Author Archive | Russell Korobkin

D.C. Circuit Upholds Stem Cell Research Funding, Again

The D.C. Circuit today upheld, for the second time in 16 months, President Obama’s Executive Order permitting the National Institutes of Health to fund human embryonic stem cell (hESC) research. The same issue was before the court last year on an appeal of a preliminary injunction that would have halted all federal funding of hESC research. After the Circuit found that the Executive Order was not contrary to law and thus overturned the preliminary injunction, the District Court reluctantly granted summary judgment on the merits of the case for the government. It is the appeal of that ruling that the Circuit decided today. The outcome was somewhat anti-climactic given the four month delay between oral argument and the opinion in a case that had already been decided: all three judges on the panel agreed that the last year’s decision constituted the law of the case and thus reaffirmed that holding.

The most interesting of today’s three separate opinions – one for the court by Judge Sentelle and concurring opinions by Judges Henderson and Rogers – was Henderson’s. Henderson was on last year’s panel (with Judges Ginsburg and Griffith) and she wrote a strongly worded dissent then. She concurred in today’s judgment on the basis of the “law of the case” reasoning, but took the opportunity to again attack last year’s majority opinion. Her legal theory of why the majority was wrong, however, apparently has changed in the last year.

To review briefly, the basis for the challenge the Obama Executive Order is the Dickey-Wicker Amendment, passed by Congress as a rider to appropriations bills every year since 1976, which prohibits federal funding of “research in which a human embryo or human embryos are destroyed, discarded, or knowingly subjected to risk of injury or death….” The plaintiffs in the litigation claimed [...]

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We Need A More Nuanced Standard for Determining What Constitutes Plagiarism

Time magazine columnist and CNN talking head Fareed Zakaria was suspended last week for plagiarizing a paragraph from Jill LePore’s New Yorker article on gun control and today was reinstated after apologizing and having other work reviewed.  In case you haven’t seen, I reproduce for you LePore’s paragraph followed by the very similar paragraph Zakaria used in the middle of his Time magazine column. I have bolded Zakaria’s words when they repeat a string of LePore’s words, not including proper nouns and direct quotations.


As Adam Winkler, a constitutional-law scholar at U.C.L.A., demonstrates in a remarkably nuanced new book, “Gunfight: The Battle Over the Right to Bear Arms in America,” firearms have been regulated in the United States from the start. Laws banning the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813, and other states soon followed: Indiana (1820), Tennessee and Virginia (1838), Alabama (1839), and Ohio (1859). Similar laws were passed in Texas, Florida, and Oklahoma. As the governor of Texas explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.”


Adam Winkler, a professor of constitutional law at UCLA, documents the actual history in Gunfight: The Battle over the Right to Bear Arms in America. Guns were regulated in the U.S. from the earliest years of the Republic. Laws that banned the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813. Other states soon followed: Indiana in 1820, Tennessee and Virginia in 1838, Alabama in 1839 and Ohio in 1859. Similar laws were passed in Texas, Florida and Oklahoma. As the governor of Texas (Texas!) explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every

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Coercion, the ACA Spending Clause Opinions, and the Future of Cooperative Federalism

In the spending clause portion of yesterday’s ACA opinions, Justices Kennedy, Scalia, Alito and Thomas offered an interesting perspective that, if ever adopted by a Court majority, could raise serious questions about the viability of the “cooperative federalism.”

To begin, let’s assume the principle underlying the limits on the federal government’s spending power, as the doctrine suggests, is whether states are “coerced” into accepting the federal government’s “offer” of funding or have the ability to decline. As I’ve written about in my book, Stem Cell Century, in the context of scientists offering women money to provide ova for scientific research, whether an offer is considered “coercive” should depend on whether the offeror threatens to deprive the offeree of something if she refuses the offer to which she has a pre-existing legitimate expectation.

Based on this standard, I think Justice Roberts basically got the conclusion right in his opinion yesterday for himself and Justices Breyer and Kagan, although not exactly for the right reason. It isn’t directly relevant whether the Medicaid expansion marks a “new” program or just a significant change to the existing one, as Roberts seems to believe, but whether the states have a legitimate expectation of ongoing funding for their current Medicaid obligations. Given the long-standing establishment of the current program and its centrality to state government, threatening to take away current funding is coercive, under my definition (with a possible exception for “minor” changes to an existing program if the costs to the feds of administering the program would be high if some states opted into the changes and others opted out). Justice Ginsburg’s rejoinder that the states aren’t really entitled to any federal Medicaid payments because Congress could eliminate the program completely at any time and could also eliminate the current program in its entirety and [...]

