Comic book law

Comic book law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

One of the most entertaining blawgs I follow is LAW AND THE MULTIVERSE: SUPERHEROES, SUPERVILLAINS, AND THE LAW, writting by attorneys James Daily and Ryan Davidson. They examine the legal implications of comic book characters and situations, and sometimes similar movie characters and situations. Often I forward them to my faculty members as potential discussion or exam questions. Today's post is about administrative and criminal law in the discovery and distribution of a new drug.

Introduction:

Limitless opened this weekend, and is the subject of LAW AND THE MULTIVERSE'S second look at a movie. Spoilers to follow, as always.

The basic premise is that Edward Morra (Bradley Cooper) stumbles across a drug, “NZT,” which massively boosts one’s memory and intelligence. This enables him to write his unstarted-and-overdue book in a matter of days, learn any language in a matter of hours, and become a concert-level pianist in a long weekend.

So basically, what we’ve got here is every nerd’s fantasy: if I was only smart enough, I’d be able to get the money and the girl.

The movie has been described as “more interesting than it has any right to be,” which is about right. But there are a number of legal issues in the movie to talk about, mostly about the drug itself.

First, a high-level overview of how drugs are regulated in the US. For a drug to be legally prescribed or distributed it must be approved by the Food and Drug Administration. Clinical trials for new drugs must also have FDA approval. Some drugs are further restricted by the Controlled Substances Act, which establishes a schedule of controlled substances, some of which can be prescribed by a doctor with a DEA number and some of which are banned outright (e.g. heroin). Finally, individual states can add to (but not subtract from!) the federal controlled substances schedule. Now we’ll look a little closer at how all of this affects NZT.

Daily and Davidson have discussed other administrative law topics, including the Social Security System, air traffic control and the FAA, Superman's immigration status, and federal export control laws. Also torts, contracts, criminal law, Constitutional law, among other subjects. And the comments are usually thoughtful. Fun and educational!

EMM
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The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case

The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case
Matter of Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Commn., 2011 NY Slip Op 02009, Appellate Division, Second Department

Public agencies are not immune to the almost always fatal procedural omission of failing properly serve the necessary parties in an appeal of an adverse administrative ruling as is demonstrated in this Article 78 action.

Greenburgh Central Schools District #7 had filed CPLR Article 78 action to review the Westchester County Human Rights Commission finding that District had engaged in unlawful age discrimination in violation of the Westchester County Human Rights Law. The Commission had also imposed a monetary penalty on the District.

Supreme Court, Westchester County, after declining to extend the statute of limitations to file such an action, dismissed the proceeding for lack of personal jurisdiction.

The Appellate Division affirmed the lower court’s ruling, pointing out that it was undisputed that the school district had failed to properly serve Westchester Human Rights with the notice of petition and petition in accordance with CPLR 312.

Further, said the court, Greenburgh “failed to demonstrate good cause for an extension of time to serve, and failed to show that such an extension is warranted in the interest of justice.”

In particular, the court noted that Greenburgh had failed to demonstrate diligence in its attempt at service, and failed to demonstrate a potentially meritorious argument in support of the petition.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02009.htm
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Termination by operation of law

Termination by operation of law
Bowman v Kerik, 271 AD2d 225

Section 30.1(e) of the Public Officers Law provides that a public office becomes vacant upon the conviction of the incumbent of a felony, or a crime involving a violation of the individual’s oath of office. The significance of this provision is that no pre-termination hearing that may otherwise be viewed as mandated by law such as the proceeding set out in Section 75 of the Civil Service Law or a Taylor Law disciplinary grievance procedure is required to effect the termination.

In Bowman, Section 30.1(e) was the basis for the court’s sustaining the termination of several New York City correction officers without a hearing. As the Appellate Division noted, Section 30.1(e) is a self-executing statute and no pretermination hearing was required.

Bowman and other correction officers had challenged their dismissal without notice and hearing, claiming they were entitled to such a due process hearing. The corrections officers pled guilty to an intent to evade any tax imposed under [an] income or earnings tax statute....*

The Appellate Division found that their public offices were vacated automatically on conviction by operation of law because of the misdemeanors to which they had pleaded guilty. As noted in Kelly v Levin, 440 NY2d 424, even if these individuals were given a due process hearing, the only penalty that could be imposed by an appointing authority or hearing officer was dismissal.

* For the purposes of 30(1)(e), a plea of guilty is the equivalent of a conviction.
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