4

Criminal Prosecution for Scientific Fraud

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I spoke to a reporter at the end of last week about the criminal prosecution of scientific fraud. I’m not sure how coherent my end of the conversation was at the time, but I thought the topic was interesting enough to return to it briefly here.

Let’s put aside potential investigations and prosecutions by the federal Office of Research Integrity (part of DHHS). Granted, the ORI has claimed an extraordinarily broad mandate (funded and unfunded applications!), which might be worth returning to one day. But on the whole, such cases seem to me to be a fairly mundane application of the general contract fraud principles.

Instead, I’ll concentrate on a free-floating action in fraud against a scientific investigator for having misled potential patients. Thus, consider the scenario of a doctor faking an experiment to show that Drug X prevents heart attacks and has no side effects, when, in fact, it has no preventative powers, and it causes immediate hair loss. Is that doctor criminally liable? Civilly?

I’d guess that to the extent that general fraud often requires an intent-to-induce element, most scientists would be able to successfully assert that they did not intend for patients to rely on their work. In the civil context, I also assume that a consumer’s action would fail on the “justifiable reliance” end. If this weren’t true, I imagine that most scientific papers would end with a disclaimer that they are not intended to be relied upon, and that patients ought to consult their physicians (etc.)

But let’s put aside the doctrine for a moment and consider the policy arguments for attacking scientific fraud with prosecution. There are at least two reasons to think this is a bad idea (again, apart from the government-contract fraud case).

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14

The Portrait of the Lawyer as a Young Man

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Last week, the WSJ Law Blog had a quick write-up on Douglas Litowitz’s recent book The Destruction of Young Lawyers, which seems to be a fabulously original stream of assertions to the effect that there are a lot of unhappy junior associates in big law firms. Shocking! Just shocking!

Now I should point out that I am a young associate at a big law firm, and I admit that I am from time to time quite miserable. It is a high-pressure job. The hours are long, and frequently your days consist of high-stakes boredom, which combines stress and monotony in a rather toxic cocktail. Some of this is structural. Big-time litigation is not possible without massive priv reviews. The billable hour creates a really cruddy set of incentives for young attorneys from a life-style point of view. However, I think that these structural defects in the legal market — especially at “elite” firms on Wall Street or K Street — have less to do with the spiritual misery of young lawyers than two other factors: lack of interest in the law and the mismatch between the dominant myths about the legal profession current in law schools and the reality of the legal profession in practice.

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8

The Consequences of Misleading the Judiciary Committee

Edward Lazarus’s column on Findlaw this week discusses the constraints Chief Justice Roberts and Judge Alito have placed on their behavior on the Supreme Court by their Judiciary Committee testimony. Specifically, Lazarus argues that should Roberts and Alito turn out to be more doctrinaire than the moderate conservatism displayed in the hearings, the consequences would be “longstanding and grave.” (Lazarus does not elaborate on the nature of those consequences, which could range from possible impeachment, to restrictions on the Court’s power by legislation, to a loss of confidence among members of the public, to demands for even more specific promises from future nominees, etc.)

I am not confident that Lazarus is correct as a general matter, though he may be as to his principal example — voting to overturn what is left of Roe v. Wade. I see little evidence, for example, that Justice Ginsburg is suffering any ill effects from Congress though she has done little on the Court to justify her image in 1993 as a “moderate liberal.” Similarly, though all nominees routinely profess to understand that the law is more than their personal policy preferences, once on the Court they routinely break that promise. (As Justice Scalia said in a related context, campaign promises are, by long democratic tradition, the least binding form of human commitment. See Republican Party v. White, 536 U.S. 765 (2002).)

If I am correct, there could be at least three reasons there are few repurcussions thus far for reneging on Judiciary Committee commitments. First, Republicans may lack the guts to use ideology in the way that Senate Democrats do. We’ll see whether this is true the next time a Democratic President nominates a potential Justice, but the Republicans’ acceptance of Ginsburg indicates it might be true. Second, a determined minority can prevent Congress from taking just about any official action, so even opposition to a Court decision can be expected to result in no action so long as at least one committee in one house supports the Court’s decision. And of course impeachment is practically impossible. Third is the most obvious: Because the statements nominees make are so general, no behavior could constitute breaking that “promise.”

4

NYT Profiles A3G

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In the New York Times today, there’s an interesting profile of David Lat (aka A3G), the author of the blog Underneath Their Robes and soon-to-be author of the popular political gossip blog Wonkette. Some highlights include the reaction of the U.S. Attorney’s office where Lat worked when he revealed he was A3G:

Calls from news media organizations came pouring into the United States attorney’s office. The spokesman for the office, Michael Drewniak, was fuming. Mr. Lat was told by his superiors that it would be wise to take the site down, and he did. He was also told not to return calls from the news media, and he did not.

As the week progressed, Mr. Lat, a slight man with a habit of blinking hard when he is nervous, heard nothing from the boss, United States Attorney Christopher J. Christie. Some colleagues told Mr. Christie that what Mr. Lat did was wildly inappropriate, and that he should be fired. Others tried to convince him that this 30-year-old son of Filipino immigrants, a graduate of Harvard University and Yale Law School, was an otherwise model employee who had simply made a mistake and deserved another chance.