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Ginsburg is Right on the Commerce Clause, but for the Wrong Reasons

As perhaps the only law professor in the country who teaches/studies health law who has not published something on the ACA case, I’ve decided to contribute my two cents today.

In today’s opinions, on the Commerce Clause question, the Justices tangled primarily over whether it matters if Congress regulates “activity” that affects interstate commerce – such as growing wheat – or an “inactivity,” such as not purchasing insurance. The five more conservative Justices found that this distinction matters because the power to “regulate” presumes the pre-existence of some activity, and because, if the government could require citizens doing nothing but “breathing in and out” to purchase a product, there would be no logical stopping point. Invoking what Justice Ginsburg called “the broccoli horrible,” the conservatives warned that such a broad reading of the Commerce Clause would enable the government to require that every American buy vegetables.

The four more liberal Justices disagreed, of course, but in doing so they accepted the conservatives’ framing of the relevant issue and basically contended that the mandate regulates a type of “activity.” Justice Ginsburg, for the four liberals, contended that there is no defensible difference between activity and inactivity, claiming that individuals subject to the mandate are engaged in the activity of “self-insuring.” In any event, she claimed, everyone “actively” participates in the health care market sooner or later, because almost everyone (note the slight fudge) needs a doctor sooner or later.

The conservatives arguably have the better of the argument on the point of primary contention. That is, there is a difference between activity and inactivity that raises concerns about individual liberty. But they come to the wrong conclusion on the individual mandate for the very simple reason that the individual liberty concern is not relevant in the context of interpreting the Commerce [...]

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Whom Should the Treasury Department Pay First?

As time grows short and it looks more and more likely that the government will not increase the debt limit by August 2, the question of whom the Treasury Department should pay if it has to make due with current revenues becomes more interesting. There have been a fair number of off-handed comments about this issue in the press, but I have yet to see much written on how to think about the problem conceptually.

One approach is to approach the problem like a business or individual that has a serious cash flow problem but isn’t insolvent. This would suggest ordering payments based on how much the government is likely to need particular creditors on an ongoing basis going forward. If an individual can’t pay all the bills, he is likely to first pay the mortgage (or at least this was true before mortgage defaults became so common that lenders lack the capability to foreclose quickly) and the utilities. If the bank takes your house or the power company refuses to provide heat next month, you have a serious problem. You can stiff the phone company and the cable company because it is less of a problem if they refuse to continue doing business with you. The plumber who already repaired your leaky faucet is even easier to stiff because you don’t need him in the future at all. (Yes, you might have another plumbing problem but unless the plumber gossip network is extremely efficient you will be able to find another one).

This view implicitly underlies the common assumption that bondholders will be paid first. It isn’t that they have some superior moral claim to be paid compared to, say, social security recipients or federal employees. The problem is that, if we don’t pay our bondholders, they (and others [...]

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Judge Lamberth Yields to D.C. Circuit in Stem Cell Case

Judge Royce Lamberth of the U.S. District Court for the District of Columbia issued a final ruling today in Sherley v. Sebelius, upholding federal funding of human embryonic stem cell research eleven months after creating an uproar in the medical research community by issuing a preliminary injunction halting the funding. The decision came three months after the D.C. Circuit reversed his preliminary injunction on the ground that a federal appropriations statute (often known as the Dickey-Wicker Amendment) does not prohibit funding of research using the embryonic stem cells. Lamberth today held that the Circuit Court’s decision required him to resolve the underlying merits of the case in favor of the government and against two scientists who conduct research on adult stem cells and were earlier found by the D.C. Circuit to have “competitor standing” to challenge the Obama Administration’s expansion of the pool of research projects eligible for federal support. Lamberth also denied two arguments made by the plaintiffs that were not directly addressed in by the D.C. Circuit’s April ruling: that the Administration’s new policy of funding embryonic stem cell research violated the Dickey-Wicker Amendment by providing an incentive for scientists to destroy embryos (not using federal funds) in order to create new cell lines, and that the Administration violated the Administrative Procedure Act when promulgating the new funding regulations.

The annually-enacted Dickey-Wicker Amendment to federal appropriations prohibits federal funding of “research in which a human embryo or embryos are …knowing subjected to risk of injury or death.” Last year Lamberth ruled that the word “research” in the Amendment refers not just to the particular project for which a grant recipient seeks federal funding (such as studying whether and how embryonic stem cells can be used to fight disease) but also the earlier steps in the chain of [...]

