Eugene Volokh's Blog, page 2662
December 1, 2011
Paying People for Bone-Marrow-Derived Stem Cells Extracted from Blood (Not Bone) Is Legal, Rules the Ninth Circuit
Two years ago, Jeff Rowes of the Institute for Justice blogged about a case they were bringing seeking to establish the legality of paying people for bone marrow cells, notwithstanding the National Organ Transplant Act. Today, the Ninth Circuit just handed down a decision in the case, Flynn v. Holder.
The Circuit rejected IJ's constitutional claim that the ban on paying people for providing bone marrow cells extracted from hip bones is so irrational as to violate the Due Process Clause, concluding:
[Congress's] reasons [for the ban] are in some respects vague, in some speculative, and in some arguably misplaced. There are strong arguments for contrary views [citing Virginia Postrel, who is know to many of our readers –EV]. But these policy and philosophical choices are for Congress to make, not us. The distinctions made by Congress must have a rational basis, but do not need to fit perfectly with that rational basis, and the basis need merely be rational, not persuasive to all. Here, Congress made a distinction between body material that is compensable and body material that is not. The distinction has a rational basis, so the prohibition on compensation for bone marrow donations by the aspiration method does not violate the Equal Protection Clause.
But it accepted IJ's statutory claim — which the government disputed — that the statute does not ban paying people for providing bone-marrow-derived stem cells extracted from their blood. From the Conclusion:
[W]hen the "peripheral blood stem cell apheresis" method of "bone marrow transplantation" is used, it is not a transfer of a "human organ" or a "subpart thereof" as defined by the statute and regulation, so the statute does not criminalize compensating the donor.
Congratulations to my friend at the Institute for Justice for this victory, which I expect will increase the number of bone marrow providers and thus save many lives. (I suspect the victory part here is more significant than the defeat part, and in any event a loss on the constitutional rational basis question was the likely outcome from the outset, since the rational basis test is so easy for the government to satisfy.) IJ, by the way, is 20 years old this year; check out this video about its history if you're interested.
For those who have been following my arguments for a constitutional right to medical self-defense, which would include a right to pay willing providers for donations of certain organs (whether during the provider's life or after the provider's death), I should note that this was not IJ's argument in this case. IJ was arguing that the law failed the rational basis scrutiny applicable to all laws, including those that don't implicate a fundamental constitutional right, not that the law failed the heightened scrutiny applicable to laws that do burden fundamental constitutional rights.
Supreme Court: "Obviously, direct control of medical practice in the states is beyond the power of the federal government."
So said the unanimous Supreme Court in United States v. Linder, 268 U.S. 5 (1925). The opinion was written by McReynolds, and joined by the progressive Justices Brandeis and Holmes, along with the rest of the Court.
At issue was the federal Harrison Anti-Narcotic Law, which taxed opium and coca leaves, and their derivatives. Ostensibly as part of the tax scheme, the Act also required registration of those drugs. A physician lawfully dispensed one tablet of morphine and three tablets of cocaine to a female patient who was an addict. The trial court instructed the jury that Dr. Linder's actions would be lawful if the drugs were dispensed as painkillers for stomach cancer or an ulcer, but not simply because the patient was an addict. As the Supreme Court observed, the indictment "does not question the doctor's good faith nor the wisdom or propriety of his action according to medical standards. It does not allege that he dispensed the drugs otherwise than to a patient in the course of his professional practice or for other than medical purposes. The facts disclosed indicate no conscious design to violate the law, no cause to suspect that the recipient intended to sell or otherwise dispose of the drugs, and no real probability that she would not consume them."
The Court pointed out that "Congress cannot, under the pretext of executing delegated power [here, the Tax Power], pass laws for the accomplishment of objects not intrusted to the federal government. And we accept as established doctrine that any provision of an act of Congress ostensibly enacted under power granted by the Constitution, not naturally and reasonably adapted to the effective exercise of such power, but solely to the achievement of something plainly within power reserved to the states, is invalid and cannot be enforced." This was supported by a string cite starting with McCulloch v. Maryland.
