The Volokh Conspiracy

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 that this provision prohibits funding of research conducted using hESCs, because the creation of an hESC cell line required the destruction of an embryo at some point in the past. The government, throughout the Clinton, G.W. Bush, and Obama administrations, has thought differently. Specifically, that Dickey-Wickey only prohibits funding of embryo destruction. Last year’s D.C. Circuit majority applied the Chevron test, which requires courts to defer to agency interpretations if they are permissible constructions of an ambiguous statute, and upheld the NIH/Department of Health and Human Services interpretation of Dickey-Wicker on this basis.

Last year, Judge Henderson would have also applied the Chevron test but not deferred to the agency because she believed the plain language of the Dickey-Wicker clearly prohibited the funding of any hESC research, even when no embryos were directly involved. Today, Henderson claimed that the Chevron test should not even apply in this case because authority to implement the Dickey-Wicker Amendment was neither granted to the agency by statute nor does the agency have expertise in this particular area. Thus, she now thinks that last years’s court should have ignored the agency altogether and interpreted even an ambiguous statute de novo. Since she continues to believe the statute is plain and unambiguous on its face, however, this change of legal theories has no impact on her ultimate conclusion concerning last year’s decision, so it is a bit odd that she has bothered to articulate a new reasoning (and done so without even admitting in today’s opinion that she has changed her theory, by the way). Perhaps she thinks the new theory, which would permit the Supreme Court to overturn the D.C. Circuit even if the judges find the statute ambiguous, will improve the chances of the Supreme Court granting cert. Stay tuned.

My opinion was, and continues to be, that whether or not Chevron applies is irrelevant, because it is clear that that Dickey-Wicker does not prohibit funding of hESC research. The interpretive issue is how broadly to read the term “research.” Henderson says that research is an entire sequence of investigation, not just a single project, so if a particular project relies on an input (hESCs) that was created via the destruction of an embryo, that project constitutes “research in which” an embryo is destroyed. To me, the critical fact is that the Dickey-Wicker Amendment is an appropriations rule. When Congress speaks about what research funding it will support, this context clearly suggests that the word “research” means the work for which the applicant is requesting government funding. That is, if I apply to the funding source for a research grant, the “research” in question is the work I want the money to do, not research that someone else did in the past, even if it makes my research possible. To me, this is the end of the inquiry. As long as the grantee is not going to use the government funding to destroy embryos and create hESC lines from them, the grant is permissible. But if any doubt remains, it seems completely removed by the fact that Congress enacted the same Dickey-Wicker language each year throughout the Bush presidency, with full knowledge that the Bush administration was interpreting the law as not prohibiting funding of hESC research.

Going back to last year’s decision, Henderson’s primary argument for her preferred interpretation is that Dickey- Wicker prohibits funding of the “creation of human embryos,” but instead of prohibiting, in parallel fashion, funding of the “destruction of human embryos,” it prohibits “research in which” embryos are destroyed. Henderson argues that the difference in construction between these two parts of the statute suggest that the part dealing with embryo destruction must be meant to be broader than the part dealing with embryo creation. I think this is wrong. The more obvious reason for using different gramattical construction is that, while the government could conceivably wish to fund research with primary purpose of creating embryos, it is not likely to wish to fund reserach with the primary purpose of destroying them. It most likely used different constructions for the two prohibitions to make clear it was not just banning funding of research that has the goal of destroying embryos, but research with other goals that destroys embryos in the process.

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.

Lepore:

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.”

Zakaria:

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 self-respecting, law-abiding man.”

Plagiarism is usually understood to mean copying someone else’s ideas or expressions without attribution. In the case of ideas, the line between learning from others and plagiarism is nebulous. There is really not a lot new under the sun, and it would be preposterous to expect anyone to credit every idea in their head to its original source. If I think that we should lower taxes to encourage entrepreneurs to create jobs, and I got that idea from listening to one of Mitt Romney’s stump speeches, I don’t have to attribute the idea to him, just as he doesn’t have to attribute it to whomever gave him the idea originally (which he almost certainly doesn’t remember anyway). The reason is that the idea is widespread and general. In order to plagiarize an idea, the idea really must be very specific and unique.