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Stalemate in Stem Cell Battle

Last Friday, the D.C. Circuit voted 2-1 in Sherley v. Sebelius to reverse the preliminary injunction against federal funding of embryonic stem cell research granted by Judge Royce Lamberth of the federal District Court for the District of Columbia. While this seems on its face like a victory for proponents of the research, and was largely reported as such, I view its likely impact as prolonging the stalemate.

A quick recap of the issues (which I blogged about in greater detail last August here and here): Every year Congress includes a provision, known as the Dickey-Wicker Amendment, in its appropriation of funds for medical research that prohibits federal funding of “research in which” human embryos are destroyed. Three presidential administrations have interpreted this language as permitting funding of research on cultures of embryonic stem cell, as long as no federal funds are used to create such cultures in the first place (which requires the destruction of an embryo). Judge Lamberth enjoined such funding based on (a) his interpretation of the Dickey-Wicker Amendment as unambigiously prohibiting funding of any research involving embryonic stem cells and (b) his determination that the plaintiffs (researchers applying for federal funds for non-embryonic stem cell research) would suffer “irreparable harm” if funding were to continue before a final ruling on the merits. The D.C. Circuit quickly stayed the prelimary injunction pending its resolution of the appeal.

In last week’s ruling, the majority (Judge Ginsburg, joined by Judge Griffith) held that the preliminary injunction was improperly granted because (a) the Dickey-Wicker Amendment is ambiguous, and thus the Administration’s interpretation of its reach is entitled to Chevron deference, and (b) the potential harms of a preliminary injunction were greater to embryonic stem cell researchers (whose funding would be cut off mid-stream) than to the plaintiffs (who would [...]

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Responding to Customer Criticisms On Line

An article in Slate today discusses a recent lawsuit against the website for not removing a customer comment that alleged a restaurant was patronized by prostitutes. The author argues, probably correctly, that most consumers will ignore a single outlier comment and look for patterns, and that businesses should be more concerned with trends, such as a half-dozen complaints about slow service, than a single extreme allegation. The author also suggests that businesses should take advantage of the fact that many web sites allow a criticized business to provide a response and dispute false charges.

Here’s a better idea: if the criticisms are either completely false or potentially true but unrepresentative of the usual customer experience (i.e., I had to wait an hour for my food, all the lights were burnt out in my hotel room, etc.), the business should provide a warranty for good service. For example, the restaurant accused of slow service could respond with: “Any customer who is not served within 30 minutes of being seated can obtain a 50% discount on their check by mentioning the date of this post to the manager. Offer good until December 31.” This approach would not work in cases where it would be difficult to verify the quality of the service in question. It might be hard, for example, to definitively resolve whether a table of scantily clad diners are or are not prostitutes. But the majority of quality claims businesses would want to make, or at least proxies for such claims, are subject to simple verification methods. Such offers would be legally enforceable and, far more importantly, would be credible because a merchant’s failure to honor them would lead to an avalanche of really negative posts.

I have avoided quite a few businesses after reading a string of negative [...]

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D.C. Circuit Issues Second Stay Order in Stem Cell Case

Following oral argument Monday, a three-judge panel of the D.C. Circuit (Rogers, Griffith, and Kavanaugh) yesterday ordered a “stay pending appeal” of District Court Judge Royce Lamberth’s preliminary injunction of NIH grants for human embryonic stem cell research.

This is clearly good news for the federal government and supporters of embryonic stem cell research. Judge Lamberth’s order that the government must stop funding this research is still on hold, as it has been since the same D.C. Circuit panel issued an administrative stay order on September 9.

For those interested only in the policy issue, you can stop reading now. For those issued in procedure, please continue.

I’m scratching my head over whether there is any practical significance to yesterday’s order, which replaces the September 9 “administrative stay” currently in place with a “stay pending appeal,” and then orders that the appeal itself be expedited. Here’s the actual text:

Upon consideration of the government’s emergency motion to stay preliminary injunction pending appeal and for immediate administrative stay, the opposition thereto, the reply, and the argument by counsel, it is

ORDERED that the administrative stay entered September 9, 2010, be dissolved.

It is FURTHER ORDERED that the motion for stay pending appeal of the preliminary injunction entered on August 23, 2010, be granted. Appellants have satisfied the standards required for a stay pending appeal. See Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32-33 (2010).