In the instant case, the power to tax cocaine and morphine carried with it incidental powers to effectuate that tax, and the effectuation of the tax was the sole legitimate use of incidental powers. Incidental powers could not be construed to control a physician's decision about properly taxed and registered products:
"Obviously, direct control of medical practice in the states is beyond the power of the federal government. Incidental regulation of such practice by Congress through a taxing act cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure. The enactment under consideration levies a tax, upheld by this court, upon every person who imports, manufactures, produces, compounds, sells, deals in, dispenses or gives away opium or coca leaves or derivatives therefrom, and may regulate medical practice in the states only so far as reasonably appropriate for or merely incidental to its enforcement. It says nothing of 'addicts' and does not undertake to prescribe methods for their medical treatment. They are diseased and proper subjects for such treatment, and we cannot possibly conclude that a physician acted improperly or unwisely or for other than medical purposes solely because he has dispensed to one of them in the ordinary course and in good faith, four small tablets of morphine or cocaine for relief of conditions incident to addiction. What constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances. Mere pretense of such practice, of course, cannot legalize forbidden sales, or otherwise nullify valid provisions of the statute, or defeat such regulations as may be fairly appropriate to its enforcement within the proper limitations of a revenue measure."
Thus, said the Court, Linder was different from previous cases in which the Court had upheld the prosecution of physicians whose prescription of large quantities of drugs was obviously a sham, for no medical purpose, and simply to serve as a conduit for drugs to the general public.
It is not surprising that Linder was relied in several cases finding that Congress had exceeded tax power. U.S. v. Butler (1936); Hopkins Federal Savings & Loan Ass'n v. Cleary (1935); U.S. v. Constantine (1935); Trusler v. Crooks (1926).
Significantly, after 1937, the Court continued to rely on Linder, and in upholding other statutes, to distinguish them from the mis-application of the statute in Linder. "While there has long been recognition of the authority of Congress to obtain incidental social, health or economic advantages from the exercise of constitutional powers, it has been said that such collateral results must be obtained from statutory provisions reasonably adapted to the constitutional objects of the legislation. Linder v. United States." Cloverleaf Butter v. Patterson (1942).
Linder appears the very first paragraph of a case familiar to many VC readers, United States v. Miller (1939). Citing, inter alia, Linder, the Miller opinion says that the federal tax and tax registration system for certain firearms does not "usurp[] police power reserved to the States."
In U.S. v. Kahriger (1953), Linder is a "But see" footnote for this sentence: "Unless there are provisions, extraneous to any tax need, courts are without authority to limit the exercise of the taxing power." I think that's a misreading of Linder. The Court's point in Linder was that micro-managing a physician's decision about when to write a prescription was in fact "extraneous to any tax need." So Linder and Kahriger are not inconsistent.
In a case decided after Kahriger, the Court upheld a gambling device tax, expressly distinguishing it from Linder, because the gambling tax is "certainly not a mere ruse designed to invade areas of control reserved to the states." U.S. v. Five Gambling Devices (1953).
The most important case which relies on Linder is Ashwander v. Tennessee Valley Authority (1936) (upholding the TVA). There, the majority opinion by Chief Justice Hughes affirms that "The Congress may not, 'under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government.' Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, 423; Linder v. United States, 268 U.S. 5, 15, 17."
Justice Brandeis's concurrence in Ashwander is, to this day, regarded as the most important guidance for the judicial principles of abstention. Number 7 of the "Ashwander principles" is that a court should attempt to construe a statute so as to avoid a constitutional problem, and for this proposition, Justice Brandeis cited Linder, among other cases.
In short, even if one takes the view that cases upholding certain aspects of the New Deal and the Fair Deal enjoy some sort of supra-precedential status that earlier cases do not, Linder is part of the fabric of those privileged cases.
Dynamic Competition and Current Merger Policy
An interesting conference coming up at GMU Law School, hosted by the Henry G. Manne Program in Law and Economic Studies at the GMU Law & Economics Center, on December 14. Details here. Given the swirl of antitrust issues around Google and Intel, this is a particularly timely topic.
November 30, 2011
Judge Orders Plaintiff to Give Defendant Her Facebook Username and Password So Defendant Can Access Plaintiff's Account As Part of Discovery
The decision is Largent v. Reed (Pa. Common Pleas Nov. 8, 2011), and it involves a discovery request by the defendant in a civil case arising from a car accident. The defendant has filed a Motion to Compel Facebook Login Information in an effort to look through the plaintif's account for evidence that she was exaggerating her injuries. Judge Walsh grants the request, ruling:
Plaintiff . . . must turn over her Facebook login information to Defense counsel within 14 days of the date of the attached Order. Defense counsel is allotted a 21-day window in which to inspect [Plaintiff]'s profile. After the window closes, Plaintiff may change her password to prevent any further access to her account by Defense counsel.
