The Faculty Lounge

Are You Ready for Some . . . Research? Uncertain Diagnoses, Research Data Privacy, & Preference Heterogeneity

As most readers are probably aware, the past few years have seen considerable media and clinical interest in chronic traumatic encephalopathy (CTE), a progressive, neurodegenerative condition linked to, and thought to result from, concussions, blasts, and other forms of brain injury (including, importantly, repeated but milder sub-concussion-level injuries) that can lead to a variety of mood and cognitive disorders, including depression, suicidality, memory loss, dementia, confusion, and aggression. Once thought mostly to afflict only boxers, CTE has more recently been acknowledged to affect a potentially much larger population, including professional and amateur contact sports players and military personnel.

CTE is diagnosed by the deterioration of brain tissue and tell-tale patterns of accumulation of the protein tau inside the brain. Currently, CTE can be diagnosed only posthumously, by staining the brain tissue to reveal its concentrations and distributions of tau.[1] According to Wikipedia, as of December of 2012, some thirty-three former NFL players have been found, posthumously, to have suffered from CTE. Non-professional football players are also at risk; in 2010, 17-year-old high school football player Nathan Styles became the youngest person to be posthumously diagnosed with CTE, followed closely by 21-year-old University of Pennsylvania junior lineman Owen Thomas. Hundreds of active and retired professional athletes have directed that their brains be donated to CTE research upon their deaths. More than one of these players died by their own hands, including Thomas, Atlanta Falcons safety Ray Easterling, Chicago Bears defensive back Dave Duerson, and, most recently, retired NFL linebacker Junior Seau. In February 2011, Duerson shot himself in the chest, shortly after he texted loved ones that he wanted his brain donated to CTE research. In May 2012, Seau, too, shot himself in the chest, but left no note. His family decided to donate his brain to CTE research in order “to help other individuals down the road.” Earlier this month, the pathology report revealed that Seau had indeed suffered from CTE. Many other athletes, both retired and active, have prospectively directed that their brains be donated to CTE research upon their death.[2] Some 4,000 former NFL players have reportedly joined numerous lawsuits against the NFL for failure to protect players from concussions. Seau’s family, following similar action by Duerson’s estate, recently filed a wrongful death suit against both the NFL and the maker of Seau’s helmet.

The fact that CTE cannot currently be diagnosed until after death makes predicting and managing symptoms and, hence, studying treatments for and preventions of CTE, extremely difficult. Earlier this month, retired NFL quarterback Bernie Kosar, who sustained numerous concussions during his twelve-year professional career — and was friends with both Duerson and Seau — revealed both that he, too, has suffered from various debilitating symptoms consistent with CTE (but also, importantly, with any number of other conditions) and also that he believes that many of these symptoms have been alleviated by experimental (and proprietary) treatment provided by a Florida physician involving IV therapies and supplements designed to improve blood flow to the brain. If we could diagnose CTE in living individuals, then they could use that information to make decisions about how to live their lives going forward (e.g., early retirement from contact sports to prevent further damage), and researchers could learn more about who is most at risk for CTE and whether there are treatments, such as the one Kosar attests to, that might (or might not) prevent or ameliorate it.

Last week, UCLA researchers reported that they may have discovered just such a method of in vivo diagnosis of CTE. In their very small study, five research participants — all retired NFL players — were recruited “through organizational contacts” “because of a history of cognitive or mood symptoms” consistent with mild cognitive impairment (MCI).[3] Participants were injected with a novel positron emission tomography (PET) imaging agent that, the investigators believe, uniquely binds to tau. All five participants revealed “significantly higher” concentrations of the agent compared to controls in several brain regions. If the agent really does bind to tau, and if the distributions of tau observed in these participants’ PET scans really are consistent with the distributions of tau seen in the brains of those who have been posthumously-diagnosed CTE, then these participants may also have CTE.[4]

That is, of course, a lot of “ifs.” The well-known pseudomymous neuroscience bloggerNeurocritic[5] recently asked me about the ethics of this study. He then followed up with his own posts laying out his concerns about both the ethics and the science of the study. Neurocritic has two primary concerns about the ethics. First, what are the ethics of telling a research participant that they may be showing signs of CTE based on preliminary findings that have not been replicated by other researchers, much less endorsed by any regulatory or professional bodies? Second, what are the ethics of publishing research results that very likely make participants identifiable? I’ll take these questions in order.

