Public Health and National Security Law

Exam Q & A

5 May

> I have a little less than 300 words over the 3,000 limit. I will try
> to cut down as much as I can, but before I started to cut out
> substantive material, I wanted to check with you to see how stringent
> you will be with the word limit. Will I lose points if it's over? I
> assume you don't want 4,000 and 5,000 word papers. Is 300 over OK?

Never saw a paper that was not better after a little judicious editing. See if you can get a little closer.

> Is just a case name OK for the citations? You said to just make the
> cite clear. As of right now, all I have is the case name. Should I add
> the citation, year, etc.?

Case names are good enough.

> Does the 3,000 word limit include or exclude citations??

Total, including everything.

4 May

> If an excerpt from a statute or case appears in the book, are
> we allowed to look up the statute or case and use portions
> that were not reprinted in the book?

I think you are getting too involved in the citations - Most of the exam should be analysis, with cites to relevant authority, but this is not meant to be a law review article. Stick to what we have or the problem will explode - there is a lot of material if you get into everything that was mentioned in the book.

More generally - there is no direct authority for what the CIA wants to do. Your job is to find the best fit for what there is, and the best arguments for getting this done, and, as importantly, the legal arguments for why you should not be able to do this.

> (A question about using parts of executive orders that were edited out of the materials in the book.)

First, remember that executive orders are not law, just the executive's opinion of the law. They are orders to the agency, but they are not authority to the courts. They can be persuasive but that is not the same as authority. Second, there is nothing in those principles that has not been repeated in other materials we have. They are just the same old general stuff about balancing rights versus security we see in the FISA cases and the other materials. The CIA knows all of those principles, they just want to know how far they can push them.

3 May

> To start off in our memo do we need to go into which branch
> the CIA derives its authority from and the constitution?

No, just stick to the questions you are asked. There is no room to go into background.

> I had a citation question on the Take-Home.
>
> I know that we're limited on our sources to the book and any
> materials handed out in class. BUT, there are materials in
> the book that appear in their entirety, such as cases and
> statutes. When citing to these cases or statutes in the
> paper, I have been simply citing to the pages from the Book
> to assure you that I have been staying within the source
> restrictions you gave us. Is this acceptable or should I
> cite to only, for example, the case I'm using even though
> it's coming from the book. Again, my concern is showing that
> I stayed inside the source restrictions because if I just
> give a case cite, you have no way of knowing if that case
> appeared in our readings or not...Also, can we use info from
> pages of the Book that we did not go over in class??

Do not worry about showing you are staying within the limits, just make the cite clear so I know what you are citing, and make sure you explain why it supports you position. A cite on its own is useless. Use the whole book, you are expected to have read all the assigned material, and you can use anything else you can find in it.

2 May

> In #1, you say, "To keep detainees from contacting a lawyer
> or warning other conspirators, the detainees will be told
> that they cannot contact anyone because it would slow down
> the investigation of the disease." Then you say, "After
> interrogation, the CIA wants them watched and all of their
> communications monitored while they are in quarantine."
>
> Does this mean that they have no communication with the
> outside world before decontamination and interrogation, but
> afterwards they do? Or are the communications you are
> referring to after the interrogations just between the detainees?

They will be allowed to communicate with persons outside the quarantine after interrogation and decontamination.

28 April

> In my notes discussing legal issues in the event of a
> smallpox attack, I
> referenced the Federal Vaccine Compensation Act and BioShield in terms
> of immunity from liability for doctors, mfgs of vaccines, etc.
>
> I know we are limited to our materials from class and the
> book - but is
> it permissible to get more details on statutes/acts such as these in
> terms of how the would apply to the exam? or should i just
> speak of them
> generally as vehicles already in place to solve some of the problems
> that may arise in a situation such as this?

Read your exam questions again and make sure you are answering them. This is not a general hypo on an outbreak. You have a very specific assignment as counsel to the CIA, and anything that is not relevant to the questions you have been asked will make your boss unhappy.

> Thank you. One more question: In the fact pattern, the exam
> says "Homeland Security, in cooperation w/ local police and
> public health deparmtents...is attempting to track down and
> quarantine every passenger."
>
> Does this mean we should assume there is no conflict b/t
> govts - i.e., not discuss as legal issues the conflicts that
> would inevitably arise between federal and state governments?

Look hard at the questions you have to answer. If you have to deal with conflicts to answer them, then deal with conflicts.

23 April

> Do we use the Modeal Health Act in terms of addressing what
> is legally allowed under the public health detention and
> interview process?

No, it is only a model act. Base your analysis on the constitution and the public health materials we have read, i.e. do not assume that the Model Act has been enacted. The Model Act might give you useful ideas, however.