Articles by mjlst

The Bayou Corne Sinkhole: A New Test for the Gulf Region’s Post-Deepwater Strategy?

January 25, 2013
Environment

by Chris Evans, UMN Law Student, MJLST Executive Editor

Less than 200 miles from the site of 2010’s Horizon Deepwater blowout, another environmental disaster threatens a community in the Gulf Coast region. In early August, 2012, a massive sinkhole opened up beneath the Bayou Corne near a small residential community in Assumption Parish, Louisiana. Filled with brine, oil, and natural gas, the sinkhole has since grown to 8 acres, forcing the evacuation of 300 residents, and officials apparently don’t know when (or if) the area will again be habitable.

Below the Bayou Corne, the country’s largest independent brine (used in a variety of industrial processes) producer, Texas Brine, had been removing brine from an underground salt cavern for over twenty-five years up until June 2011, when it plugged the cavern. Texas Brine also, with the permission of Louisiana Department of Natural Resources, deposited naturally-occurring radioactive material in the cavern. The USGS has determined the collapse of the cavern caused the sinkhole. Although Texas Brine has been working with authorities to monitor and remedy the disaster, the company sought an injunction against an order to drill new wells to install additional monitoring equipment. Texas Brine dropped that lawsuit when Louisiana agreed to instead require the company to perform 3D seismic imaging to evaluate the cavern.

This unprecedented disaster and the torpid response by state officials and Texas Brine is an example of what Daniel Farber called the Gulf region’s “witch’s brew of chronic environmental harm, acute pollution, and threatened communities.” In The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast, Farber described the threats to the region posed by both the Deepwater oil spill and the chronic unpreparedness of the region for such catastrophes.

Farber notes hopefully that “the acute crisis of the spill has helped mobilize attention to the Gulf, which may help catalyze responses to the Gulf’s chronic ills.” Indeed, in October 2010, President Obama established the Gulf Coast Ecosystem Restoration Task Force to develop a regional response to the Deepwater spill, which it released in December 2011. The strategy–one of several post-Deepwater reforms discussed by Farber–is built around four main goals: restore and conserve habitat, restore water quality, replenish and protect living coastal and marine resources, and enhance community resilience.

The Bayou Corne sinkhole has remained mostly unnoticed by national media, so despite its impact on the local community and lack of historical precedent, this disaster is unlikely to mobilize new attention to the Gulf region. But Bayou Corne presents a useful test for the Restoration Task Force’s strategy: can this framework help mitigate the effects of the sinkhole? The strategy’s focus on the coast, the Gulf, tourism, fishing, and oil and natural gas drilling make it a less than optimal source of salvation for the unusual problem of the Bayou Corne sinkhole. But displaced residents would be wise to tap any available Deepwater-related resource aimed at the region. Even if the Deepwater-inspired reforms provide no relief for Bayou Corne, local pressure will improve the state, regional, and federal framework for dealing with (or preventing) the next disaster

Searching for .08: Marijuana Laws and the Problem of Detecting “Drugged Driving”

January 3, 2013
Uncategorized

by Nathanial Weimer, UMN Law Student, MJLST Staff

We’ve all seen the commercial. Some car comes swerving down the road, veering in and out of the proper lane and generally wreaking havoc on the neighborhood. Upon being pulled over, the driver is visibly intoxicated and the police officer quickly notices. The officer breathalyzes the driver, and if alcohol is found takes the driver back to the station for blood testing. If the driver’s blood alcohol level reaches .08, it creates a presumption that the he or she was driving under the influence of alcohol. The law enforcement process is simple and mostly effective, even if the car wasn’t actually filled with the driver’s drink of the night.

The recent passage of laws in Washington and Colorado legalizing the recreational use of marijuana will obviously increase the number of “drugged drivers” on the roads. At first glance, this might not seem like an issue–after all, police have a fairly simple method for measuring whether, and to what extent, someone is intoxicated by alcohol. Seemingly, they could employ a similar system for marijuana (driving under the influence of marijuana is, of course, still illegal). It turns out, however, that detecting the influence of marijuana presents a different set of challenges that law enforcement will have to grapple with.