In the case of expression, the same standard should govern, but it often seems not to. That is, the question should be, to what extent was the expression specific and unique, but people are much more apt to employ a bright line rule based on the number of identical words. My high school English teacher taught me that copying more than three consecutive words from a source without attribution constituted plagiarism. This strikes me as privileging form over function.

Let’s say I am writing a biography of Abraham Lincoln, and I read in a previously-published biography by Ms. X the following sentence: “Lincoln died on April 15, 1865.” Now let’s say I write, as part of my book and without attribution that “Lincoln died on April 15, 1865.” Is this plagiarism? I think not, but I’m not sure those currently filleting Zakaria in the media would agree.

For starters, you cannot plagiarize a fact. My colleague Adam Winkler, who wrote the book to which LePore and Zakaria referred, wasn’t in Kentucky or Louisiana in 1813 to witness the passage of concealed-carry bans. He learned these facts from some other written source. It might be good scholarly practice for him to note his source (in fact, he does in this case), especially if the genre permits generous footnoting, but the reason is to demonstrate to anyone who cares to look that the fact is correct, not to avoid the charge of plagiarism. There is no ethical obligation to give attribution to the source of a fact, regardless of how much sweat-equity she might have invested in tracking it down. Most of what we know we read somewhere. If failing to source a fact constituted plagiarism, every history book would need a dozen citations per sentence, and every one-page magazine column, like Zakaria writes, would need a second page of footnotes. The dissemination of information through written communication would slow to a halt.

In contrast, you can plagiarize the way facts are expressed. If I copy Ms. X’s entire biography of Lincoln and put my name on the front cover, this is plagiarism, because constructing that book was a massive creative undertaking. The same is true if I copy ten pages of the book word-for-word. But if I copy the sentence, “Lincoln died on April 15, 1865,” I am not misappropriating the prior author’s creative work, because the creativity imbued in this sentence is de minimis. It is an obvious way to string words together to communicate a fact to other English speakers. No one who reads this sentence in my book will wrongly believe that this sentence is an expression of my unique voice. Calling this sentence “plagiarism” would both fail to serve the purpose of preventing the misappropriation of creative expression and create incentives for authors to waste a lot of effort. I could avoid being a plagiarist according to my English teacher’s overly-formalistic rule merely by changing the sentence to read, “Lincoln passed away on April 15, 1865.” This is what he would have advised, but what good would it do anybody to require me to do this?

So what about Zakaria? Clearly he learned about Winkler’s research from LePore’s reporting, but there is nothing wrong with the fact that he informs himself by reading secondary sources. Did he plagiarize her? Did he represent LePore’s creative work as his own?

At best, this strikes me as a borderline case.  Most of the paragraph in question is a straightforward recitation of facts. It takes some creativity to write any sentence, I suppose, but not all sentences are equally creative and they shouldn’t be regarded as such. Notably, Zakaria did not repeat the most creative element of LePore’s paragraph in the Time essay: her conclusion that Winkler’s book is “remarkably nuanced” (it is, by the way, and a very good read to boot — you should buy it!). Many of the words that are identical could not be avoided: Winkler’s name, the title of his book, the names of the states and years that they enacted laws, and the direct quote from the governor of Texas. There is only one sentence in which Zakaria directly copied discretionary words: “Similar laws were passed in Texas, Florida, and Oklahoma.” Would it have changed the aesthetics or nuance if Zakaria had rewritten this to read, “Texas, Florida, and Oklahoma also enacted concealed-carry bans.”? I don’t think so. Is this plagiarism? It shouldn’t be.

