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Catherine Cumming, MJLST Staff Member

Though the Deepwater Horizon spill occurred nearly five years ago, the civil trial over disaster's environmental and economic effects continues. This past week, the U.S. government continued to build its case against BP, arguing that BP should pay the maximum Clean Water Act penalty of $13.7 billion. The Federal prosecutor brought in expert witnesses to describe the spill's devastating environmental and economic effects on the Gulf. In addition to arguing that BP deserves to pay the $13.7 billion penalty, the Federal prosecutors believe that BP can pay this fine. To support its argument, the U.S. government brought in financial expert Ian Ratner to testify that BP is financially able to pay the Clean Water Act Penalty. While BP is fighting for a lower penalty of approximately $3.19 billion, the statutory minimum, Ratner's financial analysis supports a higher penalty. In fact, BP's assets have increased since the 2010 spill. As of June 30, 2014, BP's assets totaled $315 billion, "up from the $236 billion the year before the spill."

On Monday, January 26, the trail resumes and BP begins calling its witnesses. It is likely that BP will continue to argue, "that the court should consider BP XP and its resources, rather than those of the larger parent group [BP], when determining a penalty. The smaller drilling subsidiary [BP XP] is the named defendant in the case." Anadarko, a co-owner of the failed oil well, argues "it had no role in the operation of the well and should not have to pay anything." The briefs are expected to be filed in April with a ruling from U.S. District Judge Carl Barbier to follow.

As the trial progresses and Deepwater Horizon spill nears its five year anniversary, readers should look at The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast, which discusses the troubles the Gulf and its communities faced before the spill as well as how the spill exacerbated these issues. Daniel A. Farber believes that the situation of the Gulf is a preview of future problems that the United States and world will face in years to come. Farber writes "there are many small initiatives that can cumulatively begin to make inroads on the Gulf's problems, including, most obviously, efforts to ensure that the BP oil spill is not followed by similar disasters." Though MJLST published this article in 2012, Farber's analysis and proposal are pertinent in today's environmental and economic discussions, particularly those related to the legislature's actions regarding the Keystone XL Pipeline.

State Agency Deference Under PURPA


Doug Kincaid, MJLST Staff Member

Recently, in Exelon Wind L.L.C. v. Nelson, 766 F.3d 380 (5th Cir. 2014), the Fifth Circuit Court of Appeals (Fifth Circuit) held that state agencies are entitled to deference under the Public Utilities Regulatory Policies Act of 1978 (PURPA) - a cooperative federalism regulatory scheme. The case revolved concerned the Texas Public Utilities Commission (PUC), which claimed that under state law a wind farm generating intermittent power ("non-firm") power could not enter into a legally enforceable obligation (LEO) under Texas law, and that such an obligation was not required under PURPA. Unable to enter into a fixed price agreement, the generator was subject to highly variable market prices, increasing the financial risk of the project dramatically.

The Federal Energy Regulatory Committee (FERC) responded by declaring that federal law required all qualifying facilities under PURPA have the option to enter into a LEO. The Fifth Circuit, faced with competing state and federal interpretations, upheld the state interpretation despite the fact that FERC authored the relevant statutes. Because wind and solar energy, by nature, cause scheduling difficulties and extra costs to state agencies overseeing regional energy grids, an incentive may exist for other state agencies to follow the PUC's lead. The Fifth Circuit's holding in Exelon frustrates renewable energy development by refusing renewable generators the option to enter into LEOs and expands the deference state agencies are entitled to in a cooperative federalism regulatory scheme.

To the extent federal and state agencies disagree on the interpretation of a cooperative federalism statute, district courts are fragmented and little scholarship exists regarding how to resolve these conflicts. In determining whether to defer to a state agency's interpretation of federal law, five out of six federal circuits which have considered the issue elected to give state agencies no deference. The underlying basis for federal deference in these cases was a sentiment favoring federal supremacy. The Fourth Circuit, an outlier, granted deference to state agencies citing state agency expertise in tailoring federal regulations to local conditions. Here, the Fifth Circuit in Exelon v. Nelson created a novel line of reasoning on this issue.

In relevant part, PURPA states that "Each qualifying facility shall have the option either: (1) To provide energy. . . based on the purchasing utility's avoided costs calculated at the time of delivery; or (2) To provide energy or capacity pursuant to a legally enforceable obligation." The plain meaning of this language, under traditional principles of statutory interpretation, creates a mandatory choice vested in the qualifying facility. The Fifth Circuit, however, read the statute as a bare-bones framework on which state agencies can project any regulation not expressly denied by the statutory language. Because PURPA contains no specific language addressing the obligation of firm or non-firm generators to form LEOs, the PUC regulation presents no facial conflict with PURPA.

