Monthly Archive for June, 2005

The Future of the Berkman Center

Blog for Terry

Date: Tue, 28 Jun 2005 14:28:04 -0400
From: William Fisher
To: Charles Nesson
Cc:  zittrain at,  jpalfrey at
Subject: Re: morning blog – The Future of the Berkman Center

It’s OK with me if you want to post the recording. It’s honest, accurate, painful. I have no confidentiality concerns with it. I share your hope that the end of the buttonhole is near, that we can restore friendship and trust. Indeed, despite our continueed disagreement on many fronts, I felt/feel that a reconciliation process has begun. The initiative to convert the Berkman Center to a university-wide center could be the occassion to continue the reconciliation — or not — depending on how we play it. But after the long talk last night, I’m hopeful.

The only question I have concerning the recording is whether you yourself want to post it. It’s painful, confessional, implicitly accusatory (suggesting that I failed to appreciate the real substance of your talk in Singapore). That’s the sort of thing I would want to keep private. But we are very different people in this regard. So my own sense of what I would do if I were in your shoes probably has little relevance.


Charles Nesson wrote:

I’d like to post this but hesitate. If you have objection to all or any part I will edit accordingly. (5 min.)

Jamaica Case Study

Yesterday i presented our jamaica project to iLaw: CyberStrategy for a Developing Nation: Case Study – Jamaica. For those who would like to delve deeper, here is Glenn Otis Brown’s scathing but also beautifully written report of our visit to Tower Street GP December 2001, to show how far we have come and how long we have been at it.

doing email after jacking in

Did you read “California Reins In Clinics Using Marijuana for Medical Purposes”
By DEAN E. MURPHY, in the New York Times?

This is the cutting edge. At least it could be seen such. Here is a business plan for community development with headline marketing for its products. Plus it’s funny. We could organize something out of this.

Just arrived in Jamaica, checked in at Terra Nova, meeting Kevin at 4:30, which is coming up in about a minute. The purpose of my visit is to integrate staff into SET. Without prison staff support no program of culture change in prison will succeed.

Homeland Security

Here are my welcoming remarks to the Data Privacy and Integrity Advisory Committee of the Department of Homeland Security, which is holding a public hearing at Harvard Law School today.

Ladies and Gentleman:

Welcome to Harvard Law School A law professor’s job is often to frame and state a question.

Our world is changing. No surprise in this. Yet the pace of change comes to many as surprise. Technology is changing the world faster than it ever changed before. A speaker at the Berkman Center yesterday, JD Lasica, said “We’re living in extraordinary times — media will change more in the next five years than it has in the past 50.” He spoke about ourmedia, an entity formed nonprofit just a few weeks ago, with now twenty two thousand members contributing their work and energy to the creation of a shared media space, grassroots expression of cooperative spirit, growth like lightning.

Success in our cyber future will come to those with the most astute conceptual technological strategy. I beleive this is true for individuals, for businesses, for universities, for nations. This is a challenge for anyone in a leadership position, clearly the challenge for you as you face the task of recommending measures for the security of our homeland. Think cyber strategy for homeland security.

Cyberspace, our future environment, is a networked space of nodes, each able to connect with any other, to send message, to receive. From the viewpoint of the user sitting at the screen pointing and clicking through the space there is no geographic boundary. Boundaries are instead passwords, boxes you have to fill or click, boundaries of language.

In cyberspace, brand is everything,for business as well as nation,. Identity is capital.The cyber power to connect with you and listen to your message is in the users hands. Who are users? All of us, not just republicans or democrats, or Americans. All the world’s a stage on which identity plays.

Consider privacy from the viewpoint of the user. Are you huddled in a room behind locked doors moving on the screen only to places that are predetermined to be safe? Do you exist in a closed world? This is one view of privacy. Privacy as prison. Prison as security.

Another is, you live in culture of trust, a neighborhood where your doors are open, your children free to run. You sit at your screen and go where ever you want to go.

Consider the necker cube. Take it as a methphor for the deepest dispute your client faces. Your client sees himself and his dispute one way. Your client’s enemy sees herself and her dispute another. Can it be seen both ways at the same time?