Should NCAA Penn State Sanctions Provide Retribution?

The NCAA imposed tough, but not brutal, sanctions on Penn State this morning.  It was fined $60 million (to be used to fund child sexual abuse programs), stripped of a heap of scholarships, and banned from bowls for the next four years.  Oh, and Penn State was stripped of all wins since 1998.  (Will the NCAA collect and redistribute all the bowl trophies from that period to the rightful winners?)

I take it that much of the punishment is intended to deter future offenders while reducing the risks and costs of chid sexual abuse going forward.  These seem to be sanctions driven by utilitarian impulses.   Would retribution also have been appropriate?

The NCAA polices the integrity of college sports.  It's supposed to insure a level playing field.  And when it comes to that limited task, there seems to be no call for anything other than utilitarian sanctions.  Channeling communal outrage - strong as such anger might be towards cheaters - just doesn't make sense for what is essentially a violation of club rules.

Something different happened in this case, however.  The loss of institutional control caused serious harm to both NCAA members and non-participants in the club.   It is clearly within the power of prosecutors to sanction illegal acts by individual actors or even the corporate entity Penn State.  But should the NCAA join in on this project as well?  

It seems to me that this was essentially the question the NCAA had to consider when it evaluated imposing a death penalty on PSU.  My sense is that the sanctions actually imposed will radically re-write the way Penn State athletics operate and render it exceedingly unlikely we'll ever see a replay of this story in State College.  Indeed, I think the sanctions are sufficient to scare the hell out of lots of other schools.  They meet utilitarian needs.

But should the NCAA do more?  And if the NCAA is to dole out retributive sanctions, ought they be for the suffering of the other NCAA schools?  Other NCAA athletes and employees?  Or society at large? 

My sense is that retribution is a purely public function left to the state.  But I wouldn't be surprised in coming days if people accuse the NCAA of being soft - not because the sanctions are insufficient to work but because they are mundane and do not reflect the severity of the case.  They don't make Penn State suffer sufficiently.  

Of course, maybe these claims will really be utilitarian in nature: unless the NCAA is cleansed fully, both the regulator and all the members will be forever tainted by the scandal.  And that could cause immeasurable damage to the college athletics industry.  "Student athletes" and all.

 

 

Joe Paterno Dead At 85

News here.  It's hardly the end of the Penn State story, but it certainly adds a potent dramatic turn. 

Roll, Ducks, Roll!

Last month I blogged about an emeritus University of Alabama law professor who was (allegedly) working with Auburn on the Cam Newton NCAA eligibility mess.  In the midst of that post, I commented that:

I feel certain that thousands of Bama fans are hoping that Newton is declared ineligible and that Auburn's season goes up in flames.  That's just the way college sports rivalries function - much as many true North Carolina fans wish Duke the worst, irrespective of whether Carolina stands to gain from Duke's failures.

 
Commentor Irish Pirate Eddie responded:

... not exactly - Bama is part of the all powerful SouthEastern Conference. The SEC, the toughest conference in college football, presently makes up 1/3 of the top 25 teams in the BSC standings- that says that the SEC is good, damn good. Therefore, there is a sense of pride to be associated wtih that. Saturdays in the south, in the fall, is nothing but rock em hard football-and SEC teams get beat to hell and back and if one is left standing at the end of the season- they are King. Bama knows they are out of contetion for the Championship Bowl this year and therefore will begrudginly root for Cam Newton + Auburn who ever they may play in the national spotlight for the big game. GO SEC!!

I knew immediately that Irish Pirate Eddie was not a hometown SEC fan - or at least not like my fellow Bama fans in my years in T-town and Birmingham.   This webstore provides a much better reflection of the Bama zeitgeist - assuming that "Bama" and "zeitgeist" can comfortably co-exist in a sentence without exploding.

