01 July 2011

Supreme Court term, continued

Sorrell v. IMS Health is the most fascinating decision of the term just past.

The underlying law and facts take us to Vermont, which in 2007 enacted a law adverse to a practice that has become known as prescription data mining.  The data miners (like IMS Health) collect data from pharmacies about which prescriptions they have been filling from which doctors.  They aggregate this to develop a data base that says, for example, that Dr. John Smith writes a lot of prescriptions for generic arthritis pain killers.  They then sell this information to pharma companies.

The big pharma companies are happy to buy this information because they feed it to their sales force, called "detailers" in the trade.  The job of the detailers is to persuade doctors, usually in one-on-one conversations Willy Loman style , that the brand name drug can do things for their patient the generic can't.

Of course, if the detailers are right, then shutting them down, or making their work difficult, threatens the quality of medicine in Vermont. 

The legislation expressed the legislature's belief that the detailers are wrong, that the brand names are simply more expensive.  By cracking down on data mining they hoped to create a state-wide shift to generics and lower the cost of health care. 

When the matter came before the Supreme Court it involved two consolidated lawsuits: one brought by the data miners and the other brought by an association of pharmaceutical manufacturers.  The Second Circuit Court of Appeals ruled in their favor, striking down Vermont's law.  The state appealed to the Supreme Court.

The case drew a lot of attention, and several news organizations -- concerned that this would encourage states to restrict their own data gathering abilities -- filed a friend of the court brief.  The news organizations, (Bloomberg, the McGraw-Hill Companies, Hearst Corp., ProPublica, and The Associated Press) were represented before the court by Henry R. Kaufman.  We might add at this point that Hearst is the parent corporation of First DataBank Inc., itself a leading publisher of drug information.

The Supreme Court upheld the Second Circuit in striking the law.  Justice Kennedy wrote the opinion for the six Justices in the majority, including C.J. Roberts, Scalia, Thomas, Alito, and Sotomayor.

Breyer wrote a dissent, joined by Ginsberg and Kagan.

It is tempting to see that line-up in left-right terms.  But Sotomayor seems on the 'wrong' side if we give in to that temptation.  Further, free speech is one of the few areas in which this court's decisions even in politically polarized areas are not  "conservative" in a stereotypical, cantral-casting sense.  Consider the ruling that allowed picketers at military funerals, or the more recent greenlight to the marketing of violent video games to minors on first amendment grounds.

Or stick to this case about data mining.  One of the claims that the lawyers for the state made at the various stages of this litigation is that "speech" isn't involved.  Data mining isn't speech, it is conduct.  The amici news organizations were troubled by that claim.  In their brief they noted for example that the Sarasota Herald Tribune has recently undertaken "an ambitious, data-intensive, one-year project that involved gathering and reviewingnearly 19 million Florida real estate transactions.  The resulting expose of the high costs of fraud in such transactions was a 2010 Pulitzer Prize finalist for investigative reporting."

This is running long.  I'll complete my thoughts on the subject of Sorrell in tomorrow's entry in this blog.

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Knowledge is warranted belief -- it is the body of belief that we build up because, while living in this world, we've developed good reasons for believing it. What we know, then, is what works -- and it is, necessarily, what has worked for us, each of us individually, as a first approximation. For my other blog, on the struggles for control in the corporate suites, see www.proxypartisans.blogspot.com.