Judge Walsh spends pages 10–12 considering how the Stored Communications Act applies to this situation, and given that he relies on an article I wrote, let me offer a quick comment. Judge Walsh writes that the Stored Communications Act isn't implicated because the defendant seeks information directly from the plaintiff. As a result, neither the defendant nor the plaintiff is a regulated entity (known as an "RCS" or an "ECS") under the statute:
In this case, [Defendant] seeks the information directly from [Plaintiff]. The SCA does not apply because [Defendant] is not an entity regulated by the SCA. She is neither an RCS nor an ECS, and accessing Facebook or the Internet via a home computer, smartphone, laptop, or other means does not render her an RCS or ECS. See Kerr, 72 Geo. Wash. L. Rev, at 1214. She cannot claim the protection of the SCA, because that Act does not apply to her. "The SCA is not a catch-all statute designed to protect the privacy of stored Internet communications." Id. Rather, it only applies to the enumerated entities. Largent being neither an ECS nor an RCS, the SCA does not protect her Facebook profile from discovery.
While it's true that neither the plaintiff nor the defendant are regulated entities under the statute, Facebook clearly is. Facebook is an ECS provider in some ways and an RCS provider in other ways. As a result, the privacy of Facebook communications are protected by 18 U.S.C. 2701 of the Stored Communications Act, which protects ECS providers, in addition to 18 U.S.C. 1030, the Computer Fraud and Abuse Act, which protects all computers generally. Both of these statutes prohibit accessing electronic accounts without authorization or in excess of authorizaton. So while ordering the plaintiff to disclose her password to the defendant doesn't itself violate the SCA or the CFAA, it's at least an open question whether the defendant's future act of accessing the plaintiff's account might violate those statutes.
As with many questions of the CFAA (and related provisions of the SCA), it hinges on what "authorization" means. Here's the question: If Facebook says that only the individual account holder can access the account; the individual account holder refuses to voluntarily disclose the password; and someone else accesses the account only because the account holder was forced by a judge to disclose the password, is the "someone else's" access authorized or not? Put another way, what governs authorization: The views of Facebook and the views of the account holder, or the views of the trial judge who granted the discovery request? It's not an easy question, creating a significant risk that granting the motion to compel invites the movant to commit a federal crime in the course of discovery.
Don't Know Much About History
From the first sentence about World War II in All About World History (1999), a history book for children:
In 1939, Hitler (see below) sent armies to invade Czechoslovakia and Poland; Britain, France, and Russia decided to help the Czech and Polish people defend their lands.
I did not know that! In fact, I still don't. Yikes.
Writer Enjoined from Publishing Stories Based on Contractually Confidential Material Learned While Working as a Law Student Intern
From Louisiana Crisis Assistance Center v. Marzano-Lesnevich (E.D. La. Nov. 23, 2011):
Alexandria Marzano-Lesnevich served as an unpaid summer law clerk at the Louisiana Capital Assistance Center ("LCAC") while she was a law student at Harvard University in 2003. LCAC is a nonprofit organization providing legal representation to indigent capital defendants. As a summer law clerk, she investigated the facts of assigned cases, conducted case analysis, drafted memoranda, managed client correspondence, and attended meetings where attorneys discussed case strategies for specific clients.
After graduating from law school, Ms. Marzano-Lesnevich pursued a career as a journalist and writer in lieu of a legal career. Nonetheless, her legal training has informed her writing, as she has published several essays relating to her experiences and dealing with the death penalty and sex crimes. Among her published works is an essay titled In the Fade, which was published in the Spring 2010 issue of a journal called The Bellingham Review, and an essay entitled Longtermer's Day, which was published in a nonfiction periodical entitled Fourth Genre in 2010. Ms. Marzano-Lesnevich also published copies of these works, along with several other fictional works, on her personal website. In the Fade is a creative nonfictional description of the criminal prosecution of an LCAC client named Ricky Langley for the sexual assault and murder of a six-year old boy in Calcasieu Parish, Louisiana. Longtermer's Day is a stylistically similar account of the author's experience visiting Angola Prison and conversing with prisoners. It is these works, along with a forthcoming but yet uncompleted novel, which are at issue in this suit.
The director of LCAC, Richard Bourke, first discovered the existence of these works in 2001. Believing that they contained confidential client information, he directed his staff to contact Ms. Marzano-Lesnevich and request that she withdraw her works from publication, as well as to cease from disclosing any other confidential information relating to LCAC clients. In the meantime, he also contacted the Bellingham Review to request removal of the essay In the Fade from its website. It complied with this request in an effort to avoid litigation. These efforts eventually led to a conference call with Ms. Marzano-Lesnevich and her retained counsel. During the conference call, Ms. Marzano-Lesnevich informed LCAC that she did not believe that any of the information in her published essays was confidential. She also informed Mr. Bourke and LCAC that she was in the process of writing a novel relating to her experiences as a LCAC law clerk and planned to seek publication upon the work's completion. [Footnote: Ms. Marzano-Lesnevich describes the book as a "literary work– part memoir based on her own experience as a victim of sexual abuse, and part literary journalism about the criminal prosecution of Ricky Langley for sexually assaulting and murdering a six-year old boy in Calcasieu Parish." The work reportedly deals with essentially the same subject matter as her essay In the Fade.]