Alabama Law Professor Crosses To The Dark Side

As anyone from Alabama will appreciate, I mean this headline only partially tongue-in-cheek.  It seems that Gene Marsh, an old colleague of mine at Alabama and now an emeritus professor  - as well as counsel to Birmingham's Lightfoot, Franklin & White - has just taken on some new business: representing Auburn in the potential NCAA investigation over its quarterback Cam Newton.

For some readers, some background will be in order.  What's the deal with Newton?  Over the past week, allegations have emerged suggesting that Newton's dad might have been trying to negotiate a payment from somebody (the school?  an alumnus?) in exchange for for convincing his son to join Mississippi State.  He didn't become a Bulldog...so is it relevant for Auburn?  Under NCAA rules, it doesn't matter whether Auburn was involved in negotiations.  According to SI.com:

So far, Auburn has not been implicated in the pay-for-play scheme. But by the letter of the NCAA's law, an athlete is ineligible the moment a rule is broken. Even if Newton didn't know about his father's request, this is the word the NCAA put out Thursday: "The solicitation of cash or benefits by a prospective student-athlete or another individual on his or her behalf is not allowed under NCAA rules," NCAA spokeswoman Stacey Osburn wrote. It is up to the athlete's school to declare him ineligible and apply for reinstatement.  

The problem is, Auburn has known of these allegations for sometime and it has chosen not to declare Newton ineligible and then seek reinstatement.  It doesn't want to risk losing him.  Why does it matter?  Because Auburn is closing in on the BCS football crown. The implications of this whole Megilla are pretty serious, if you care about college football and particularly if you care about the non-BCS conference teams (Boise State and TCU) who could be boxed out of the championship if Auburn in undefeated.  Auburn could easily reach, or win, the BCS championship only to have the NCAA strip it of all its wins months later - which would be no help to a Boise State, for example.  

Which brings me back to the point of this post.  Gene Marsh was Alabama's excellent, and upstanding, Alabama faculty athletic representative and compliance during some hairy days in the early 2000's.  Notwithstanding the Tide's dirty laundry, his efforts won him the position of Chair on the NCAA Committee on Infractions from 2004-06.  And now Alabama's chief rival and sworn enemy, Auburn, has just retained the fellow to help it through this dangerous time.

I feel certain that thousands of Bama fans are hoping that Newton is declared ineligible and that Auburn's season goes up in flames.  That's just the way college sports rivalries function - much as many true North Carolina fans wish Duke the worst, irrespective of whether Carolina stands to gain from Duke's failures. Alabama fans will not be wishing Gene well, I suspect.  And they'll see this as further proof that lawyers lack scruples.   As for those Alabama law students who were undergrads at Auburn?  Well, that's another matter altogether... 

Maybe it's just as well that Alabama is out of contention this year.  

Update: As a commenter notes, a columnist from the Birmingham News is reporting that unnamed sources deny that Marsh is working on the case.  Auburn apparently routinely retains the Lightfoot firm for various needs but allegedly Marsh has no involvement in this matter.  Assuming that Marsh does not have an actual conflict of interest here, Auburn would be foolish not to use his services.  Marsh may not be the "point man" on the case, but I'm betting that Auburn is counting on his good advice.

An Awesome Game During The Days Of Awe

Jewish students at the University of Texas are organizing a petition drive.  Their goal: to move next year's class Texas - Oklahoma matchup off of Yom Kippur.  The petition reads:

Next year, Texas-OU weekend falls on Yom Kippur, the holiest day of the Jewish year, a day dedicated to fasting and repentance. The event is more than the game itself. It is the state fair, the fried foods, college GameDay, and the atmosphere of a neutral site game that cannot be duplicated. Over ten percent of undergraduate students at the University of Texas (as well as countless alumni, season ticket holders, and other supporters) are Jewish. For them to be forced to choose between the holiest day in Judaism, and the biggest day of the year for Texas football (and the events surrounding the game) is unfair.

