Saturday, October 13, 2012

Tragic Indeterminacy, Not Tragic Inevitability

A phenomenon that has long fascinated me about litigation is this: a lawsuit is like a chess match, in that you need to try to anticipate the consequences of your every move; but unlike a chess match, even if you are a masterful lawyer, your ability to foresee what will happen a few moves ahead is severely limited because the variables are so numerous and ineluctably unpredictable. No matter how long you have played the game, you cannot know with any certainty, for instance, how long a judge will sit on your motion, how that judge will ultimately rule on the motion, how precisely that ruling will affect the relative positions of the parties, or how any party will react to the changed circumstances even if the effect on the party’s interests seems obvious. Therefore, confidently predicting how a lawsuit will play out is silly talk; at best, you are trying to play probabilities or anticipate options by analogizing to similar past experiences. In other words, lawsuits are not deterministic systems.
Additionally, lawsuits can have huge, unanticipated consequences that are not obvious for many years after they are supposedly “resolved.” That is a message being borne out now in a news story that is not, perhaps, garnering as much attention as Joe Biden’s attempts to identify “malarkey” or Psy’s K-Pop “Gangnam Style.” But this story certainly caught my attention because of the accidental dramatic arc the story suggests.
Here are the basics: about a decade ago, in a case styled Thompson v. Western States Medical, the Supreme Court of the United States struck down a federal regulatory scheme directed at the practice of drug “compounding” by pharmacies. Historically, the practice of compounding had been what pharmacies did, back when pharmacists were truly druggists mixing up little potions to address their customers’ various ailments. Concocting medicinal drugs was a practice largely taken over by big pharmaceutical companies, which are heavily regulated and, I suspect most would agree, for good reason. But some compounding persisted even with the rise of Big Pharma. Congress eventually got antsy about how these practices were operating beyond the FDA’s reach. So Congress passed a big law in the 1990s to impose some oversight, which included provisions limiting compounding pharmacies’ ability to advertise their services.
This law was challenged in Western States Medical, which the SCOTUS decided in 2002. The Court found the law violated the First Amendment. More specifically, the SCOTUS concluded that the government had failed to carry its burden to show that the limits the law imposed on compounding pharmacies’ commercial speech was constitutional under the seminal “Central Hudson test.” And in explaining how the government had come up short, the SCOTUS described the long-standing Central Hudson test in terms that made the government’s burden seem even more onerous than it had previously appeared. In fact, the Court, in accusing Congress of paternalistic interference and of looking to solve phantom problems, seemed profoundly indignant about legislation that crimped the style of worthy, job-creating corporations who should be able to communicate about their services in a capitalist society that places a premium on the free exchange of information; besides, if the practices of these compounding pharmacies really posed a public safety concern, the Court suggested that this issue should be left to the states to handle on their own.
Sound familiar?
Anyway, in the wake of Western States Medical, some states where compounding was a thriving business did not see why they should interfere with these businesses. (And one can imagine that it was easier for local pharmacy boards to lobby state legislatures to leave them alone than it would have been to get the FDA off their backs.)
Fast forward ten years. A national Spinal Meningitis outbreak has now been linked to contaminated steroid injections concocted by some of these compounding pharmacies, causing some to wonder: What is a “compounding pharmacy”? Why are pharmacies able to make unregulated drugs? Why has the FDA been asleep at the wheel? NPR had a little story about this situation this week, expressly emphasizing the link between the contemporary health crisis and “little-known and lightly regulated companies called compounding pharmacies.” You can read about the report here:
The story caught my ear during my morning jog because, although Western States Medical was not mentioned by name, I recognized the facts of the case.
How did I even know about this case?!
A mere fortuity.
This case was a key authority in a moot court problem explored by students I coached for an ABA-sponsored competition a couple of years ago. Hearing about this random case got me to thinking about indeterminacy more broadly. A judicial decision about commercial speech rights that led to a lack of regulatory oversight over a little-known industry now connected to a serious public health problem— Well, that surprising causal chain interests me.
Do you think the seeds of that causal chain were lying dormant from the outset? Did the SCOTUS have to rule as it did? And did states then have to permit compounding pharmacies to operate as they did? And then did compounding pharmacies have to produce injections for back pain that contained deadly viruses? Answering “yes” to these questions would seem like silly talk. Yet if you really believe in a deterministic universe you would have to say “yes” to each.
Greek tragedy relies on the premise that the universe is deterministic. Fate is hard-wired, and tragedy arises (1) when a hero (e.g., Oedipus) tries to resist his fate although to do so is hopeless or (2) when a hero (e.g., Agamemnon) simply accepts his fate even if it makes him feel icky; either way, the guy is doomed in advance. Thus, the ancient Greeks found the human condition tragic.
Shakespearean tragedy is a bit different. Shakespeare’s tragic narratives focus on the individual choices that set in motion the hero’s demise—but those choices are not presented as inevitable.
Consider Macbeth. When we first meet this Scottish war hero, the “Weird Sisters” greet him as follows:
All hail, Macbeth! hail to thee, thane of Glamis!

All hail, Macbeth, hail to thee, thane of Cawdor!

All hail, Macbeth, thou shalt be king hereafter!

That is, the witches greet Macbeth by his current title (thane of Glamis), a title (thane of Cawdor) he is about to receive although he hasn’t heard the big news yet, and then a seeming prediction that he shall eventually be king. Because Macbeth decides that the latter is his destiny, he and his eager spouse launch a bloody plot to make it so. If the whole thing were destined, it would be tempting to see Macbeth as a victim, a mere pawn of the gods. But the play really does seem to put the onus on Macbeth. The tragedy is that he decides to accept what the witches say as a foregone conclusion; and he does so to rationalize the horrific actions that he decides to take. Then, in pursuing what he thinks he wants/deserves, he brings about his own demise (because no guy is going to be king for long who only got the throne by murdering a perfectly respectable king, trying to frame his servants for the deed, and then assassinating those servants before they could be interrogated by the king’s heirs and supporters).
Shakespeare’s vision of tragedy is more modern than the Greek view. Most modern folks do not really believe that human actions and the fate of the cosmos are predetermined. And because things are not “written,” the consequences of human actions, including lawsuits, cannot be fully anticipated. Lawsuits and the judicial decisions that seem to “end” them can have far-reaching, surprising, and even tragic effects. But once those consequences become apparent, perhaps that information can and should be used when facing different, yet similar choices in the future. Those consequences should be used to urge taking a different fork in the road next time. Because, even if consequences cannot be predicted because they are mired in indeterminacy, we don’t have to resign ourselves to a tragic eternal return of the same.

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