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The U.S. Dual Banking System and Interest Rate Exportation: Challenging the Valid-When-Made Doctrine in California v. Office of the Comptroller of the Currency
Get PDFThis Comment explores the extension of interest rate exportation to nonbank entities through the valid-when-made doctrine and its subsequent legal challenge in the 2022 court case California v. OCC
Federal Powers in a Pandemic
Get PDFThis Article examines how the young federal government responded to infectious diseases to ascertain the limits of federal powers and analyzes how federal powers were used in response to the COVID-19 pandemic
Robot Lawyers Don’t Have Disciplinary Hearings—Real Lawyers Do: The Ethical Risks and Responses in Using Generative Artificial Intelligence
Get PDFIn the summer of 2023, the misuse of ChatGPT by two New York attorneys who filed briefs citing fabricated cases made national headlines. This cautionary tale quickly had company, as incidents of other lawyers whose use of artificial intelligence (AI) went horribly wrong filtered in from around the country, including incidents in Texas, Georgia, Colorado, and California. But it was not just errant legal research that was to blame: the cases involved everything from a faulty criminal habeas brief to flawed, mass-generated eviction pleadings by a landlord’s law firm to a high-profile white collar criminal case, in which the convicted defendant blamed his lawyer’s use of generative AI in writing his closing argument. This Article, and its accompanying presentation, begins by discussing these cases as a way of illuminating the multiple areas of ethical risk presented by the use of generative AI. From breaches of the duty of technology competence and the duty of confidentiality, to the duties of supervision and use of independent professional judgment, a lawyer’s use of generative AI can implicate multiple dimensions of ethical concern. Part of the problem, as this Article discusses, is that use of AI tools has spread at a faster pace than lawyers’ grasp of the risks involved with the technology. For example, in the recent Wolters Kluwer Future Ready Lawyer Report, while seventy-four percent of attorneys surveyed expect generative AI to be integrated into their practices within the next year, a significantly lower percentage of lawyers actually understand AI tools. This Article then looks at the responses of stakeholders in the legal profession to generative AI. For example, multiple state and national bar associations have appointed taskforces to study AI and make recommendations regarding its use. In addition, in states like Florida and California, ethics bodies have issued advisory opinions or recommendations on regulating use of AI, tackling such unanswered questions as whether a lawyer must obtain the client’s informed consent in order to use generative AI in the client’s representation. Attorneys are also having to confront AI policies adopted by various law firms and the legal malpractice carriers that insure them. A final response considered by this Article analyzes the extent to which measures such as these disclosure policies are a proportional reaction to the examples of lawyer misuse of generative AI, or whether they are an overreaction—a “solution in search of a problem.” With the landscape of potentially reportable generative AI applications constantly expanding to include most search engines and word-processing applications, one must ask the question: can the traditionally risk averse, technologically backward legal profession adapt? This Article, and its accompanying presentation, hopes to address this and other questions posed by attorney use of generative AI
A Theory of Genetic Dimensions in the Law
No full textSince the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and indeed with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.
However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the legal uses of genetic technologies and disputes involving such technologies become increasingly prevalent, the disconnect between genetics and the law grows and deepens.
This Article identifies and analyzes the impact of the longstanding judicial and legislative practice of applying ill-fitting legal constructs to genetic phenomena. We use case studies drawn from various legal areas to show how forcing genetic phenomena into existing legal categories neglects important genetic interests.
The deficiencies of case law and legislation addressing genetics highlight the need for a more comprehensive way of thinking about, and legally recognizing, interests stemming from the multiple dimensions of genetic phenomena. In response, we provide a conceptual framework for incorporating genetic phenomena more fully into the law. Our approach offers legislators, judges, regulators, and lawyers a new way of thinking about genetics in the law, one that accounts for and accommodates the full range of individual, group, and societal interests in genetic phenomena
Can We Get a Refund? Judicial Remedies for Drugs That Do Not Work
No full textCongress created expedited pathways that speed approval of potentially lifesaving new drugs by requiring potentially less rigorous evidence that a drug works for a new indication prior to FDA approval. However, the 2021 controversial approval of a new Alzheimer\u27s treatment, aducanumab, shined a spotlight on the increasing potential for the FDA to approve high-priced-minimally-effective drugs. These drugs inflict serious, difficult-to-measure harms on tens of thousands of patients and diffuse financial harms for payors and the public, cumulating in over tens of millions of dollars every year. The growing problem of high-cost drugs is well known, but this article explores a solution that prioritizes access to medications through restructuring state fraud laws to redress financial injuries to Medicaid programs from minimally-effective drugs after FDA approval. Currently, once a drug receives FDA approval, tort law and regulatory hurdles make it difficult to challenge a drug\u27s efficacy in practice. Potential harms of high-priced-minimally-effective drugs can be amplified when patients and payors are left without judicial remedy. Rather than deny patients access to potentially lifesaving new drugs in contradiction to current regulations, this article explores an expansion of state fraud laws to discourage confirmatory trial delays and delayed withdrawals of minimally-effective medications. In short, rather than asking if we can afford to pay for the hope that a new drug will help Americans with life-threatening diseases, we should be asking for a refund
