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Med-Arb and Professional Sports: Could Med-Arb Work as an Effective Dispute Resolution Process in Professional Sports?
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A Case Law Survey of the Impact of RLUIPA on Land Use Regulation
No full textRLUIPA remains controversial nineteen years after its adoption. Proponents contend that religious land users are subject to discrimination. Opponents argue that RLUIPA is an unnecessary interference with local control over land use. This Article provides a detailed study of RLUIPA’s impact through analysis of the identity of claimants, the subject matter of claims, and outcomes in reported state and federal case law. The Article concludes that although RLUIPA has not lived up to the hopes of proponents or fears of critics, it has had a significant impact upon land use regulation and is ignored by local governments at their peril
OK, Google, Will Artificial Intelligence Replace Human Lawyering?
Get PDFWill Artificial Intelligence (AI) replace human lawyering? The answer is
no. Despite worries that AI is getting so sophisticated that it could take over
the profession, there is little cause for concern. Indeed, the surge of AI in the
legal field has crystalized the real essence of effective lawyering. The lawyer’s
craft goes beyond what AI can do because we listen with empathy to clients’
stories, strategize to find the story that might not be obvious, thoughtfully use
our imagination and judgment to decide which story will appeal to an audience,
and creatively tell those winning stories.
This Article reviews the current state of AI in legal practice and contrasts
that with the essence of exclusively human lawyering skills—empathy,
imagination, and creativity. As examples, we use three Supreme Court cases
to illustrate these skills
When Less is More: The Limitless Potential of Limited Scope Representation to Increase Access to Justice for Low- to Moderate-Income Individuals
Get PDFBoth attorneys and judges take an oath to promote justice for all, however,
that is not the case in our current system. The world we live in today looks
incredibly different than it did just a few years ago and, as a result, the practice
of law must adapt to meet the changing needs of individuals in this new era.
Notably, the access to justice problem, specifically affecting low- to moderateincome
individuals, requires a shift in the availability of legal services
provided. Limited scope representation, which has been accepted by the
American Bar Association for 20+ years, where an attorney handles certain
aspects of the representation while the client remains responsible for others,
allows attorneys to provide services to low- to moderate-income individuals
who may not otherwise obtain legal representation. Although many states have
begun to lay out guidelines indicating acceptance of the practice as a valid form
of representation, many judges and attorneys are still opposed to the practice.
This Article argues that the legal profession should embrace the practice
of limited scope representation (and promote that attorneys use it to satisfy pro
bono hours, in practice areas of law that do not traditionally engage in limited
scope, etc.), to assist with closing the justice gap, and this can be accomplished
with the support of the judiciary and law schools. Specifically, judges need to
not only accept the practice, but be a driving force behind promoting the
practice. Moreover, law schools need to promote the practice by educating
students about the concept early on in their legal career in professional
responsibility and contract drafting courses. This Article provides a historical
overview of how the ABA has addressed and supported limited scope
representation for the last 20+ years, as a valid means to provide access to
justice to those historically underserved. The Article goes on to discuss the
access to justice problem most notably affecting low- to moderate-income
individuals as well as examines the concept of pro bono and discusses pro bono
requirements suggested by the ABA and, required, in varying degrees, by the
states. Finally, the Article proposes that the judiciary and law schools should
be on the forefront of promoting limited scope representation as yet another
solution to assist with closing the justice gap
Leave Me My Name! : Why Competitive Keyword Advertising is an Ethical Landmine for Attorneys
Get PDFSearch engine providers, like Google and Yahoo!, make money by allowing advertisers to bid on keywords. When a user enters the keyword, the advertisement is prominently displayed, typically toward the top of the results.
States are divided on whether to allow attorneys to bid on the names of other attorneys—a practice known as competitive keyword advertising. On one hand, just this summer, a New Jersey ethics panel took the position that competitive keyword advertising does not, generally, violate of the rules of professional conduct. However, the advertisement may not include text with the searched-for attorney’s name that is hyperlinked to the advertising attorney’s website. Similarly, the Florida Bar Board of Governors recently passed a limited form of regulation, which awaits the Supreme Court of Florida’s approval before taking effect. Texas has held competitive keyword advertising is ethical as long as a reasonable person would not believe the advertising attorney is associated with the searched-for attorney. Kentucky has not taken a stance per se but it did not discipline a lawyer for participating. On the other hand, South and North Carolina have disciplined attorneys for bidding on another attorney’s name.
Those in favor of allowing attorneys to bid on other attorneys’ names have argued that a prohibition would effectively create a new intellectual property right in attorney names. They argue competitive keyword advertising does not violate trademark law or publicity rights.
