New Science - Observable Brain Changes in Rats Subjected to Stress

More on brain rewiring and damages potentially recoverable in current or future tort litigation. This prior post provided some fact patterns and legal issues on future damages issues as drawn from research breakthroughs described in a wonderful book on brain plasticity - The Brain That Changes Itself -- Stories of Personal Triumph from the Frontiers of Brain Science, by Dr. Norman Doidge.

Now, here's more to think about as both individuals and as tort lawyers who end up in arguments about what is "harm," how it is proved and measured, and how it is compensated. Specifically, yet more news on brain rewiring is out and indicates that stress does produce physical changes in the brain, thus providing possible evidentiary support for claims that stress is indeed a physical injury.

This August 17, 2009 NYT article by Natalie Angier summarizes new research on brain plasticity as it relates to stress. The gist is that scientists in Portugual this summer published an article in a prestigious medical journal regarding their findings on brain changes when rats were subjected to stress. The not so good news is that stress does indeed destroy brain wiring. The better news is that the brain can rewire and return to "normal" when the stress is reduced back to normal levels. Here are key quotes:

"Reporting earlier this summer in the journal Science, Nuno Sousa of the Life and Health Sciences Research Institute at the University of Minho in Portugal and his colleagues described experiments in which chronically stressed rats lost their elastic rat cunning and instead fell back on familiar routines and rote responses, like compulsively pressing a bar for food pellets they had no intention of eating.

Moreover, the rats’ behavioral perturbations were reflected by a pair of complementary changes in their underlying neural circuitry. On the one hand, regions of the brain associated with executive decision-making and goal-directed behaviors had shriveled, while, conversely, brain sectors linked to habit formation had bloomed. (emphasis added).

****
But with only four weeks’ vacation in a supportive setting free of bullies and Tasers, the formerly stressed rats looked just like the controls, able to innovate, discriminate and lay off the bar. Atrophied synaptic connections in the decisive regions of the prefrontal cortex resprouted, while the overgrown dendritic vines of the habit-prone sensorimotor striatum retreated."


If I were a plaintiff's lawyer, the NYT and Science article would be dropped into my bag of citations and evidence to argue for a broader range of treatment after, for example, suffering a trauma from a one time physical event or after cancer has been countered via surgery, chemotherapy or other means. As a defense lawyer, I'm probably going to argue this is not (yet) accepted science and try to keep it out of evidence under the Daubert rules. But, one might also ask what makes sense for the long term - perhaps injured people should receive some paid for r & r to get them into good patterns and a better recovery that may save money in the long run. Then we lawyers can argue about who should pay for it - the health insurer, the Comphrehensive General Liability insurer, the tort defendant or some government agency.

Transparency - Another Effort to Force PACER to Become Free

This article from Wired, also pasted below, describes clever computer people devising a way to push harder towards forcing the federal courts to stop using court records in PACER to generate money, thereby limiting transparency. In essence, new software on Firefox tells you if a document you want already is in a free database, and also picks up copies of documents pulled out of PACER and adds them to the free database. Through this and other steps, perhaps some day even bankruptcy courts will be transparent.

Firefox Plug-In Frees Court Records, Threatens Judiciary Profits

By Ryan Singel
August 14, 2009
2:07 pm
Categories: The Courts

Access to the nation’s federal law proceedings just got a public interest hack, thanks to programmers from Princeton, Harvard and the Internet Archive, who released a Firefox plug-in designed to make millions of pages of legal documents free.
Free as in beer and free as in speech.
The Problem: Federal courts use an archaic, document-tracking system known as PACER as their official repository for complaints, court motions, case scheduling and decisions. The system design resembles a DMV computer system, circa 1988 — and lacks even the most basic functionality, such as notifications when a case gets a new filing. But what’s worse is that PACER charges 8 cents per page (capped at $2.40 per doc) and even charges for searches — an embarrassing limitation on public access to information, especially when the documents are copyright-free.
The Solution: RECAP, a Firefox-only plugin, that rides along as one usually uses PACER — but it automatically checks if the document you want is already in its own database. The plug-in’s tagline, ‘Turning PACER around,’ alludes to the fact that its name comes from spelling PACER backwards. RECAP’s database is being seeded with millions of bankruptcy and Federal District Court documents, which have been donated, bought or gotten for free by open-government advocate Carl Malamud and fellow travelers such as Justia.
And if the document you request isn’t already in the public archive, then RECAP adds the ones you purchase to the public repository.
The plug-in was released by Princeton’s Center for Information Technology Policy, coded by Harlan Yu and Tim Lee, under the direction of noted computer science professor Ed Felten.
That’s a pretty good hack, but it’s still just a stop-gap measure until the federal courts figure out that in the age of the internet, charging citizens to search and read public documents should be a federal crime.
Using it should not cause journalists, lawyers or law students (PACER’s main customers) any legal trouble. After all, court documents are never copyrightable.
But you never know how the justice system might react. Last fall, the federal court system shut down a pilot program that offered free PACER access at a few libraries around the country after it figured out that Malamud and hacker Aaron Swartz took them at their word and started downloading court decisions by the gigabyte.
That got Malamud 20 percent of the fed’s court filings and an interrogation by FBI agents earlier this year.
Hopefully RECAP will get a friendlier reception from the U.S. Federal Court System.

