Reciprocal Legal Narrative: Climate Change, Judicial Authority, and the National Apocalyptic in Juliana v. United States

How can lawyers convince courts to “do the right thing” in the face of unfavorable law? That is, how can they persuade courts to take some judicial action that a judge explicitly acknowledges is ethically required yet prohibited by governing doctrine? In Juliana v. United States, a landmark climate change case, a 2-1 Ninth Circuit decision held that a number of youth plaintiffs had failed to establish Article III standing. The appellate panel found that the harms asserted— governmental policies amounting to violations of the plaintiffs’ constitutional right to a functional climate system—were not redressable, even assuming the as-yet unrecognized right existed. Yet the majority opinion is marked by a sense of unease and regret. The court repeatedly lamented that while there is a clear ethical obligation to help the plaintiffs, the judiciary has neither the authority nor the ability to meet that obligation. This Article proposes a model of legal argument called reciprocal legal narrative. It argues that the model can be useful for situations like that in Juliana, where courts recognize a moral obligation to intervene, but insist that the law bars them from doing so. Reciprocal legal narrative can provide a platform for judges to engage in dialogue-based, collaborative, norm-driven narrative reasoning. It is structured around a creative partnership between the lawyer and the court. The judge, in her written opinion, “co-authors” a legal narrative that revises and expands on the lawyer’s “first draft” of the story based argument that appears across briefs and oral arguments. Reciprocal legal narrative is a subspecies of narrative persuasion, and this Article provides a theoretical framework for the concept that builds on Applied Legal Storytelling scholarship and narrative theory in general. A close reading of the majority and dissenting opinions in Juliana demonstrates reciprocal legal narrative in action. To support her finding that the plaintiffs established redressability, Judge Josephine Staton crafts a dissent that builds on the plaintiffs’ nascent legal narrative (what I call the “American Environmental Apocalypse”) and fashions it into her own more persuasive, legally sound narrative (the “National Apocalypse”). The dissent’s reciprocal legal narrative exposes the shortcomings of the majority’s formalist approach; it exhibits an egalitarian, cooperative view of judge-made law; and most importantly, it converts a moral obligation to act on climate change into a judicial duty to do so. Although Judge Staton was in the minority in this decision, her example of reciprocal legal narrative provides a blueprint for future litigants facing similar circumstances. By employing reciprocal legal narrative, advocates can persuade courts to use creative, narrative reasoning as a means of reconciling existing law with core social values—without overstepping the bounds of judicial authority

Reciprocal Legal Narrative: Climate Change, Judicial Authority, and the National Apocalyptic in Juliana v. United States

How can lawyers convince courts to “do the right thing” in the face of unfavorable law? That is, how can they persuade courts to take some judicial action that a judge explicitly acknowledges is ethically required yet prohibited by governing doctrine? In Juliana v. United States, a landmark climate change case, a 2-1 Ninth Circuit decision held that a number of youth plaintiffs had failed to establish Article III standing. The appellate panel found that the harms asserted— governmental policies amounting to violations of the plaintiffs’ constitutional right to a functional climate system—were not redressable, even assuming the as-yet unrecognized right existed. Yet the majority opinion is marked by a sense of unease and regret. The court repeatedly lamented that while there is a clear ethical obligation to help the plaintiffs, the judiciary has neither the authority nor the ability to meet that obligation. This Article proposes a model of legal argument called reciprocal legal narrative. It argues that the model can be useful for situations like that in Juliana, where courts recognize a moral obligation to intervene, but insist that the law bars them from doing so. Reciprocal legal narrative can provide a platform for judges to engage in dialogue-based, collaborative, norm-driven narrative reasoning. It is structured around a creative partnership between the lawyer and the court. The judge, in her written opinion, “co-authors” a legal narrative that revises and expands on the lawyer’s “first draft” of the story based argument that appears across briefs and oral arguments. Reciprocal legal narrative is a subspecies of narrative persuasion, and this Article provides a theoretical framework for the concept that builds on Applied Legal Storytelling scholarship and narrative theory in general. A close reading of the majority and dissenting opinions in Juliana demonstrates reciprocal legal narrative in action. To support her finding that the plaintiffs established redressability, Judge Josephine Staton crafts a dissent that builds on the plaintiffs’ nascent legal narrative (what I call the “American Environmental Apocalypse”) and fashions it into her own more persuasive, legally sound narrative (the “National Apocalypse”). The dissent’s reciprocal legal narrative exposes the shortcomings of the majority’s formalist approach; it exhibits an egalitarian, cooperative view of judge-made law; and most importantly, it converts a moral obligation to act on climate change into a judicial duty to do so. Although Judge Staton was in the minority in this decision, her example of reciprocal legal narrative provides a blueprint for future litigants facing similar circumstances. By employing reciprocal legal narrative, advocates can persuade courts to use creative, narrative reasoning as a means of reconciling existing law with core social values—without overstepping the bounds of judicial authority

