Happy Friday All!
Once a month. Take the Challenge.
Each month we feature one (or more) technology(ies) with potential legal implications and ask:
What’s YOUR answer?
One $25 Starbucks gift card card awarded per challenge based on what we feel is the most judicious response to the highlighted technology(ies), below.
Deadline to be eligible for this month’s Starbucks gift card is December 10, 2014.
OLD NEWS…WITH ONGOING CONCERNS?
The search for material for this month’s Starbucks Challenge led to some older articles describing the rise of Do-It-Yourself (DIY) biotechnology kits, labs and similar concepts allowing lab enthusiasts and budding or established scientists to take matter into their own hands, so to speak. Below are links describing DIY biotech. One article states not to worry about the practice. Another explains the concept and structure of various community labs. Indie Biotech’s website announces the provision of “affordable, Open-Source-DNA development platforms, kits and strains for beginners to learn the engineering of bacteria easily, and perhaps later to facilitate engineering of plants and simple bugs…” Take a look at the featured links and then tell us what you think about DIY biotech, including its implications. Good, bad or something in between?
Scientific American, DIY Labs Undergo Makeovers
Indie Biotech, About
On November 12, 2014 in the words of Big Think‘s David Ropeik, “the EU government quietly scrapped the position of Chief Science Advisor (CSA), a resounding science embarrassment, and a precedent that should scare people everywhere.” In her role as CSA, Anne Glover was tasked with educating policymakers on matters involving scientific expertise, including the safety of genetically modified organisms (GMOs). Unfortunately for Glover, supporting sound science may very well have resulted in her being axed from her post and the axing of the post itself. According to Ropeik, “environmental groups, noting specific concern about the GMO issue, called on the EU government to abandon the entire idea of an independent science adviser, after the CSA reported what every independent national science advisory board in the world has found…there is no reliable evidence that GMOs harm human health.” So for now, the motto at the EU Commission appears to be: out with facts, in with fiction.
3 Questions. 3 Hints. 3 Answers. Every Tuesday.
1. What technology, described as a “black box” for humans is headed to court?
Answer: no, we are not talking about the personal injuries allegedly caused by wearing a Fitbit. Here we are talking about Fitbit data being used to support a personal injury claim. A Calgary law firm is breaking new ground in a personal injury case that will use data from a Fitbit to establish the effects of an accident on its client. In this case, the plaintiff’s lawyer won’t be using Fitbit’s data directly, rather the data will be fed through an analytics platform to compare the plaintiff’s activity data with that of the general population. The claimant in the Calgary case will wear the Fitbit for an assessment period, during which her personal data will be collected and assessed. Given that the complainant in question used to be a personal trainer, her attorney hopes to easily establish that she was active before sustaining injuries in an accident. Nonetheless, one can foresee that this type of assessment vehicle may be subject to abuse in that one could easily curtail one’s activities in order to establish lack or lessening of physical activity during the investigative period. Read the details here.
2. What discovery may qualify more folks to receive a Darwin Award?
Answer: scientists at Johns Hopkins Medical School and the University of Nebraska have discovered a virus found in algae (chlorovirus Acanthocystis turfacea chlorella virus 1 (ATCV-1)) that can infect the human brain, making its victims more…stupid. The virus affects visual processing, spatial awareness and attention. In their study, researchers found that “the presence of ATCV-1 was associated with a modest but measurable decrease in cognitive functioning.” Read the details here.
3. What rather massive resurrection is potentially in the works?
Answer: Scientists announced they may have the know-how and DNA to clone one very old wooly mammoth. The well-preserved 40,000 year-old mammoth was discovered in 2013 in Siberia. While the tools are in place, certain ethical constraints may prevent the project from moving forward. Read the story here.
Happy Friday All!
TEACHING STATISTICS IN LAW SCHOOLS
(By Nathan A. Schachtman, Esq.)
