Cultivated Compendium

The first appellate court to hear arguments in one of the cases striking down same-sex marriage bans was heard today.

The three-judge panel on the Tenth Circuit appeared split during oral argument on a lower-court ruling striking down Utah's ban on same-sex marraiage, the Salt Lake Tribune reports. The state is arguing that children do better if they are parented by a mother and father, not same-sex parents, the Tribune further reports.

The Fifth Circuit has rejected a newspaper's appeal against revealing identifying information about people who posted anonymous comments on its website, The National Law Journal's Mike Scarcella reports. The Times-Picayune has to disclose the information to a federal magistrate judge to review confidentially. The issue has arisen in the prosecution of a former New Orleans official. The defense alleges that the two anonymous posters are federal prosecutors. The newspaper's counsel said in court papers the order "implicates the important First Amendment right to engage in anonymous speech," the National Law Journal further reports.

Many more people are eligible for Medicaid under the Obamacare expansion: adults with incomes under 133 percent of the poverty level. Can the government recover the expenses paid out for these new Medicaid enrollees through liens on their properties and recoveries from their estates?

The Health Affairs blog reports on how the Centers on Medicare and Medicaid Services is advising states on applying liens to consumers who are getting Medicaid under the new expansion. Elderly Americans often get their long-term care paid through Medicaid, but there has been a concern that people "would voluntarily impoverish themselves, transferring assets to their children or to others to make themselves eligible for Medicaid," the blog reports. Medicaid can impose liens on people's houses and other assets to get that long-term care paid back. Now the questions is how the rules about liens should be applied to people who are newly eligible for Medicaid under the Obamacare expansion.

The first upshot, the blog reports, is that liens can't be placed on the property of new Medicaid enrolees. The second upshot is that CMS advises states to try to recover from the estates of new Medicaid receipients who receive long-term care, but not other types of care: "In sum, most of the rules that apply to traditional Medicaid recipients with respect to [long-term care services and supplies] LTSS (except for lien requirements) are likely to apply to [modified-adjusted gross income] MAGI-eligible individuals who receive LTSS.  CMS intends, however, to take steps to avoid applying estate-recovery rules to [modified-adjusted gross income] MAGI-eligible individuals who do not receive LTSS to keep this from becoming a barrier to Medicaid expansion eligibility."

Intellectual property law doesn't protect the traditional knowledge and folklore of people, including indigenous peoples like American Indians. The problems vary: Who is the identifiable author or inventor if it's part of a group's culture? When did the work come into being if it's part of an oral tradition that changes? How can localized knowledge about the healing benefits of particular plants be patented if that use is already in the public sphere?

The World Intellectual Property Organization will be taking up international instruments aimed at protecting traditional knowledge and folklore from misappropriation, Intellectual Property Watch reports. Those instruments will be considered by the WIPO's General Assembly in September.

The Federal Trade Commission has the authority to sue companies that neglect to secure their customers' data, U.S. District Judge Esther Sales of New Jersey ruled this week, according to a report in the National Journal. " If the court had sided with Wyndham [Hotels], it would have stripped the federal government of oversight of data security practices just as hackers begin to pull off more and more high-profile attacks," the Journal further reports. Wyndham argued that weak data security practices aren't an unfair business practice, which the FTC is authorized to regulate.

Hearings are being held in Philadelphia federal court this week on the admissibility of the testimony of plaintiffs' expert witnesses in litigation over whether Zoloft caused birth defects. The Legal Intelligencer's Sara Spencer (my former colleague) reports that drugmaker Pfizer is seeking to winnow out some of those experts. Both sides focused on a general causation expert, Dr. Anick Berard, The Legal reports. One defense lawyer said her position puts her "against the world."

A federal jury awarded a $9 billion verdict in the first bellwether trial over whether Actos increases the risk of getting bladder cancer, The National Law Journal's Amanda Bronstad (and my current colleague) reports. U.S. District Judge Rebecca Doherty presided over the Louisiana federal trial. Eli Lilly & Co., which was found 25 percent liable, and Takeda Pharmaceuticals USA Inc., which was found 75 percent liable, are the defendants. Lilly co-promoted Actos with Takeda for several years.

Bronstad also reports that the jury awarded $1.475 million in compensatory damages and $9 billion in punitive damages: $6 billion against Takeda and $3 billion against Lilly. The high ratio between the compensatory and punitive damages is certainly going to invite a challenge.

Clay Clavert, a communications professor at the University of Florida in Gainsville, argues in a Huffington Post piece that the U.S. Supreme Court should take up a Pennsylvania case in which rap  lyrics were used as evidence in a criminal conviction. Anthony Elonis was convicted in federal court in Philadelphia for posting rap lyrics containing threats of violence on Facebook.

True threats are not protected by the First Amendment, just like obscenity, child porn and fighting words, Clavert writes. At issue in those Pennsylvania cases is how social media affects the analysis of what constitutes true threats, Calvert further writes: "Will people discount or treat less seriously speech posted on Facebook or a video uploaded to YouTube than they would in-person or in a traditional medium such as newspapers or television? The Court never has considered how the nature of online media affects a true threats analysis."

The Texas Board of Pardons and Paroles voted last week not to recommend a posthumous pardon for Cameron Todd Willingham, who was put to death after being convicted of killing his daughters in a housefire, the Texas Tribune reports. The Innocence Project argued new evidence showed the prosecutor who convicted Willingham might have made a deal with a jailhouse informant who testified against Willingham, even though the informant testified he received nothing in exchange for his testimony, the Tribune also reports.

The U.S. Supreme Court declined to take up the case of a New Mexico wedding photographer who refused to work at a same-sex wedding ceremony, USA Today reports: "The case would have posed an important constitutional question with potentially sweeping implications: whether merchants whose products are inherently expressive must serve customers even when it conflicts with their beliefs." The New Mexico Supreme Court ruled that turning down customers on the basis of sexual orientation violates the state's anti-discrimination law.