Zakaria did string together four sentences into a paragraph using LePore’s structure. Sentence 1: the fact that gun control laws date back 200 years is attributed to Winkler’s book. Sentence 2: some states enacting such laws are listed, with dates. Sentence 3: additional states are added to the list. Sentence 4: the 19th century Governor of Texas cited as a supporter of concealed carry bans. Does this render the paragraph plagiarism under the standard I am proposing? Perhaps yes, given that the governor’s quote doesn’t ineluctably follow from the prior three sentences, although this still strikes me as a very gray area where some leeway should be permitted. At the very worst this is a journalistic misdemeanor that really does not justify tarring Zakaria with the label of “plagiarist” and the opprobrium that the term suggests.

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 then legislate a new, more comprehensive Medicaid program is too formalistic. In reality, no reasonable state officer would believe Congress actually might eliminate the entire Medicaid program tomorrow.

Of course, it is not coercive to threaten not to give the states any additional money unless they agree to Congress’s Medicaid expansion requirements, because the states never had any legitimate expectation of this new funding. Or did they? This is where the concurrence (on this issue) of the four conservatives gets interesting. The conservatives seem to be bothered by two aspects of conditional federal grants to the states. Like Roberts, they are concerned with the federal government making it difficult for the states to decline new federal grants as a consequence of a federal threat to deprive them of preexisting federal grants. But they are also concerned with the fact that, if a state declines the federal money, not only does it lose out on federal benefits, it has to pay its share of the federal grants to the states that do accept the conditions. What the Justices mean, of course, is that the citizens of the states that decline contingent federal grants still have to pay federal taxes, and part of those federal taxes will support the contingent federal grants. This bothers the conservatives because this increases the cost of turning down the federal grant. Assuming that the state wants to provide some particular kind of service, just not according to the federal terms and conditions, turning down the federal grant means the state pays twice. First, it sends its money to Washington to finance the states that accept the federal terms, and then it has to tax its citizens again in order to pay the cost of providing the service in its state on its own terms.

It is always the case that if you turn down a subsidy from someone because you don’t like the conditions that accompany the subsidy, you then have to pay the full cost yourself. But this doesn’t make a contingent offer coercive… it just makes it a good alternative that is tough to turn down because it is so potentially beneficial. But the conservative Justices seem to be suggesting that a state has some kind of legitimate claim on the money that its citizens pay in federal taxes, such that “threatening” to send that money to other states that agree to its conditions while not sending a fair share back to the state that declines the federal grant makes the state worse off than its legitimate-expectation baseline.

The opinion doesn’t come right out and state this so bluntly, but that seems to me to be the strong implication of all the focus the conservatives’ opinion places on how difficult it is for a state to decline a federal grant that other states are willing to accept. Suggesting that the states have some legitimate claim on to the return of federal tax dollars collected within their borders is not only revolutionary, it has far reaching implications. If this proposition were ever accepted as correct, it would seem to be a death knell for cooperative federalism. If ”state money” is being used to a support federal grants to states, the offer of a conditional federal grant would seem to pose the threat not only of not giving the state the grant if it refuses to accept the conditions, but also of taking away “its money” if it refuses to accept the conditions. A federal “threat” not to give a state federal money would not make the federal offer coercive. A federal threat to take the state’s money would make an offer coercive, even if the federal grant program were entirely new and the state had no legitimate pre-existing claim on federal resources for that purpose.

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 Clause. The Commerce Clause does not exist to draw a line between government authority and individual freedom like, for example, the First Amendment does. The Commerce Clause exists to determine where the proper scope of federal power ends and state power begins.

All parties agree that the state government can require an individual who is doing nothing more than “breathing in and out” to enter the market and buy a health insurance policy. Massachusetts has done just this! The relevant issue for Commerce Clause purposes is whether the question of whether or not to require people who are just sitting around “breathing in and out” to go out and buy health insurance can properly be decided by the federal government or falls within the exclusive purview of state government.  Thus, the proper question – and the one that has always been asked before by the Supreme Court in Commerce Clause disputes – is how much an individual’s decision to buy or not buy insurance affects interstate commerce, such that a national solution to the problem is superior to individual state solutions. Given the interstate nature of the health care and health insurance industries, and the ease with which sick people could move to states with mandates and healthy people could move to states without mandates, the answer is that this is an appropriate context for federal as opposed to state decision making. This is, or should be, the end of the Commerce Clause analysis.