Ethical considerations for modern molecular pathology

Molecular pathology is becoming an increasingly important discipline in oncology as molecular tumor characteristics will increasingly determine targeted clinical cancer care. In recent years, many technological advances have taken place that contributed to the development of molecular pathology. However, attention to ethical aspects has been lagging behind as illustrated by the lack of publications or professional guidelines. Existing guidelines or publications on ethical aspects of DNA sequencing are mostly aimed at germline or tumor sequencing in clinical genetics or biomedical research settings. As a result, large differences have been demonstrated in the process of tumor sequencing analysis between laboratories. In this perspective we discuss the ethical issues to consider in molecular pathology by following the process of tumor DNA sequencing analysis from the preanalytical to postanalytical phase. For the successful and responsible use of DNA sequencing in clinical cancer care, several moral requirements must be met, for example, those related to the interpretation and returning of genetic results, informed consent, and the retrospective as well as future use of genetic data for biomedical research. Many ethical issues are new to pathology or more stringent than in current practice because DNA sequencing could yield sensitive and potentially relevant data, such as clinically significant unsolicited findings. The context of molecular pathology is unique and complex, but many issues are similar to those applicable to clinical genetics. As such, existing scholarship in this discipline may be translated to molecular pathology with some adaptations and could serve as a basis for guideline development. For responsible use and further development of clinical cancer care, we recommend that pathologists take responsibility for the adequate use of molecular analyses and be fully aware and capable of dealing with the diverse, complex, and challenging aspects of tumor DNA sequencing, including its ethical issues. Copyright © 2018 Pathological Society of Great Britain and Ireland. Published by John Wiley & Sons, Ltd

XBP1 promotes triple-negative breast cancer by controlling the HIF1α pathway

Cancer cells induce a set of adaptive response pathways to survive in the face of stressors due to inadequate vascularization1. One such adaptive pathway is the unfolded protein (UPR) or endoplasmic reticulum (ER) stress response mediated in part by the ER-localized transmembrane sensor IRE12 and its substrate XBP13. Previous studies report UPR activation in various human tumors4-6, but XBP1's role in cancer progression in mammary epithelial cells is largely unknown. Triple negative breast cancer (TNBC), a form of breast cancer in which tumor cells do not express the genes for estrogen receptor, progesterone receptor, and Her2/neu, is a highly aggressive malignancy with limited treatment options7, 8. Here, we report that XBP1 is activated in TNBC and plays a pivotal role in the tumorigenicity and progression of this human breast cancer subtype. In breast cancer cell line models, depletion of XBP1 inhibited tumor growth and tumor relapse and reduced the CD44high/CD24low population. Hypoxia-inducing factor (HIF)1α is known to be hyperactivated in TNBCs 9, 10. Genome-wide mapping of the XBP1 transcriptional regulatory network revealed that XBP1 drives TNBC tumorigenicity by assembling a transcriptional complex with HIF1α that regulates the expression of HIF1α targets via the recruitment of RNA polymerase II. Analysis of independent cohorts of patients with TNBC revealed a specific XBP1 gene expression signature that was highly correlated with HIF1α and hypoxia-driven signatures and that strongly associated with poor prognosis. Our findings reveal a key function for the XBP1 branch of the UPR in TNBC and imply that targeting this pathway may offer alternative treatment strategies for this aggressive subtype of breast cancer