The legal question for a drug DUI is whether or not one’s driving was impaired by the influence of the drug. One prominent marijuana detection method is the blood test, which measures the amount of tetrahydrocannabinol (THC), the psychoactive component in marijuana, in the blood. If some amount is found, that indicates recent use. There are problems with this test, though. First of all, THC blood levels don’t indicate the time of use because THC remains in the blood for a long period of time, according to DUI Blog. Some say it remains for days, while others claim the period can be weeks or months. Regardless, the point is that THC may be present while the effects of the drug are not; since the legal standard is impairment, a THC finding of a certain level does not necessarily meet that burden.

Effectiveness aside, blood tests also fall short from the perspective of administrative ease and individual rights. As might be expected, conducting and interpreting blood tests is time consuming and costly. As also might be expected, it’s a frustration to the driver to have to submit to a blood test taken at a police station, especially if it comes back negative. While traffic safety is clearly an important concern, well worth a few false alarms, it’s clear that a “drugged driving” detection system suffers from the lack of a breathalyzer-like device that can quickly indicate marijuana use and support blood testing of a driver.

Users, too, have a need for a short-term test that can be easily administered and understood. Drinkers of alcohol should have a general idea of their intoxication, at least up to the point where they know they should no longer drive. Most drinks have a known amount of alcohol in them, the alcohol is roughly the same strength, and there is only one way to ingest them. Marijuana on the other hand varies in strength depending on type, has multiple methods of ingestion which also vary the strength of the drug’s effect, and it’s more difficult to keep track of the amount consumed. Legal users who have ingested hours earlier and feel no effects may wonder whether their THC level is acceptable.

Technological development has provided a few solutions to the problem of short term detection. One “new” test (it is currently used in Australia and other places) is the saliva test. According to a blog on The Verge, this test is done by swabbing the driver’s mouth, can be completed within 3-5 minutes, and can measure the presence of marijuana for a few hours after ingestion. This would solve the invasiveness issue and the short-term issue. However, the amount consumed cannot be measured, and there are also accuracy based concerns–the test tends toward reporting false negatives. Still, the saliva test seems to be a promising tool for law enforcement in the future.

Another potential solution is being developed by Intelligent Fingerprinting, which is working on a fingerprint drug screening method. The device would use “high sensitivity detection reagents to identify metabolite substances in the sweat contained in fingerprints”, and would compute results in a matter of minutes. While this test would similarly fail to pinpoint the time of ingestion, or the level of impairment, it could be a very useful roadside tool. This device is still in development, however, and could still be a few years away.

With the new marijuana laws in Colorado and Washington, the pressure is on law enforcement to effectively detect drivers under the drug’s influence. While the ultimate step may be to conclusively link detection to impairment, the current step that must be taken is the development of a non-intrusive, short term device that can accurately measure a driver’s chemical levels. Possibly the saliva test will satisfy this need; possibly inventors have yet to create a viable device. In the meantime, it’s important to be careful while driving–especially if you see a car swerving like it’s in a commercial, and it’s entirely filled with smoke.

While 86% of Americans Oppose Behavioral Targeting of Voters, Campaigns Embrace It

December 5, 2012
Elections, Internet

by Bobbi Leal, UMN Law Student, MJLST Articles Editor

With the dramatic 2012 Presidential election behind us, new information about the campaign funds are being released. A recent Huffington Post article outlining the campaign funds allotted toward the mining and analysis of internet data about potential voters. President Obama and Mitt Romney’s campaigns spent a combined total of $13 million dollars on this controversial practice.

The Minnesota Journal of Law Science and Technology’s recent publication, “It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy in the Information Age,” points out that campaigns utilize data mining as a way to more effectively target voters. The mined data includes information gleaned or purchased from both public and private sources. To make use of the internet’s information on the individual, the campaigns use algorithms that match the attitudes of voters on specific issues with individual behaviors and tendencies. The individual behaviors they might look at include where you shop, which team you root for, which petitions you sign, who your friends are, and even what mobile device you use.

With a continued decrease in the number of undecided voters, the practice of using digital data to target particular individuals is an effective one. Further, online targeting can reach voters who would normally have no access to traditional campaigning, such as those in remote counties.

A study by the University of Pennsylvania Annenberg School of Communications revealed that a large majority of Americans (86%) are against behavioral targeting and tailored advertising for political or other purposes. However, privacy practices in the political context are not regulated like in the commercial sector due to protections afforded by political speech.

Six Strikes and You’re Out: Can a New RIAA Policy Solve Old Online File Sharing Problems?