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The Growing Influence of Blogs

rise-arrow1.jpgDanny Glover of the Beltway Blogroll Blog has posted a very thoughtful and comprehensive piece he wrote for the National Journal tracing the history of how blogs have risen to prominence in political debates:

These days . . . there is plenty of chatter about blogs — and with good reason. The technology has taken firm root in the capital. Since summer, bloggers have testified before Congress and the Federal Election Commission; have been invited to Capitol Hill for exclusive interviews with lawmakers and to participate in conference calls with administration officials; and have spurred heated debates on everything from Supreme Court nominees to pork-barrel spending. . . .

Today, far more blogs are focused on Washington than was the case a year ago, when the Social Security debate was at its height. Think tanks and their wonks have them. So do trade associations, watchdog groups, and other special interests. . . .

Only one congressional blog existed before January 2005, but in the year since then, 17 lawmakers, the Republican Study Committee, and Democrats on the House Agriculture Committee have started blogs. Several more members of Congress regularly or occasionally make guest appearances at group blogs such as Marshall’s TPMCafe and The Huffington Post on the left, and RedState on the right.

“Blogs are becoming more respectable,” said Henry Farrell, a professor of political science and international affairs at George Washington University and a blogger at Crooked Timber. Citing the debate over Social Security as an example, he added, “People are beginning to figure out that blogs do have real impact.” . . .

In a February 2004 study, George Washington University’s Institute for Politics, Democracy, and the Internet found that 69 percent of blog readers are “influentials, or opinion leaders and trendsetters with their friends and neighbors.” Institute Director Carol Darr said in a recent interview that the news and political junkies who frequent blogs are like “honeybees, kind of feeding the culture” with the information they gather and with their comments and diaries at the sites.

There’s much more worth reading in Glover’s post.

Related Posts:

1. Solove, Are Bloggers Having an Influence Inside the Beltway?

2. Solove, Exponential Growth of Blogospheric Proportions

3. Solove, Will the Blogosphere Affect the Miers Appointment?

4. Solove, Dennis Hastert’s Blog

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Do No Evil and Perhaps Do Some Good: Google, Privacy, and Business Records

google5.jpgI just blogged about the case where the goverment is seeking search query records from Google. I am very pleased that Google is opposing the goverment’s suboena. According to the AP artice:

Google — whose motto when it went public in 2004 was “do no evil” — contends that submitting to the subpoena would represent a betrayal to its users, even if all personal information is stripped from the search terms sought by the government.

“Google’s acceding to the request would suggest that it is willing to reveal information about those who use its services. This is not a perception that Google can accept,” company attorney Ashok Ramani wrote in a letter included in the government’s filing.

In contrast to Google, other search engine companies such as Yahoo complied with the subpoenas without putting up a fight. Google is to be applauded for taking the effort to rebuff the government’s request.

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6

Government vs. Google

google.jpgAccording to the AP:

Google Inc. is rebuffing the Bush administration’s demand for a peek at what millions of people have been looking up on the Internet’s leading search engine — a request that underscores the potential for online databases to become tools for government surveillance.

Mountain View-based Google has refused to comply with a White House subpoena first issued last summer, prompting U.S. Attorney General Alberto Gonzales this week to ask a federal judge in San Jose for an order to hand over the requested records.

The government wants a list all requests entered into Google’s search engine during an unspecified single week — a breakdown that could conceivably span tens of millions of queries. In addition, it seeks 1 million randomly selected Web addresses from various Google databases.

The government is seeking in its motion to have the court direct Google to comply with a subpoena for “the text of each search string entered onto Google’s search engine over a one-week period (absent any information identifying the person who entered such query).” Originally, the government had asked for “[a]ll queries that have been entered on your company’s serch engine between June 1, 2005, and July 31, 2005, inclusive.” According to the government’s motion, the government narrowed its request to the text of search strings after extensive negotiations with Google.

The government’s request strikes me as tremendously inappropriate and proof that we need more protections against government access to personal data. I have written extensively on this issue and will address it in other posts.

I was struck by the resemblance of this case to another case back in 2004 where the Bush Administration attempted to subpoena records in its attempt to defend the constitutionality of a law. That case is Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004). In Northwestern Memorial Hospital, the government subpoenead 45 records on partial birth abortions in order to gather information to defend the constitutionality of the Partial-Birth Abortion Ban Act of 2003.

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6

Building the Google Brand, Courtesy of DOJ

According to today’s New York Times, Google is resisting a Department of Justice subpoena seeking records on Google users’ search queries. Yahoo, AOL, and MSN previously complied with the government’s request for this data. I will leave the legal issues to Dan and other privacy experts, but my first response to this story was that Google’s legal posture is an awesome marketing move. Google’s aggressive efforts to protect search information convey a message to consumers that they are the “privacy protective” websearch brand. Even if Google is ultimately forced to produce this information, its decision to resist the subpoena signals that the company will be privacy protective in the future.

This may have a very positive marketing effect. Since all search engines are free, and since Google is at least as good a product as its competitors, I imagine many surfers will take the path of greatest privacy protection. Really, how many web users – no matter how benign their searches – would prefer to be monitored by the government? Of course, when it comes to the porn consumer – and by all accounts there are millions of them – it’s going to be Google or bust!

2

Uncle Sam wants you . . .

. . . to hand over your search records.

From Findlaw:

The U.S. Department of Justice filed a motion in federal court seeking a court order that would compel search engine company Google, Inc. to turn over “a multi-stage random sample of one million URL’s” from Google’s database, and a computer file with “the text of each search string entered onto Google’s search engine over a one-week period (absent any information identifying the person who entered such query.”

The Complaint is available on the Findlaw site.