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Tables Turning: How Companies Should Respond to the “Mass Arbitration” Phenomenon and Abernathy v. DoorDash, Inc.
Get PDFOver the last four decades, mandatory pre-dispute arbitration has become an increasingly common method for resolving disputes between corporations and consumers or employees. Despite its harm to smaller and disadvantaged parties, the Supreme Court’s pro-arbitration stance and legislative inaction have allowed this trend to continue. Following the Supreme Court’s 2011 decision in Concepcion, this practice has expanded to include class action waivers. However, a new strategy known as “mass arbitration” is empowering plaintiffs and forcing companies to settle disputes more quickly. This article aims to advise businesses on how to respond to this development, ultimately recommending that businesses reject the conventional wisdom that arbitration provisions with class waivers are advantageous and eliminate mandatory pre-dispute arbitration provisions with class action waivers in consumer and employment contracts
The Future Is Now: Copyright Protection for Works Created by Artificial Intelligence
Get PDFCreativity was once considered a primarily, if not exclusively, human endeavor. People create art, literature, and music, while machines handle mechanical tasks, like a typewriter or camera. The world has changed, and in the current year those changes are disrupting conventional ideas about authorship and creativity. Developments in the power and robustness of artificial intelligence ( or AI) have made it possible for a wide array of creative AI-generated works to be created. Early developments, such as IBM Deep Blue\u27s mastery of the game of chess, were still somewhat mechanical in nature, as they were based on the computer analyzing vast numbers of games and moves in order to find the optimal result. But the development of machine learning has progressed to the point that AI can succeed at creative games (such as Go) and can create works normally thought to be only the province of human creativity. The Turing test-whether it is not possible to distinguish AI works from human-made content- has long been satisfied. Recent developments such as ChatGPT have moved the state of AI almost to the brink of matching human creativity
Missouri’s Ultimate Dead Hand Control: The Development and Relationship Between Donative Arbitration Provisions and No-Contest Clauses in Wills & Trusts
Get PDFIn Epigrams of a Cynic, Ambrose Bierce wrote “death is not the end; there remains the litigation over the estate.” As true as that statement was in 1912, it does not take a cynic to see the role that probate and litigation play in our world today. In 2022, Americans will spend over two billion dollars on probate. The probate system has always been one the most important foundations of the U.S modern legal system. In Missouri alone, there were over 15,000 cases filed in the probate court in 2021. It seems that death and conflict are inseparable. The idea that this is a new phenomenon would be an egregious misconception. For centuries wars have been fought over birthrights, claims, and inheritances. Today, these wars are no longer fought on the battlefield, instead they are being fought in the courtroom. These probate conflicts have become a double-edged sword: for families these conflicts have cost relationships, reputation and wealth, while for estate attorneys these conflicts have provided opportunity
Purposivism for Me, Textualism for Thee: West Virginia v. Environmental Protection Agency
Get PDFLike any other hardy administrative law article, this Note starts with Chevron. In 1984, the Supreme Court decided the landmark case, Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. There, the Court said it will defer to an agency’s interpretation of a statute if that interpretation is reasonable. However, because some on the Court saw Chevron deference as “wrest[ing] from [c]ourts the ultimate interpretive authority to ‘say what the law is’ and hand[ing] it over to the Executive,” exceptions to Chevron deference have appeared like worms after a storm
Solutions Still Searching for a Problem: A Call for Relevant Data to Support Evergreening Allegations
Get PDFFor years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms — including to antitrust law and drug regulatory law — to address this purported problem. This paper evaluates empirical data offered to substantiate “evergreening” and explains that these data — though mostly accurate — do not support proposed policy changes.The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would have provided and longer than acceptable as a normative matter. Policymakers have been invited to consider a database, hosted by the University of California Hastings College of Law, that counts patents and exclusivities associated with new drugs, identifies the earliest and latest expiring patent or exclusivity for each, and calculates the number of months between those dates. Our audit of more than 200 entries concludes that the underlying raw dataset can be a useful tool for policymakers, filling a gap that exists because early FDA publications have not been digitized. But our audit raises questions about inferences drawn in and from the secondary database that interprets the dataset.If the policymaking goal is to ensure that current patent and exclusivity policies do not prevent brand products from facing generic competition for “too long” — whatever “too long” might mean — the key questions are (1) when do brand products actually face this competition, and (2) what exactly drives the timing of this competition. For every new chemical entity we examined, a generic drug was commercially available before the date represented in the database as the “latest” expiry date, i.e., the date that — the database claims — reflects the “additional time for which a company may have limited generic competition and monopolized a drug product.” Indeed, within our dataset, generic competition launched on average 84 months (seven years) before the Hastings Database implies it would. The 79 new chemical entities in our dataset experienced generic competition on average 68 months (or more than five years) before the date the Hastings Database implies they would.Our claim, therefore, is that the latest expiration date of the various protections applicable to a specific new drug application is — QED — not the most relevant data point for policymaking that means to focus on ensuring timely generic competition with new drugs. Patients, healthcare providers, insurers, and the innovating and generic industries share an interest in evidence-based policymaking. But it is not enough for advocates of reform to offer data; the data must be not only accurate but also relevant. A study designed to produce relevant data would consider the market entry date of the first generic drug based on any brand product containing a particular new active ingredient and would actually determine the factors driving that market entry date. And if a more relevant dataset would more precisely document (or rule out, or add nuance to) a supposed problem that is said to justify reform, it is incumbent on supporters of reform to generate those data. Legislative change before relevant data are generated would be premature
Focus on Party Decision-Making
Get PDFA major motivation in the modern dispute resolution movement has been to increase and improve parties’ decision-making in their legal disputes. Parties can participate more effectively in negotiation and mediation if they engage in decision-making early in disputes. This suggests the importance of good preparation before negotiation and mediation sessions. When parties are well-prepared in advance, they are as knowledgeable, confident, and assertive as possible in making decisions in their case
RANDY KISER’S NEW BOOK ON PROFESSIONAL JUDGMENT FOR LAWYERS
Get PDFThis post describes Randall Kiser’s book, Professional Judgment for Lawyers. He defines professional judgment as “the deliberate synthesis of an attorney’s knowledge, experience, skills, discernment, and character to ethically advance a client’s interest.” The book combines empirical research, cognitive and social psychology, organizational behavior, legal ethics, and neuroscience to improve decision-making by attorneys, clients, judges, arbitrators, mediators, and juries
Political Polarization in America: Its Impact on Industrial Democracy and Labor Law
Get PDFThis article explores the impact that political polarization is having in the social, legal, and regulatory space, particularly on American worker-management relations. Polarization is affecting decisions involving social relationships and market transactions, the ability of institutions built to generate debate and discussion to successfully complete these missions, and people\u27s willingness to listen to and engage with views contrary to their own