Sunset should be a bit after 7 that night.  Perhaps they can defer the game til 9:00 - giving fans time to run home from synagogue, snarf a bagel with whitefish salad, and get settled on the couch.  And fans who plan to attend the game can simply atone in Dallas.   Surely there will be a market for the Yom Kippur-only "Red Rivalry Membership Special" at local shuls. 

Top Party Law Schools

In its September issue, The National Jurist, "the magazine for law students," reports on the ranking by something known as "SubtleDig" of the nation's best and worst law schools for partying.  (Thumbs down on TNJ's editorial assiduousness, as the table says University of Arizona ranks number one, but the text says Arizona State.  I can say as a true son of Michigan that a similar mistake as between our institution and the green and white one to the northwest would have been unconscionable.  I did, however, find it really odd that the University of Michigan Law School - the only school ranked in the top ten where not owning a pair of snow boots would be a mistake - ranks above UNLV as a party school.  Really?  As much as I love Ann Arbor, are the rankers really suggesting that South U has it over The Strip?  That The Blind Pig beats out The Bellagio?  That The Big House trumps beating the house?  )

But I digress.  What I wanted to say was that Tulane's number two ranking resonated with me.  I taught there as a visitor in the 2006-2007 school year.  In the spring semester, I taught secured transactions early in the morning and the first-year course in sales at 2:00 p.m.  Everything in New Orleans is shut down on the Tuesday which is Mardi Gras, but what floored me was the request that I cancel the 2:00 p.m. class the next day (otherwise known as Ash Wednesday) because most students would still be recovering from Tuesday.  I am sure that my declining this request (which I viewed as a sign of the apocalypse) had to do with the mediocre student evaluations I received in that class.

Southern California Receives Two Year Bowl Ban

Okay, it's not law.  But for serious football fans, a USC bowl ban is  big news!

Athletes Who Served in the Military

On this Memorial Day we pause and remember the lives of men and women who died while serving our nation and protecting and preserving the many freedoms we all too often take for granted.

Among those who have served in the military was professional football player Pat Tillman (pictured), who died in Afghanistan at the age of 27.  NBC Sports has a brief profile of Army Ranger Tillman, and 68 other athletes -- some famous (Joe DiMaggio, Patty Berg, Tom Landry, etc.), and others less well known (Hobey Baker, John Woodruff, Dwight Davis, etc.) --  who have served in the military in this slide show.

Symposium: Baseball and American Culture

A few days ago the National Baseball Hall of Fame and Museum posted its program for the upcoming symposium on Baseball and American Culture.  Some of the panel topics include:

Baseball in Uniform:  America's Pastime at War

Here's the Pitch:  Business, Economics and Labor (featuring a paper that was the topic of this post, proof yet again of the "Lounge bump"!)

Red, White and Black:  Baseball in Fiction

Swing Away:  Baseball in Music, Theater, and Religion

Memorabilia and Popular Culture

Branch Rickey and Jackie Robinson:  Baseball's Great Experiment

Pedagogy:  Baseball in the Classroom

Views on the Fourth Estate

Readers interested in the symposium (to be held in Cooperstown on June 2-4) can find a complete schedule and registration information here.   Related story here.

Sometimes You've Got To Brag On Your Faculty

Every law school is looking for the same basic talents in faculty: a flair for teaching, a commitment to scholarship, and superb hand-eye coordination.  It helps if you're fearless and can balance an ice cream in your free hand.  

As the video shows, our own David Cohen -an  award-winning teacher and prolific scholar - gives up nothing in the coordination department.   

Does March Madness Undermine University Research?

Professor Charles Clotfelter, from Duke's Sanford School Public Policy, has been studying the effects of NCAA March Madness on research activity.  He focused on levels of JSTOR research activity on Mondays through Wednesdays, from February through April each year.  He found that, in the weeks leading up to Selection Sunday, research on JSTOR inched up about 5% each week.  In the week following Selection Sunday, however, JSTOR use plunged 6%.  Worse yet, at schools with teams in the tourney who won toss-up games, research tumbled downward 14% over the course of the competition.  From a well-timed Duke press release about the study:

"By all appearances, fans of losing teams shook off the disappointment and returned to work in greater numbers or with greater diligence, while the fans of winning teams continued to follow their team into the next round,” [Clotfelter] said. “Such an effect would imply an ironic sort of ‘winner’s curse,’ where students and researchers at universities whose teams win unexpectedly do less work than those whose favorite teams are also-rans."

