RESEARCH MEMO ASSIGNMENT

"I know a lot of people without brains who do an awful lot of talking."

The Scarecrow, L. Frank Baum, The Wizard of Oz (1900).

 

Using one of the topics below as your research memo topic, complete the assignment indicated. It should be in the format of a memo to the person indicated, covering the relevant law, social science, science and other disciplines. Evaluate the materials you discuss, indicating why they are important to an understanding of the issue involved. Nearly everyone has views on the issues outlined below. While I urge you to choose a topic that interests you, I also caution you that your job in this memo is not to write a polemic, but to research and present as objectively as possible the relevant issues of science and law. If you cannot put aside your own opinions and beliefs on a particular topic long enough to write a dispassionate analysis, please choose another issue upon which to research and write. 

More than one person may select a particular topic, but you may not work together or submit a joint research memo.

In some of the areas below the science is better established than in others. Remember that your job is also to identify possible evidence that supports an opponent's position. If you think that this evidence is not persuasive, by all means say so, but do not omit it. The point at which you would ideally be presenting such a memo is long before the firm and client go to trial, before the legislator presents a piece of legislation for consideration, before the judge writes her opinion, or before the company launches a publicity campaign.

Your memos should be in a recognized memo format (see examples). It should direct the reader to appropriate sources and evaluate them in the light of the memo topic. It should be at least ten pages long (letter size paper), double spaced. You may include footnotes or endnotes, and accompanying materials or exhibits if you would like. If you include these, then your memo should be proportionately longer.

I have given you at least two issues that you must address in your memo. Identifying and treating additional issues if appropriate will make your memo stronger and may result in a better grade. You MUST address any scientific and/or social scientific issues raised by your legal issues as well. This means that you MUST include citations and evaluations of the science and/or social science issues in your memo. If you limit yourself to discussion only of the legal issues you will not receive a passing grade on your memo.

If you have an idea for a research memo that is not listed here, please see me to determine its appropriateness for this assignment. You will need to give me an outline of the topic and the issues that would need to be addressed. Note that the topic must fall into some discernible "law and science" category.

TOPICS

1.  You work at Boyd, Dewey, Cheatham and Howe as a first year associate. Your firm's client is CellNet, a major supplier of wireless service and cellular phones, based in Delaware. Your senior partner requests that you prepare a memo laying out the relevant law and science behind charges that cell phones cause brain cancer, charges made by the Consumer Newswatch, a consumer "watchdog" group that has made general statements such as this in its newsletter and on its website since 1999. In November 2002 Consumer Newswatch began naming specific cell phone manufacturers including CellNet whose products can cause brain cancer and cause danger in service stations or around fueling areas. CellNet president Caligula "Cal" Conroy now wants to sue Consumer Newswatch, its parent organization, Consumers USA, and its founding members Judas and Delilah Harrington.  Identify what causes of action might be available to CellNet and what law and evidence is available both to support and to attack its position. 

Among the issues presented:

2.  You are a legislative aide to Thomas Mouton, newly elected Senator from the state of Louisiana, who wants to know whether he should introduce a bill forbidding therapeutic cloning (as opposed to human cloning). Evaluate the pros and cons of therapeutic cloning, and the various uses and abuses possible of cloning technology.

    Among the issues presented:

(Ms Eckert, Mr. Bordes)

3a.  You are a new associate at the Baton Rouge firm of Boyd, Dewey, Cheatham and Howe assigned to write a research memo in the following case. The client lost his parental visitation and spent eighteen months in jail after being convicted of child abuse based on the testimony of  his three children, a girl aged 17, a boy, aged 12 and a boy aged 3. The children began reporting the abuse after seeing a therapist, Mr. Davis, who did not give testimony during the trial. Your client,  Robert Petrie, would like to challenge his conviction based on what he considers to be "manufactured memories" created by the therapist. While your supervising partner Ms. Boyd is not certain she wants to take on either the appeal or the civil suit, she would like you to prepare a research memo discussing the social science and science involved in such testimony and the laws regarding liability of such therapists.

Among the issues presented:

(Mr. Majoue)

OR

3b.  You are a newly hired staff attorney to State Senator Philip Landrieu. He is thinking about introducing a bill creating civil and criminal liability for therapists who "manufacture" or "improperly recover" the memories of the patients they treat. He would like a research memo from you examining existing legislation that might be applicable, if any, the qualifications of such therapists, the possible reactions of their professional associations, and the social science and science behind such treatment. He also wonders how common it is to use such memory testimony in cases of child abuse.