I am a bit unsettled by the notion that my government could require me to buy broccoli. But if there is a constitutional bar to such intrusive legislation on the part of the government – federal or state – the source of the restriction should have to be located in the Due Process Clause or some other part of the Constitution that has as its function establishing the line between government power and individual liberty. If none of those provisions are sufficient to protect me, I’ll have to hope my fellow citizens don’t elect a majority of militant vegetarians.

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 like them) are likely to refuse to loan us more money in the future, or at least demand more compensation to do so. (The bondholder gossip network is extremely efficient thanks to the news media and rating agencies).

Based on the principle of paying the people whose cooperation the government most needs in the future, who comes after the bondholders? If the government thinks like a business, it should be contractors who provide the most essential services and who are most likely to refuse to continue to work if they aren’t paid. Social security recipients and soldiers would come last. Social security recipients are done paying into the system and current workers don’t have a choice, so it is of relatively little concern if people don’t fully trust the government’s promise to make social security payments in the future. Soldiers aren’t allowed to walk off the battlefield. Federal employees are also relatively easy to stiff. In the long run they might look for new jobs, but the transaction costs are too high for most to do so if the cash-flow crunch is relatively short lived.

If government officials think in terms of which creditors are most important to them personally rather than to the government as an entity (think managers who serve their own interests rather than those of the corporation’s shareholders), the calculus changes drastically, and the question is not how keep the loyalty of the nation’s most important business partners but how to keep the loyalty of the greatest number of voters. This perspective points toward making sure that the social security checks go out. There are a lot of social security recipients, and they vote.

A very different approach would be to allocate incoming revenues based on the principle of equality. Rather than paying some in full and others not at all, this approach would counsel toward paying everyone to whom the government has a moral obligation — as a result of contract, promise, or reasonable reliance on the expectation of payment — the same amount. This approach would lead the government to pay bondholders, social security recipients, Medicare and Medicaid providers, etc. etc. 60% of what they have been promised (they get an IOU for the rest).

A third approach is to pay in order of the recipients’ need. Those who want to pay social security recipients first are implicitly adopting the need principle, based on the terrible thought of old people being evicted and eating dog food. The need principle has a lot of appeal, and especially so if we assume everyone will ultimately be paid and the only issue is timing, but it would be very tricky to implement given that decisions would have to be made on a class-by-class basis, not individual-by-individual. Many seniors could make do without social security better than many government contractors or federal employees could live without their checks. And while it might be tempting to think that doctors who care for Medicaid patients are better positioned to wait for their reimbursement than poorer creditors, if those doctors stop caring for Medicaid patients, some of the most vulnerable in the country will suffer substantially as a result.

Yet another approach is to try to pay those with the strongest moral claim to receive money from Uncle Sam first. One might argue that this principle would dictate that soldiers serving in Afghanistan or Iraq get paid first, since they are risking their lives to protect the rest of us. This would be even more difficult to implement than the need principle, however, because it arguably requires the government to try to figure out either with which of our creditors we have negotiated the best “deal” or which of our creditors provide services to the nation based in whole or in part on altruistic motives rather than due to naked self interest.

Ultimately, of course, the payment order will be determined based on a messy combination of some or all of these principles, but debates about (a) which principle(s) should take precedence and (b) what the order of payment should be under each of the various approaches would help to rationalize the decision making process.

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 events, which include destroying an embryo to derive the stem cell line. He thus held that any research using embryonic stem cells is necessarily “research” that harms embryos. On a 2-1 vote, the D.C. Circuit held that whether the term “research” refers to the narrower project or the broader set of related events was ambiguous, and thus that the Department of Health and Human Services was entitled to Chevron deference of its narrow interpretation of the term. It was this interpretation that Lamberth held (correctly) required him to enter a final judgment on the merits for the government.

