The quest to identify “the good journals” continues

In our court system, judges face the task of deciding when scientific evidence is reliable enough to present to the jury. Since the 1920s, many courts have used the Frye standard, requiring the proffered scientific study’s methodology to have been “generally accepted” in the scientific community. Since 1993, most jurisdictions have begun to follow the Daubert standard, which does not require Frye’s general acceptance, while still considering whether the research has been subjected to peer review and publication. Since not every judge has a science background, it is understandable if some are intimidated by the task of evaluating the reliability of a scientific study or publication.

Today marks the end of 2013’s Open Access Week, a yearly event for academics to tout the benefits of Open Access. Its participants advocate for free, immediate, online access to scholarly research. In the Internet age, the barrier to publishing content is low (notably, wordpress alone hosts nearly 72 million sites.) While Open Access has advantages that justify this enthusiasm among researchers, it also has the disadvantage of not leaving markers for judges to evaluate the level of acceptance and the depth of review by other qualified scientists.

Under Open Access, not only do judges have little information to determine accuracy, but even a science magazine contributor was surprised with the level of scrutiny his paper submitted to open-access journals faced. John Bohannon’s submission of his paper about a fictitious cancer experiment, describing test methodology and results that included intentional red-flag flaws, was accepted by more than half of the 300 open-access journals that he submitted it to.  

Outside of checking a box for peer-review over Open Access, one other tempting approach to distinguish sources of good science from bad science might be to rely on the impact factor of the publication. Impact factor is a metric that yields a number, and therefor allows ranking scientific journals by impact factor (i.e. the frequency that their articles are cited by other publications.) Unfortunately, impact factor and the resulting journal rank faces criticism for their unintended consequences of skewing researchers’ submission strategies.

As scientific publishing continues to change, so will the indicators of which journals provide good, reliable studies. Which journals and sources those are won’t be evident to the scientists publishing, much less the judges reading.

Computer Scientists need a new lexicographer

The federal court for the District of Idaho recently caused a stir on the Internet by issuing a Memorandum Decision and Order (Battelle Energy Alliance v. Southfork Security) influenced by a one-sided view of what it means to be a “hacker”. In one sample reaction, security firm Digital Bond’s blog post summarized by saying that the court ‘ruled that an ICS product developer’s computer could be seized without him being notified or even heard from in court primarily because he states on his web site “we like hacking things and don’t want to stop”.’

The court appears to have relied on a commonly understood meaning of hacking, the act of acquiring access to computer resources without official authorization. The New Hacker Dictionary has many definitions of hack, but a simple and benign characterization is “an appropriate application of ingenuity” making no mention of gaining unauthorized access.

It takes a longer-form summary to get to why use of the term “hacker” was so pivotal in the Battelle case. The court ruled on the plaintiff’s request for a temporary restraining order that would disable the defendant’s website, and would preserve a copy of data for evidence in the pending copyright infringement action between the two parties. The court determined that Battelle was entitled to the temporary restraining order before the term “hacker” came up. The court did reference the term when deciding to issue the order without notice and to allow copying of the defendant’s hard drive. Much of this part of the decision was influenced by the line:

We like hacking things and we don’t want to stop.

The use of the term ‘hacking’ here is unfortunate, because it caused the judge to rely on a commonly understood meaning of hacking as the act of acquiring access to computer resources without official authorization. The opinion does not delve into the definition of “hacker,” but the failure to do so may have allowed the court to be misled. The opinion twice cites sources that articulate undesirable actions that “hackers” take, without questioning whether the conclusions apply to each and every “hacker,” especially those self-identifying by using the term in a different sense.

Among computer scientists, hacking can be a good thing. Computer Scientists may be their own lexicographer, but what they need is good Public Relations.

A Serendipitous Example

A few hours after giving a presentation on how veggie libel laws could be used to improve the quality of public discussions about GMOs, I discovered this article by Jon Entine, which was published yesterday on the Genetic Literacy Project’s website. The article makes a convincing case that New York Times journalist Michael Pollan has been using his position to spread disparaging information about GMOs which he knew was false or with reckless disregard for its truth or falsity. If Mr. Entine’s report is accurate, then Mr. Pollan should be held liable for any damage he’s caused. The only hard part is finding a party with standing and quantifying the damages.

The article is also worth reading for its summary of the notorious bad science touted by anti-GMO activists. The “scientists” who perform these studies–studies intentionally designed to reach a pre-determined, disparaging conclusion about food products–should also be held accountable, including through the use of punitive damages. 

The reasons behind crime

“More punishment does not necessarily lead to less crime,” a news report on the ETH life website declared. According to the report, scientists at ETH Zurich have built a new model to simulate social interactions. The agent-based model is more realistic than previous models because it includes not only criminals and law enforcers, but also honest citizens. The model explains why tougher punishments do not eliminate crimes. Therefore, the focus of combatting crime should be on the socio-economic context. The report is picked up and redistributed by other science news outlets, e.g., the Science Daily. The original version can be found at

Before we tear up the Penal code on the account of scientific discovery, it is probably worthwhile to read the actual paper quoted by the news report. The paper, titled “Understanding Recurrent Crime as System-Immanent Collective Behavior,” is published by Matjaz Perc, Karsten Donnay, and Dirk Helbing, and can be found at

The study discussed in the paper carried a much narrower focus than what the news report ostensibly suggested. The study was aimed to explain the empirical evidence that criminal activities often follow a cyclical pattern. The study was based on simulations of a spatial inspection game, which employed a number of variables that represented criminal gain, penalty, inspection cost, inspection reward, and probability of being caught. The simulation showed that different states existed, each of which was dominated by criminals, inspectors, or ordinary people, respectively. As a result, criminal activities are likely to be recurrent than evolving towards an equilibrium. The spatial interaction, i.e., the degree of people interacting with each other, is an important factor in the dynamics of these state transitions.