The creative judicial interpretation employed to circumvent the mandatory choice interpretation reveals that the Fifth Circuit treated state sovereignty as a controlling concern in the examination of conflicting state and federal agency interpretations. A previous holding in F.E.R.C. v. Mississippi, 456 U.S. 742 (1982), held that PURPA subtly circumvents the anti-commandeering doctrine by allowing states to "comply with the statutory requirements by issuing regulations, by resolving disputes on a case-by-case basis, or by taking any other action reasonably designed to give effect to FERC's rules." Perceiving a potential Tenth Amendment conflict caused by forcing state governments to implement FERC's PURPA regulations, the court hesitated to "wade unnecessarily into such murky waters" and instead elected to defer to the PUC. Exelon v. Nelson may remain an outlier, but considering the importance of state and federal agency cooperation in the energy sector, granting deference to state agency interpretations on constitutional grounds could have a significant effect on energy law. Nonetheless, in terms of implementation of PURPA, the court's ruling is a setback for renewable energy and may require legislative action to clarify the intent of the law.

PURPA serves to promote renewable generation by creating a mandatory purchase provision for small generation facilities, an increasingly important function considering the massive carbon footprint of the power sector. The holding in Exelon v. Nelson reduces FERC's power to promote renewable power. A simple legislative fix would preserve state implementation authority under PURPA while eliminating the state's ability to frustrate renewable energy development through state regulations dictated by purchasing utilities.

Congress sets forth in PURPA's text three express purposes: "to encourage (1) conservation of energy supplied by electric utilities; (2) the optimization of the efficiency of use of facilities and resources by electric utilities; and (3) equitable rates to electric consumers." Congress should enact a fourth purpose for PURPA: "to encourage" renewable resources and long-term reduction of carbon emissions. Pursuant to this change, the purpose of PURPA would in fact change very little as renewable energy is already a key component of the statute. State regulations singling out renewable generators would be necessarily rejected in federal or state court pursuant to the express will of Congress. The amendment would honor the structure of cooperative federalism inherent to PURPA by balancing the state role of implementation with the federal role of enforcement, while strengthening the benefits derived by renewable generators from the mandatory purchase requirement.

In sum, Exelon v. Nelson presents a new and potentially significant holding on cooperative federalism - a staple legislative tool in today's agency intensive power sector. It remains to be seen whether this case will bear significantly on future agency deference or remain an outlier, but the holding certainly calls into question the ability of renewable energy generators to enter into LEOs under PURPA. To counteract this negative effect, Congress should make "encouraging renewable resources and long-term reduction of carbon emissions" an express goal of PURPA, cementing the purpose that the statute already serves.

Mickey Stevens, MJLST Staff Member

If a person requires emergency medical treatment and shows up at any hospital that accepts payments from Medicare, that person will receive emergency health care treatment without regard to ability to pay, citizenship, or legal status. This happens because the Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986, requires such treatment as a method of preventing the practice of "patient dumping," where hospitals would refuse to treat people because of inability to pay, among other reasons. A recent circuit court decision and subsequent petition for writ of certiorari to the Supreme Court of the United States has challenged this part of the EMTALA as constituting a taking in violation of the Fifth Amendment.

In February 2014, E. H. Morreim published an article discussing the EMTALA in volume 15, issue 1 of the Minnesota Journal of Law, Science and Technology. In that article, Morreim argued that EMTALA violates the Fifth Amendment's Takings Clause. According to Morreim, the EMTALA satisfies the three elements of a taking - property, taking, and public use. The article argues that the property taken is both personal property (pharmaceuticals, medical devices, and paid staff time) and the physical invasion of spaces in the hospital, for the public use of ensuring immediate emergency care without regard to the ability to pay. Furthermore, Morreim suggests that the EMTALA may resemble what Justice Scalia has termed a "Robin Hood Taking" where the government takes wealth from those who have it and transfers it to indigent defendants. See Brown v. Legal Found. Of Wash., 538 U.S. 216, 252 (2003) (Scalia, J., dissenting).