Lamberth’s analysis of the plaintiffs’ secondary claim that the federal funding would encourage the destruction of more embryos was particularly insightful. Lamberth emphasized the words “in which,” explaining that this phrase signifies that the risk of harm to embryos must come from within the research itself in order to run afoul of Dickey-Wicker. Had Congress wished to prohibit funding of all research that might indirectly result in harm to embroys — a result Lamberth said would lead to “far-reaching” consequences and “strange result[s]” — it could have use phrases such as “from which” or “as a result of which” rather than “in which.”

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 have to compete for grants in a larger pool of applicants). Although I believe the majority reached the right outcome for the wrong reason (there is no need for Chevron deference because the Administration’s interpretation of the Dickey-Wicker Amendment is the only reasonable interpretation), the reasoning suggests that the majority would reach exactly the same conclusion on the underlying merits of the case as it did on the narrower issue before it of the appropriateness of a prelimary injunction.

A unanimous ruling by the D.C. Circuit panel would have sent a clear signal to Judge Lamberth that, were he to rule for the plaintiffs on the merits, he would be reversed. This quite likely would have ended the litigation. But Judge Henderson’s strongly worded dissent, which vigorously adopts Judge Lamberth’s interpretation of the Dickey-Wicker Amendment, sends the signal that there is enough plausibility to Lamberth’s interpretation that a newly-selected three judge panel hearing an appeal of the merits ruling just might affirm. And even if the panel were to again reverse Lamberth, the full court might choose to review the merits decision en banc. (In contrast, it seems unlikely that the Circuit will grant en banc review of the reversal of the preliminary injunction). The strong dissent also suggests that, should the Circuit ultimately reverse Lamberth on the merits, the Supreme Court might agree to hear the case.

The bottom line is that, while last week’s decision preserved the status quo of permitting federal funding for now, it probably did not resolve anything. The strong odds now are that Judge Lamberth will grant the plaintiffs summary judgment in the lawsuit, reiterating his interpretation of Dickey-Wicker Amendment, that the D.C. Circuit will stay the ruling pending appeal, and that all the parties will wait while the D.C. Circuit considers essentially the same issue again.

An article in Slate today discusses a recent lawsuit against the website tripadvisor.com 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 comments on web sites. Had those businesses cared enough to guarantee that I wouldn’t receive the same bad service that others complained about, I likely would have given them a chance.

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 of prevailing on the merits or that the petitioner has a serious case on merits that deserves careful attention and that the equities and demands of public policy favor maintaining the status quo until the underlying matter is finally decided.

Under this standard, a stay would make perfect sense if the government were appealing a permanent injunction. That is, if Judge Lamberth had issued a final judgment that the Dickey-Wicker Amendment prevents the NIH from funding any and all embryonic stem cell research and the government had appealed that decision and concurrently requested a stay pending appeal, it would have been quite sensible for the D.C. Circuit to issue a stay to preserve the status quo pending the resolution of the underlying statutory interpretation issue.

But Judge Lamberth has not issued a final judgment. Technically, he has issued only a preliminary injunction, and it is that preliminary injunction that is on appeal in the D.C. Circuit. (Both parties are seeking summary judgment on the merits before Judge Lamberth, but he has not yet ruled on those motions). And the standard for whether a preliminary judgment is appropriate is essentially the same standard that the D.C. Circuit used in determining whether a stay is appropriate. In order for Judge Lamberth to issue the preliminary injunction in August, he had to find that the sliding scale of (a) likelihood of prevailing on the merits, (b) the equities concerning harm that would be suffered in the intervening period, and (c) the public interest, favored the plaintiffs. In order to issue yesterday’s stay, the D.C. Circuit panel had to find that these very same combination of factors favored the defendants.

Let’s review: the D.C. Circuit panel seems to have decided that Judge Lamberth was wrong to issue the preliminary injunction. And it did so following briefing and oral argument on the issue. So why is this not the end of this particular appeal? Why does the panel seem to be telling the parties it will now reconsider the issue that it just decided, and on an expedited basis no less? It just did exactly this! If the panel felt like it needed more time to ponder the question of whether the preliminary injunction was correct, or to request further briefing, it certainly could have done so. The administrative stay of September 9 already froze the status quo pending its decision. There was no pressure to issue some sort of order this week.

I’m not a civil procedure expert, so perhaps there is a simple explanation of which I am unaware. If so, hopefully a reader with expertise in this area can and will enlighten me in the comments.

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 briefly review, Lamberth ruled that the Congressionally approved, recurring Dickey-Wicker Amendment, which prohibits federal funding of “research in which…embryos are destroyed…” extends to the funding of research on embryonic stem cell lines, which are created by removing cells from 5-day old human embryos (thereby destroying the embryos) but thereafter replicate themselves in culture without any further involvement of embryos. Lamberth’s reasoning is that “research” is a very broad concept, such that a grant applicant seeking to work with embryonic stem cells is engaged in the same “research” as the non-applicant who, at a prior date, created the original stem cell line.

The Bush Administration funded embryonic stem cell research only when the cell lines used had been created prior to 2001, whereas the Obama Administration last year expanded funding to embryonic stem cell research that uses cell lines that the government has verified were originally created from embryos left over from in vitro fertilization efforts, regardless of when the cell lines were produced. There is nothing in Lamberth’s reasoning that would distinguish between cell lines created before or after 2001. If researchers who work Obama-approved cell lines are engaged in the same “research” as the scientists who created the cell lines, researchers who work on the 21 Bush-approved cell lines are engaged in the same “research” as the scientists who created those lines.

Judge Lamberth apparently recognizes this logical inconsistency, because he attempts two subtle rhetorical devices in today’s order to try to blunt this criticism. First, he notes that the “Plaintiffs agree that this Court’s order does not even address the Bush administration’s guidelines.” But if Bush allowed funding of A, Obama allowed funding of A and B, and Judge Lamberth finds that the law prohibits funding of A and B, it is hard to understand how the NIH may continue to legally fund A, just because the plaintiffs’ complaint was focused on the Obama rules rather than the Bush rules. Second, Lamberth points out that the Bush rules allowed research only on “existing stem cell lines, foreclosing additional destruction of embryos.” This distinction might matter if Lamberth’s underlying reasoning were that the Dickey-Wicker Amendment prohibits funding of research projects that might create an incentive to destroy embryos in the future, but this is not at all his reasoning. His entire argument is retrospective, not prospective: that research on a stem cell line is the same research project as the prior creation of the line. (By the way, Lamberth’s attempted distinction is factually questionable as well, because the Obama rules only allow funding of research on lines derived from embryos that would otherwise be destroyed anyway; thus, they do not actually create an incentive to increase the number of embryos destroyed).

Lamberth’s order today also attempts to narrow the scope of his August 23 decision by saying that the injunction does not prohibit NIH from maintaining its Human Embryonic Stem Cell Registry and from funding induced pluripotent stem cell (iPSC) research. (iPSCs are adult cells reprogrammed to behave like embryonic stem cells). Again, this is hard to square with the breadth of his reasoning. Embryonic stem cell lines are necessary for the maintenance of a registry, and they are necessary for iPSC research, because the iPSC cells must be compared to embryonic stem cells to determine if the former are behaving like the latter (as is the goal). Lamberth’s reasoning is that it is illegal for NIH to fund any research that uses embryonic stem cells. It logically follows from this premise that funding the registry and iPSC research are illegal.

One other interesting element of today’s order is a point on which Lamberth is completely silent. In its brief requesting the stay, the Justice Department compared the potential harm to the plaintiffs if the stay were granted pending appeal to the potential harm that would result if the stay were not granted. On the former side of the equation, the Justice Department presented two new facts, of which I was not previously aware: that one of the two plaintiffs claiming harm from having to face increased competition for grants from allegedly illegal embryonic stem cell research grant proposals has recently been awarded an NIH grant, and that the other plaintiff who claimed the harm of increased competition has never applied for an NIH grant! These facts, provided in an affidavit by NIH head Francis Collins, suggest that the likelihood that the plaintiffs would suffer any real harm if the stay were lifted until the merits of the case are resolved is vanishly slight. Yet Lamberth completely ignores them.

