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An Undeserved Bad Rap? Finding the Fairness in Mandatory Employment Arbitration
Get PDF“As many frustrated empirical scholars have noted, it is [difficult] to obtain data regarding claims brought in either litigation or arbitration, and even when data is obtained, it is very [difficult to] compare the two sets of information.” Given the private nature of arbitration proceedings, not all data is readily available. Congress enacted the Federal Arbitration Act (“FAA”) in 1925, governing and providing for “judicial facilitation of private dispute resolution through arbitration.” Since 1925, the use of mandatory employment arbitration clauses has grown dramatically. With such exponential growth has come heightened attention to the practice, resulting in robust debate on whether mandatory employment arbitration is truly fair for the employee. While arbitration provides many benefits for the employee, such as faster resolution and lower costs, criticism of arbitration from the employee standpoint has nevertheless persisted. A number of studies of employee win rates in arbitration have taken place, with statistics varying from survey to survey. The most recent set of data from the American Arbitration Association (“AAA”), however, reveals that employees prevail at a higher rate in mandatory employment arbitration proceedings than have been credited by prior studies. This variance in statistics could be attributed to the low number of arbitration cases that are analyzed in each study, indicating larger studies are needed to put a definitive end to any debate. Although statistics tend to show a trend of higher success rates for employees through litigation, this can be attributed to other factors such as the low rate of lawyers willing to bring employment claims that do not have a high monetary amount attached and a high probability of prevailing on the claim. Generally speaking, attorneys are more likely to file lawsuits with a sufficiently high probability of winning, due to the time and expense associated with litigation. Litigation, however, presents heightened risks such as losing the case, negative publicity, and the investment of time needed for a court case to work its way through trial and potential appeal. In contrast, arbitration presents lower risk, with albeit often lower reward for the employee. In addition to the greater speed and lower costs associated with arbitration, the fairness of results are an oft-overlooked positive to arbitration of employment disputes
Flying Too Far Afield: Reigning in Airline Companies’ Abuses through Strengthened Regulation
Get PDFAir travel is central to the modern American economy. Part of its success up to this point has been the system of deregulation codified in the Airline Deregulation Act of 1978. On the other hand, recent events, especially that of the mass cancellation of Southwest flights over Christmas, 2022, have revealed cracks in the current paradigm of deregulation. This article traces the development of airline regulation and consumer protection before and after the Airline Deregulation Act of 1978. It analyzes the strengths and weaknesses of different proposed courses of regulation, such as strengthening current laws, passing an Airline Passenger’s Bill of Rights, and using state regulation. It then proposes the solution should be new regulation that looks akin to the Airline Passenger’s Bill of Rights. It notes how this approach addresses the problems presented by current lapses on the part of airlines
Artificial Intelligence and Transformative Use after Warhol
Get PDFThe Supreme Court\u27s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law\u27s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to train AI programs-AI inputs-and the products of AI programs-AI outputs-are likely to found to be transformative in light of the Warhol framework. This article assesses the potential fair use analysis for generative AI applications in light of Warhol\u27s analytical framework. The central question in Warhol is the scope of transformative use versus a use that is derivative and which supplants a market for the original copyrighted work. Whether the use of copyrighted material to train AI programs and the products of AI programs are likely to found to be transformative in light of the Warhol framework is an intensely factual inquiry. This article concludes that the use of copyrighted material as inputs for training AI programs is-by itself-likely to be found to be a transformative fair use in most circumstances. The more difficult question is how AI outputs are analyzed. Fair use is necessarily a case-by-case inquiry. In light of cases like Warhol and Google v. Oracle, the analysis will turn on a series of considerations that are identified in this article. It is likely that the fair use question will be litigated frequently in the context of AI outputs, which can involve myriad factual scenarios
AVATAR MEDIATION
Get PDFThis post speculates about how AI systems might mediate (or assist in mediation) in the not-too-distant future
Defining Fair Use in the Digital Era: A Tentative Appraisal of Google LLC v. Oracle America, Inc.
Get PDFFair use, as a defense to a claim of copyright infringement in American law, has evolved within a framework rooted in nineteenth century precedents. Fair use was assessed by the United States Supreme Court in Google LLC v. Oracle America, Inc., which required the Court to address the factually intensive inquiry required by an assertion of fair use against an expansive use of copyrighted software code by Google LLC. In reversing a decision by the United States Court of Appeals for the Federal Circuit in favor of Oracle America, and negating a potentially multi-billion dollar damage award, the Court evaluated traditional fair use concepts against a backdrop of rapidly evolving technology. While reaffirming the validity of its earlier precedents, the Supreme Court outlined a template for evaluating this venerable defense to copyright infringement in the light of continually – and rapidly – evolving technology
Buried Hope: Assessing The Future Of Carbon Sequestration In the U.S. Under The Updated 45Q Tax Credit
Get PDFThe urgent need to combat climate change has prompted governments world-wide to explore innovative policy measures to reduce greenhouse gas emissions. One such measure is the process of carbon capture and sequestration in which carbon dioxide is captured either directly from the atmosphere or prior to its release. This article will analyze updates to the 45Q tax credit passed in the Inflation Reduction Act of 2022, in which Congress increased tax incentives for industries that use carbon capture technology. This analysis will explain carbon capture technology, survey use of the technology, and discuss the viability of the latest updates to the 45Q tax credit. Ultimately, this article predicts that the changes will not produce any meaningful adoption of traditional carbon capture technology in its current form. Without more efficient technology, increased economic incentives will not motivate industries to begin capturing and storing their carbon dioxide. However, changes to the 45Q credit alongside government investment will likely drive down the costs of direct air capture sequestration and could create a profitable market for carbon captured directly from the air
Conservation Easements: A Tool For Preserving Wildlife Habitat on Private Lands
Get PDFConservation easements are an essential tool for conserving private lands, and they have great potential for enhancing wildlife habitat and biodiversity. Private land conservation in the United States is likely to increase in the coming years, in light of Executive Order No. 14,008, issued by President Joseph Biden on January 27, 2021, which set a goal of conserving at least 30% of U.S. lands and waters by 2030 (Executive Office of the President 2021). There is, therefore, a need to evaluate the effect of conservation easements on wildlife habitat and biodiversity and to make recommendations for further enhancing the effectiveness of easements. Herein we propose a shift from primarily negative clauses and restrictive language to a more affirmative approach, developing language to proactively improve management of properties under conservation easement in order to maximize benefits to wildlife and ecosystems. In addition, we identify areas for further research on landowner perceptions and experiences regarding conservation easements
The Mindful First Amendment
Get PDFThe mindfulness movement has begun to play an expanding role in personal well-being and in society more generally. Although there is an active push for mindfulness in law, its primary focus is on ways in which mindfulness techniques can help lawyers in their personal and professional lives. This article explores the possible contributions of mindfulness to the widely recognized challenges facing freedom of speech and freedom of the press in an era of severe cultural and political polarization