At the time of the article's publication, neither the Supreme Court nor any of the circuit courts had addressed the constitutionality of the EMTALA. That is no longer the case. The Eleventh Circuit addressed the issue and upheld the EMTALA as constitutional in Baker County Medical Services, Inc. v. U.S. Attorney General, 763 F.3d 1274 (11th Cir. 2014). There, the Appellant hospital appealed the lower court's grant of a motion to dismiss a claim seeking a declaratory judgment that EMTALA was an unconstitutional taking. The Eleventh Circuit upheld the law on the basis that voluntary participation in a regulated program defeats a takings clause challenge. The decision concluded by saying that the Hospital should turn to Congress for a remedy, instead of the courts.

Morreim's article addresses this so-called "voluntariness" of participation in EMTALA, arguing that the steep financial losses that would occur - the loss of all Medicare funding - render acceptance of the EMTALA obligations far from voluntary. In Baker County Medical Services, the court responded to these concerns, as raised by the Appellant hospital, by stating that economic hardship is not the same as compulsion.

The Eleventh Circuit's decision prompted the hospital to file a petition for writ of certiorari with the Supreme Court. 2014 WL 6449709. The petition, which cites to Morreim's article, was filed in November and may soon receive a response from the Supreme Court. As Morreim wrote, "[s]tay tuned . . . the conversation is likely to become quite interesting."

Catherine Cumming, MJLST Staff Member

As 2015 begins, many worry that the Republican majority in both the House and Senate will adversely effect energy policy over the next few years. With a scheduled Senate committee hearing and vote this week on the Keystone XL pipeline and pledges to "delay or derail the Obama administration's clean air proposals," these worries are justified. However, hydropower, the United States' largest renewable energy resource provides hope for U.S. energy policy through bipartisan legislature and industry aimed at harnessing small-scale hydropower on existing infrastructure.

In 2013, the legislature unanimously passed the Hydropower Regulatory Efficiency Act (H.R. 267) and the Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act (H.R.678). H.R. 267 was passed in an effort to streamline the Federal Energy Reserve Commission's (FERC) regulatory process and promote the development of small-scale hydropower projects. H.R. 267 and H.R. 678 "hit a rare bipartisan sweet spot" because they "shrank federal bureaucracy" and increased the potential for renewable energy production through the utilization of existing infrastructure. H.R. 678 was passed to expedite "small hydropower development at existing Bureau of Reclamation-owned canals, pipelines, aqueducts, and other manmade waterways."

While proponents of hydropower are pleased with the Act, many, especially small-scale producers, are looking for more from the Republican-controlled legislature. The bills and their legislative history focus heavily on the number of unutilized dams in the U.S. as well as the potential for micro hydropower production. While the bills are helpful in increasing the development of small-scale hydropower, further legislature is needed to ease the regulatory process. In a recent NPR story on hydropower legislation, Kurt Johnson, head of the Colorado Small Hydropower Association, described the bills as "a kitchen knife gently cutting the government's red tape, when what is really needed is a machete." However, even with a Republican controlled House and Senate, taking a "machete" to FERC's regulatory process is unlikely. This February, FERC's amended regulations conforming to the bills become effective, easing the regulatory process for qualifying small-scale hydropower facilities.

Despite recent reform to the hydropower regulatory regime and bipartisan recognition that hydropower is an underdeveloped resource, 2014 showed a shift in hydropower and energy policy. Traditionally, hydropower has been the United States' largest renewable energy source, but in 2014, annual non-hydropower renewable generation usurped hydropower generation for the first time. In a recent report, the U.S. Energy Information Administration (EIA) projected decrease of 4.4% in conventional hydropower generation, but a 5.1% increase in non-hydropower renewables, including wind, solar, and geothermal. The 2014 removal of the Elwha Dam on the Olympic Peninsula in Washington State highlighted another shift in hydropower, as large-scale hydropower projects and their externalities are under scrutiny. As a result of this heightened scrutiny and the potential for unutilized infrastructure on America's waterways, the hydropower industry and legislature is looking to implement smaller, noncontroversial projects.

Though hydropower generation decreased in 2014, the legislature recognizes that there is tremendous growth potential for hydropower in America's future. In fact, the new Chair of the Senate Committee on Energy and Natural Resources, Senator Lisa Murkowski, is on the record for calling hydropower an "undeveloped resource." Senator Murkowski's statement is supported by many recent studies, which indicate the potential for increased hydropower generation and job growth in the United States. In addition to its potential for the development of new, clean energy generation and jobs, small-scale hydropower legislation provides renewed hope for energy policy in a Republican-controlled legislature.