The only defense of today’s decision offered by the order is that “a stay would flout the will of Congress, as this Court understands what Congress has enacted in the Dickey-Wicker Amendment.” The problem with resting the denial of the stay solely upon his interpretation of Dickey-Wicker is that, if the legal question concerning whether a stay were appropriate were supposed to be exactly the same as the question concerning the proper interpretation of Dickey-Wicker, we wouldn’t need a separate legal process for considering the stay.

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 the harm is that, as scientists who seek federal funding of their non-hESC research, they have to compete against a larger pool of grant applicants and have a reduced chance of winning funding as long as the government is handing out limited research dollars to hESC researchers. To support his conclusion that this constitutes irreparable injury, Judge Lamberth cites the D.C. Circuit’s prior holding in this case that the plaintiffs’ highly speculative claim of harm is sufficient to give the plaintiffs standing to maintain this lawsuit (a decision that I think is probably incorrect, but that is a different issue). But the standard for demonstrating “injury-in-fact” that is a requirement of standing is not the same as the irreparable injury standard; the preliminary injunction sought by the plaintiffs is an extraordinary remedy. First, the likelihood that the plaintiffs would actually be denied a grant that they would win were if not for the competition of the hESC researchers is quite speculative. Second, if this were to happen, they could be compensated after the fact. That is, should the plaintiffs ultimately prevail on the merits, the court could determine whether any unsuccessful grant proposals submitted in the intervening period had earned a high enough score in the NIH review process that they would have won funding were it not for the fact that hESC projects had not been considered. If the hESC projects squeezed out the plaintiffs project, and the hESC grants are found to be illegal, the court could then order the NIH to approve the plaintiffs’ grant proposals in question. The harm would indeed be reparable, and no rank speculation would be needed to establish its existence or severity.

Regardless of the harm that the plaintiffs will suffer should they ultimately prevail on the merits while the government is permitted to approve grants to hESC researchers in the meantime, Judge Lamberth realizes that in the preliminary injunction analysis this harm needs to be balanced against the hardship that will be suffered by others if the defendants ultimately prevail on the merits but are enjoined from making hESC grants in the intervening period. Here, Lamberth finds that the injunction “would not seriously harm ESC researchers because the injunction would simply preserve the status quo” and “the harm to individuals who suffer from diseases that one day may be treatable as a result of ESC research is speculative.”

There are two substantial flaws in this analysis. First, hESC researchers will suffer more harm from a preliminary injunction than non-hESC researchers will suffer from the lack of an injunction. The plaintiffs still might win NIH grants if an injunction is not granted — the NIH funds all kinds of disease research, including the type of adult stem cell research the plaintiffs apparently do, not just hESC research. But hESC researchers have no chance at all of winning funding if the injunction is issued. Judge Lamberth points out that hESC researchers can seek private funding even if an injunction is in place, but it is equally true that non-hESC researchers can seek private funding if the injunction is not in place!

Second, it is inconsistent, to say the least, to dismiss the potential harm to disease-sufferers as the result of an injunction as speculative because “it is not certain whether ESC research will result in new and successful treatments for diseases,” while saying that the harm alleged by the plaintiffs is “not speculative.” hESC research might or might not cure diseases, and an injunction prior to a final decision on the merits might or might not slow down progress. But it is just as uncertain whether the lack of an injunction will actually cost the plaintiffs grants they would otherwise win. And while both types of harm are uncertain, the severity of the possible harm to disease-sufferers, who might lose their lives in the meantime, is clearly is much worse than the severity of the possible harm to the plaintiff-grant applicants.

Finally, Judge Lamberth finds that “the public interest weighs in favor of a preliminary injunction.” Why? Because it is the public interest for the courts and agencies to carry out the will of Congress. All Judge Lamberth does here is reiterate the first prong of the analysis; that is, because Lamberth believes the plaintiffs are right on the merits, it is the public interest to give them a preliminary injunction. Whatever factors the judge should take into account to determine the “public interest,” logic dictates that the inquiry must be something different than who the judge thinks is likely to prevail on the merits, a point that is already captured elsewhere in the analysis.