Unlike what the report suggested, the study did not pronounce the death of criminal punishment system. Although the simulation did show that at transitional points, increasing penalty does not eliminate crimes, this does not mean that penalty has no effects on the criminal activity in general. On the contrary, the study showed that if the penalty is too low, then the temptation for crime will be too high, which leads to a complete breakdown of social order. The inspection cost has a similar effect.

The model used in the study may continue to provide insights on how society works, and whether certain criminal prevention strategy may work better than others. But the study also showed that one has to be careful to draw quick conclusions because the human society is extremely complicated.

So keep your penal code. It probably wouldn’t disappear from the bar exam any time soon.

United States v. Kriesel, 720 F.3d 1137 (9th Cir. 2013)

Thomas Kriesel pled guilty to a drug conspiracy charge and was sentenced to prison followed by a term of supervised release. Kriesel was required to provide a blood sample as a condition of his supervised release.  The blood sample was used to create a DNA profile that was stored in the the government’s Combined DNA Index System (CODIS) database.

Kriesel sued to have the blood sample returned (not the DNA profile).  The district court denied Kriesel’s request, and the 9th Circuit affirmed.  

Kriesel’s claim was based on FRCP 41(g):  Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

The 9th Circuit concluded the blood sample was property so the issue was “whether the government has shown a legitimate reason for retaining the property. This case turns on whether the government’s continued retention of the blood sample is ‘reasonable[] under all of the circumstances.’” Kriesel at 1145.

The 9th Circuit denied Kriesel’s claim and accepted the government’s argument that a “match confirmation process” used to test the validity of new software was a legitimate reason for retention.  The match confirmation process generates a new DNA profile from the retained blood samples and then compares the new profile to the old profile.  The government argued this process reduces errors.  Id.

Relying on Buck v. Bell for the notion that our values shift dramatically over time, the dissent argued that the statutory penalties for unauthorized use of stored blood samples were insufficient safeguards and “[t]he only sure way to avoid such a risk is to give individuals, rather than the government, the ultimate say regarding whether their genetic material will reside permanently in a government-controlled refrigerator.”  Id. at 1161.  The dissent pointed to the potential for third-party violations and correctly pointed out that “no one can assure the over ten million Americans whose blood samples are currently held by the government, or the untold millions to come, that their samples will never be misused. The quick pace of technological advancement has led to the risk of privacy violations that we could never have imagined a short while ago.”  Id. 

A lot of science, a little law, and a healthy amount of gas

If you have a post-draft-submission hangover, Mary Roach’s new book, “Gulp: Adventures on the Alimentary Canal,” may be a refreshing read.  A winner of multiple book awards, Ms. Roach is one of the rare bestseller authors that specialize in writing about science.  She seems to pull off an impossible mission: getting people to read science.  Her secret? Well, maybe her fascinations on peculiar topics have something to do with it.  The subjects of her previous literary pursuits include: human cadaver, life in space, science about after-life, and of course, the science of sex.

In a small volume of 300 pages, which is no more than two nights’ readings for any experienced law student, you will find answers to some of the questions that you always want to ask.  Such as:

–          Where does the legend of fire-breathing dragons come from?

–          How did Elvis die?

–          How to train yourself to be a competitive eater?

–          How to measure your ability in passing gas without sticking a balloon on your butt?

In a blatant attempt to appeal to law students everywhere, Roach managed to include a Supreme Court case in the book.  United States v. Hernandez is a Fourth Amendment case concerning a “balloon swallower” who was detained by an inspector at customs for 16 hours to wait for her bowl movement.  The Ninth Circuit reversed the conviction by the trial court, holding that the 88 balloons containing a total of 528 grams of 80% pure cocaine hydrochloride that she eventually passed were fruits of an illegal detention.  The court further labeled her “efforts to resist the usual calls of nature” as “heroic.”  This did not sit well with the majority of the Supreme Court.  Relying on “the rudimentary knowledge of the human body which judges possess,” Chief Justice Rehnquist found that the smuggler’s unconformable and humiliating detention was the sole result of her creative, but illegal use of her alimentary canal.

An Eureka moment came to me when I read about Roach’s description of a seminal event in the career of one Michael Levitt.  According to Levitt, his fellowship advisor called him into his office on day and said, “I think you ought to study gas.”  Levitt asked, “why?”  The advisor responded, “Because you’re pretty much of an incompetent, and this way if you discover anything, at least it’ll be new, and you‘ll be able to publish something.”  Levitt went on to publish thirty-four papers on flatus, identify the main ingredients responsible for flatus odor, invent the flatus-trapping Mylar “pantaloons,” and become the authority in all subjects related to flatulence.If only I can find the topic in legal academia that most resembles fart!