The logic of the equation so painfully taught to us by Osama Bin Laden dictates that our security is not merely a function of the defenses we put up. Our security is equally if not more a function of the hostility to us beyond our borders. If hostility continues to rise, our quest for security will be defeated. Privacy will become a form of that room with the locked door, security recast as privacy, and privacy a prison.

If that hostility is diminishes, then our security and our privacy will grow.

What would be a *cyber* strategy to diminish the hostility to the United States of America in the world beyond.

Finding the Third View of Disputes

Disputes — There are always two ways to see them. Is there a third view?

It’s one thing for a party to a dispute to say the other side is wrong. But how, once they see it, do disputing parties deny the third view?

Just spoke with Gideon. He is a metal sculptor. He is fabricating a third view of the Necker Cube, first introduced to me by Jonathan Zittrain, and now to be passed on by me to a young man, Michael Saltzman, embarking on adulthood, a gift like that received by Trevor Rhone, the Bellas Gate Boy, when he set off on his mythic journey. Let this be the first of many.

Marijuana Volcano

In many states of the USA the argument for Medical Marijuana has not yet prevailed. Though opinion against its medicinal use may be grounded in misinformation and prejudice, it is yet true that the Supreme Court has no reason to expend its valuable authority in preventing Congress from respecting and responding to what is still a dominant national sensibility. The Supreme Court’s decision forces Medical Marijuana advocates to move the focus of their educational efforts to the national legislature. This may prove in the end to be a good thing, though in the mean time doctors and patients will feel the pressure of the law as an additional goad to present their case.


The FDA better close their eyes and cover their ears….

Clinical trial to be published in the Journal of Pharmaceutical Sciences
calls the Volcano Vaporizer a “safe and effective” cannabinoid delivery

“The goal of this study was to evaluate the performance of the Volcano
vaporizer in terms of reproducible delivery of the bioactive cannabinoid
tetrahydrocannabinol (THC) by using pure cannabinoid preparations, so that
it could be used in a clinical trial.

“Our results show that with the Volcano a safe and effective cannabinoid
delivery system seems to be available to patients. The final pulmonal uptake
of THC is comparable to the smoking of cannabis, while avoiding the
respiratory disadvantages of smoking.”


J Pharm Sci. 2006 Apr 24

Evaluation of a vaporizing device (Volcano(R)) for the pulmonary
administration of tetrahydrocannabinol.

Hazekamp A, Ruhaak R, Zuurman L, van Gerven J, Verpoorte R.

Division of Pharmacognosy, Institute of Biology, Leiden University, Leiden,
The Netherlands.

What is currently needed for optimal use of medicinal cannabinoids is a
feasible, nonsmoked, rapid-onset delivery system. Cannabis “vaporization” is
a technique aimed at suppressing irritating respiratory toxins by heating
cannabis to a temperature where active cannabinoid vapors form, but below
the point of combustion where smoke and associated toxins are produced. The
goal of this study was to evaluate the performance of the Volcano vaporizer
in terms of reproducible delivery of the bioactive cannabinoid
tetrahydrocannabinol (THC) by using pure cannabinoid preparations, so that
it could be used in a clinical trial. By changing parameters such as
temperature setting, type of evaporation sample and balloon volume, the
vaporization of THC was systematically improved to its maximum, while
preventing the formation of breakdown products of THC, such as cannabinol or
delta-8-THC. Inter- and intra-device variability was tested as well as
relationship between loaded- and delivered dose. It was found that an
average of about 54% of loaded THC was delivered into the balloon of the
vaporizer, in a reproducible manner. When the vaporizer was used for
clinical administration of inhaled THC, it was found that on average 35% of
inhaled THC was directly exhaled again. Our results show that with the
Volcano a safe and effective cannabinoid delivery system seems to be
available to patients. The final pulmonal uptake of THC is comparable to the
smoking of cannabis, while avoiding the respiratory disadvantages of
smoking. (c) 2006 Wiley-Liss, Inc. and the American Pharmacists Association
J Pharm Sci 95:1308-1317, 2006.


