CyberBullying
January 31, 2011
Another day, another fantastic talk. Today, Professor John Palfrey from the Berkman Center (which you absolutely must check out, if just to see all the awesome work they’re doing) gave a talk on the potential pragmatic and constitutional issues with current legislative trends in cyberbullying.
As many of my friends know, I find bullying an incredibly important topic. (This is no doubt influenced by both my firsthand experience of it and more general reading on the psychological effects this sort of experience can have. And I’ll just say, its effect cannot be understated.) But, with that said, there are hugely important questions about the chilling effects legislation can have if not created carefully.
So, I’ll just list a few tidbits to chew on below:
- One of the most interesting questions posed was something like this: Depending on how you define bullying, are there certain types that are in fact speech we want to protect? Thinking of the LGBT community, the use of “outing” as a political tool, way to expose hypocrisy, etc. has been seen by some to be hugely important. In the world of defamation, a complete defense to the accusation is that what you said is, in fact, true. That of course won’t work in some of these bullying situations — where it might be the very truth of it (the “outing” if we expand its meaning a bit to encompass all disclosures of truthful information the person doesn’t want disclosed) that can be, in some cases, so traumatic. So, where do we protect the free speech/ right to speak the truth versus the fact that, in the eyes of some, it might be classified as bullying?
As a response, there was some discussion that we might see a difference between outing someone who is already in the public eye versus the privacy that might be differently due to a child. But, in general, I think the fact that this was a hard question remained.
- Another interesting issue that I haven’t thought about before has to do with potential due process concerns. In some legislation, we give wide-reaching powers to school administrators to visit fairly severe punishments on students accused of cyberbullying. And, even before that punishment is enforced, the school administrators can demand the students to comply with questioning with no lawyers, no guarantee of a fair hearing on the matter, no nothing really. What should we do about that?
As Professor Palfrey pointed out, what’s interesting about the internet is that there is an expectation of a lot of private ordering to deal with what are in essence legal issues. For instance, think about the DMCA takedown requirements. There’s no judge that says whether or not a certain video should be taken down. The alleged copyright holder sends a demand, it’s taken down, the person putting it up gets notice and can explain why it shouldn’t be taken down, but a judge isn’t deciding in that process (granted, litigation can ensure later down the line but let’s be realistic about how often the average YouTuber is going to have the financial means to go down that road.)
The point is: we already expect a lot of private ordering to resolve issues on the internet. Granted, in the case of cyberbullying you’re empowering public school administrators, but the same questions of due process and general justice remain.
That’s good for now. Would love to hear people’s thoughts. There are plenty more notes I took from the talk and you can find them all here. I just can’t write about them all because, alas, law school beckons.
Current Controversies in Food and Drug Law
January 18, 2011
I recently attended a panel on “Current Controversies in Food and Drug Law” and thought I’d jot down a few notes to share with those of you back home (who, obviously, are dying to learn more about the strage exciting world of food and drug law.)
Panelists
Peter Hutt - Current HLS Professor (former FDA general counsel, teaches a Food and Drug Law course every winter)
Mark Raza - Senior Counsel at FDA’s Office of the Chief Counsel
Kirsten Mayer - Ropes and Gray counsel with all sorts of medical and science-related clients
Each panelist had a chance to stand up and discuss in a few minutes what they took to be some of the biggest challenges the FDA currently faces, and while I am not mean an expert I’ll try and lay out a few of the concerns raised:
- Hutt brought up some economic incentive difficulties based on the duration of patents coupled with the significant amount of time it takes to get through FDA approvals. [from my understanding the issue is: patents run for either 14 or 20 years. You file for a patent fairly early in the game (long before you’ve even gone through clinical trials, let alone gotten approval to actually market and sell. So, by the time you get through all the FDA hurdles for approval, you typically only have 11 or 12 years left on the patent — which for a lot of companies isn’t enough time to fully recoup costs and make the sort of profit that incentives companies to invest in the R&D to begin with. So, unless you have a blockbuster, it isn’t worth it for a lot of companies.)