December 4, 2012
Intellectual Property, Internet, Social Media

by Ian Birrell

Since at least 1999 when Napster was originally launched, internet piracy, or downloading copyrighted materials (especially songs, videos, and games,) has been a contentious activity. The Recording Industry Association of America (RIAA) has historically taken a very public and aggressive stance by finding individuals associated with IP addresses matching those where this “file sharing” is coming from. After finding such a target, the RIAA would send a letter demanding a settlement for thousands of dollars or threatening litigation, risky and expensive to the target, despite a potentially very small monetary value of downloaded material. The RIAA suits, which have continued for a number of years, include a number of well publicized absurd claims.

This journal has written on the RIAA policies before. In 2008, we published a student note by Daniel Reynolds named The RIAA Litigation War on File Sharing and Alternatives more Compatible with Public Morality. Reynolds argued then that the policies were ineffective and unconscionable and urged change.

Change is coming. Later this year, after a number of years in development, a number of major carriers are planning to institute a “six-strikes” plan. This is a voluntary agreement between ISPs and certain content providers (the government is not involved,) and is made to target peer-to-peer downloading. The plan has a notice phase, an acknowledgement phase, and a mitigation phase. Under the plan, a private carrier – say, Time Warner – will first notify a user that there has been an allegation of illegal copyright activity, then force a user who may be infringing (and who may or may not own the account) to acknowledge having received such notices, before the user finally suffers consequences. These consequences can include throttling of internet speed or having popular websites blocked.

Proponents point to a few positives under this proposal, including the user’s right to appeal to an independent arbitrator (for a $35 fee.) Additionally, though lawsuits are still permitted by copyright holders, the hope is that the system will educate the public about copyright infringement and that, on notice that their behavior is illegal, infringement will at least slow down. Ron Wheeler, a Senior VP at Fox, said that, “This system is not designed to produce lawsuits–it’s designed to produce education.”

Unfortunately, a lack of education may not be the underlying problem. Reynolds noted that, even in 2004, awareness of the (il)legality of file sharing was widespread. And increasing awareness may not sharply decrease infringement. Critics further note that, despite the safeguards, penalties are ultimately based on accusations rather than definite findings of infringement. If the system ultimately works, though, it may be worth the headaches for both sides. Consumers will not be able to infringe (as much) but the public will also not suffer suits against twelve-year-olds for sharing music.

Apple & Samsung Litigation Shows Need for Patent Reform

December 3, 2012
Intellectual Property, Litigation, Patents

by Thomas Manewitz, UMN Law Student, MJLST Managing Editor

In the past two years, two of the world’s mobile technology leviathans, Apple and Samsung, have engaged in multibillion dollar patent infringement litigation. Specifically, Apple has been seeking damages and fighting for injunctions on several of Samsung’s mobile products in markets across the globe. On August 24, 2012 in the United States, Apple won a 1.049 billion dollar damages award for Samsung’s “willful patent infringement.” In the same lawsuit, Samsung counter sued and won zero damages. In the wake of this trial, Apple is seeking an injunction for 20 Samsung products.

Samsung provides the market with a popular Apple alternative that does not come close to dominating the market share. In the context of the litigation, both Samsung and Apple were forced to release their U.S. sales numbers. Samsung, who is at risk of having its products blocked from the U.S. markets, sold 21 million smart phones and 1.4 million tablets, while Apple sold 86 million smart phones and 34 million tablets. New and different products are now at risk from being removed from consumer markets because of our patent litigation structure. I will not argue that this case alone will temper innovation; however, it does beg the question as to whether or not high profile patent litigation, and the patent system as it currently stands, optimizes the production societal good and innovation. Perhaps the United States patent system should be reorganized based on different principle. For a discussion of the reorganization of the patent system see the United States patent system see Liza Vertinsky’s article in the Minnesota Journal of Law, Science & Tehcnology, “An Organizational Approach to the Design of Patent Law.”