Medical marijuana
Reefer madness

Apr 27th 2006
>From The Economist print edition

Marijuana is medically useful, whether politicians like it or not

IF CANNABIS were unknown, and bioprospectors were suddenly to find it in
some remote mountain crevice, its discovery would no doubt be hailed as
a medical breakthrough. Scientists would praise its potential for
treating everything from pain to cancer, and marvel at its rich
pharmacopoeia‹many of whose chemicals mimic vital molecules in the human
body. In reality, cannabis has been with humanity for thousands of years
and is considered by many governments (notably America’s) to be a
dangerous drug without utility. Any suggestion that the plant might be
medically useful is politically controversial, whatever the science
says. It is in this context that, on April 20th, America’s Food and Drug
Administration (FDA) issued a statement saying that smoked marijuana has
no accepted medical use in treatment in the United States.

The statement is curious in a number of ways. For one thing, it
overlooks a report made in 1999 by the Institute of Medicine (IOM), part
of the National Academy of Sciences, which came to a different
conclusion. John Benson, a professor of medicine at the University of
Nebraska who co-chaired the committee that drew up the report, found
some sound scientific information that supports the medical use of
marijuana for certain patients for short periods‹even for smoked marijuana.

This is important, because one of the objections to marijuana is that,
when burned, its smoke contains many of the harmful things found in
tobacco smoke, such as carcinogenic tar, cyanide and carbon monoxide.
Yet the IOM report supports what some patients suffering from multiple
sclerosis, AIDS and cancer‹and their doctors‹have known for a long time.
This is that the drug gives them medicinal benefits over and above the
medications they are already receiving, and despite the fact that the
smoke has risks. That is probably why several studies show that many
doctors recommend smoking cannabis to their patients, even though they
are unable to prescribe it. Patients then turn to the black market for
their supply.

Another reason the FDA statement is odd is that it seems to lack common
sense. Cannabis has been used as a medicinal plant for millennia. In
fact, the American government actually supplied cannabis as a medicine
for some time, before the scheme was shut down in the early 1990s.
Today, cannabis is used all over the world, despite its illegality, to
relieve pain and anxiety, to aid sleep, and to prevent seizures and
muscle spasms. For example, two of its long-advocated benefits are that
it suppresses vomiting and enhances appetite‹qualities that AIDS
patients and those on anti-cancer chemotherapy find useful. So useful,
in fact, that the FDA has licensed a drug called Marinol, a synthetic
version of one of the active ingredients of
marijuana‹delta-9-tetrahydrocannabinol (THC). Unfortunately, many users
of Marinol complain that it gets them high (which isn’t what they
actually want) and is not nearly as effective, nor cheap, as the real
weed itself.

This may be because Marinol is ingested into the stomach, meaning that
it is metabolised before being absorbed. Or it may be because the
medicinal benefits of cannabis come from the synergistic effect of the
multiplicity of chemicals it contains.
Just what have you been smoking?

THC is the best known active ingredient of cannabis, but by no means the
only one. At the last count, marijuana was known to contain nearly 70
different cannabinoids, as THC and its cousins are collectively known.
These chemicals activate receptor molecules in the human body,
particularly the cannabinoid receptors on the surfaces of some nerve
cells in the brain, and stimulate changes in biochemical activity. But
the details often remain vague‹in particular, the details of which
molecules are having which clinical effects.

More clinical research would help. In particular, the breeding of
different varieties of cannabis, with different mixtures of
cannabinoids, would enable researchers to find out whether one variety
works better for, say, multiple sclerosis-related spasticity while
another works for AIDS-related nerve pain. However, in the United
States, this kind of work has been inhibited by marijuana’s illegality
and the unwillingness of the Drug Enforcement Administration (DEA) to
license researchers to grow it for research.

Since 2001, for example, Lyle Craker, a researcher at the University of
Massachusetts, has been trying to obtain a licence from the DEA to grow
cannabis for use in clinical research. After years of prevarication, and
pressure on the DEA to make a decision, Dr Craker’s application was
turned down in 2004. Today, the saga continues and a DEA judge (who
presides over a quasi-judicial process within the agency) is hearing an
appeal, which could come to a close this summer. Dr Craker says that his
situation is like that described in Joseph Heller’s novel, ³Catch 22².
³We can say that this has no medical benefit because no tests have been
done, and then we refuse to let you do any tests. The US has gotten into
a bind, it has made cannabis out to be such a villain that people
blindly say Œno¹.²

Anjuli Verma, the advocacy director of the American Civil Liberties
Union (ACLU), a group helping Dr Craker fight his appeal, says that even
if the DEA judge rules in their favour, the agency’s chief administrator
can still decide whether to allow the application. And, as she points
out, the DEA is a political organisation charged with enforcing the drug
laws. So, she says, the ACLU is in this for the long haul, and is
already prepared for another appeal‹one that would be heard in a federal
court in the normal judicial system.