Cross-posted at Brian Leiter's Law School Reports, where I am guest blogging this week.

Gym Rats

Miriam Cherry's wonderful post on gyms and BFOQs brought to mind my own experiences as a gym goer.  Her BFOQ hypo rests on the fact that something in the gym experience, as well as the behavior of some gym goers, can make the thought of working out at a gym as frightening as -- eek -- public speaking!  The desire to control that environment -- such as by limiting who can work at the gym -- is targeted at that fear.

So, here's my theory, based solely on personal experience, of why a gym can be an intimidating place.  When I began exercising, I avoided gyms, preferring the solace of solo, outdoor exercises like walking and running.  The thought of going to a gym made me feel vulnerable.  For one, as someone who has struggled with weight and body image issues all of my life, I worried that standard gym attire allowed others a fairly good view of where my body stands.  (And that doesn't touch on pool attire, which always bring back flashes of the grade school gym class shaming ritual known as shirts v. skins.)  It also doesn't help that exercise performance can be quantified (what's your mile pace? what's your one rep max on the bench?), adding the anxiety of measuring up to -- or being judged by -- other gym dwellers.  And beyond these neuroses, there is a learning curve to working out safely and effectively.  So, finding a gym with a supportive environment was important to me.  To pick up on a point in Miriam's post, I wanted to preserve an aspect of privacy while working out in a public space.  If a person finds a single-gender environment important to preserving that privacy, I support that choice.

Once I got beyond my gym hangups, and found a gym where I felt comfortable, I still had to deal with the usual cast of misfits who have no sense of gym etiquette, or even minimal social graces.  I mean, no gym is perfect.  So I can also see that a person would prefer a gym where the likelihood of bad behavior, and thus the invasion of one's privacy, is lower.  And for some a single-gender environment may create that security.

To close, I'll share my top gym behavior pet peeves.  I'd be interested in hearing from others on the subject.

Excessive Grunting.  I can see that you are lifting REALLY heavy weights, so I don't need accompanying grunts to highlight your Herculean effort.  And while we evolved from primates, there's no reason to act like one at the gym.  Just one question -- will you make the same sound when you pop a hernia while eking out your last rep?

Singing Out Loud.  Two words -- sound travels.  Now don't get me wrong -- I listen to music while I exercise, and I've been known to top off a good runner's high by belting out the chorus to It's Raining Men.  But here's the thing -- I was outside, and no one was within ear shot.  As we like to say in the law biz, singing inside a gym is distinguishable.  So while it's impressive that you know 87% of the lyrics to Lady Gaga's Bad Romance, the rest of us have our own iPods, so we're covered music-wise.

(BTW -- true story.  I overheard one gym goer trying to sing Bad Romance, and they came out with the line "caught in a bathroom stance" instead of "caught in a bad romance."  Not only does that line not fit the rest of the song, but, as far as I know, the song is not about former Idaho Senator Larry Craig.)

Not Wiping Down Sweat on the Equipment.  It's gross.  If I wanted to get wet, I would have gone to the pool.  Wipe the equipment. Enough said.

Not Re-Racking Weights.  Yes, I know you're lifting heavy weights (see "Excessive Grunting" above). So you don't need to leave your dumbells lying on the floor, hoping I'll trip on them and be shocked and awed when I notice their immense size as my head crashes to the gym floor.

Homophobic/Misogynistic/etc. Put Downs.  At some -- but not all -- of the gyms I have been to, I have heard taunts like, "Oh, that's so gay," "You lift like a girl," or "You're behaving like such a retard."  While the other behaviors merely annoy me, this one gets me angry.  This is no laughing matter, and it is the one thing I will always take time to address.  Especially at the University rec center, where I work out on campus, because faculty and staff have a responsibility to model behavior.  This is an area where I hope fellow gym goers will join me in showing zero tolerance.