- Raz, changing gears, talked about biosimilars and the regulatory difficulties there (a topic on which the FDA had a two-day meeting back in September). As a bit of background, biosimilars are what they sound like — they are (if I understand correctly — and I’m sure Chris will read this and correct me if I’m wrong) basically molecularly identical to some drug that was already approved, but they are created by another lab, under non-identical conditions, at a time after the original patent has expired. One of the big questions is what sort of testing should these biosimilars have to go through before getting FDA approval. On one hand, they’re basically the same as something already on the market (think of a certain active ingredient in both a name brand drug and some generic) so it seems redundant. On the other hand, we don’t know how much other factors come into how that drug will actually perform. So for instance, with different manufacturing processes they might have different impurities or slight differences at some level — and that in turn may have a profound effect on how that drug is digested in the body.
- Mayer went last and it turns out her issues ended up dominating the rest of the discussion: Off-label marketing. So, in a few sentences what is that all about? Well, from what I understand it goes like this: The FDA approves a drug for a specific use. The manufacture of that drug is then allowed to promote (market) the use of that drug to doctors and the like for just that use. However, it turns out that a drug might be approved to deal with one condition but actually is really great to use in another as well. How do we know this? Well, the drug company might be sponsoring studies to explore that or doctors have recognized relationship in underlying pathology between the condition it was approved for and another condition and then decided to conduct trials of their own (this sometimes happens at university hospitals for people who are basically out of options and are willing to try anything), etc. The issue is: even if it turns out the drug is really useful for another condition, the manufacturer cannot promote/market the use of the drug for that other condition. It is criminal to do so. But, notwithstanding the serious criminal penalties (let alone the absolutely enormous fines companies have paid for doing so) they still do promote off-label use in some cases. Mayer brought up the argument that such off-label marketing prosecution may (1) have some pragmatic issues but more interestingly (to me) (2) may run afoul of Free Speech protection.
So, having not taken ConLaw I will say just a few sentences and see if others have thoughts on all this. The argument seems to be as follows: It’s granted that while we have freedom of speech not all speech is protected (can’t yell “fire” in theatre, can’t slander someone and expect that to be protected, etc.) The government argues that there is no First Amendment issue because 1) the regulations prohibit the promotion by manufacturers of off-label marketing, so for the manufacturer to do so would be an unlawful activity and 2) the speech (which I guess is just the marketing tactics) are just used to establish intent — the intent to commit the unlawful activity. [I think that’s right… though it is a bit confusing to me]
The issue with that line of arguments however is that the promotion of off-label use isn’t prohibited, period. In fact, anyone but the manufacturer can promote the use of the drug in an off-label way. As Mayer points out, if the NYtimes wants to write a bit piece on the virtues of the off-label use of x drug, it can do so under the law. So, it cannot be that the speech itself is an illegal activity; it’s only the speech itself coming from the manufacturer that’s prohibited — and that seems to be a First Amendment issue.
What this made me think of was the Citizens United case. The more we think of companies through the personhood metaphor, the more these free speech for the company issues come up.
Anyway, I must run and do actual class readings but just thought I’d lay out a few of the things I heard. If I can better clarify the last argument in the future, I’ll be sure and do so… and soon!
A conversation on “Tangled”
January 11, 2011
The following is a discussion I had with a friend and her fiance regarding the movie Tangled. My friend, who shall remain anonymous, was so distraught by my views on the movie that she ran home and told her fiance. This conversation followed…
[side note: for those of you who have stumbled upon this while looking for blogs by people in law school, I don’t want to mislead. We are out watching Disney movies and debating their merits before the full second semester starts. We are currently in “J-term” — which means we, as 1Ls, only have a problem solving class to think about. If you have questions about it or any other HLS stuff, please feel free to email me.]
But for now, back to Tangled…
Email One: Friend’s Fiance To Me
Heather,
I understand that you had a dissatisfactory experience in your viewing
of Tangled today. Having seen the movie twice myself, I felt compelled
to ask: why? I admit to not sharing [his fiance’s] all-consuming admiration
for the film, but I still found it to be a perfectly diverting and
enjoyable cinematic achievement. The most significant flaw I could
name is that it adheres too closely to the Disney model. Is it the
next Little Mermaid? No. But is it a perfectly acceptable entry into
the Disney canon? I would say so.
And in case you think [his fiance, my friend] wrote this for me, here’s what she told me
to send you:
Dear Heather,
Tangled is a fine, fine film. One of the best I’ve ever seen. I am
sorry to hear that you did not appreciate its brilliance.