Commercial Drones: What's a Business to do?


Neal Rasmussen, MJLST Staff Member

Since the March 2014 decision by administrative law judge Patrick Geraghty, the legality of using a drone for commercial purposes has been up for debate. Geraghty held that the Federal Aviation Administration (FAA) could not regulate the use of drones for commercial purposes under the current regulatory regime because a drone could not be considered an "aircraft" under 14 C.F.R. § 91.13(a) therefore could not be in violation of the Federal Aviation Regulations.

The FAA's ability to regulate commercial drones came to the forefront when Raphael Pirker, a professional photographer, was paid by the University of Virginia to provide aerial photographs and video, which was accomplish by using a small drone. The FAA claimed the drone was operated in "a careless or reckless manner so as to endanger the life or property of another" in violation of 14 C.F.R. § 91.13(a) and assessed a $10,000 penalty. Pirker promptly challenged this penalty arguing his drone was not an "aircraft" and could not be in violation of the Federal Aviation Regulations. Geraghty agreed, finding that the definition of "aircraft" as defined in 49 U.S.C. § 40102(a) (6) ("any contrivance invented, used or designed to navigate or fly in, the air") and 14 C.F.R. § 1.1 ("a device that is used or intended to be used for flight in the air") did not include model aircraft or drones.

This decision left a gaping hole in the FAA's enforcement power and was welcomed by businesses using commercial drones due to their ability to now fly without fear of penalties. Understandably, the decision was immediately appealed by the FAA. On appeal the National Transportation Safety Board (NTSB) reversed the decision by finding that drones did meet the definition of "aircraft" as defined in 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1, thus Pirker could be subject to penalties for violation of 14 C.F.R. § 91.13(a). The NTSB remanded the case in order to determine if Pirker's operation was in a careless or reckless manner warranting the $10,000 penalty.

In an effort to legally integrate drones into the National Airspace System (NAS), the FAA has since allowed businesses to file for exemptions under Section 333 of the FAA Modernization and Reform Act of 2012. These exemptions are acting as a gap filler until the FAA releases their proposed regulations for small drones, which are expected later this year. To date, thirteen Section 333 exemptions have been granted by the FAA. The most prevalent industry to be granted an exemption is the film industry, totaling seven of the thirteen. Other industries include construction, real estate, agriculture, and surveying. The number of exemptions is expected to grow, as the FAA has received over 200 applications for exemptions. However, the number of drones in the sky is not expected to skyrocket anytime soon due to the length of time and expense needed in order to obtain a Section 333 exemption which limits the number of companies that can apply and be granted an exemption.

Although not ideal, the exemption process is a major step in the right direction for the FAA as it finally begins to work with, not against, businesses to fully integrate drones into the NAS. Full integration into the NAS, however, will not occur until final regulations are released later this year. Even after regulations are released it could take a few years to work out all of the logistics of using drones for commercial purposes. In any event, don't expect your Amazon package to be delivered by drones anytime soon. Stay tuned!

Biosimilar Drugs Gaining Traction with the FDA


Ethan Mobley, MJLST Staff Member

Recently, an FDA-commissioned panel recommended the Administration approve a cancer fighting drug developed by Novartis called EP2006. The recommendation is significant because if the FDA follows the panel's advice and approves the drug, it will be the first time the FDA has approved a "biosimilar" drug under the Biologics Price Competition and Innovation Act (BPCI Act). A biosimilar drug is a drug that is "interchangeable" with or "highly-similar" to a biological drug already licensed by the FDA. In the words of the FDA, "[a] biological product may be demonstrated to be 'biosimilar' if data show that the product is 'highly similar' to the reference product notwithstanding minor differences in clinically inactive components and there are no clinically meaningful differences between the biological product and the reference product in terms of safety, purity and potency." Interestingly, a biosimilar drug is not considered to be a generic version of its already-approved counterpart-- only bioequivalent drugs could be generics. Nonetheless, biosimilar drugs are still desirable for consumers because they are subject to an expedited approval process compared to their already-approved counterpart. Such drugs would be readily substitutable by a pharmacist without requiring the prescriber's permission.