Ms Verma’s view of the FDA’s statement is that other arms of government
are putting pressure on the agency to make a public pronouncement that
conforms with drug ideology as promulgated by the White House, the DEA
and a number of vocal anti-cannabis congressmen. In particular, the
federal government has been rattled in recent years by the fact that
eleven states have passed laws allowing the medical use of marijuana. In
this context it is notable that the FDA’s statement emphasises that it
is smoked marijuana which has not gone through the process necessary to
make it a prescription drug. (Nor would it be likely to, with all of the
harmful things in the smoke.) The statement’s emphasis on smoked
marijuana is important because it leaves the door open for the agency to
approve other methods of delivery.
High hopes

Donald Abrams, a professor of clinical medicine at the University of
California, San Francisco, has been working on one such option. He is
allowed by the National Institute on Drug Abuse (the only legal supplier
of cannabis in the United States) to do research on a German nebuliser
that heats cannabis to the point of vaporisation, where it releases its
cannabinoids without any of the smoke of a spliff, and with fewer

That is encouraging. But it does not address the wider question of which
cannabinoids are doing what. For that, researchers need to be able to do
their own plant-breeding programmes.

In America, this is impossible. But it is happening in other countries.
In 1997, for example, the British government asked Geoffrey Guy, the
executive chairman and founder of GW Pharmaceuticals, to come up with a
programme to develop cannabis into a pharmaceutical product.

In the intervening years, GW has assembled a ³library² of more than 300
varieties of cannabis, and obtained plant-breeder’s rights on between 30
and 40 of these. It has found the genes that control cannabinoid
production and can specify within strict limits the seven or eight
cannabinoids it is most interested in. And it knows how to crossbreed
its strains to get the mixtures it wants.

Nor is this knowledge merely academic. Last year, GW gained approval in
Canada for the use of its first drug, Sativex, which is an extract of
cannabis sprayed under the tongue that is designed for the relief of
neuropathic pain in multiple sclerosis. Sativex is also available to a
more limited degree in Spain and Britain, and is in clinical trials for
other uses, such as relieving the pain of rheumatoid arthritis.

At the start of this year, the company made the first step towards
gaining regulatory approval for Sativex in America when the FDA accepted
it as a legitimate candidate for clinical trials. But there is still a
long way to go.

And that delay raises an important point. Once available, a
well-formulated and scientifically tested drug should knock a herbal
medicine into a cocked hat. No one would argue for chewing willow bark
when aspirin is available. But, in the meantime, there is unmet medical
need that, as the IOM report pointed out, could easily and cheaply be
met‹if the American government cared more about suffering and less about

The Dark Side

The Dark Side, recorded 8/16/88.

The dark side is deep. I listen to it over and over again. It was a conversation preceded by another which puts Parker’s approach to understanding our reality into the context of my life with fern.

– –TheDarkSidewithFern – –

Hey Ben – WhatZappinin

I was prodded to dig The Dark Side out of the files at the urging of Ben Walker.

metaphor of memory.


Confronting Crawford

John Marshall Harlan

I go to Maine tomorrow, back to Maine, to speak with Maine lawyers about the Supreme Court’s change in the Constitutional rule of Confrontation, a change that requires rethinking how the justice system relates to cases of child abuse and wife beating. Hearsay from victims will no longer suffice. The accused is entitled to subject his accuser to cross examination if his accuser’s accusation is to be admitted in evidence at trial.

1. In State v. Courtney, the defendant appealed his conviction for domestic assault. The evidence indicated that he had choked his former girlfriend until she lost consciousness. He had beaten her so severely that her blood splattered on the bedroom walls. She woke up with her head in a toilet. Her six-year-old daughter described the assault in an interview conducted by a child-protection worker. The trial court admitted a videotape of this interview. Citing Crawford, the appellate court reversed the defendant’s conviction because the daughter was not available for cross-examination at trial.

