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Towards a New California Revised Uniform Fiduciary Access to Digital Assets Act
Get PDFCalifornia enacted the Revised Uniform Fiduciary Access to Digital Assets Act (the California RUFADAA) to govern the disclosure (or nondisclosure) of digital assets when a California resident dies. Digital assets include not just emails and social media accounts but may also include online files and assets, digital currencies, domain names, and blogs. The California RUFADAA ostensibly governs the disclosure of digital assets only when a California resident dies, and it, therefore, does not govern the scenario when a California resident becomes incapacitated and can no longer handle his or her digital assets. This scenario is likely to become more common because Californians (like most Americans) increasingly are living longer, owning more digital assets, and holding their assets (non-digital and digital) in revocable living trusts. Forty-five other states have enacted laws governing the digital assets of both deceased individuals and individuals who are alive but incapacitated. Currently, California ostensibly has no guidance for a fiduciary currently administering the digital assets of a Californian who is incapacitated. The California RUFADAA, therefore, should be amended to apply to individuals who are still living but who become incapacitated. If the California RUFADAA is not so amended, this article proposes (1) the California RUFADAA be amended to clarify whether it applies to California users who have successfully used an online tool to authorize a designated recipient to administer the user\u27s digital asset upon the user\u27s incapacity and whose designated recipient is currently acting and administering the user\u27s digital asset, and (2) the California RUFADAA be amended to delete apparently superfluous references to an individual who has, under a power of attorney, authorized an agent to handle digital assets when the individual becomes incapacitated
Compliance Elites
No full textAs corporate compliance has expanded its influence within the private sector, so too has the status of those who implement and oversee the firm’s compliance function. Chief compliance officers (CCOs), who are often (but not exclusively) lawyers by training, increasingly boast the types of resumes one associates with elite lawyers. In many ways, this is good news for compliance. There may, however, be several downsides to a strategy of relying so heavily on a cadre of compliance elites. The aim of this Article is to discuss one of these downsides.High-performing lawyers nurture a potent, yet underexplored, cognitive blind spot. Having performed extremely well under exacting and hierarchical performance regimes earlier in their lives, these perpetual “winners” may be less adept in identifying performance metrics that are unduly severe or prone to induce cheating. Similarly, elite lawyers may be more likely to discount, ex post, the red flags that arise when an employee or organizational unit’s performance is just too good to be true. As compliance matures, the challenge for its top personnel will be to recognize and address these blind spots and hopefully learn from them.This Article, which was written for Fordham Law School\u27s October 2019 Colloquium on Corporate Lawyers, sets three goals: first, to highlight the emergence of a cadre of elite lawyers within the compliance industry; second, to explore and synthesize the positive aspects of this development; and third, to hypothesize and draw attention to the drawbacks of focusing one’s hiring on the compliance officer’s elite resume. The takeaway is not that firms should eschew the advice of elite lawyers in compliance matters. Rather, it is to pose the suggestion that top performers may not always be best at detecting the misconduct risk generated by systems designed to measure and reward workplace performance
Automation and Predictive Analytics in Patent Prosecution: USPTO Implications and Policy
Get PDFArtificial-intelligence technological advancements bring automation and predictive analytics into patent prosecution. The information asymmetry between inventors and patent examiners is expanded by artificial intelligence, which transforms the inventor-examiner interaction to machine-human interactions. In response to automated patent drafting, automated office-action responses, cloems (computer-generated word permutations) for defensive patenting, and machine-learning guidance (based on constantly updated patent-prosecution big data), the United States Patent and Trademark Office (USPTO) should reevaluate patent-examination policy from economic, fairness, time, and transparency perspectives. By conceptualizing the inventor-examiner relationship as a patenting market, economic principles suggest stronger efficiencies if both inventors and the USPTO have better information in an artificial-intelligence-driven market. Based on the economics of information and institutional-design perspectives, the USPTO should develop a counteracting artificial-intelligence unit in response to artificial-intelligence proliferation
Suing Russia: How Americans Can Fight Back Against Russian Intervention in American Politics
Get PDFThe evidence of Russian intervention in American politics is overwhelming. In the midst of the 2016 US presidential campaign, a growing number of inflammatory social media posts addressing various political topics emerged on Facebook, Instagram, and Twitter. These posts supported the candidacy of Donald Trump, condemned the influx of refugees and migrants, and promoted racial divisions in the United States. Through clicks, likes, shares, and retweets, these messages reached millions of Americans. But, these messages did not originate in the United States; they were drafted and disseminated through inauthentic social media accounts created and controlled by the Internet Research Agency, an obscure foreign corporation with direct contacts to the Russian operation designed to undermine American democracy.
