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Acceptable Lies in Contract Negotiations
Get PDFIt is well established that lying is a widespread phenomenon in business-to-business (“B2B”) contract negotiations. Some of the most prominent lies may be those about the subject matter of the contract. However, negotiators also frequently lie about other aspects like offers from other potential buyers or sellers, the availability of their product, the legal situation regarding contractual aspects, as well as their emotions and preferences
Digital Assets & License Protections in an Age that Denies Class Actions and Mandates Arbitration
Get PDFThe battle of star system B-R5RB is probably a conflict and place that you have never heard of, even though an estimated £300,000 worth of property damage and loss occurred due to an interstellar battle on July 27, 2014. Hundreds of competing rival ships were destroyed, with over 7,600 individuals taking part in one of the single largest property disputes of the 21st century. The conflict lasted approximately 21 hours and had ripple effects across an entire galaxy. If this sounds like fiction, I assure you, it is not. You have likely never heard of star system B-R5RB or the interstellar battle that happened there because it is not a physical place, insofar as computer servers do not count as a physical places..
Ruth Bader Ginsburg\u27s Intellectual Property Jurisprudence
No full textOn September 18, 2020, the world lost an irreplaceable leader. Justice Ruth Bader Ginsburg, after many years of battling cancer, had passed away. Although she will primarily be remembered for her work on gender equality—as both advocate and jurist—Justice Ginsburg signiicantly impacted other areas of the law. One such area is intellectual property. During her time on the U.S. Supreme Court, she authored 20 opinions in these areas—11 copyright, seven patent, and two trademark—and joined the opinions of her colleagues in many others
No-Poach, No Precedent: How DOJ’s Aggressive Stance on Criminalizing Labor Market Agreements Runs Counter to Antitrust Jurisprudence
Get PDFWhen non-law-abiding citizens wonder whether their conduct is subject to criminal penalties, most turn to state and federal criminal statutes for guidance. Under antitrust law, potential wrongdoers must look to the Sherman Act – a broad “charter of freedom” requiring an unusual level of interpretation by federal courts. Reflecting Congress’ belief that “competition is the best method of allocating resources in a free market,” the Sherman Act simply outlaws “every contract, combination, or conspiracy in restraint of trade or commerce.” The drafters of the Sherman Act could have delineated specific categories of proscribed conduct such as bid-rigging, price-fixing, or entering into no-poach agreements, yet the Act says nothing at all to this effect. Instead, Congress left the task of construing the Sherman Act’s vague mandate in the hands of the courts, forcing them to determine what conduct is prohibited under the Act on a case-by-case basis. While the judiciary has made significant headway in defining the contours of unlawful behavior in consumer markets over the past century, a dearth of precedent concerning the labor market has left employers with little to no notice as to what may constitute illegal behavior in the labor market
The Risks of Relying on Direct-to-Consumer Genetic Testing Service Agreements to Protect Genetic Information
Get PDFA consumer’s unique genetic code is their most intimate piece of personal data. Many federal laws concerning the privacy and nondiscrimination of health data are outdated, and most are related to healthcare providers instead of commercial services. To ensure that direct-to-consumer (“DTC”) genetic testing companies do not misuse a consumer’s unique genetic code, consumers rely on contractual agreements to protect their genetic information. DTC contractual protections are insufficient for several reasons: (1) consumers may not understand or read the agreement, (2) the company can modify the privacy statement, (3) the company could breach the agreement, and (4) new DTC companies may not include the same level of protection. Ultimately, the concern is that the DTC company may use the consumer’s genetic information to be detrimental to the consumer or in a way the consumer did not intend when they provided that information. To address this, Congress should enact a comprehensive federal law for the protection of genetic information
Hiring and Training Competent Title IX Hearing Officers
Get PDFAmerican colleges and universities are not ready to comply with new Title IX regulations concerning campus hearings. Regulations released in May 2020 by the U.S. Department of Education, effective in August 2020, require that colleges and universities use hearing officers who are “trained on issues of relevance, including how to apply. . .rape shield provisions” and legal privileges. Institutions must conduct “a live hearing” at which the hearing officer “must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This “cross-examination … must be conducted directly, orally, and in real time.
Arbitration in the Age of COVID: Examining Arbitration\u27s Move Online
Get PDFArbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution ( ODR ), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof Online Arbitration ( OArb ) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act ( FAA ). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration of arbitration\u27s move online. At the same time, jurisprudence around the FAA has sent various signals that both help and hinder the growth of OArb. Furthermore, the 1925 FAA was not built to address innovations like virtual hearings, creating a need for policies that adapt for technological progress. Accordingly, this Article discusses how recent jurisprudence and institutional promulgations may impact OArb and offers considerations for courts, policymakers, and practitioners shepherding OArb development
Eight Strategies That Enhance Legal Writing
Get PDFA few years ago, I spoke about legal writing at an annual forum of Missouri’s appellate judges, held at the University of Missouri School of Law in Columbia. The hour-long presentation advanced eight strategies that enable judges and practicing lawyers to sharpen their writing. These eight strategies appear below in this article
So Many Have Died: COVID-19 in America\u27s Nursing Homes
Get PDFAs of the date of this writing in late September 2020, over 77,000 residents and staff of long-term care facilities have died of COVID-19 with more to come. This article will describe the reasons for this mass wave of death and provide practical suggestions for attorneys who represent a resident or family members of residents