Among the issues presented:

4a.  You are a staff attorney for the All Risks Health Insurance Company. All Risks has recently recently seventeen different claims from the states of Alabama, Georgia, Louisiana, Florida and South Carolina to cover the costs of  therapeutic touch treatment (TT) for various policy holders. In all cases the treatment was administered by registered nurses at the hospital. In three cases the physician in charge of the case recommended the therapy. In the other cases, the patient or the patient's family requested the treatment, and the physicians, while non-committal about the outcome, authorized the treatments. In fifteen of the cases, the patients were eventually released from the hospital. Those patients suffered from ailments such as pneumonia, broken bones, and kidney disease requiring transplants. Two patients have been moved to long term care facilities. Both of these patients suffer from cancer and are recuperating from surgery.

All Risks has refused to pay the costs of the treatment, which cost $1200 on average for the patients who were eventually released. Costs vary for the patients who are still under the care of physicians, since those patients' families have engaged different practitioners who have worked out charges based on the patients' income levels. In general, however, most practitioners charge $105 an hour. In addition, All Risks has been notified that in 41 cases in these same states, patients and their families have asked physicians to okay TT but those physicians have refused, citing the unproven nature of such treatment. The patients whose claims have been denied have filed a class action lawsuit against All Risks suing for reimbursement, attorneys' fees and "emotional distress."

All Risks has asked you to prepare a memo discussing the scientific basis for therapeutic touch and the likelihood that a court might require All Risks to cover the treatment. 

Among the issues presented:

(Ms Ellerbee)

OR

4b.  Substitute aromatherapy for therapeutic touch in the fact pattern given above.

5.   Your firm's client, Pamela Pine, wishes to sue Popeye's Chicken for "making her fat."  She is 47 years old and has been eating at Popeye's and other fast food outlets since she was 16. She is 5 feet, 4 inches tall and weighs 285 pounds. Ms. Pine has been on various diets, unsuccessfully, since she was 18 and has never weighed less than 230 pounds. She tells Frederick "Fighting Freddie" Broussard, a senior partner at the law firm of  Boyd, Dewey, Cheatham and Howe where you are employed as a new associate, that she eats at fast food outlets at least six times a week and especially likes the local Popeye's because "the staff is so nice to me." She has discussed her food problems and her various diets with the staff at this particular Popeye's many times. Ms. Pine also started smoking when she was 13 and finally quit two years ago, when she weighed 230 pounds. At that time she was eating at Popeye's once a week. Since then her visits average 4 a week. Broussard wants to know on what grounds Pine might sue Popeye's and what scientific evidence supports her claims.

Among the issues presented:

(Ms Vienne)

 6.   You are the law clerk to Henry Fairness, a federal district judge in the Eastern District of Louisiana.. He has asked you to prepare a bench memo on the following case.

Peter Pinner, a golf pro on the PGA tour, has suffered from arthritis in his right shoulder and wrist for the past six years. Over the past two years he has also developed lower back pain. His doctors have prescribed various drugs including Vioxx, heat therapy, over the counter drugs such as Advil, therapy, and cortisone injections, and are now advising surgery. Pinner's income from the tour for the years 1997 through 2001 is given in the table below. Pinner is reluctant to undergo the surgery because it is expensive, painful, and not guaranteed to relieve his pain. In addition, the amount of time he would spend in recovery and post-surgery therapy would seriously eat into his income and monies from his endorsement contracts, about $50,000 a year, from hawking Granola Goodies, "the snack for golfers", and Snead's Golf Shoes. In an effort to avoid the surgery he turned to alternative treatments. 

1997        Earnings $150,000    Spent: traditional treatments    $7200        Spent: alternative therapies    $2900

1998        Earnings $150,000    Spent traditional treatments    $0                Spent alternative therapies    $15,600

                                                                                                                    Spent on travel for Browne $2000

1999        Earnings $150,000    Spent traditional treatments $0                Spent alternative therapies    15,600

                                                                                                                Spent on travel                    $2000

2000    Earnings    $150,000    Spent traditional treatments $0                Spent alternative therapies    $15,600

                                                                                                                Spent on travel        $2000

2001    Earnings    $150,000    Spent traditional treatments $0                Spent alternative therapies    $15,600

                                                                                                            Spent on travel        $2000

 

In August of 1997 he purchased three magnetic bracelets at a cost of $900 and also began a series of sessions with Althea Browne, a New York based registered nurse and magnetic therapy practitioner of PST (pulsed signal treatment), who charges $100 an hour for her treatments. Pinner now undergoes 3 hours of therapy per week with Browne, and flies her to whatever tournament he is currently competing in, so that what he considers the beneficial effects of her treatment can continue. He also routinely purchases magnetic back braces, bandages and other equipment that she recommends; these purchases total approximately $1200 per year. He feels that these therapies have assisted him in coping with his pain and prevented an interruption in his career that surgery would cause. NB: All these costs are reflected in the table above.