Apple & Samsung Litigation Shows Need for Patent Reform

December 3, 2012
Intellectual Property, Litigation, Patents

by Thomas Manewitz, UMN Law Student, MJLST Managing Editor

Pharmacists Refusing to Dispense OTC Birth Control

November 19, 2012
Uncategorized

by Katelyn DeRuyter, UMN Law Student, MJLST Staff

Can your access to a legal method of birth control be blocked by your pharmacist? It seems likely. Although emergency contraception (EC) is legal in America and a recent poll found that 77% of Americans object to pharmacies refusing to fill birth control prescriptions, a woman that goes to pick up EC may face a denial of the drug by her pharmacist. According to the Appellate Court of Illinois Fourth District, in recent case Morr-Fitz, Inc. v. Quinn, the state’s “Conscience Act” (protecting health care personnel from liability when they refuse to act due to their conscience) protects pharmacists who refuse to dispense EC. Illinois is not alone in providing pharmacists the ability to deny EC. Six states have laws that explicitly permit pharmacists to refuse to administer EC. Five more states (including IL) have “conscience clause” laws that are worded broadly enough that pharmacists may be included.

Under the Patient Protection and Affordable Care Act, as of August 1, 2012 medical insurance plans must completely cover the costs for birth control–including emergency contraception–STD screenings and many other preventive health measures for women. Depending on which articles you read, this expansion in required insurance coverage either marks a hallmark step in women’s rights or an egregious affront to one of this country’s ideological pillars–the freedom of religion. Regardless of your stance on the new legislation, the fact remains that increased financial access to such services is meaningless if physical access is blocked. This is especially true in regard to emergency contraception which must be taken as soon as possible after intercourse in order to be effective. Thus when a pharmacist refuses to provide access to EC, they are putting their objections to EC above a woman’s right to exercise control over her body.

In Pharmacists and the “Morning-After Pill”: Creating Room for Conscience Behind the Counter, published in Volume 7 issue 1 of the Minnesota Journal of Law, Science & Technology, Tony J. Kriesel faces this question of whether a pharmacy or individual pharmacist can constitutionally refuse to administer EC. Kriesel starts with the proposition that EC can be viewed as an abortive drug. It is this possibility of EC acting as an abortive that motivates pharmacists’ denials. Whether or not EC is considered an abortive drug depends on at what point in reproduction one considers pregnancy to have begun. If pregnancy begins when the egg is fertilized, then EC can act as an abortive if taken during ovulation. If taken during ovulation, EC prevents the egg from implanting in the lining of the uterus, thus causing the fertilized egg to be aborted. However if pregnancy begins when a fertilized egg successfully implants in the lining of the uterus, then EC is not abortive but acts like all other forms of birth control and simply keeps a potentially viable pregnancy from beginning.

After acknowledging there is controversy in the medical community over whether fertilization or implantation begins pregnancy, Kriesel asserts that EC is in fact an abortive and that pharmacists can constitutionally refuse to administer the drug. Kriesel’s legal analysis of this issue focuses on the protections provided to the pharmacist by the free exercise clause of the First Amendment and the fact that a woman’s right to EC (regardless of its classification as an abortive) does not entail a right to have access to EC wherever is most convenient.

The U.S. Supreme Court has not addressed this question of whether a pharmacy or individual pharmacist can constitutionally refuse to administer emergency contraception (EC). What are your thoughts on the issue? Can (and should) states pass laws that allow pharmacists to deny access to a legal form of birth control? Does the right to freedom of religious expression trump a woman’s right to exercise control over her body?

Free Consortium Event, Nov. 15: Should the Science of Adolescent Brain Development Inform Legal Policy?

November 14, 2012
Event, Law Enforecement

by MJLST

Studies of adolescent brain development have influenced debates on issues such as the constitutionality of the juvenile death penalty, if sentencing juveniles to life without the possibility of parole is moral, to whether states should raise the legal driving age, to permitting minors to obtain an abortion without parental consent. In this lecture, Prof. Steinberg will examine whether burgeoning research on adolescent brain development should influence legal policy.

Prof. Laurence Steinberg, PhD, Distinguished University Professor and Laura H. Carnell Professor of Psychology at Temple University will offer an overview of the major changes in brain structure and function that take place during adolescence, and discuss what we do, and do not, gain with respect to our understanding of adolescence from neuroscience beyond what we already know from behavioral science. After applying this analysis to the specific case of adolescent criminal culpability, he will consider how developmental neuroscience might influence questions concerning the drawing of legal age boundaries more generally.