2. In People v. Adams, the defendant appealed his conviction for inflicting corporal injury upon a cohabitant. The prosecution’s evidence showed that the defendant had battered his pregnant girl-friend, forced her to the floor, and pushed his knee down on her abdomen while she pleaded with him to spare her baby’s life. The victim gave a statement to police on the day of the incident, but the prosecution was not able to subpoena her as a trial witness. The prosecution introduced her hearsay statements to the police in lieu of her live testimony at trial. The appellate court vacated the defendant’s conviction, holding that the admission of the victim’s hearsay statements violated Crawford.

3. In People v. Kilday, the jury found the defendant guilty of battering and torturing his girlfriend. Evidence introduced at trial showed that the defendant had cut the victim repeatedly with pieces of glass. He had also burned her with an iron on several occasions. She gave a statement to the police on the day of the defendant’s arrest, but she later refused to cooperate with the prosecution, indicating that the defendant had threatened to retaliate against her. The prosecution relied on her hearsay statements to police, and the appellate court vacated the conviction under Crawford.

4. Has Crawford impeded domestic violence prosecutions?

The Crawford dissenters said: “The Court grandly declares that “[w]e leave for another day any effort to spell out a comprehensive definition of ‘testimonial’. But the thousands of federal prosecutors and the tens of thousands of state prosecutors need answers as to what beyond the specific kinds of “testimony” the Court lists, is covered by the new rule. They need them now, not months or years from now. Rules of criminal evidence are applied every day in courts throughout the country, and parties should not be left in the dark in this manner.”

Welcome to the dark. Let us see if together we can shed light.

Why did the Supreme Court do this? Were the justices of the majority hostile to the women’s movement, to the movement to protect children from abuse?

No, this was a lawyer’s victory, lawyer in the sense of lover of the elegance of law, lover of the concept of a constitution that makes sense in principle, not just in application.

Let me tell you the story of the confrontation clause. It starts way back in English history, like 1600, with the story of Sir Walter Raleigh, who was prosecuted for conspiring to kill the monarch on the accusation of his confederate, who confessed while in captivity in a tower of London. His confession was offered to the court through the testimony of the scribe who took it down and authenticated the paper and signature on which it was written. Raleight objected: “What is this! Would you convict an Englishman on the basis of a piece of paper? Bring Cobham before me. Let him accuse me to my face. Then shall I stand convicted before you. Without that you have nothing but tissue.” Well, to make a long story short, they convicted and executed him, thus creating a powerful story of injustice that rattled down through the centuries to take shape in the great principle of our American Bill of Rights: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

Ah, but what does this great principle mean? Did the court’s round about the time of the adoption of our constitution tell us? Why, no. There were no confrontation opinions of significance for more than one hundred years after its adoption, not until 1895.Pause to consider, what would explain that?

Answer is, we had no intermediate federal appellate courts for the first hundred plus years of our constitutional history. The Supreme Court was the only one, and reviewed district courts only for matters of jurisdiction. If the district judge had jurisdiction to do what he did, no problem. Trial judge’s had complete jurisdiction to rule on objections to evidence. Denial of a right of confrontation was not a basis for appeal. This changed in 1891 when intermediate appellate courts came into the picture, because now trial rulings were reviewed.

First came United States v. Mattox, 1895, a federal criminal case that arose in Indian Territory, in which Mattox, in his first trial, was convicted of murder based on the testimony of two eye witnesses. Taking advantage of new appellate process he got his conviction reversed and sent back for new trial. At his second trial the prosecutor had a problem. His two eye witnesses were both dead. Best he could do was read their testimony from the transcript of the first trial. At which point Mattox stands up and yells “
“What is this! Would you convict an American on the basis of a piece of paper?” (Not really, but you get the idea.)

Confronted for the first time with the Confrontation question, the Supreme Court reasoned that the evidence presented through the transcript was pretty good because the prior testimony had been cross examined at the time it was given, and even though it was hearsay in the second trial, it was a lot better than other hearsay that was being admitted back when the Confrontation Clause was adopted, namely the dying declaration, so okay, no confrontation problem. This was not exactly a ringing principle.