So, there you have it.  Hope to see you -- but not necessarily hear you -- at the gym!

The Flying Scotsman

Eric Liddell, known as "The Flying Scotsman," was born on this day in history in 1902.  Most of us know the story of his strong Christian faith, and his success at the 1924 Olympic Games, from the movie Chariots of Fire.  The 1981 film captured the Oscar for Best Picture, beating out Atlantic City, On Golden Pond, Raiders of the Lost Ark, and Reds.  On Golden Pond took home the top two acting awards (Katharine Hepburn and Henry Fonda), making it one of only four films to win the Oscar for Best Actor and Best Actress but not Best Picture.  (The other three films are Network, Coming Home, and As Good As It Gets, losing respectively to Rocky, The Deer Hunter, and Titanic.)

What happened to Liddell following his Olympic glory?  He returned to China (his birthplace) and served as a missionary.  He died from a brain tumor at the age of 43 while interned at a Japanese camp. 

You can learn more about Liddell here.

So long, and thanks for all the fish

It has been a real treat to contribute to the Lounge this past month. Many thanks to the hosts for their hospitality, and to the readers for their kind indulgence. In parting, I wanted to make one last nod toward my peculiar obsession with law and fly fishing. 

In the pantheon of great Angler-Attorneys, two names are paramount: 

The first is G.E.M. Skues (rhymes with Huey, Dewey & Louie's), a London solicitor who revolutionized the world of fly fishing -- and set off the sport's greatest modern controversy -- through his advocacy of fishing with a nymph. To a non-angler, this may not sound all that earth-shattering. But to the early 20th century British fly fishing establishment -- dominated by a strict code of "dry fly only, cast upstream to a rising trout" -- Skues's advocacy of sunken flies was rank heresy. Even today, anti-nymph purism has its adherents, who insist that the dry fly is the only ethical and proper way to lure a trout. It was reading about this controversy that got me thinking about the "folk law" of fly fishing as a research subject. 

The second is Robert Traver (pen name of John D. Voelker), attorney, Michigan Supreme Court justice, and author. Best known outside angling circles for his legal thriller, Anatomy of a Murder, Traver is revered among fly fishers as one of the sport's greatest chroniclers. His "Testament of a Fisherman" nicely sums up the appeal of this pastime:

I fish because I love to; because I love the environs where trout are found, which are invariably beautiful and I hate the environs where crowds of people are found, which are invariably ugly; because of all the television commercials, cocktail parties, and assorted social posturing I thus escape; because, in a world where most men seem to spend their lives doing things they hate, my fishing is at once an endless source of delight and an act of small rebellion; because trout do not lie or cheat and cannot be bought or bribed or impressed by power, but respond only to quietude and humility and endless patience; because I suspect that men are going along this way for the last time, and I for one don't want to waste the trip; because only in the woods can I find solitude without loneliness; because bourbon out of an old tin cup always tastes better out there; because maybe one day I will catch a mermaid; and, finally, not because I regard fishing as being so terribly important but because I suspect that so many of the other concerns of men are equally unimportant - and not nearly so much fun.

If this description inspires any Loungers to try wetting a line, just let me know. I'll bring the bourbon and the tin cups. 

The Case of the Framed Fly-Fisher?

It isn't everyday that fly fishing plays a role in a criminal investigation and appellate court decision. So imagine my glee upon reading the (sadly unpublished) opinion in Miller v. Spiers, 2009 WL 2219256 (10th Cir. July 27, 2009), a case that has the makings of a Coen Brothers movie, or at least a CSI episode. 

The plaintiff, William Miller, was arrested in connection with the murder of one Girly Chew Hossencofft (a name I couldn't possibly have made up) in Albuquerque, New Mexico. Miller was an acquaintance of Diazien Hossencofft (a.k.a. Armand Chavez), Ms. Hossencofft's husband, who, together with his girlfriend, the prosaically-named Linda Henning, was ultimately convicted of the murder (despite the fact that the victim's body was never found).^[1]

And how does fly fishing come into the story? That was how Albuquerque police linked Miller to the crime:

In the course of their investigation, the police collected deer, rabbit, and cat hair, as well as feathers, from the living room carpet in Mrs. Hossencofft's apartment. They also discovered at a nearby highway a bloody blouse, thought to be Mrs. Hossencofft's, wrapped in a tarp. Rabbit and cat hair along with feathers were also collected from the tarp and blouse. A steam cleaner the police thought was used to clean the carpet in Mrs. Hossencofft's apartment likewise contained deer hair. Deer, rabbit, and cat hair, as well as feathers, are all used for tying flies for fly fishing.^[2]

Armed with this evidence, and having learned that Miller was a fly fisherman, Detective Fox applied for a search warrant on Miller's residence [ ... ] seeking 'any and all materials used in fishing, hunting, gaming, or tying flies for fishing to include but not be limited to deer hair,' as well as 'any and all trace evidence.' [ ... ] In executing the search warrant, the police collected feathers as well as deer, rabbit, and cat hair. They turned the evidence over to Arbogast's^[3] forensics department for testing.

On the basis of this evidence, Miller was arrested and taken into custody. At this point, the already strange story takes a further twist:

Immediately after his arrest and while in police custody, Miller hid a couple of business cards in his sock. He then attempted to eat two of these cards and in the process tore one card into several pieces. The police saw Miller try to eat the cards and made him spit them out. [...] [T]he police believed the cards contained the names of Miller's associates who could help in the criminal investigation. The police thus believed Miller tried to hide and destroy evidence in an attempt to hinder their prosecution.

Miller was ultimately indicted for conspiracy, murder, and kidnapping, and for tampering with evidence. The police then obtained another warrant to search Miller's house, this time looking for "any and all tapes containing conversations between [Miller] and his psychic, Cynthia Hess."⁴ Sadly, the 10th Circuit's opinion does not say whether any such tapes were found, so we are left to wonder what, if anything, Mr. Miller revealed to his psychic. In the event, the prosecutor dismissed the conspiracy, murder, and kidnapping charges. Miller ultimately pleaded no contest to one count of attempted tampering with evidence (for trying to eat the business cards).

By the way, the issue before the 10th Circuit was whether Miller could state a viable Section 1983 claim against the police investigators, who he alleged fabricated evidence in an effort to link him with the murder. The court rejected the defense argument that Miller's no contest plea to the tampering charge necessarily precluded him from pursuing a claim for malicious prosecution. That would depend, the court held, on whether Miller's destruction of the business cards was the reason for the prosecution's decision to dismiss the conspiracy, murder, and kidnapping charges. If so, Miller's malicious prosecution claim might be precluded, because his own misconduct would have contributed to the nolle prosequi. In contrast, if the prosecution lacked probable cause for the conspiracy, murder, and kidnapping charges, the dismissal could be treated as a favorable termination for Miller, leaving the door open to a malicious prosecution claim. Consequently, the 10th Circuit remanded, instructing the district court to flesh out the contours of Miller's malicious prosecution claim and to clarify the circumstances leading to the dismissal of the conspiracy, murder, and kidnapping charges.

¹See what I mean about the Coen Brothers?

²I have heard of people using all kinds of odd material for fly tying, but never cat hair. I'd imagine the cat scent would scare off the fish. 

³ I have been unable to determine whether Donna Arbogast of the Albuquerque forensics department is any relation to the celebrated Fred Arbogast, developer of such famous bass fishing lures as the Hula Popper^® and the Jitterbug^®.

⁴ This case truly is the gift that keeps on giving. And I've only scratched the surface. See the Wikipedia entry on Diazien Hossencofft for even more weirdness.

Fly Fishing: A Legal Angle

I want to thank Dan for inviting me to visit here at the Lounge. As I was casting about for what to write for my first post, I decided that Kim Krawiec's recent post about saltwater and freshwater economists, and Calvin Massey's post about the brewing Maine lobster war provided a sufficient segue into my pet topic: Law and Fly Fishing.