In this case, the panel advised the FDA that EP2006 is biosimilar to Amgen's medication, Nuopogen (filgrastim), which is used to boost white-blood cell production in the body. Unfortunately, Neupogen is predictably expensive. But, introduction of EP2006 into the market would make cancer-fighting medication more price-accessible for many patients. Such a decrease in price would necessarily follow from increased competition for a white blood cell-producing drug and the reduced development costs of EP2006 attributable to the expedited approval process under the BPCI Act. Ideally, a groundbreaking approval of EP2006 under the BPCI Act would also pave the way for other price-accessible medication meant to treat all sorts of ailments.

Ke M. Huang, MJLST Lead Articles Editor

As a second-year law student, I met an energy law attorney who told me that sometimes his job felt like mediating between two parents. Two parents butting heads.

The more recent legal developments in the cellulosic ethanol industry since the publication of my student note in the Volume 15, Issue 2 of the Minnesota Journal of Law, Science & Technology echo the words of the attorney I met. In the note--published in Spring 2014 and entitled A Spoonful of Sugarcane Ethanol--I argue that the U.S. should enact tax benefits to spur cellulosic ethanol based on existing Brazilian tax benefits for sugarcane ethanol. Ethanol, or ethyl alcohol, is a fuel fermented from renewable resources. In the case of cellulosic ethanol, the resource is vegetative and yard waste; in the case of sugarcane ethanol, the resource is sugarcane juice.

Unlike the note, which focuses on tax benefits, the recent developments in the cellulosic ethanol industry center on blending mandates, both in the U.S. and Brazil. Under these mandates, motor fuel--which contains mostly gasoline--must be blended with a certain amount of ethanol. The U.S. motor fuel mandate is the Renewable Fuel Standard (RFS). RFS, which generally requires the petroleum industry to blend in motor fuel specific amounts for cellulosic ethanol, was already subject to litigation in American Petroleum Institute v. EPA, 706 F.3d 474 (D.C. Cir. 2013). However, the concerned industries of that case, primarily the petroleum industry and the cellulosic ethanol industry, continue to disagree. Broadly speaking, as further elaborated in this Bloomberg BNA blog entry, the petroleum industry takes the position that the RFS is unworkable. To much the vexation of the cellulosic ethanol industry. What makes the recent development more interesting is that, since early 2014, the cellulosic ethanol production seemed to have increased. Extending the metaphor of fighting parents, it is as if the ethanol parent continues to grasp the motor fuel teen, a teen that has grown bulkier in size, when the petroleum parent is ready to send the teen off to college.

In Brazil, a similar "family tale" ensues. In late 2014, Brazilian President Dilma Rousseff signed the legislation to increase Brazil's blending percentage of ethanol from 25% to 27.5%. Still, the semi-public petroleum producer Petrobras expressed concern that, before the change in the mandate can be put in effect, more study is needed. These articles further explain these events (1)(2). As such, in this "family," the parents are at a deadlock.

On a more serious tone, as I reread my student note, I would like to make two corrections. I apologize for the misspelling of Ms. Ruilin Li's name on page 1117, and for the missing infra notations on page 11141 (notes 218 to 221).

Erin Fleury, MJLST Managing Editor

Earlier this year, the general public became acutely aware of the Heartbleed security bug which exposed vast amounts of encrypted data from websites using OpenSSL technology (estimated to affect at least 66% of active websites). Software companies are still fixing these vulnerabilities but many servers remain vulnerable and surely victims could continue to suffer from these data breaches long after they occurred. While Heartbleed, and the fact that it was around for nearly two years prior to detection, is troubling by itself, it also raises concerns about the scope of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. §1030, and white-hat hackers.

The CFAA prohibits "intentionally accessing a computer without authorization or exceed[ing] authorized access" and thereby "obtain[ing] information from a protected computer." See § 1030(a)(2). It would appear that the Heartbleed bug operates by doing exactly that. In very simplistic terms, OpenSSL authorizes limited requests for information but Heartbleed exploits a flaw to cause systems to send back far more than what is intended. Of course, the CFAA is meant to target people who use exploits such as this to gain unauthorized access to computer systems, so it would seem that using Heartbleed is clearly within the scope and purpose of the CFAA.

The real problem arises, however, for people interested in independently (i.e. without authorization) testing a system to determine if it is still susceptible to Heartbleed or other vulnerabilities. With Heartbleed, the most efficient way to test for the bug is to send an exploitive request and see if the system sends back extra information. This too would seem to fall squarely within the ambit of the CFAA and could potentially be a violation of federal law. Even testing a website which has been updated so that it is no longer vulnerable could potentially be a violation under §1030(b)("attempting to commit a violation under subsection (a)").