LCAC subsequently [sued], alleging breach of fiduciary duty and breach of contract, and seeking injunctive relief prohibiting Ms. Marzano-Lesnevich from future disclosure or dissemination of confidential or privileged information obtained in the course of her summer clerkship, as well as other information relating to LCAC clients which disadvantages or prejudices those clients.
Marzano-Lesnevich filed a motion under the Louisiana anti-SLAPP law, which lets defendants who are sued based on their speech get an early victory if they can show that the plaintiff isn't likely to succeed. But the court agreed that LCAC was likely to succeed in showing that Marzano-Lesnevich promised not to reveal client confidences, and that Marzano-Lesnevich's works likely revealed such confidences. (The court found it unnecessary to reach the breach of fiduciary obligation argument.) The court thus denied Marzano-Lesnevich's motion; presumably at some point soon LCAC will itself move for a preliminary injunction, and the court will decide whether to order Marzano-Lesnevich not to reveal confidential information in the future.
I'm inclined to say that a permanent injunction against revealing information that the defendant had promised not to reveal would be constitutional, but a preliminary injunction would likely not be, for reasons discussed in this article. For a recent case upholding a permanent injunction on a contract theory, see Perricone v. Perricone (Conn. 2009); for a case upholding damages liability on such a theory, see the Supreme Court's decision in Cohen v. Cowles Media (1991). Note, though, that these theories would not justify any order to third parties (such as the publications in which Marzano-Lesnevich published her earlier works) to take down the material containing the confidential information, and it seems that no such order is sought by LCAC.
A New Computer Crime Law Casebook — Clancy's "Cyber Crime and Digital Evidence: Materials and Cases"
Many readers know that I am the author of a law school casebook on computer crime law: Computer Crime Law, published by West, now in its second edition.
I'm pleased to announce the publication of another casebook on computer crime law, , published by Lexis-Nexis. Professor Clancy teaches at the University of Mississippi Law School (no, not that Tom Clancy), where he is the Director of the "National Center for Justice and the Rule of Law" — a center that among other things has a Cyber Crime initiative largely focused on state and local law enforcement and judicial training.
By my count, Professor Clancy's book will become the third computer crime law casebook, although only the second that is updated regularly. In 2003, Carolina Academic Press published David Loundy's casebook, Computer Crime, Information Warfare, & Economic Espionage, although I believe it has not been updated since its initial publication.
The FDA's Unhealthy Salt Obsession
Is too much salt bad for you? That used to be the conventional wisdom, but more recent scientific research has suggested the emphasis on salt is misplaced. No matter. As Walter Olson notes, the Food and Drug Administration appears to be moving ahead with plans to force gradual reductions in the salt content of processed foods. Among other things, the FDA is concerning the adoption of federal targets for gradual salt content reductions to wean consumers from their taste for salt. But reducing salt content will do more than alter food's flavor. It can affect texture and perishability as well. Surely the FDA has better things to do than obsess over the salt content of processed foods. But if the FDA persists, I suppose it just means these (no relation) will get more use.
NLRB Back from the Brink
Today the National Labor Relations Board approved portions of a proposed rule to modify election procedures by a 2–1 vote. Only some of the (relatively) less controversial reforms to accelerate the pace of union elections were adopted, primarily those concerning pre-election appeals to the NLRB. Board member brian Hayes, who had reportedly threatened to resign or skip the Board's meeting, attended and cast the lone dissenting vote. Hayes commented, ""It is not my nature to be obstructionist . . . I believe resignation would cause the very same harm and collateral damage to the reputation of this agency."
Meanwhile, the AP reports that Boeing and the Macihinists union may have agreed to a new labor deal that effectively ends the dispute over Boeing's decision to locate an aircraft assembly plant in South Carolina rather than Washington State. If the tentative deal is approved, the AP reports, "the union would inform the NLRB that it has no further grievances with Boeing."
Defense bill will allow President to indefinitely detain American citizens
H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:
SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President's authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.
Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.
The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive's detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.
UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.
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