McGeorge School of Law

Problem Group One

Participants contributing to this problem:
R. Alta Charo, Leslie Gielow Jacobs, Barry Kellman, Scott Layne, Jason Sapsin

Inbound flight from Guam. Person on plane has bubonic plague lesion. Passengers held in Guam delayed for 24 hours. They arrive at LAX. We are on a heightened alert (pursuant to heightened alert: want to do search on passengers on inbound flights)
  Can you screen passengers?
  What kind of exam can be done during heightened alert?
    Query: is a guard even capable of this search? (this is a technical question)
    Query: who has the authority to do the search?
Are there differences in right to refuse as among citizens, penn residents and visitors?
      What if you find someone suspicious, from a public safety standpoint? where do you hold them? (again, maybe this is more technical)
      If detention is in order, who gets to decide and is there a right to refuse? Appeal?
      What happens if a person breaks through the quarantine?
Can the plane be impounded? By which agency? Must airline be reimbursed?
      Do you have to compensate the detainees? What standards govern?
  Do detainees have right to attorney?
  Can other cargo be impounded?
  How does notification work? Do you now notify state officials?
  What privacy limits apply to state and public law officials?
  Does mgmt of this issue stay w/ Fed or does it move to local? This is a point of entry.
Now same problem except people coming from delayed Denver flight to Chicago? What result?
Another issue. If you deem this person has a lesion, you are obligated to get that person to care.
  What liability to what actors for providing treatment to person w/ lesion?
Media? Cell phone users? call family and news leaks to local TV station.
QUERY: can news be legally censored?
What if this were smallpox, what changes?
Draft judicial injunction aimed at local news station? Can state judge issue injunction to national news network? (query: how do affiliates play into this)
    Is there a way to reach private cell phone users? Internet news?based providers?
    Even if you could reach them as private parties, functionally you can't?
Government speech to counter.
  Are there other ways to limit the communication?
To what extent can government use Public Service Announcements/Propaganda.
Can the government commandeer the announcements? If government misleads, what result?
  Government agency wants to test methods for weaponizing anthrax?
Does this violate int'l law? If so, what enforcement measures exist in theory? In practice?
Does it violate US law? If so, what enforcement to stop agency?
Compare federalism with international law
  What if it is a private university professor? Same question?
  Assuming it's legal, but potentially dangerous research, define elements of domestic regulatory approach, including who regulates, with what authority and subject to which challenges.
    Note both regulation of the research vs. regulation of the dissemination of results. Research: note regulation of materials v. facilities v. personnel. Ex: challenges: first amendment role of classification system Same, but elements of international regulatory approach, who/how/ enforcement/challenges
Clandestine/trade research that is potentially dangerous by a big business.
  Discuss the extraterritoriality of domestic law governing the research.
    Domestic enforcement: CEO board, w/draw key licenses or other regulatory approvals.
      How do you get sufficient info for license challenge.
    WTO issues: trade restrictions? Do they apply to dangerous ideas? Products?
  What proof? What negotiating venue?
How do you balance the regulatory need for info with the national security constraints?
Issue of bioethics/regulation
  How do we develop new protective regulations for something for which there is currently no existing risk?
Want to develop new smallpox vaccine (agent A that doesn't exist, but theoretically possible.)
Which agency regulates? What steps must be taken to test and approve the products for use? What are the review bodies that must be used? What is the risk/benefit balance? If agent doesn't exist, how does that affect the balance?
Second, if you need to do testing on international scale, how do the rules differ in other countries, and to what degree must we comply with other countries' rules in carrying out research abroad?
If agent becomes known threat, are there mechanisms for using the pre?approval process for what is now a therapeutic purpose?
Variant: if you are in post?event after threat comes into existence, what if anything changes from this problem? (i.e. pre?event, post?event)