A few weeks ago I blogged here about a recent episode of This American Life, "Dr. Gilmer and Mr. Hyde," about the quest of one Dr. Gilmer (Benjamin) to understand why another, beloved Dr. Gilmer (Vince), had brutally murdered his own father after hearing voices that compelled him to do so. The episode ends (spoiler alert) with the revelation that Vince suffers from Huntington's, a rare, neurodegenerative disease that causes progressive physicial, cognitive, and psychological deterioration.

Listeners, it seemed to me, could naturally conclude from the episode that it was Vince's Huntington's that had caused him to murder his father. That might or might not be true in this particular case. Huntington's can cause behavioral and mood changes, including irritability, aggression and belligerence. It can also cause (less often) psychosis. But even if Huntington's caused Vince to murder his father, or somehow contributed to the murder, the extreme violence that Vince displayed — strangling his father, then sawing off his father's fingertips to preclude identification — is in no way typical of the Huntington's population as a whole. And so what most troubled me about the episode was its failure to note just how rare this kind of extreme violence is among those with Huntington's, just as it is very rare among human beings generally. And so I wrote to TAL, requesting a clarification.

I'm happy to report that the TAL producer for the episode, Sarah Koenig — who had not intended to suggest any causal link between Vince's murder of his father and his Huntington's, much less between murder and Huntington's more generally — has issued a clarification on the show's blog, and promises to make a similar clarification in the episode itself, should they ever re-air it. Kudos to TAL, and many thanks to Sarah for being incredibly gracious in our exchanges.

One clarification deserves another. In my earlier blog post, I also worried that some listeners might  conclude that Vince's father was similarly driven to commit horrific acts of sexual abuse on Vince and his sister because he, too, was (presumably) suffering from Huntington's (an autosomal dominant genetic disease). Although I think that a listener who didn't know better could reasonably conclude that Huntington's causes people to become sexual predators almost as easily as they could conclude from the episode that Huntington's causes people to become murderers, nothing in the episode suggests that Sarah, Benjamin Gilmer, or anyone else at TAL believe that Huntington's causes sexual abuse, or that they intended for listeners to reach that conclusion. I regret anything in my earlier post that suggested otherwise.

Again, I'm very grateful to Sarah and everyone else at TAL for hearing me (and other listeners) out and for agreeing to make the clarification — and just in time for HD Awareness Month!

This American Life and Stigma

Update: TAL has made a clarification. Please see this post for more.

Let me begin by saying how much I absolutely adore This American Life. I listen to it religiously. I particularly had been looking forward to the most recent pocast episode of TAL: Dr. Gilmer and Mr. Hyde. As the episode's blurb teases, "Dr. Gilmer and Mr. Hyde" concerns a doctor — Benjamin Gilmer — who takes over the rural South Carolina practice of Vince Gilmer (no relation). Vince is no longer available to see patients because he is serving a prison sentence for killing his father. As Benjamin gets to know Vince's — and now his — patients, he forms a picture of Vince that's at odds with his status as a convicted father murderer. How could this doctor who was so devoted to his patients have so brutally murdered his own father?

This episode is right up my alley. True crime? Check. Forensic psychology? Check. The intersection of law and medicine? Yes, please. So when I awoke yesterday morning at 5 am and couldn't go back to sleep, I eagerly cued up the podcast. The episode recounts, in TAL's  typically-riveting fashion, the story of Benjamin's search for the truth behind Vince's murder of his father. I enjoyed every minute of the episode until the last five minutes or so, when I became troubled by one critical omission.

Spoilers  follow after the jump; listen to the episode first.

Do You Want to Know Who Owns a Gun (on Your Faculty)?

The Journal News, a local publication based in Westchester County, New York has published an interactive map of the names and addresses of  pistol permit holders in Westchester and Rockland Counties.  Officials in nearby Putnam County (NY) have declined to release the information in response to FOIA requests.

The publication of the map has resulted in threats to the publishers, prompting the Journal News to hire armed guards to protect the organization's offices (see news coverage here, e.g.).  Public opinion on the appropriateness of the publication of the information is divided (see, e.g., here). 

In some parts of the country, in some towns and cities, at some universities, gun ownership may be part of the culture.  Not so in my slice of New York or at my institution, though.  Given that 40% of my faculty colleagues live in Westchester or Rockland County, I admit that the map piqued my interest.  After some hesitation, I did look at the map (as did lots of other folks; apparently the map is the most popular feature on the website of the Journal News).  I admit to feeling somewhat uneasy about the act of looking, though, for reasons I can't quite articulate.  On the one hand, I believe that all state licenses should be a matter of public record.  On the other hand, I can imagine that if I were a gun owner in Westchester or Rockland County, I might not want that information available to my neighbors.