This Article argues in favor of regulation. It shows the debate is more complicated than the scholarly literature currently acknowledges and, in particular, questions the way in which intellectual property has been used as a framework.
First, a violation of a disciplinary rule does not depend upon a violation of civil law. Neither a violation of trademark law nor publicity rights is necessary for the imposition of discipline.
Second, search engine providers, and their customers that purchase keywords, have a pecuniary interest in making keyword advertisements look like organic results: Consumers trust organic results more. Indeed, substantial empirical evidence, in numerous studies, demonstrates consumers struggle to identify which results of a search are advertisements. This kind of confusion should be of concern to regulators because it suggests all keyword advertising (even keyword advertising that does not involve the purchase of another attorney’s name) is manipulative and inherently misleading. Trademark law is not concerned with this kind of confusion: It merely cares about whether consumers are confused as to source, sponsorship, or affiliation.
Third, some evidence suggests consumers are confused in the trademark sense: At least when the advertisement uses the searched-for attorney’s name, some clients have actually hired attorneys thinking they were someone else. Even more have probably clicked on a link for one attorney only to realize it was someone else, unaffiliated with the attorney they searched for. This causes frustration and distrust of the legal profession. Furthermore, competitive keyword advertising is a dishonorable attempt by attorneys to piggyback on the reputation of another attorney, implicating the attorney’s oath. Competitive keyword advertising is thus worse than non-competitive keyword advertising.
Fourth, the proposition that attorney participation does not violate publicity rights stems from a single case—Habush v. Cannon. This was a case decided by the Wisconsin Court of Appeals—an intermediate appellate court— and the court stated the decision was “a close one.” Furthermore, the case’s reasoning had little to do with consumer confusion, making it of little value for regulators given that they are primarily concerned with protecting the public.
In summary, regulation is justified
Opting into Device Regulation in the Face of Uncertain Patentability
Get PDFThis article examines the intersection of patent law, FDA regulation, and Medicare coverage in a particularly promising field of biomedical innovation: genetic diagnostic testing. First, I will discuss current clinical uses of genetic testing and directions for further research, with a focus on cancer, the field in which genetic testing has had the greatest impact to date. Second, I will turn to patent law and address two recent Supreme Court decisions that called into question the patentability of many of the most important advances in genetic testing. Third, I will step outside patent law to take a broader view of the legal environment for new developments in genetic testing, with a focus on two federal regulatory agencies: the Food & Drug Administration (FDA), which regulates new drugs and medical devices under statutory standards for safety and effectiveness; and the Centers for Medicare and Medicaid Services (CMS),which sets reimbursement policies for Medicare under statutory standards that limit coverage to technologies that are reasonable and necessary.
Last, with this background, I will explain a recent surprising development: developers of next generation sequencing (NGS) diagnostic tests for tumor DNA have begun seeking FDA approval or clearance for tests they are at liberty to provide, and in fact have already begun to provide, without asking FDA for permission. The answer lies in understanding the rules and practices that govern health insurance coverage and the important role of FDA in assessment of new technologies. This episode sheds an interesting light on the roles and interactions of different sources of legal regulation in supporting innovation outside the patent system
The ADR Loophole to Restrictive Non-Compete Agreements
Get PDFThis Comment considers a key question: do employers have a strategy to protect themselves if these restrictive states are restricting corporations from protecting their self-developed trade secrets? In doing so, Part II will discuss an approach that may allow employers to potentially circumvent the restrictive states. This can be achieved by requiring an employee to undergo private arbitration in a dispute with an employer—a strategy that has gained validity in light of the United States Supreme Court’s holding that upholds arbitration clauses even where significant public policy concerns exist. Specifically, an employer in a restrictive state could potentially enforce an arbitration through a choice of law clause that would provide the employer an opportunity to follow another state’s more lenient approach for non-compete agreements
Bias in the Boardroom: Implicit Bias in the Selection and Treatment of Women Directors
Get PDFIn light of the stagnation in growth of women directors on corporate boards, board diversity advocates and corporate leaders should look to the role implicit gender bias plays in the board nomination process and in challenges women directors face while serving on boards. Relevant stakeholders often overlook how implicit bias barriers prevent women from reaching the boardroom and persist as obstacles once women directors have earned their seats on the board. Incorporating social psychological research on implicit bias and recognized strategies to work around bias, such as objective assessments and guidelines, data analytics, and accountability mechanisms, this Article encourages companies to offer tailored, research-oriented implicit bias trainings to directors and corporate executives to tackle bias concerns. It also suggests modifications to the SEC board diversity disclosure rule to account for the effect of implicit gender bias and advocates collaborative action within companies—including voluntary targets and diversity task forces—to address impediments to women’s advancement in leadership