At first glance it might seem logical that no one should be attempting to access systems they do not own, but there are a number of non-nefarious reasons someone might do so. Perhaps customers may simply wish to determine whether a website is secure before entering their personal information. More importantly, independent hackers can play a significant role in finding system weaknesses (and thereby helping the owner make the system more secure), as evidenced by the fact that many major companies now offer bounty programs to independent hackers. Yet those who do not follow the parameters of a bounty program, or who discover flaws in systems without such a program, may be liable under the CFAA because of their lack of authorization. Furthermore, the CFAA has been widely criticized for being overly broad because, among other reasons, it does not fully distinguish between the reasons one might "exceed authorization." Relatively minor infractions (such as violating the Terms of Service on MySpace) may be sufficient to violate federal law, and the penalties for fairly benevolent violations (such as exploiting security flaws but only reporting it to the media rather than using the obtained information for personal gains) can seem wildly disproportional to the offense.

These security concerns are not limited to websites or the theft of data either. Other types of systems could pose far greater safety risks. The CFAA's definition of a "protected computer" in § 1030(e)(1-2) applies to a wide range of electronics and this definition will only expand as computers are integrated into more and more of the items we use on a daily basis. In efforts to find security weaknesses, researchers have successfully hacked and taken control of implantable medical devices or even automobiles. Merely checking a website to see if it is still susceptible to Heartbleed is unlikely to draw the attention of the FBI, so in many ways these concerns can be dismissed for the simple reason that broad enforcement is unlikely and, of course, many of the examples cited above involved researchers who had authorization. Yet, the CFAA's scope is still concerning because of the chilling effect it could have on research and overall security by dissuading entities from testing systems for weaknesses without permission or, perhaps more likely, by discouraging individuals from disclosing these weaknesses when they find them.

Without question, our laws should punish those who use exploits (such as Heartbleed) to steal valuable information or otherwise harm people. But the CFAA also seems to apply with great force to unauthorized access which ultimately serves a tremendous societal good and should be somewhat excusable, if not encouraged. The majority of the CFAA was written decades ago and, while there have been recent efforts to amend it, it remains a highly-controversial law. Surely, issues surrounding cybersecurity are unlikely to disappear anytime soon. It will be interesting to see how courts and lawmakers react to solve these challenging issues in an evolving landscape.

Somnophilia, The "Sleeping Beauty" Disorder


Becky Huting, MJLST Editor

To date, at least 19 women have come forward accusing Bill Cosby of some type of sexual abuse. The majority of the women have told similar stories that involve some variant of being drugged, sexually assaulted, or being drugged and also sexually assaulted by Cosby. The New York Times recently published a piece entitled "When a Rapist's Weapon is a Drug" that talks about a particular kind of paraphilia that some hypothesize is present in Cosby: a sexual deviation that involves drugging and raping unconscious partners. While it is important to note there is no indication of any formal diagnoses of Cosby (nor of criminal charges), this narrative has opened the dialogue about the contours of sexual disorder diagnosis and what it might mean in our legal regime.

The DSM, or Diagnostic and Statistical Manual of Mental Disorders, is authored by the American Psychiatric Association (APA) and offers a standardized classification of mental disorders. According to the APA, the DSM is "intended to be applicable in a wide array of contexts and used by clinicians and researchers of many different orientations (e.g., biological, psychodynamic, cognitive, behavioral, interpersonal, family/systems)." The DSM's 5th Edition (DSM 5) is the 2013 update to the APA tool, superseding the last (DSM-IV-TSR), which was published in 2000.

Paraphilic disorders are defined by an unusual sexual preference that becomes compulsive. The DSM 5 contains eight distinct groups of disorders that constitute paraphilia. They include: exhibitionistic disorder, fetishistic disorder, frotteuristic disorder (arousal from touching or rubbing against a stranger), pedophilic disorder, sexual masochism disorder, sexual sadism disorder, transvestite disorder, and voyeuristic disorder.

Now returning to Cosby: date rape incidents involving drugs being dosed to victims are very common. Alcohol is the most commonly used drug in sexual assaults, but some perpetrators use so-called "knock-out" drugs. Experts view the motives for the former simple opportunism, but some of the latter category of druggers have a different motive in mind: they like unresponsive partners. This preference for unconscious partners, and the erotic arousal dependent upon intruding upon an unresponsive partner, and sometimes waking the person, is being labeled "sleeping beauty syndrome" or "Somnophilia." Somnophilia is a less common compulsion, but under a more common umbrella of a motive guided by coercion where the perpetrator is aroused by domination of their drugged partner.