Pinner has tried to deduct the cost of these therapies on his tax return as medical expenses. In addition he has tried to deduct the cost of flying Browne to various annual tournaments for therapy before and during those tournaments.  In 2000 the IRS notified Pinner that it was disallowing his deductions from 1997 for $2900 (the bracelets and treatments) and all of his deductions from 1998 and 1999. It has since disallowed his 2000 deductions. Pinner has paid the amount the IRS claims he owes, but  has continued to deduct the cost of these treatments and appealed the IRS decision. After a thorough administrative review the IRS denied his appeal. His case is now properly in the district court. He is requesting a refund plus interest on the amounts he claims to have been overcharged.

Among the issues presented:

7.  You are a staff attorney to Senator Mary Breaux. She is thinking about introducing a bill into Congress forbidding drivers to eat and drink in their motor vehicles. She has asked you to prepare a memo discussing such a piece of legislation, particularly since some states are now forbidding cell phone use in their cars.

Among the issues presented:

 8.  Your client is accused of attacking and trying to murder his sister-in-law. He was dressed in a pair of jeans and a sweatshirt and tennis shoes at the time. He lives approximately three miles down a dirt road from her home. He claims that he does not remember the act and has no animosity toward his sister-in-law, although she has repeatedly accused him of being lazy and shiftless and a bad husband to his wife, her younger sister. He has no job. On the night in question, he claims he fell asleep on the couch, and remembers nothing more until about five hours later when the police knocked on his door. His wife and mother say he has a tendency to sleepwalk; his sleepwalking has become more noticeable over the past nine months. Your supervising partner wants to know what scientific evidence and legal theory would support or cut against a sleepwalking defense.

Among the issues presented:

(Ms. Julie Johnson)

9.  You are a staff attorney to State Representative Mary Breaux. She would like to introduce a bill into the legislature requiring that any time a building is being abated for asbestos, the building be closed and all employees be put on paid leave. Her particular concern is protecting the employees from any possibility of harm from stray particles or other materials used in the abatement. She is particularly interested in protecting asthma sufferers and sufferers from MCSS (Multiple Chemical Sensitivity Syndrome). Naturally, various employers around the state are against this bill. She would like you to prepare a research memo addressing the issues involved, including the danger to employees from abatement methods currently in use, and the economic harm likely to be claimed by those employers who must close down their buildings for the abatement period.

Among the issues presented:

10a.  You are a staff attorney working in the office of State Senator Mary Breaux. She is considering introducing a bill that would permit possession and use of marijuana for "recreational use." The bill would allow adults over 21 to own up to 3 ounces of marijuana over a one month for "personal use" and permit its use in private homes only. She has asked you to submit a research memo examining whether any other states are also considering such legislation, what the documented medical risks are in marijuana use and whether the decriminalization of marijuana for recreational use would have significantly diminished costs in terms of the arrest, trial and incarceration of pot users.

Among the issues presented:

(Ms. Fiore)

OR

10b.  You are a staff attorney for State Senator Breaux. She is considering introducing a bill that would permit the medical use of marijuana for some as yet unspecified group of individuals. She would like you to submit a research memo considering what groups of individual might have a legitimate need for possession and use of marijuana, whether other states have similar legislation and what legal and public reaction has been to such legislation, at what level that possession and use might legally be set, and what public reaction might be.

Among the issues presented:

11.  You are a law clerk for a federal judge who would like to write a research memo addressing the admissibility of expert testimony and the constitutionality of court appointed fact finders in a case involving environmental pollution.

Among the issues presented:

12.  Your client is a physician licensed in the state of Louisiana, Dr. Samuel Galen. He has been treating a patient, Mr. Charles Mouton, for depression for the past thirteen years. Dr. Galen has tried several therapies over the years with no measurable effect; Mr. Mouton neither got better nor worse. During this period he increased the number of visits to Dr. Galen's office from one every two or three months to one a month and then to one a week.. About two years ago, Mr. Mouton read about homeopathic medicine and remedies for depression and asked Dr. Galen to prescribe a homeopathic remedy for his condition. Dr. Galen surveyed the literature and decided that such remedies could do no harm and might actually exhibit a placebo effect. He accordingly prescribed lycopodium clavatum (club moss or staghorn moss) which Mr. Mouton purchased from an online homeopathic drug store. Six months ago Mr. Mouton's insurance company notified him that it would begin refusing claims for payment from Dr. Galen for this condition based on the excessive number of office visits. During this period Mr. Mouton did not seem to get worse, nor did he seem more cheerful or optimistic about the future. Two months ago Mr. Mouton committed suicide.

Dr. Galen has now received word from the State Board of Medical Examiners that it plans to investigate his treatment of Mr. Mouton; a friend of his who has previously served on the Board has told him that he may lose his medical license. Meanwhile, the district attorney is investigating whether Dr. Galen should be charged with any crime in the death of Mr. Mouton, and Mr. Mouton's family is planning to bring a civil action against Dr. Galen.

Among the issues presented: