Another Kind of Meltdown

It’s an unfortunate truth that the world is running out of oil–or rather, it is running out of easily obtainable oil. Rising prices at the pump are the best indicator of this phenomenon. These prices also make formerly uneconomic sources of oil profitable. Wells that were once considered “tapped” are now once again in production, and the high global price of a barrel of crude oil drives many companies and countries to look for unconventional sources around the globe.

As was widely reported in the media this week, the amount of the Arctic Ocean covered in ice fell to a record low this summer. While this poses tricky questions for those who continue to deny global warming, it poses tricky problems international law as well. Namely, it is widely suspected by geologists that there are potentially vast deposits of hydrocarbons waiting under the ice. As the ice recedes permanently due rising temperatures and the inability to reach an international accord to limit the emission of greenhouse gases, it creates the of potential for international competition for those resources. Thus while climate change is often thought of as a scientific debate, it has consequences that reach the highest corridors of international law.

This situation is largely unprecedented in human history. How to handle the international exploitation of newly discovered resources in international waters is difficult. There is no existing international law framework to deal with the issue. Usually, countries attempt to avoid this problem by claiming vast stretches of the area for themselves, but this itself raises thorny legal issues. Antarctica, for example, is currently claimed by many different powers, most of which are either (1) no where near Antarctica or (2) lack the economic resources or technical skill to explore it. There is even an Antarctic Treaty dealing with the issue.

Although not covered in ice, a similar situation exists in the South China Sea. In that situation, three Asian nations, China, Vietnam, and the Philippines claim extensive stretches of the Sea (and a few others maintain smaller claims). A large portion falls squarely within the Philippines’ Exclusive Economic Zone under the U.N. Convention on the Law of the Sea, to which most countries with maritime borders are party. Exactly who wins in such a situation is guesswork, because most of international law simply isn’t written yet. How to properly administer competing claims to natural resources far offshore is one such area.

In the case of the Arctic, the biggest claimants are likely to be Russia and Canada, but Norway, Finland, and other nations (including the U.S.) are likely to take an interest. More may also stake out their claims. The existing Convention on the Law of the Sea is inadequate to deal with the situation. The South China Sea is a prominent example of the direction the race to acquire resources could take. This calls for a proactive international framework. Judging from the inability to act on the underlying cause of the dispute (i.e., climate change), however, it appears unlikely that this area of international law will soon be fleshed out. A pity we can’t run an experiment to fix this problem.


Must Doctors Keep Secrets?

DNA has proven to have important uses in the law.  DNA is often used as evidence in family and criminal law issues.  Besides its use as evidence, however, the subject of DNA and genetic research might be leading to a host of other legal issues.  Researchers learn more and more about DNA on an almost daily basis.  While conducting research, it is possible for researchers to discover something about an individual, entirely unrelated to the research that indicates potential life-threatening conditions.  The problem is that before research studies begin, subjects are consented and often agree to anonymity and agree not to be contacted by the researcher.  But what if the information learned by the researcher could allow the subject to receive life-saving therapies or avoid life-altering decisions?  What duties and obligations might exist for the researcher when he or she learns information about a patient and what considerations should be made regarding the agreements and consents already in place.

The New York Times recently ran an article about this situation.  The article presented situations where genetic researchers studying the DNA of cancer patients learned that one subject had the AIDS-causing virus and another had a predisposition to melanoma.  Both individuals here could benefit from this knowledge and receive therapies or medications that might be life-saving.  But the patients had agreed to anonymity and agreed not to be contacted.  The article also presents two situations where researchers discovered information about subjects regarding the potential for developing breast cancer.  One researcher, whose subject intended to undergo prophylactic breast removal, learned that the subject did not carry the genetic predisposition for breast cancer.  After consulting with lawyers and the review board, the researcher shared the information with the subject.  In the other, more unfortunate situation, a researcher learned that a subject did carry a breast cancer gene.  The lawyer’s and ethics committee would not be persuaded and she was unable to tell the subject of the situation.

Is it right that researchers, who learn such valuable information, might be unable to disclose their discovery to a research participant?  According to the article, the federal government is “hurrying to develop policy options.”   It is extremely important that such policy options be created in order to protect both the research subject and the continued advancement of the medical sciences.  Individuals who are willing to participate in these studies should not be put in harm’s way just because of a preferred method for science experimentation.  Furthermore, doctors and researchers should have a clear understanding of what their rights are as well as their duties when they learn valuable information.

The article can be found online at

Gene Patent Wars?

Adding to the controversy surrounding the patentability of genetic research methodology, 23andMe, a company dedicated to interpreting the human genome for the masses, announced the award of their first patent in May. The patent specifies their method of determining if an individual has a risk for Parkinson’s Disease based on particular genes. However, the patent could also have inadvertently helped initiate gene patenting “wars.” Madeleine Ball speculates that if labs begin patenting the identification of specific genes for specific diseases, other researchers will have to tip-toe around interpretations of those genes to avoid a patent infringement. This hardly seems to encourage a humanity-centered approach to understanding our genetic makeup. Instead, it turns genetic research into a gold rush for the most profitable gene-disease associations. Fortunately, in an addendum to their original patent announcement, 23andMe made clear that they do not intend to require license fees for other researchers to interpret their Parkinson’s Disease genes. If other labs follow suit, a hailstorm of litigation will be avoided, and their energies remained focused on what really matters: using our understanding of the human genome to increase our quality of life.

Neuroscience of Concussions in Sports

Concussions in sports, particularly football, have become a hot topic recently due to the increasing media attention surrounding medical studies on the long term neurological effects of former NFL players. Last week ESPN, one of the largest sports media conglomerates, had an entire week-long web series regarding the medical and legal ramifications of concussions in the NFL. The articles examined the various perspectives in the debate, along with the difficulty of finding any medical or legal consensus. The articles evince the difficultly of the issue by presenting the various sentiments and incentives of groups and individuals involved.

A rash of severe neurological disorders among former players, including suicides, have caused scientists to try and discover correlations between repeated trauma to the brain and subsequent debilitating ailments during retirement. One of the articles focused on neuropathologist, Ann Mckee, who is studying the brains of former football players in order to help players in a sport she says she loves. However, as we discussed in class, there is always discordance and an attempt to marginalize by those with differing opinions in the scientific community. Doctor Mckee’s details how her science was pronounced inaccurate and without merit by the NFL’s science representatives. The NFL’s representative, who is the chairman of the Department of Neurological Surgery at the University of Washington School of Medicine, stated that Mckee’s work needed to be put in more peer reviewed journals and that her studies are advocacy rather than science. It appears that this statement by the NFL’s representative is preemptively dismissing Dr. Mckee’s scientific conclusions in anticipation of impending litigation.

The manner in which Dr. Mckee’s work is being received by the general public and staunch supporters of the game of football portend the obstacles that await during trial testimony regarding football concussions. She had to testify in front of a congressional panel where she encountered acrimony from members of congress who claimed she was talking about ‘the end of football as we know it.’ In a jury trial it is very likely that scientific studies similar to Dr. Mckee’s testimony will be heard by jurors that are avid football fans. How difficult will it be for those jurors to objectively evaluate the scientific testimony when they hold onto deep cultural and personal affinity for the sport of football?

As we discussed in class, the neurological studies are so varied and complex that I believe jurors will most likely believe the science that coincides with their preexisting paradigms regarding football and its deleterious effects on the brain. Since the study of concussions is still burgeoning it is also going to be easier for the NFL’s scientific experts to discredit the validity of the studies as well as the motives of opposing scientists. I think this is a very interesting issue because you have a confluence of law and science with the backdrop of perhaps the most popular current American institution. It will be very interesting to observe the studies and posturing of competing experts that are sure to testify if the former NFL player’s suit against the NFL goes to trial.

Hurricane Isaac: What Will He Leave Behind?