Why is Grading so Aggravating?

    Over the last few days, I have been considering the twice-a-year obligation that we have to grade examinations. (Thinking about grading exams is certainly more enjoyable than actually doing it). I have yet to meet any colleague who enjoys grading; indeed, most of us seem to treat it as the most loathsome part of our jobs. Why?

    For those of us who teach larger classes, I suspect some of the dread stems from the idea of having to read the same answer (or at least what should be the same answer) time after time after time. Certainly, in the years where I’ve had over a hundred students in my Introduction to Property course, this has been a significant factor. How many of us would go to the same movie or read the same novel a hundred times? But repetition cannot be the only explanation — I also teach much smaller classes and don’t enjoy the grading any more.

    Grading can also expose the fact that there is a difference between teaching and learning. I have not found it uncommon to read an answer and wonder whether the student ever came to class or read the materials. “Executory vested remainder” can never be the correct answer to any question on a Property exam as no such thing exists. At the same time, all of us know that not everyone who attends law school should be doing so. Finding the occasional failure among the examinations should be unfortunate, but should not trigger such dread. Also, you would expect this to be more relevant for introductory classes rather than more advanced ones whose members have already shown some competence. Fearing student failure cannot be the full reason, for our grading discomfort, therefore.

    The last reason I’ve come up with is one of potential misdirection. When we grade an examination and find it wanting, are we also saying something about our inability to teach? While, like most other professors, I can articulate many reasons why students’ failures are their own responsibility, maybe the dread of grading we feel originates with a feeling that it is our failing not the student’s.

    So, assuming that you also dislike grading, do you have a reason?

Sexiest Man Alive

Confession. 

The NYT piece, you know, that one, the joyless, unwitty, matronly rebuke of irony.  It did irk me, of course.  But it wasn’t just that.  The staid op-ed just served as a convenient provocation...... 

For about an year, I’ve been thinking, in spite of myself, about irony and its relationship to political authority.  And it seemed to me that authoritarian governments obsess over regulating its traffic.  These governments might look the other way, at least sometimes, with regard to other perceived vices—drugs, porn, illegal booze, gambling.  But it’s irony—that spiky variety of humor—that keeps them up at nights in their totalitarian beds. 

Makes sense, I suppose; the logic (or momentum) of irony won’t broke sacred cows but authoritarian leaders justify their rule as unquestionable and worthy of deference; divine bovines, such leaders keenly cry out for ironic taunting. 

It is in democracies where rambunctious irony is embraced, and the case can be made (or, has been sought to be made, anyway) that biting satire breeds the sort of impiety and insolence that helps to underwrite constitutional democracy. 

But that’s just me; ask a better (if you'll pardon the dumb pun) authority.  The People’s Republic of China.  Ask, oh I don't know, the Party Leaders who they think is the Sexiest Man Alive. 

 

 

 

Scenes from Lower Manhattan

Hurricane Sandy has caused severe damage and loss along the East Coast.  All of Lower Manhattan, where I live, has been without power since Monday.  For most of us, that means no heat or water (and definitely no elevator), either.

Here's a scene from the small pedestrian park right in front of my house. 

 

Exempt Research & Expedited IRB Review: Curb Your Enthusiasm

A while back, over at PrawfsBlawg, Martin Pritikin had a useful post collecting advice for legal academics looking to break into increasingly popular empirical legal studies (ELS). As Jeremy Blumenthal notes in the comments, Step 1 is to be sure to get IRB approval. This post addresses what I’ll call, with a nod to Cass Sunstein’s work on Chevron deference, IRB Step Zero: Determine whether your research needs IRB approval at all.

Don’t worry, it’s an easy step: As Jeremy’s plenary admonition to all wannabe ELS scholars implies, the answer is almost certainly Yes. Although the regulations in theory establish three risk-based tiers of review — human subjects research (HSR) otherwise subject to IRB review that the regulations nevertheless exempt; HSR that is eligible for expedited review; and HSR that requires review by a fully convened IRB (everything else) — in practice, the first two tiers tend to collapse into the third. In this sense, and now I borrow from Matthew Stephenson and Adrian Vermeule, IRB review has only one step.

A quick note of clarification: As I’ve noted before (here and here), several projects I have in the works, beginning with Regulating the Production of Knowledge: Research Risk-Benefit Analysis and the Heterogeneity Problem, forthcoming next June in the Administrative Law Review, argue that we suboptimally regulate knowledge production. Just to be clear, my argument in that article doesn’t depend on my argument here about the broad scope of the regulations and their failed attempt to achieve risk-based levels of review.* Consider this post a public service for ELS types. That said, I draw here on The Heterogeneity Problem's background section, where interested readers will find the relevant citations.