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How Reputational Nondisclosure Agreements Fail (Or, in Praise of Breach)
Get PDFInvestigative reporters and the #MeToo movement exposed the widespread use of non-disclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by contrast, often decide to forgo enforcement when doing so would increase the very harm the contract sought to limit, and when victory would bring limited relief. It is unsurprising, then, that RNDAs are often underenforced, or enforced sporadically and with limited success. In such instances, the RNDAs have failed to meet their goals while they worsened the reputational harm of the embarrassing acts themselves.
This Article describes RNDAs’ instances of failure and considers the consequences of these failures for parties to the contracts, the legal profession, and those who are troubled by their extensive use. It also considers the reasons behind those failures and their significance for understanding secrecy, disclosure, and contract law: secrecy is always vulnerable to defection; information’s intangibility allows it to move freely, costlessly, and immediately; RNDAs purport to resolve a dispute fraught with hurt, emotion, and trauma through a one-shot financial transaction; and reputation is ethereal, susceptible to the vicissitudes of public opinion, and shaped by fact and rumor alike. RNDAs’ vulnerability to breach constitutes an alternative means to hold their abusive use in check beyond the well-worn paths of traditional legal reforms established through legislation and common law reform. Breach appears to be the best means not only to help victims but to discourage the use of RNDAs to silence victims, as well as to force attorney
When to Leave the Stones Unturned: Using Proportionality to Navigate Discovery Efficiently, Effectively, and Ethically
Get PDFDiscovery is intended to be an efficient, truth-seeking process with the ultimate goal of achieving just, speedy, and inexpensive dispute resolution. However, the consistent and extensive abuse of discovery has cast a shadow on the intended purpose of the process. For various ill- and well-intentioned reasons, attorneys abuse the process by conducting unnecessarily excessive and expensive discovery. One such reason for excessive and expensive discovery—and the focus of this Article—is the over-zealous advocacy of attorneys who leave no stone unturned out of fear of legal malpractice claims. To combat such excessive and expensive discovery, the Federal Rules of Civil Procedure emphasize a proportionality principle to limit the scope of discovery. But, despite the many revisions and amendments, the practicalities of the proportionality principle still remain ambiguous.
In an attempt to resolve ambiguity, this Article offers realistic methods attorneys can implement to achieve proportionality in discovery, such as early case assessments, fact-finder assessments, written agreements with clients, and early judicial involvement. Furthermore, this Article proposes an ethical safeharbor to be added to the ABA Model Rules of Professional Conduct to protect well-intentioned attorneys who utilize the suggested proportionality methods. With these suggested proportionality methods and the proposed safe-harbor, this Article endeavors to curtail discovery abuse, protect attorneys, and allow for greater access to affordable and attainable justice
For the (Caleb) Love of the Game, Let States Write Their Own NIL Rules: Why Federal NIL Legislation Would Create Inefficient and Unfair Tax Consequences for Collegiate Student-Athletes
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Artificial Intelligence Owning Patents: A Worldwide Court Debate
Get PDFIn the article Artificial Intelligence Owning Patents: A Worldwide Court Debate, Maria A. Penkwitz explores the legal conflict over whether AI can be a patent inventor. The central case involved DABUS, an AI system that independently created new inventions. Penkwitz\u27s research highlights a significant global divide in legal perspectives.
While courts in the United States, United Kingdom, and Australia have rejected patents for AI-generated inventions, citing existing laws that require a human inventor, other nations are more progressive. Germany, for example, permits a human to be credited alongside the AI, and South Africa made a landmark ruling by granting a patent directly to DABUS.
The author argues that the U.S. should update its patent laws to recognize AI as a legitimate inventor. This change would support the constitutional goal of promoting scientific progress and would enable the U.S. to keep pace with a rapidly evolving technological landscape
Disparities on Judicial Conduct Commissions
Get PDFEvery state has a judicial conduct commission responsible for investigating complaints against judges and issuing sanctions where appropriate. But the judicial disciplinary system needs fixing. This Article examines 466 cases of public discipline from five states to illustrate the shortcomings of the present system. The status quo hides judicial misconduct from the public, fails to punish judges who abuse their office, and gives judges greater protections than criminal defendants, even when the stakes are lower
Is It Time for Federal Regulation of the Tax Preparer Industry? New Insights from Legal and Empirical Developments
Get PDFThe tax preparer industry is unusual in that it involves the interpretation of an intricate and complicated tax code, but imposes no minimum requirements of competency because the industry is largely unregulated. A study by the Government Accountability Office (GAO) indicated that unregulated tax preparers commit significantly higher error rates and, based in part on that study’s findings, the Internal Revenue Service (IRS) attempted to regulate the tax preparer industry nationwide under the Registered Tax Return Preparer (RTRP) regime. This RTRP program was invalidated in Loving v. IRS, however, leaving the industry largely unregulated, except in the small minority of states that have enacted tax preparer regulations
Warren/Burger Courts Exalted “Free” Expression Over Other American Values
Get PDFAnglo-American defamation law started with a simple condemnation of the sin of evil speaking. Eventually, this value condemning harmful speech was accommodated to the value of speaking the truth, even hurtful truth. A third value of fostering responsible self-government was injected into American defamation law at and around the time of the American Revolution. This value makes it especially important for citizens to freely speak even hurtful truth about their government