After Mattox there was no real action on the Confrontation Clause until 1963, when Justice Black and the Warren Court lit it afire, holding in Pointer v. Texas that the constitution requires the accusation of an accuser to be cross examined. After that, every criminal defense lawyer knew enough to claim a constitutional violation whenever hearsay was admitted against his client. Hearsay was being routinely admitted under more than a dozen hearsay exceptions complete with subparts. Either all of that was unconstitutional or these hearsay exceptions would have to be constitutionally justified one by one.

Justice Harlan, for whom I clerked in 1966, saw the danger as the ganglion of hearsay. He looked in vain for a principle to follow but could find none. Eventual sad resolution came from Justice Blackmun in 1980, when he resolved this ganglion hearsay threat to the coherence of constitutional principle by complete surrender to it. He simply declared that all firmly rooted hearsay exceptions were constitutional without need for constitutional rationalization.

And so a mess, devoid of principle, confused at fundamental levels.

Now comes the Crawford sword of principle, loosed without regard for where it falls.

Is there an island of safety for prosecutors who want to be sure they have a solid case? Yes, there appears to be.

To prosecutors: Assume I am speaking to you in your role as decision maker on the question whether or not to prosecute. Is it your policy to prosecute child abusers and wife beaters to the limit of the law? Or are there circumstances in which the best interest of the child who has been abused or the woman who was beaten would be to have the prosecution go away?

Think first of Crawford speaking to that time between complaint to you as prosecutor and decision to indict. As careful and conscientious prosecutor you must explain to the victim that evidence of her accusation, to be heard in law, must come directly from her under circumstances in which the accused has effective opportunity to cross examine.

You should explain the process. Indictment begins the process, followed by some form of preliminary or probable cause hearing, at which the victim will be required to testify and at which the accused will have opportunity to cross examine. Your most cautious approach assumes that if your victim won’t testify at this hearing, then you haven’t got a case.

Coming back to the time when you are explaining this to the victim, you should also make clear that the constitutional confrontation principle gives the victim the power to abort the prosecution by refusing to testify. You should assess whether this power puts the victim in further potential jeopardy from the abuser, and if so, either offer the law’s protection or abort the prosecution.

To defenders: Crawford makes the preliminary hearing a vitally important stage in criminal process, potentially equivalent to Daubert hearings on the admissibility of expert testimony. Here is likely your only opportunity to cross examine the victim. No jury is present. Think forward to the time of trial when the evidence of the victim’s testimony at the preliminary hearing is presented. How do you want that scene to go? This delicate question you now have to be ready to decide when you stand up to cross examine at the preliminary hearing. Preliminary is preliminary no more.

To judges: Crawford gives you power much as Daubert did. You are gatekeepers. Your task is to see that the prosecution’s case is strong enough to proceed to trial. Recognize that the safety of the victim may well turn on the clarity of your call. It is no plus for the victim to allow the prosecution to go forward if there is doubt about its adequacy in the absence the victim’s live testimony at trial. The extent of such doubt is the measure of the incentive to the accused to arrange the victim’s absence.

Adequate opportunity for cross examination offers a circle of light in Crawford’s darkness. Whether or not a statement is ‘testimonial’, if the statement was made subject to crossexamination, no problem.

What makes a statement ‘testimonial’, thus invoking Crawford’s dictate that it be subject to cross examination? Do we ask that question from the subjective viewpoint of the declarant of the statement, or from the viewpoint of the law enforcement system? — From the viewpoint of the innocent child speaking to a caring social worker, or from the viewpoint of the prosecutor whose network for gathering testimonial evidence extends to all such consultation?

To answer this question, ask another. Crawford causes great potential dislocation to prosecutorial practices of the past. Should the strategy of prosecutors and lower courts be to resist the change as much as possible by interpreting ‘testimonial’ as narrowly as possible, preserving as much of past prosecution practice as possible? Or should the strategy go the other way by recognizing that the brightest line produces the cleanest rule, in this case a rule that requires cross examination of any accusatory statement made to law enforcement’s information gathering network?

My thanks to Tom Lininger, who just sent me his fine piece, Prosecuting Batterers After Crawford.