It is FURTHER ORDERED, on the court’s own motion, that consideration of this appeal be expedited. The parties will be notified by separate order of the briefing schedule and oral argument date.

According to the citations provided, a stay pending appeal is appropriate when the petitioner demonstrates either a strong likelihood [...]

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Judge Denies Stay on Stem Cell Research Injunction

Following the August 23 preliminary injunction issued by federal District Court Judge Royce Lamberth to block NIH funding of embryonic stem cell research, the Justice Department filed a motion requesting that the injunction be stayed pending an appeal to the D.C. Circuit. In a very short, 2-page order this afternoon, Judge Lamberth denied the stay motion.

Lamberth’s decision is not surprising, given that the issues at the root of both a motion for a preliminary injunction and a motion for a stay order are essentially the same: the court must weigh (1) the relative harm that each side would suffer if they ultimately prevail on the underlying merits of the dispute but are precluded from acting in the way desired while the underlying issue wends its way through the legal system and (2) the “irreparable” nature of such harm. I believe Lamberth’s ruling today is legally incorrect, for the same reasons articulated in my August 25 post analyzing the preliminary injunction. I won’t rehash those arguments in their entirety, but a couple of points bear noting in light of today’s order.

For practical purposes, the most important point in today’s order — and the one that should be the lead in tomorrow’s newspapers — is Lamberth’s surprising statement that his injunction does not prohibit the NIH from continuing to fund embryonic stem cell research that was permitted by the Bush Administration under its restrictive rules. This is a silver lining for some stem cell researchers, because it means that research projects on the 21 Bush-approved stem cell lines that has been ongoing for as long as eight years need not be shut down. But it completely undermines the reasoning of Lamberth’s decision on the merits of the case, and helps to illustrate why it should be overturned on appeal.

To [...]

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Stem Cell Shock #2: The Preliminary Injunction

In a post yesterday, I described why I think Judge Royce Lamberth’s decision on Monday that the Dickey-Wicker Amendment prohibits the federal government from funding human embryonic stem cell (hESC) research is wrong on the merits. Technically, however, the decision was not a ruling on the merits. Lamberth actually granted the plaintiffs’ motion for a preliminary injunction. Because the issue is a pure question of statutory interpretation, and because the opinion in no way suggested that it was tentative in nature, it seems almost certain that Lamberth will eventually replace the preliminary injunction with a permanent one. But the government is entitled to another day in court before this can happen.

Lamberth’s grant of the preliminary injunction is even more troubling as a legal matter than his quasi-merits determination. To win a preliminary injunction, the plaintiff must show (1) a substantial likelihood of success on the merits; (2) that the plaintiff will suffer “irreparable injury” in the absence of an injunction; (3) the injunction would not substantially harm other interested parties; and (4) that the injunction would further the public interest. The plaintiff must carry the burden of persuasion “by a clear showing.” Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004).

Let’s take a look at Lamberth’s analysis of these four guideposts:

Although I do not agree with the judge’s analysis of merits (i.e., the meaning of the Dickey-Wicker Amendment), under his analysis, the plaintiffs would seem to have a substantial likelihood of success on the merits.

The second question is whether, if the plaintiffs were to eventually prevail on the merits of their claim, a failure to enjoin the government from funding hESC research in the intervening period would cause them irreparable harm. Judge Lamberth finds that the plaintiffs “have met this high burden.”

The plaintiffs argue that [...]

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Shocking Stem Cell Decision

Yesterday’s opinion by District Court Judge Royce Lamberth enjoining federal funding of human embryonic stem cell (hESC) research sent shockwaves throughout the medical research community. As usual in this area, the implications of the decision, rather than the legal analysis, is getting all the air time. I’ll discuss the statutory interpretation issue on which the case turns.

The legal issue is the proper interpretation of the Dickey-Wicker Amendment, an obscure provision attached by Congress to omnibus appropriation bills every year since 1996. The amendment prohibits the use of federal money for scientific “research in which … embryos are destroyed, discarded, or knowingly subject to risk of injury or death….” The Clinton, Bush, and Obama administrations have all interpreted this language to mean that the NIH may not fund the creation of embryonic stem cell lines, a procedure that destroys a 5-day old donor embryo (known as a blastocyst) by removing its inner cell mass. The conventional wisdom has always been that Dickey-Wicker does not speak to the question of federal funding of research on hESC lines themselves. These hESC lines, once created, replicate themselves, and the cells are shipped by the institutions that manage them to researchers around the world. The distinction matters a lot, because creating hESC lines isn’t all that hard or all that expensive, relatively speaking, and researchers don’t need a huge number of cell lines to work with. It is not much a problem to rely solely on private funding to create these research materials. What costs hundreds of millions of dollars, and requires substantial federal support, is funding the thousands of scientists who use hESC lines to study human development and search for cures for a range of disabling illnesses and conditions. The Bush Administration largely refused to provide this funding, but it did not [...]

