Late To The Party: Remote Notarizing Is Now A Thing

Back in the dim ages, otherwise known as the 20th century, I was a notary public.  It came in very handy at the law firm I worked at, where notarized documents were pretty common.  I would need to confirm the identity of the party or parties signing the document, and notarize it accordingly.

Today I learned (courtesy of Carl Malamud) you no longer need to be in the same room with the notary to have a document notarized.  The Commonwealth of Virginia passed legislation in 2011 allowing for properly certified notaries to notarize documents via a video call.  The Full Faith and Credit Clause of the Constitution along with relevant state laws will allow for the recognition of a document legally notarized remotely.

While not likely as pleasant a thing to do as getting married via video call, there’s one more thing you can do without leaving the house.  Yay?

Another Way Science Understanding Could Be Useful In The Courts

I didn’t post about Fisher v. Texas when arguments went before the Supreme Court in December (for the second time).  It’s a case concerning aspects of the University of Texas admissions process for undergraduates and the case is seen as a possible means of restricting race-based considerations for admission.  While I think the arguments in the case will likely revolve around factors far removed from science and or technology, there were comments raised by two Justices that struck a nerve with many scientists and engineers.

Both Justice Antonin Scalia and Chief Justice John Roberts raised questions about the validity of having diversity where science and scientists are concerned.  Justice Scalia seemed to imply that diversity wasn’t esential for the University of Texas as most African-American scientists didn’t come from schools at the level of the University of Texas (considered the best university in Texas).  Chief Justice Roberts was a bit more plain about not understanding the benefits of diversity.  He stated, “What unique perspective does a black student bring to a class in physics?”

To that end, Dr. S. James Gates, theoretical physicist at the University of Maryland, and member of the President’s Council of Advisers on Science and Technology (and commercial actor) has an editorial in the March 25 issue of Science explaining that the value of having diversity in science does not accrue *just* to those who are underrepresented.

Dr. Gates relates his personal experience as a researcher and teacher of how people’s background inform their practice of science, and that two different people may use the same scientific method, but think about the problem differently.

I think this point about science (which is applicable to many other aspects of life) is more important for judges (and Justices) to understand than specific facts generated by science.  A reductionist approach to science, as articulated by Chief Justice Roberts, serves no one well, whether they are practicing science, or judging on how diversity in science may or may not serve a compelling public interest.

(Readers may note that with the Supreme Court currently one Justice down, that the case may end up tied and therefore uphold the decision of the lower court – that the admissions policy is constitutional.  However, Justice Elena Kagan took part in the case as Solicitor General and recused herself the first time the Supreme Court heard it.  So there will only be 7 Justices voting on it.  Remember, I am not a lawyer.)

 

Parsing How High Court Nominees Might Engage With Science And The Law

Earlier today the President announced his nominee for the vacancy on the U.S. Supreme Court, D.C. Circuit Court Judge Merrick Garland.  As several Senate Republicans are on the record indicating a lack of interest in meeting the nominee, much less holding a confirmation hearing, it’s unclear when or if Garland might sit on the court.  Even so, the nomination raised the question for me about how to assess potential jurists on how they would use science and technology in the court.

It strikes me as a tricky bit of business, but one worth engaging with regardless.  Especially since whomever joins the Court next is replacing a Justice who felt it necessary to note in the Myriad Genetics opinion (page 22) that

“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief.”

Often the disputes that come before the Supreme Court and lower courts may involve decisions and agencies that deal with science on a regular basis, but are contested on grounds that deal with matters of law and authority for which science and technology are context but not the crux of the decision.  So while issues related to science and technology have become more important to society and have appeared more often in court matters beyond the specialized cases you might expect to see them (intellectual property chief among them), they don’t drive decisions so much as force the legal disputes.

When you review assessments of judges such as this one about Judge Garland from SCOTUSBlog in 2010 (the first time he was considered for a Supreme Court nomination) you don’t see any mention of science or technology.  It’s hard to say if that’s because he didn’t deal with cases that engaged with those topics or not.  The Circuit Court Garland serves on deals primarily with regulatory actions, so it stands to reason that science and technology factors into those cases in terms of informing policy choices.  But that doesn’t automatically mean that Garland had to have significant technological or scientific literacy in order to rule in those cases.

Again, Senate Republicans may make discussing a future Justice Garland moot.  But they won’t stop me from thinking of how difficult it could be to assess if the next Supreme Court Justice will feel the need to commit their lack of science and technology knowledge (or interest in same) to the public record.  Pointers and suggestions (as always) welcome.

Scientists Under Investigation In Italian Xylella Outbreak

Scientific American has reported that a formal investigation is underway concerning nine scientists and one public official concerning an outbreak of Xylella fastidiosa in and around Puglia, Italy.  The outbreak (first noted in 2013) has affected olive trees in the area, and efforts to contain the outbreak have prompted both protests from activists and investigation from the European Union.

The case involving Italian seismologists and the L’Aquila earthquake of 2009 was long and complicated, so I already expected that the investigation into these scientists – suspected of introducing and/or allowing the spread of the Xylella strain – would be a challenge to follow.  Now that the EU is involved, I think a long, complicated legal case is assured.

The scientists are under suspicion for introducing the strain because of a 2010 training course where a strain of Xylella was used.  That claim is being refuted because the strain considered the cause of the outbreak is distinct from the Californian variety used at the course.

Some of the criticism is prompted in part due to the measures the scientists are calling for in order to combat the strain.  Several parties object to the destruction of trees (many of them quite old) and the use of pesticides in the area.  The prosecutors in the case have called for a halt to such measures when they announced the formal investigation.  Aside from placing the scientists under suspicion of causing the outbreak (either intentionally or through neglect), it has been contended that the actual cause of the outbreak is not the Xylella, but a fungus.

The European Union is involved because of concerns over the possible spread of the pathogen to other countries.  As part of EU rules, Italy is obligated to develop and implement a containment plan.  However, some of the measures have been blocked by the courts, and it is possible that the contentions against the scientists are another means of fighting against the EU rules.

I am concerned that the length of any Italian court proceeding may make it difficult to effectively address the outbreak.  With the final appeals of the L’Aquila case stretching things out to at least six years following the 2009 quake, there may be at least another three years before the Italian courts adjudicate the matter (regardless of how the EU enforcement and judicial mechanisms may act).  Perhaps the outbreak can be contained in time, but it’s tough to see this case as helping.

Nebraska Puts Hold On Purchases Of Lethal Injection Drugs

Last week the governor of Nebraska announced that he would stop attempting to import execution drugs – and conduct executions – until the state votes on a repeal of the death penalty.  That repeal was passed by the Nebraska legislature in May, and the governor’s veto was overridden.  However, enough signatures were gathered to put the matter to a vote of the people, and the rationale behind the governor’s statement is to wait for the people to express their official opinion.

However, earlier this year the governor was in a bit of a hurry to deal with the inmates remaining on the state’s death row following the passage of the bill (but before its implementation).  So at least some of the governor’s reasoning has changed since June.

This decision probably reflects the continued difficulty of obtaining sufficient quantities of the needed drugs.  Efforts to import drugs purchased from India failed in August due to action by the Food and Drug Administration, and an attempt to purchase drugs from a domestic source in October also failed.  So the governor can publicly defer to public will, even as private failures make a promise to not obtain execution drugs easy to keep.

Nebraska will vote on the death penalty repeal in November 2016.

Italian Seismologists’ Convictions Remain Overturned

Following a two-day hearing, the Italian Supreme Court of Cassation has affirmed the decision of a lower court to overturn the convictions of six Italian seismologists (H/T ScienceInsider).  They were convicted (along with a public official) back in 2012 based on actions taken right before a serious earthquake in L’Aquila.

Once again, I am not a lawyer, nor an Italian.  I’m certainly not an Italian lawyer, nor a seismologist.

The judgment in the original trial considered the scientists guilty of not discharging their duties under the law as part of an advisory committee.  The judges in the local appellate court overturned the conviction in part because they felt the judge should have focused on the scientific quality of their analyses.  This rationale was contested in the Cassation court because the scientists on the panel did not object to the claim that previous tremors had discharged energy in the area, thereby reducing the possibility of future quakes.

However, as is often the case at the appellate level, the deliberations focused on the legal analysis applied in the cases, and not the level of scientific analysis.  (If you’re confused yet, you’re not alone).  In that analysis, the court found that only the public official should have been convicted because he reassured the public prior to the advisory committee meeting.  The scientists’ statements were considered by the appellate court to be neutral and not sufficient support for the official’s reassurances of a lower chance of tremors.

In related news, the manslaughter trial for another public official connected to the L’Aquila earthquake was delayed until next March.

The Supremes Wax Hypothetical On Executions, May End Up Moot

Yesterday the Supreme Court heard arguments in Glossip v. Gross, a case brought by condemned men in Oklahoma objecting to its method of capital punishment.  The argument in this case hinges on the state’s use of midazolam as the sedative in the three-drug cocktail of anesthestic, paralytic and a drug to stop the heart.  Death penalty opponents argue that the drug does not adequately sedate the condemned inmate, allowing them to suffer sufficient pain from the subsequent drugs to qualify as cruel and unusual punishment.

While it is rarely a guarantee that oral arguments indicate exactly how the justices will rule, it can be suggestive.  Reports from the Court indicate that the justices questions focused primarily on two threads.  The liberal justices were concerned about the effects of midazolam, while four of the conservative justices focused on what they consider a judicial end around.  As I’ve tracked on this blog, manufacturers and others have put drugs used in executions out of reach of states, forcing them to choose alternative drugs, and in some cases expand their execution options.

The justices’ questions about these tactics suggest they are upset at their decisions (about the Constitutionality of the death penalty) being subverted by what could be seen as technical, rather than political, means.  While I’d argue that the campaign to get execution drugs pulled is definitely political, I can see where the justices that support the death penalty see this effort as a turf battle.

Again, the oral arguments are more of a guide than a predictor of the court’s vote (much less the specifics of its opinions).  But it would seem that this case is unlikely to change the status of the death penalty.  And while some justices object to the movement to make certain drugs inaccessible for executions, there is little they can do.  In March an Illinois manufacturer of midazolam requested the State of Oklahoma return its supply of the drug (for a refund, of course).  The company, Akron Pharmaceuticals, will also take steps to make sure its supplies of midazolam and hydromorphone (a narcotic pain reliever some states have expressed interest in using) cannot be used for executions.  Similar letters have been sent to other states.  Should other manufacturers follow suit, it may not matter what the Court says when it rules in this case.