As Hurricane Isaac continues to bludgeon the Gulf Coast, the media is all a tizzy reminiscing about hurricanes past, most notably, Hurricane Katrina.  However, there has been relatively little discussion about what could be a much more damaging and long-term issue for the Gulf, the continued presence of oil and oil dispersants from the Deepwater Horizon spill–oil and dispersant that Isaac’s storm surge and hurricane force winds will continue to thrust onto the Gulf shoreline.

In the summer of 2010, the Deepwater Horizon disaster spilled an estimated 4.9 million barrels of light crude oil into the Gulf of Mexico.  The clean-up of such spills is regulated under the Clean Water Act, which includes a complex and extensive procedure for having spill clean-up products approved and used. This process begins with the scientific testing of a product by its manufacturer and the submission of such test results to the EPA.  If a product meets the EPA’s standards it will be placed on a list of approved products for Regional Response teams and state governments to consider.  When a spill occurs it is assigned an on-scene coordinator who works with the Regional Response team, state and local officials, EPA officials, and the Coast Guard to develop a response plan.  In developing this response plan the team must select products off of the EPA’s list.  As you can imagine the bureaucracy is piled thick and high.  At this stage in the game, the science is nearly irrelevant.  There is an emergency.  Let’s fix it.

At first glance this seems perfectly fine.  Obviously a quick response time to an oil spill is critical.  And the prevalence of multiple layers of government is just par for the course.  The problem arises when you think about the science.  The EPA regulations involve only minimum standards that must be met for acceptance onto the list.  Because the system is governed by a government agency, there is little room for outside evaluation by the scientific community.  Thus, it is difficult to decipher whether the products on the EPA list are truly “safe” or effective.  Combine this with the quick turn around time that an oil spill response requires and the potential for disaster grows exponentially.

Continued studies by outside researchers have shown that Corexit is neither as safe nor as effective as initial reports claimed.  In fact, many reports are suggesting that Corexit may have serious long term health effects on both the individuals who are exposed and the Gulf ecosystems.  Only time and reliable scientific studies will reveal whether these claims deserve merit.  However, these reports and initial studies reveal with certainty that the current system for approving oil spill clean-up products is fatally flawed.  As a nation that is reliant on fossil fuels it is essential that we quickly re-evaluate the current system and develop new methodologies for approving oil-cleanup response products.

Neurology Could Lead To More Productive Sentencing

We all like to believe we are totally in charge of our behavior and that that criminals are just people who make bad choices but what if that’s not the whole story? What if a large percentage of the time biology overrides our decision making ability and we are wired to behave in a certain way? What if nature can change our wiring when we least expect it? David Eagleman is the author of a book called Incognito. His 2011 interview about his work and its implications set forth in the book was replayed as I did the carpool run with my kids on August 24, 2012. The replay was in honor of the book coming out now in paperback. According to Eagleman his research has implications for the justice system and how we sentence people for criminal behavior. It is estimated that 30% of the people in prison actually have mental issues that have not been addressed. Eagleman states that to incarcerate someone whose criminal behavior stems from a brain function disorder is ineffective, inhumane, and not fiscally responsible. He gives examples in his interview of a man who killed his family and others and then himself in Texas and police found a suicide note in his home asking that an autopsy be carried out because the man reported feeling changes in his mood over the past few months and generally not feeling right. The autopsy showed that the man had a brain tumor that was pushing on a part of his brain that likely caused his heinous behavior. The same was actually found to be the case with another man who later in life showed signs of pedophilia he had never had before. He acted on the impulse and was in imprisoned but doctors later found he too had a tumor pushing on a part of his brain that led to his bizarre sexual behavior. Once the tumor was removed his behavior returned to normal. However, a few months later he started to  show signs of the behavior returning and after a doctors visit they discovered that the surgeons had missed a piece and the tumor was growing. Doctors removed it again and the man returned to normal. What this means for convicting someone of a crime is that we need to be aware of the brain chemistry and look for possible neurological issues to explain the behavior. I would posit this is perhaps even more needed in cases where the behavior seems out of character for the individual in question. If the cause of the behavior is found to be a brain chemistry or neurological issue it needs to be addressed not by incarceration but by mental health professionasl as well as other doctors as deemed necessary. To hear his full interview click here. To read more about it click here.