[-friend’s fiance]
Email Two: Chris’ Response
LOL:
“It’s not unpleasant. But if a horse and chameleon are more charming than your humans, and the chemistry between the hero and the horse is more interesting than the romance, you’ve got a problem” -Boston Herald
“The film lacks any soul or purpose, much like a Jersey Shore castmember. But unlike a Jersey Shore castmember, it’s incapable of punching people in the face at random for your entertainment.” - OK! Magazine
And, less funny but totally true:
“The music might have saved the film but instead, Alan Menken, who once gave us The Little Mermaid, Beauty And The Beast, and Aladdin now gives us a generic score.” -New England Movies Weekly
Email Three: Friend’s Response To Chris
haha. I love when people get punched in the face. That probably would have made the movie even better.
Email Four: Friend’s Fiance’s Response To Chris
Um….did you really just use OK! Magazine to validate your point?
Email Five: My Response To Original Email
Dearest [Friend’s Fiance],
I think there was a misunderstanding. I found the watching of Tangled a far cry from a “dissatisfactory experience.” Quite the contrary, actually; I found its absolute awfulness, and more importantly the subsequent joy I had making fun of it (and [my friend, his fiance]), worth every penny of the $11.50 Chris paid for my ticket.
But perhaps you’re interested in what I found so gloriously horrible about the film. Let me explain.
Well, actually, let me first say what Disney did “right” (if by “right” we mean having this movie adhere closely to the Disney model.)
* Like Disney movies past, it’s unquestionable this is yet another example of Disney bastardizing a Grimm Fairytale. Check.
* Like at least the most recent trend in Disney movies, the heroine (”heroine”) falls for a total loser. Check.
* A complete lack of chemistry between the “prince” and “princess”. Absolutely check.
* Cute and spicy sidekick(s). Check and check. (I’d like to add that Pascal may be one of my favorite sidekicks of all time. Perhaps my very favorite, actually. And Maximus may very well be my second favorite.)
* Naive and intellectually vapid princess? Check.
* Happily Ever After? Check.
With there being so much right, whatever could I think was wrong (you may be, understandably, wondering)
* The music was awful. I mean, I have never in my life felt actually awkward listening to music in a Disney movie. Never. Two minutes in, as dear dumb Rapunzel was singing about sweeping, brushing her hair, making candles, and baking pies, I about actually died. That’s right, almost died. That song, and the subsequent songs, were more cheese-o-rific High School Musical (or worse) than any sort of traditional Disney Princess movie I’ve ever seen. The music was, by far, the worst part of this movie. Without question. It was horrible, and I mean horrible. For the love of god — the guy who did the music did it for Little Mermaid? How is that possible?!
* Disney movies are supposed to be magical and unrealistic. I contend that they are not meant to be cheesy (where cheesy has connotations of awkward and dumb.) This movie was both.
* He cut her hair while he had a mortal wound. He’s not noble, he’s stupid.
* She turned brunette. Fail.
I could go on, but I just can’t do it. I will end on a positive note, though. Beyond the sidekicks being fantastic I appreciate that you actually see the main villain fall down her own tower and die.
Hopefully [my friend, his fiance] and I can move past this… though with this in conjunction with her blatant card-cheating I’m not sure if *sniff, sniff* things can ever be the same.
Much love,
Heather
Email Six: Friend’s Response To My Very Long Email
OK, here are my counters:
1. THE SONGS. Yes, I agree they are not musical genius, but they are kind of cute in their quirky little way. Also, they grow on you the more you hear them.
2. RAPUNZEL. I also will concede that Rapunzel is sort of a Disney princess stereotype bordering on being completely cheesy, BUT the thing is, how else would you write and play an 18 year old who has spent her entire life in a tower? Obviously she has to be completely naive and childish, it just wouldn’t make sense any other way.
3. THE PLOT. So I recognize the movie doesn’t have the most sophisticated plot in the world, but in Disney’s defense the source material is very scant (it’s really a very short fairy tale even as these things go).
4. THE VISUALS. I don’t think you all could appreciate this seeing it in 2D but it really is a wow in 3D especially everything with the lanterns — it has a lot more depth and is very well done.
5. IT IS MAGICAL. I think it has a fun and exuberant tone, not a cheesy one.
Those are my points and I’m sticking by them. 