At the end of the day, the balance of hardships tilts strongly in the direction of hESC researchers and the patients who hope their work will lead to cures, not in the direction of the plaintiffs who might see their chances of winning a grant reduced. Regardless of who is right on the merits, the preliminary injunction should not have been granted. I am very confident that the D.C. Circuit will quickly reverse Judge Lamberth on this issue and allow the NIH to continue to make grants to hESC researchers while the case winds its way to a final judgment, first in Judge Lamberth’s court and then in the D.C. Circuit.

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 believe it was so constrained by Dickey-Wicker. By Executive Order, Obama allowed NIH funding of hESC research, with the qualification that the hESC lines funded must come from excess IVF embryos that would have been destroyed even if not used to create cell lines.

Judge Lamberth surprisingly interpreted Dickey-Wicker to prevent the use of tax dollars to support researchers who do any work using hESC lines as an input. One might at least plausibly argue for this result based on the principle that underlies Dickey-Wicker: that is, if Congress’ goal is to avoid dirtying the federal government’s hands with complicity in the destruction of embryos, perhaps research that relies on embryo destruction somewhere upstream should be ineligible for funding. But Lamberth claims that his result is supported by the unambiguous language of the Amendment. I find this argument utterly unconvincing.

Lamberth’s focus is on the word “research.” First, he relies on regulatory and dictionary definitions to establish that research is a “systematic investigation.” So far, so good. But from this he concludes that any research that relies on upstream embryo destruction is part of the same “project” as the destructive activity itself and therefore ineligible for federal funding. The conclusion simply doesn’t follow from the premise.

The key language here is not the word “research,” but rather the phrase “in which.” That is, Dickey-Wicker does not prohibit federal funding of research that is “related to,” “associated with” or “has a connection to,” or “builds upon the fruits of” embryo destruction. It only prohibits funding of research “in which” embryos are destroyed. It is important to remember that Dickey-Wicker is an appropriations rule, so the reasonable interpretation of the scope of the “research” in question is to follow the money in the grant request. If the grant application seeks money for an acitivity that directly results in embryo destruction, this proposal constitutes research “in which” the embryo is destroyed. If an applicant seeks money to study an existing hESC line, the research in question is not research “in which” the embryo is destroyed.

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 stem cell treatment that would not create problems of immune system rejection. And, of course, iPSCs do not come from embryos that could develop into a person, so iPSC research has met with widespread approval by conservatives who oppose hESC research.

But what now? If an iPSC can develop into a baby, just as a blastocyst can, why is it any less troubling to use iPSCs for medical research than it is to use hESCs? One possible response is that iPSCs can’t become people without human intervention, but the same can be said of the blastocysts created in test tubes that are used for hESC research, which need to be placed in a womb. A difference between iPSCs and blastocysts is that the latter have a new, unique genome, whereas the former have the same genome as their donor. But we don’t think identical twins are any less morally valuable because they lack a unique genome, and we wouldn’t think that a cloned person was not a person, just because she had the same genome as her genetic donor.

My view is that today’s development underscores the logical problem with treating blastocysts as if they have the same moral worth as a person. If it seems implausible that we should treat every skin cell as if it were a person, this is because the foundation of personhood is not a human genome plus potential. There must be something more, whether it be a neuronal structure, sentience, consciousness, the ability to imagine a future, etc. But for the unconvinced — and especially those whose religious or ideological commitments make them opposed to any research using blastocysts — opposition to iPSC research might be the only internally consistent position to take.

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!

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 faced the country over the last several years. The Palin interviews with Charlie Gibson over the past two days have provided definitive proof that she lacks the intellectual heft that she will sorely need if she ever were to find herself having to weigh and choose between competing arguments made by advisors about complicated policy questions.

She’s in way over her head. Worse, if you believe what she told Gibson about her lack of hesitation when McCain offered her the position, she doesn’t even know it. No matter how much you might like or admire John McCain, given McCain’s age and prior health issues, you should be very frightened about casting your vote for him.