Differences In Legal Systems - Mexico and the US On Criminal Law

How different is the Mexican legal system from the US system? The article pasted below provides a glimpse in to the current signficant differences between the US crininal law system and the Mexican criminal law system. The article is from the August 14, 2009 issue of the Chicago Daily Law Bulletin.

School helps Mexico change trial process

By Jerry Crimmins Law Bulletin staff writer

Chicago-Kent College of Law is playing a role in the sweeping reform of the ancient criminal justice system of Mexico.
For hundreds of years criminal trials in Mexico — if you could call them that — have been hidden, according to David A. Erickson, associate director of Chicago-Kent's Trial Advocacy Program.
They were seen by neither the victims, the defendants, the witnesses nor the public.
"There was nothing to watch,'' he said. "There was no trial in our sense. The entire system for the last 500 years has been written….
"The prosecutor writes up all his evidence," Erickson said. "The defense attorney writes up all his evidence…. The lawyers stood in front of a judge and handed the stuff to his secretary, and that was it.
"A year or two later, the judge writes his decision,'' and sometimes the delay in the verdict is longer than that, Erickson continued. "They never put on a witness, and a defendant in this system never gets to see his judge.''
The Mexican criminal justice system is "inquisitorial,'' Erickson said, because the judge asks all of the questions.
But now, pushed by President Felipe Calderon, Mexico is moving toward nationwide adoption of an accusatorial, oral trial system like the one in the United States.
This eventually will mean public trials, public questioning of witnesses, defendants sitting at their own trial who get to see their accusers and the judge, and the presence of the public and news media, Erickson said.
"This is a total, 180-degree change for them. It takes a lot of courage for them to do this,'' he said.
The reforms are expected to take eight years. They are intended, according to Chicago-Kent, to fight corruption and instill public confidence in the judicial system.
Chicago-Kent's job, with a $1.2 million grant from the U.S. government, is to train judges, lawyers, law professors and students on how to conduct open trials.
"We've been down there twice, the first time for a planning session in January,'' Erickson said. "Our partner law school [Technologico de Monterrey in Mexico City] built a million-dollar courtroom in its law school for us to train.''
In June, Erickson, along with Chicago-Kent Professsor William Douglas Godfrey, Adjunct Professor Ljubica D. Popovic, and student Mariana Munoz, went to Mexico again to teach lawyers and judges how to try a case in the open.
Godfrey and Popovic are former prosecutors. Erickson has wide experience in criminal law. He started out as a prosecutor and became first assistant state's attorney of Cook County. He also has served as a Criminal Courts judge, a Juvenile Court judge and justice of the Illinois Appellate Court.
Munoz' father is from Mexico and her mother from the U.S., and she is fluent in Spanish.
"I had Mexican lawyers on their feet doing direct examinations, cross-examinations, opening arguments, closing statements,'' Erickson said. "They did it just like we did here in the United States.''
Until recently, he said, Mexicans' only knowledge of open trials came from movies and TV. "They think everything is like 'Law and Order.'
"First we taught their entire faculty of 26, all the professors,'' Erickson continued, "then about 20 lawyers. I lectured 16 judges."
Ten students from the law school also came and watched. Although they hadn't been invited. Erickson insisted that they be allowed to stay.
"The younger the lawyer, the more they're in favor of this,'' he said. "Judges are more reticent.''
Partly they are afraid that, if they are known, they may be killed due to the widespread violence perpetrated by drug gangs, he said.
Erickson said one judge told him, "I can go to a coffee shop now and nobody knows I'm a judge. In this new system everybody knows.''
Prosecutors and police are often opposed to open trials in Mexico, Erickson continued. "The current president ramrodded this through.''
As part of widespread reforms approved by the Mexican government a year ago, Mexico copied and adopted the Fourth, Fifth, and Sixth amendments to the U.S. Constitution.
In the U.S., the Fourth Amendment guards against unreasonable searches and seizures; the Fifth prohibits double jeopardy and forced self-incrimination, and provides for due process and property rights; the Sixth provides for speedy public trials, the right to confront accusers, the right to bring one's own witnesses and the right to a lawyer.
The Mexican criminal justice amendments are expanded, Erickson said. "They mandate in the constitution a federal defender program, and also a victims' bill of rights…. It allows the victim of a crime to retain a private attorney and to sit at the counsel table and participate in the trial.''
Mexico has started to use open trials in a few locations. The training program conducted by Chicago-Kent and Technologico de Monterrey will educate lawyers in Nuevo Leon, Baja California and Morelos. The program is also intended to train Mexican law professors who will then teach others.
A few Mexican lawyers, including two this coming school year, will attend Chicago-Kent to study international law, with an emphasis on criminal law, and earn LLM degrees.
The Mexican reforms do not include jury trials. Judges still will decide verdicts.
Erickson said Mexico also has hired Americans from New Mexico and Arizona to build crime labs for them.
"They realize they have no concept of forensic evidence the way we do,'' he said.
And although Mexico does have a criminal appellate court, "they are going to have to embrace the concept of precedent and stare decisis,'' Erickson said, although the reforms have not yet gone that far.
jcrimmins@lbpc.com