My own initiation into fly fishing was an indirect result of my first job after law school. I practiced labor law in Philadelphia, at a firm whose largest client was a union representing state, county, and local government workers throughout Pennsylvania. The work entailed a good deal of travel and extended stays in the hinterlands of the Commonwealth. During one such trip, in the vicinity of State College, I read a piece in the local paper about the opening of trout season. Though I'd never had any particular interest in the sport, it suddenly seemed very appealing. As soon as I got home, I bought a low-priced rod and reel, an assortment of flies, a pair of waders, and a copy of Fly Fishing for Dummies, and an obsession was born. 

My interest in "Law & Fly Fishing" was originally tongue in cheek. When I first arrived at Stanford to teach legal writing, I decorated my office with a picture of Justice Sandra Day O'Connor, an avid and adept angler, from one of my fly fishing magazines. I joked that I was going to write the definitive law review article on the influence of fly fishing on Supreme Court jurisprudence, examining how Justice O'Connor's experience at swinging a fly down and across stream helped shape her perspective as a swing Justice.

While fly fishing may not really have influenced the Court, it did, in a small way, influence my career in legal education. While interviewing at Elon, I learned that Justice O'Connor had spoken at the Law School's formal dedication,  and that the University's plans for starting a law school arose, at least in part, from a conversation between Justice O'Connor and Elon President Leo Lambert during a fishing trip. I'd already been lured by the opportunity to help to build a new institution (an especially appealing prospect for someone interested in the sociology of legal education); the fishing story helped set the hook.

What began as a jest eventually emerged into a (relatively) serious research agenda. My interest in social norms and informal order led me to think about fly fishing customs and innovations in socio-legal terms, as a sort of "folk law". My interest in administrative law led me to think about the evolution of recreational fishing regulations in relation to the transition from agrarian to industrial to post-industrial society, and to the emergence of the environmentalist movement. My interest in business organizations and market regulation led me to think about business practices and competition among tackle manufacturers, fly fishing shops, and guide services.

I am fortunate that Elon is located in close proximity to some of the best fly fishing in the eastern United States. Just over an hour's drive away, we have Virginia's Smith River. A bit further, but still within day-trip range, the small streams, full of gorgeous native brook trout, along the Blue Ridge Parkway and the fine smallmouth bass fishing on the (ironically named) New River. For weekend expeditions, the great rivers of Western North Carolina and Eastern Tennessee and the wild streams of the Smokey Mountains. 

Others may call it recreation; I call it fieldwork.

Football Causes Brain Damage. Why Isn't It A Crime?

The Times  reports that an unusual form of brain damage, sometimes seen in boxers, has been found in a sixth former NFL player. 

“This is a medically significant finding,” said Dr. Daniel P. Perl, the director of neuropathology at the Mt. Sinai School of Medicine in New York, who is not affiliated with the Boston University group. “I think with a sixth case identified, out of six, for a condition that is incredibly rare in the general population, there is more than enough evidence that football is clearly strongly related to the presence of this pathology.”

This can't be shocking.  When you watch the punishing hits delivered, and absorbed, by football players you just know  there must be some consequences.  

Sporting  violence has always struck me as a curious space in the criminal law.   Students often argue that a victim's willingness to risk injury or death should vitiate the criminal liability of an aggressor.  Thus, in the case of a killing during Russian Roulette, they contend that there was no murder.  The outcome holds in Root, the drag racing case.  There, after one of two racers died in a crash, a jury convicted the second racer of a killing.  The appellate court reversed on the grounds that the dead racer chose his own fate.    But in most situations, that's simply not the law - and for good reason.  The state has an interest in deterring Russian Roulette (and, perhaps, drag racing) - even if the victims in a particular case are willing.  Of course, sports are an important part of the culture and we apparently have no interest in deterring it through the criminal law.  Fair enough - that's exactly the decision we ought to assign our legislatures. But are there torts risks hovering on the sidelines?   That is a question the NFL's insurers are surely pondering.