In response, the US government filed criminal indictments against several Russian nationals and corporations implicated in Project Lakhta. Social media companies released thousands of files that document Russian intervention and purged many of these inauthentic accounts.
This Article proposes a different response -- one that directly targets the Russian government. Because its actions violated numerous international norms, Russia is subject to proceedings before several international human rights bodies. And, significantly, these proceedings can be brought by the very people who were the targets of the Russian campaign -- the American people
Law\u27s Trials: The Performance of Legal Institutions in the US War on Terror by Richard L. Abel (review)
No full textDirect-To-Consumer Ads are Misleading: Concise Statements of Effectiveness Should Be Required
Get PDFDirect-to-consumer (DTC) advertising of prescription pharmaceuticals has been the subject of much criticism and the issue has become even more pressing with the Trump administration’s proposal to require the disclosure of prices in DTC ads. In this article I argue that a more powerful approach to the problem of DTC ads would require the disclosure of the effectiveness of the advertised drugs, at least as found in the clinical trials submitted for FDA approval. To support the need for an effectiveness disclosure, I describe the problem of DTC ads and examine representative ads to illustrate the potential of such ads to mislead consumers about the drugs’ effectiveness. While consumers’ concern about drug pricing may be significantly skewed by their insurance coverage, every potential consumer of a drug has a strong interest in the extent to which the drug is likely to provide them with a significant improvement in their health. I conclude that because the ads are likely to be misleading, required disclosures of a drug’s demonstrated level of effectiveness would be constitutional under the commercial free speech doctrine established in Central Hudson and that the FDA can require such disclosures without the need for additional legislation
Veil Piercing and the Untapped Power of State Courts
Get PDFThe U.S. Supreme Court in recent years has embraced an anti-majoritarian trend toward providing constitutional protections for the elite who own or control corporations. This trend is especially troubling as it threatens to undermine the balance found in state corporate law between private ordering for internal corporate matters and government regulation to police the negative externalities of the corporate form. The Court\u27s interventions also have the potential to leave vulnerable groups without the protection of religiously-neutral laws designed to prevent discrimination, protect workers, or provide essential services such as health care. While the U.S. Supreme Court has not yet explicitly preempted what has traditionally been the province of states, the Court has relied, both implicitly and explicitly, on its own controversial definitions of state law as the foundation on which to create speech rights for corporations and religious rights for corporate owners. Absent explicit federal preemption, states can and should fight back against this creeping federalization of state corporate law.
This Article provides a roadmap. It suggests modest changes to the veil piercing doctrine that can help to restore, at least in part, the balance of power between states and their corporate creations. A state court signaling to business owners even a potential for piercing, and thus the potential for unlimited personal liability, could discourage corporations doing business in the state from seeking religious exemptions to neutrally applicable laws. Most importantly, these changes do not threaten to undermine the corporate control mechanisms that have allowed for efficient private ordering within corporations, nor will they allow corporations to avoid these third-party protections by reincorporating in a different state. Forcing the federal courts to confront state assertions of their right to limit and define corporations will, at the very least, require the U.S. Supreme Court to be transparent about the extent to which it intends to federalize state corporate law, advancing rule of law values like certainty and predictability that are important to individuals and corporations alike