According to Dr. Michael First, a psychiatrist and editorial consultant on the new DSM 5, the kind of coercion and domination achieved by drugging a partner is common enough that the APA actually contemplated adding it as a distinct diagnosis as a paraphilia disorder, but the idea was shelved in part because of concerns that doing so would give rapists added recourse in legal cases. This should be of interest for legal practitioners: it begs the question - should doctors be thinking about legal implications when they classify disorders? If they are indeed guided by what might be a legal defense, one could imagine the whole composition of the DSM changing tomorrow. Just a couple examples come quickly to mind. Schizophrenia is a widely accepted mental disorder included on the DSM, and yet is not infrequently used to bolster a legal defense for very horrific crimes. Consider also sleep-walking disorders. These too are on the DSM 5, and yet, criminal defendants have been known to use sleep-walking as a legal defense for equally ghastly crimes. It seems incongruous to say that leaving these kind of "excusing" mental disorders off is the policy here. They are already on the DSM, and criminal defendants have used them for quite some time. If the APA is willing to sacrifice classifying valid mental disorders in the name of some sense of legal responsibility, they must also consider the consequences for the field of psychiatry and the name of treatment.

Clearly here the concern by the American Psychiatric Association is that giving disorders like Somnophilia a name legitimizes it - those ostensibly like Bill Cosby will now have a diagnosis to stand behind in court. They can say: "it wasn't my fault, it's my disposition. I have a disorder." (It is also unclear that a jury would give any sympathetic weight or credence to this). But the clear question is whether lawyers want doctors doing the legal work for them behind the scenes. Will psychiatry and its patients actually benefit by this kind of legal policy gut-checking, or should we just ask politely ask doctors to do what they do best - classify, diagnose, and treat?

The Limits of Free Speech


Paul Overbee, MJLST Editor

A large portion of society does not put much thought into what they post on the internet. From tweets and status updates to YouTube comments and message board activities, many individuals post on impulse without regard to how their messages may be interpreted by a wider audience. Anthony Elonis is just one of many internet users that are coming to terms with the consequences of their online activity. Oddly enough, by posting on Facebook Mr. Elonis took the first steps that ultimately led him to the Supreme Court. The court is now considering whether the posts are simply a venting of frustration as Mr. Elonis claims, or whether the posts constitute a "true threat" that will direct Mr. Elonis directly to jail.

The incident in question began a week after Tara Elonis obtained a protective order against her husband. Upon receiving the order, Mr. Elonis posted to Facebook, "Fold up your PFA [protection-from-abuse order] and put it in your pocket [...] Is it thick enough to stop a bullet?" According the Mr. Elonis, he was trying to emulate the rhyming styles of the popular rapper Eminem. At a later date, an FBI agent visited Mr. Elonis regarding his threatening posts about his wife. Soon after the agent left, Mr. Elonis again returned to Facebook to state "Little agent lady stood so close, took all the strength I had not to turn the [expletive] ghost. Pull my knife, flick my wrist and slit her throat."
Due to these posts, Mr. Elonis was sentenced to nearly four years in federal prison, and Elonis v. United States is now in front of the Supreme Court. Typical state statutes define these "true threats" without any regard to whether the speaker actually intended to cause such terror. For example, Minnesota's "terroristic threats" statute includes "reckless disregard of the risk of causing such terror." Some states allow for a showing of "transitory anger" to overcome a "true threat" charge. This type of defense arises where the defendant's actions are short-lived, have no intent to terrorize, and clearly are tied to an inciting event that caused the anger.

The Supreme Court's decision will carry wide First Amendment implications for free speech rights and artistic expression. A decision that comes down harshly on Mr. Elonis may have the effect of chilling speech on the internet. The difference between a serious statement and one that is joking many times depends on the point of view of the reader. Many would rather stop their posting on the internet instead of risk having their words misinterpreted and charges brought. On the other hand, if the Court were to look towards the intent of Mr. Elonis, then "true threat" statutes may lose much of their force due to evidentiary issues. A decision in favor of Mr. Elonis may lead to a more violent internet where criminals such as stalkers have a longer leash in which to persecute their victims. Oral argument on the case was held on December 1, 2014, and a decision will be issued in the near future.