Commentators include Susanna Blumenthal, JD, Ph.D., Associate Professor of Law and History University of Minnesota and A. David Redish, PhD, Professor, Department of Neuroscience University of Minnesota. Moderators include Michael Georgieff, MD, Professor of Pediatrics and Child Psychology; Steve Kelley, JD, Senior Fellow, Humphrey School of Public Affairs; and Akshay Rao, PhD, Professor, Carlson School of Management

Thursday, November 15, 2012
11:30am-1pm
Coffman Memorial Union Theater

Are DNA Databases the Future of Our Criminal Justice System?

November 14, 2012
Uncategorized

by Jennifer Nomura, UMN Law Student, MJLST Staff

DNA is a key piece of evidence in criminal trials. But despite what we see on Law and Order and CSI, obtaining a DNA sample from potential suspects isn’t always easy. In an episode of a popular crime-solving TV show, detectives are shown following a number of potential suspects. The detectives pick up used tissues and discarded cigarettes from a long list of suspects in order to obtain DNA samples from each of them. Is that the criminal justice system of the future? A system where a thrown away coffee cup could be used to obtain a DNA sample from an individual, without them even knowing?

In the murder investigation of 10-year-old Jessica Ridgeway, DNA evidence is expected to play a key role in the trial. DNA of the suspect, 17-year-old Austin Sigg, was found on Ridgeway’s backpack, and Ridgeway’s DNA was found in Sigg’s home.

The prosecution in the Ridgeway case is expected to use the DNA recovered from the backpack and Sigg’s home to link him to the murder. The defense is expected to argue that the evidence recovered is unreliable. A mainstream news story, “DNA Will Play Pivotal Role in Ridgeway Case” discusses how DNA evidence can be unreliable by using the example that an innocent sneeze on the backpack could lead someone to be a murder suspect. That is an extreme example, but maybe it raises a valid point.

David H. Kaye, in The Science of DNA Identification: From the Laboratory to the Courtroom (and Beyond), raised concern over the obtainment and future use of DNA in the criminal justice system. Kaye discussed that while DNA can lead to a guilty suspect being put in jail, we should be cautious about how detectives obtain DNA from suspects and what they do with the DNA afterwards. Kaye raises questions such as: how did the police obtain a DNA sample from the suspect, was DNA obtained from other suspects during the investigation (ones who were ultimately decided to be innocent), and will the DNA sample from those other suspects be put into a criminal database to potentially be used in future investigations? These are questions that we should keep in mind as our criminal justice systems evolves.

Growth of Social Media Outpaces Traditional Evidence Rules

November 14, 2012
Internet, Litigation, Social Media

by Sabrina Ly

Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers’ arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: “My tattoo iz a pig get’n his brains blew out.” Pig is considered a derogatory term for a police officer.The tattoo also had the officer’s misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.

The myriad of charges brought against an individual given evidence found on their social networking websites is the basis for Ira P. Robbin’s article “Writings on the Wall: The Need for an Author-Centric Approach to the Authentication of Social-Networking Evidence” published in Volume 13.1 of the Minnesota Journal of Law Science and Technology. Robbins begins by discussing the varying ways in which social networking websites have been used as evidence in personal injury and criminal matters. Specifically, Twitter, Facebook and Myspace postings have been deemed discoverable if relevant to the issue and admissible only if properly authenticated by the Federal Rules of Evidence. However, courts across the country have grappled with the evidentiary questions that are presented by social media. In some states, the court admitted the evidence given distinctive characteristics that created a nexus between the posting on the website and the owner of the account. In other states, the court found the proof of the nexus was lacking. Regardless, overall concerns of potential hackers or fictitious accounts created by a third-party posing as someone else create problems of authentication.

Robbins argues that the traditional Federal Rules of Evidence do not adapt well to evidence from social networking websites. Accordingly, Robbins proposes the courts adopt an author-centric authentication process that focuses on the author of the post and not just the owner of the account. Failing to adopt an authentication method for evidence obtained on social networking websites may create consequences that could harm the values and legitimacy of the judicial process. The ability to manipulate or fake a posting creates unreliable evidence that would not only undermine the ability of the fact-finder to determine its credibility but would also unfairly prejudice the party in which the evidence is presented against.

Technology is an area of law that is rapidly evolving and, as a result, has made some traditional laws antiquated. In order to keep pace with these changes, legislators and lawmakers must constantly reexamine traditional laws in order to promote and ensure fairness and accuracy in the judicial process. Robbins has raised an important issue regarding authentication of evidence in the technological world, but as it stands there is much work to be done as technological advances outpace the reformation of traditional laws that govern it.

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