Saturday, November 30, 2013

Interesting Legal Machinations in the Film THE DALLAS BUYERS CLUB

I recently saw the film THE DALLAS BUYERS CLUB, directed by Jean-Marc Vallée and starring Matthew McConaughey. The film is based on the true story of Ron Woodruff (McConaughey) - a very straight, very masculine, and very homophobic rodeo guy who is diagnosed with AIDS in the 1980s. If you remember anything about AIDS in the 1980s, you will recall how strongly the disease was associated with the homosexual community. Because of his AIDS diagnosis, Woodruff's acquaintances decide that he must be gay - and he is FURIOUS. One remarkable aspect of the film is Woodruff's transformation from an utter homophobe to a compassionate friend of homosexuals - without ever losing his tough-guy edge.

Another remarkable aspect of the film is the amazing legal machinations of Woodruff and the FDA. Woodruff rejects traditional medical treatments, which are not working for him, and turns to alternative treatments that have not been approved by the FDA for the United States but that are available in Mexico and other countries. In fact, after initially being told by traditional doctors that he has one month to live, Woodruff succeeds in keeping himself alive for seven additional years! In using these alternative treatments, however, and in sharing them with others suffering from AIDS, Woodruff runs afoul of the FDA - and the legal machinations of the Woodruff / FDA conflict are fascinating to watch! I will detail some of these legal machinations, based on my understanding of what I saw in the film.

First, of course, it is illegal to possess, consume, or distribute illegal substances. However, Woodruff is very clear that the substances he is using are not illegal. They are simply not approved by the FDA.

Second, it is illegal to sell for profit in the United States any substances that have not been approved by the FDA. Woodruff, again, is very clear that he is not selling any substances at all. He is selling MEMBERSHIPS. As for the substances - he gives them away. Here is how it works. You can buy a membership in the Dallas Buyers Club for $400 a month. If you are a member, you are GIVEN as many of the AIDS treatment substances as you want.

Third, the FDA clamps down with rules about availability of FDA-unapproved substances in the United States. Woodruff decides to sue the FDA for refusing to make available these effective treatments that actually work for people with AIDS. The judge who decides the case ends by making these statements: (1) he expresses compassion for Woodruff and his plight; (2) he berates the FDA for its mean-spiritedness; (3) he must, however, dismiss the case because there is NO LEGAL FOOTING on which Woodruff can make a claim.

This, to my mind, is the terrible limitation of our rule by law. Rule by law may be better than rule by the whim of a monarch or dictator, but it is by no means ideal. With rule by law, a person or corporation can commit a heinous action that causes immense harm, but if there is no law against this particular action, the victims have no legal recourse because no law has been broken.

I remember, a number of years ago, reading about one of the very first victims of identity theft. No case could be brought against the identity thief because there was no law against what he had done. There was no law against identity theft because no one had ever thought of such a thing before.

It seems to me that a more advanced civilization would not operate by rule of law but by rule of principle. The question to consider would be whether the principle of justice had been violated in any given situation, not whether there were a specific law against a particular action.

Such are my thoughts after watching the intriguing film THE DALLAS BUYERS CLUB.

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