November 02, 2011

Law school to host moot court competition

by Pete Rosenbery

CARBONDALE, Ill. -- Some of the nation’s leading law school students will converge later this week at the Southern Illinois University School of Law to present arguments on whether a 200-year-old federal statute applies to existing international pharmaceutical testing on humans.

The annual National Health Law Moot Court Competition offers second- and third-year law school students a chance to hone their oral and written skills in front of practicing attorneys and judges.  The two-day event, which celebrates its 20th anniversary, is Friday, Nov. 4, and Saturday, Nov. 5, in Southern Illinois University Carbondale’s Hiram H. Lesar Law Building. A total of 30 teams representing 21 law schools will participate.  More information is available at .php.

Media Advisory

Reporters, photographers and camera crews are welcome to cover the moot court finals on Saturday, Nov. 5.  Organizers ask that reporters and cameras be unobtrusive and in place before the competition begins at 4 p.m.  For more information before the event, contact Professor Cheryl L. Anderson at 618/453-5634 or Professor W. Eugene Basanta at 618/453-8748.

Law Professor W. Eugene Basanta, the Southern Illinois Healthcare Professor of Law, believes the tightly and legally balanced problems are a key component that continues to attract teams to the event. The competition is such a part of some schools’ programs “that they make plans to send a team Carbondale each November.”

Preliminary rounds begin at 11 a.m. Friday, with 16 teams advancing to compete Saturday. The top two teams meet in the finals at 4 p.m. Saturday in the law school courtroom.

“You have to write something that is pretty tight and well thought out,” Basanta said.  “You are going to have 30 teams with bright, energetic, enthusiastic second- and third-year students who will pull the problem apart in every way, shape and form.  You are going to have a lot of very critical eyes examining the problem very, very closely.  You really have to think it through; you can’t slap-dab something off pretty quickly.”

This year’s fictitious case involves human subject experimentation and the nation’s Alien Tort Statute, or ATS.  The class action lawsuit involves a multinational pharmaceutical company’s test of a new drug on women who live in a developing nation.  Due to the new nation’s culture, the company received consent from the all-male counsel of elders to test the drug on infected women in the community’s only medical clinic.  The testing trials finished early after five women died within 48 hours of participating in the experiment and seven others suffered seizures, severe joint pain and became bedridden.  The woman who is suing the pharmaceutical company suffered paralysis during the testing.  The company, meanwhile, contends it was culturally sensitive and gained permission for the testing “consistent with the cultural norms of that country,” Basanta said.

In the fictitious case, the U.S. Supreme Court will hear arguments on whether there is corporate liability under the Alien Tort Statute.  The statute grants federal courts “original jurisdiction over any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States.”  The court will also hear arguments on whether nonconsensual human experimentation is the basis for a claim under the Alien Tort Statute when there is community consent, but not individual consent.

The statute is somewhat controversial and federal courts are unclear on when and how the Alien Tort Statute applies, Basanta said.  Bethany Spielman, a professor of medical humanities at the SIU School of Medicine, is author of the fictitious case, with input and assistance from SIU School of Law professors Cheryl Anderson, Cindy Buys and Basanta.  

Discussions in formulating the problem began in early spring and took several months of drafting and review to finalize, Basanta said.  Spielman, who is one of four of the competition’s judges, said law regarding experimentation with human subjects, “like other areas of health law, needs to adapt to globalization.”

The problem is an important issue in health law, she said.

“U.S. pharmaceutical companies that are testing whether a drug is safe or effective increasingly use individuals who are illiterate, poor, and from cultures that are radically different from ours,” she said.  “How can they be held accountable if they violate standards of international law, such as the prohibition on nonconsensual human experimentation?  And what counts as a violation of international law in the first place?

“The Supreme Court will be deciding this term whether corporations can be held liable for violations implicating the same statute that the moot court participants will deal with in the problem,” Spielman said.  “So the problem involves cutting-edge law in broad terms, not only cutting-edge health law.”

Spielman said she hopes students receive a basic understanding of the 200-year-old Alien Tort Statute, and a better understanding of international clinical trials.  The statute wasn’t used much until the 1980s, “but now is rather important, both to corporations and to human rights advocates,” Spielman said. 

Teams in the final will present oral arguments five times in the space of two days.  Each team argues each side of the issue in the two preliminary rounds on Friday.  In Saturday’s rounds, teams choose the side they represent by coin flip, with the winning team choosing whether to represent the plaintiff or defendant.

The 16 teams begin competition at 9:30 a.m. Saturday, with quarterfinals at 11:30 a.m., semifinals at 2 p.m. and finals at 4 p.m.

“This competition provides an opportunity to bring law students from across the country to our campus to discuss important issues related to health law and policy” Dean Cynthia L. Fountaine said.  “The participating students will benefit from being able to learn and practice a variety of legal skills -- from the ability to develop and articulate sound legal arguments to the ability to more effectively communicate with courts.  This program enriches our health law program by providing opportunities for students and faculty to engage with students from other law schools and from the community.”

The law school’s Center for Health Law and Policy, the School of Medicine’s Department of Medical Humanities, the American College of Legal Medicine (ACLM), and the American College of Legal Medicine Foundation co-sponsor the event.

The ACLM and the Center for Health Law and Policy are providing scholarship money for the top teams and individuals. The ACLM provides $1,000 for the winning team, $750 for second place and $500 for third place. The best legal brief receives $500. The student making the best oral arguments in the competition receives a $500 scholarship.

The Center for Health Law and Policy is providing $250 each to the best orator in the preliminary rounds, and $250 to the runner-up best legal brief. The ACLM also will publish the best legal brief in its “Journal of Legal Medicine.”

Basanta said the competition is important for several reasons, including that it highlights the work of the law school and the health law program.  The ACLM is “one of the leading medical professional organizations in the United States,” he said.

Panelists for Saturday’s final round include Judge John D. Tinder, who serves on the U.S. Court of Appeals for the Seventh Circuit, based in Indianapolis, Ind.; Judge J. Phil Gilbert, a federal judge for the Southern District of Illinois; Dr. Gary Birnbaum, the current president of the American College of Legal Medicine; and Spielman, a professor of health law and medical ethics at the SIU School of Medicine.  She also has a cross appointment to the SIU School of Law.

Participating law schools are: Baylor Law School; Boston University School of Law; Chicago-Kent College of Law; Georgia State University College of Law, Atlanta; Hamline University School of Law, St. Paul, Minn.; Indiana University School of Law-Indianapolis; Loyola University Chicago School of Law; New York Law School, New York, N.Y.; Northeastern University School of Law, Boston; St. Louis University School of Law; Seton Hall School of Law, Newark N.J.; South Texas College of Law, Houston; Suffolk University Law School, Boston; University of Alabama School of Law; University of Cincinnati College of Law; University of Illinois College of Law; University of Louisville Brandeis School of Law; University of Oklahoma College of Law; University of Pittsburgh School of Law; University of San Diego School of Law, and University of Tulsa College of Law.