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Stem Cell Advance Raises New Questions:

Two respected scientific journals today reported that Chinese researchers have created baby mice out of induced pluripotent stem cells (“iPSCs”), an advance that raises difficult ethical questions and could reignite the culture-war battles over stem cell research that have subsided over the last two years.

Many conservatives oppose human embryonic stem cell (hESC) research, and President George W. Bush severely limited its funding, because the five-day old embryos (called blastocysts) that are used are living organisms and, if implanted into a uterus, could mature into people. Although President Obama lifted the Bush funding restrictions, the NIH released new guidelines that are still solicitous of the discomfort many Americans feel about using blastocysts for medical research: the Obama administration will fund such research only if the blastocysts used are “extras” created in in vitro fertilization clinics and would otherwise be destroyed anyway. Want to create a blastocyst in a test tube in order to produce stem cells? Don’t look for federal funding, even from a Democratic administration.

The new federal regulations have provoked relatively little media attention, in part because most scientists have believed for the last year or two that hESCs are a transitional technology about to be overtaken by a newer one. In late 2007, scientists succeeded in reprogrammed ordinary adult skin cells (and other types of adult cells) into cells that seem to behave, for all practical purposes, like hESC cells. Scientists still aren’t sure that these new iPSCs will behave exactly the same as hESCs for purposes of medical research, but the available evidence looks good, and iPSCs have a number of advantages over hESCs. They are much easier to produce than hESCs, and unlike hESCs, iPSCs offer the potential of allowing scientists to one day use a patient’s own cells as the basis for creating a [...]

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Obama’s East Coast Bias:

President Obama released his NCAA basketball tournament predictions yesterday, and what is most noticeable is the complete disrespect the President shows for the Pac-10 conference. Other than games between #8 and #9 seeds — usually considered toss-ups — Obama plays it pretty safe and picks mostly higher seeds (lower numbers). He picks only three upsets in the first round, and his projected losers in all three of these games are Pac-10 teams (#11 VCU over #6 UCLA, #10 Maryland over #7 California, and #11 Temple over #6 Arizona State). In the second round, the president predicts only 2 upsets, and Pac-10 regular season champion #4 Washington is on the losing end of one of these. Overall, Obama predicts Pac-10 schools will end the tournament with a combined record of 1-6. We Californians know that east coast bias is nothing new in college sports, but it is surprising to see it coming from Obama, whose brother-in-law, Craig Robinson, is the head basketball coach at Pac-10 school Oregon State! [...]

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You Can Put Lipstick on a Pit Bull

but she’s still an intellectual lightweight. Sarah Palin apparently has never heard the phrase “Bush Doctrine.” Sure, the phrase has several potential meanings, but she doesn’t seem to be familiar with any of them. Talk about the look of a deer caught in the headlights. She appears not to understand that Fannie Mae and Freddie Mac are not (or at least until this week were not) funded by the federal government. Before the mortgage market imploded, plenty of policy sophisticates might not have known this, but there sure has been a lot of press about those two companies this summer. She says she’s against creating embryos for stem cell research, apparently not realizing that the bills supported by both Obama and McCain would allow federal funding only of research on embryos that are left over from fertilization clinics, not embryos created for research. She claims government spending can be substantially reduced merely by finding “efficiencies” in entitlements. She doesn’t appear to notice any inconsistency between her claim that she said “thanks, but no thanks” regarding the bridge to nowhere and the fact that she kept the money. And, of course, the list could go on and on.

The problem with Palin on a national ticket is not her lack of experience, per se. Few governors have much, if any, direct foreign policy experience, and we elect them President quite often. Specific experience can be quite overrated, and if you blindly use it to reinforce rather than challenge your prior beliefs and prejudices it can be downright harmful. The problem is that it isn’t clear that she even pays much attention to the newspapers or has had, prior to this week’s airplane flight to Alaska with McCain staffers, any in-depth conversations or even in-depth thoughts about the critical issues that have [...]

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