Courtesy of Kirk Hartley
Back in 2011, I came across a blog post about a rumor of a trend in law school education to train law students in quantitative methods. Sasha Romanosky, “Two Law School Rumors” Concurring Opinions (Jan. 20, 2011). Of course, the notion that that quantitative methods and statistics would become essential to a liberal and a professional education reaches back to the 19th century. Holmes famously wrote that:
“For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”
Oliver Wendell Holmes, Jr., “The Path of Law” 10 Harvard Law Rev. 457 (1897). A few years later, H.G. Wells expanded the pre-requisite from lawyering to citizenship, generally:
“The great body of physical science, a great deal of the essential fact of financial science, and endless social and political problems are only accessible and only thinkable to those who have had a sound training in mathematical analysis, and the time may not be very remote when it will be understood that for complete initiation as an efficient citizen of one of the new great complex worldwide States that are now developing, it is as necessary to be able to compute, to think in averages and maxima and minima, as it is now to be able to read and write.”
Herbert George Wells, Mankind in the Making 204 (1903).
Certainly, there have been arguments made that statistics and quantitative analyses more generally should be part of the law school curriculum. See, e.g., Yair Listokin, “Why Statistics Should be Mandatory for Law Students” Prawfsblawg (May 22, 2006); Steven B. Dow, “There’s Madness in the Method: A Commentary on Law, Statistics, and the Nature of Legal Education,” 57 Okla. L. Rev. 579 (2004).
Judge Richard Posner has described the problem in dramatic Kierkegaardian terms of “fear and loathing.”Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013). Stopping short of sickness unto death, Judge Posner catalogued the “lapse,” at the expense of others, in the words of judges and commentators:
“This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue. “As a general matter, lawyers and science don’t mix.” Peter Lee, “Patent Law and the Two Cultures,” 120 Yale L.J. 2, 4 (2010); see also Association for Molecular Pathology v. Myriad Genetics, Inc., ___ U.S. ___, 133 S.Ct. 2107, 2120, (2013) (Scalia, J., concurring in part and concurring in the judgment) (“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 599 (1993) (Rehnquist, C.J., concurring in part and dissenting in part) (‘‘the various briefs filed in this case … deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review—in short, matters far afield from the expertise of judges’’); Marconi Wireless Telegraph Co. of America v. United States, 320 U.S. 1, 60–61 (1943) (Frankfurter, J., dissenting in part) (‘‘it is an old observation that the training of Anglo–American judges ill fits them to discharge the duties cast upon them by patent legislation’’); Parke–Davis & Co. v. H.K. Mulford Co., 189 F. 95, 115 (S.D.N.Y. 1911) (Hand, J.) (‘‘I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these … . How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance’’); Henry J. Friendly, Federal Jurisdiction: A General View 157 (1973) (‘‘I am unable to perceive why we should not insist on the same level of scientific understanding on the patent bench that clients demand of the patent bar, or why lack of such understanding by the judge should be deemed a precious asset’’); David L. Faigman, Legal Alchemy: The Use and Misuse of Science in Law xi (1999) (‘‘the average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it’’).
Of course, ignorance of the law is no excuse for the ordinary citizen. Ignorance of science and math should be no excuse for the ordinary judge or lawyer.
In the 1960s, Michael Finkelstein introduced a course on statistics and probability into the curriculum of the Columbia Law School. The class has had an unfortunate reputation of being “difficult.” One year, when Prof. Finkelstein taught the class at Yale Law School, the students petitioned him not to give a final examination. Apparently, the students were traumatized by facing problems that actually have right and wrong answers! Michael O. Finkelstein, “Teaching Statistics to Law Students,” in L. Pereira-Mendoza, L.S. Kea, T.W.Kee, & W.K. Wong, eds., I Proceedings of the Fifth International Conference on Teaching Statistics at 505 (1998).
Law school is academia’s “last clear chance” to avoid having statistically illiterate lawyers running amok. Do law schools take advantage of the opportunity? For the most part, understanding statistical concepts is not required for admission to, or for graduation from, law school. Some law schools helpfully offer courses to address the prevalent gap in statistics education at the university level. [See Schachtman’s list of law schools that offer classes related to statistics education here.)
Alumni, current students, distinguished faculty and community leaders & supporters came together last Friday, November 7, 2014 on the Garden Terrace @ the Hyatt Regency Phoenix to celebrate, among other things, the preeminent Center for Law, Science & Innovation‘s 30th birthday and its noteworthy growth & contributions throughout the years. Other highlights included an update on the new ASU Arizona Center for Law & Society and current Center news.